In my Forbes column last week, I cited reasons to doubt the Justice Department's newfound respect for state marijuana laws—in particular, its fork-tongued record on medical marijuana. Tom Angell of Marijuana Majority notes several recent comments from U.S. attorneys that reinforce the case for skepticism. The gist of their reaction to Deputy Attorney General James Cole's August 29 memo, which was widely interpreted as a green light for legalization in Colorado and Washington, is that they plan to proceed pretty much as before. Here is what a spokeswoman for Melinda Haag, the U.S. attorney for the Northern District of California, had to say (emphasis added here and later):
The office is evaluating the new guidelines and for the most part it appears that the cases that have been brought in this district are already in compliance with the guidelines. Therefore, we do not expect a significant change.
That is pretty telling, since Haag's crackdown on medical marijuana dispensaries has been one of the most aggressive in the country, featuring the closure of city-supported outlets in San Francisco and a forfeiture action aimed at shutting down Oakland's Harborside Health Center, the state's largest dispensary. In a February 2011 letter to Oakland's city attorney, Haag declared, "We will enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law."
Haag has argued that Harborside's size makes it an appropriate target, saying it "is not complying with California's law because it is a large-scale operation that processes millions of dollars worth of business." More generally, she says, "the larger the operation, the greater the likelihood that there will be abuse of the state's medical marijuana laws and marijuana in the hands of individuals who do not have a demonstrated medical need." Yet California law allows collective cultivation by patients and caregivers, and it does not impose a limit on how many people can participate in such organizations. Furthermore, Cole's memo instructs U.S. attorneys that "in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities." The statement from Haag's office implies that she will continue doing just that.
Michael Cotter, the U.S. attorney for Montana, likewise says the Cole memo would not have been an obstacle to his prosecutorial crusade against dispensaries, which included a case that threatened one co-owner with life in prison. "I don't think it would have changed how we conducted business," Cotter told the Associated Press. "I think we have to see how it evolves over time….It's not going to affect the way we do business here in Montana."
Jenny Durkan, the U.S. attorney for the Western District of Montana, also sees no reason to change her approach to enforcing the federal ban on marijuana:
We have consistently focused on federal enforcement priorities in Western Washington, and have worked with our state and local partners to ensure the safety of our communities. That will not change. We will continue to enforce the Controlled Substances Act.
While Durkan has been less aggressive in targeting dispensaries than Michael Ormsby, her counterpart in the Eastern District of Washington, in 2011 she co-signed a letter with him warning then-Gov. Christine Gregoire that "we maintain the authority to enforce [the Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law." The letter threatened to prosecute not only growers and sellers but also "others who knowingly facilitate" their actions, which Gregoire interpreted as a threat to state employees who license and regulate dispensaries. Gregoire cited that legal danger when she vetoed a bill that would have clarified the rules for supplying marijuana to patients.
Dispensaries in California, Montana, and Washington operate in a legal gray area, since they are not licensed and regulated by the state. Hence Haag, Cotter, and Durkan can always argue that the dispensaries they target are not really authorized by state law, although they also have made it clear that compliance with state law is not a shield against federal prosecution. Colorado, by contrast, has licensed and regulated (in theory, at least) dispensaries since 2010. But that did not stop John Walsh, the U.S. attorney there, from targeting more than 50 of them for closure, based on the claim that they were too close to schools. Then again, Walsh has let hundreds of dispensaries throughout the state continue to operate, even though they are equally vulnerable to seizure and prosecution under federal law and even though shutting down the others required nothing more than threatening letters. So when his office says "there's not going to be a substantial change" in the wake of the Cole memo, that could be interpreted as good news.
As Angell notes, activists such as Rob Kampia of the Marijuana Policy Project "have pointed out that it seems to be the case that federal prosecutors have largely not interfered in states that have robust regulatory systems to control the marijuana industry and that the harassment mostly seems to occur in states that do not have clear regulations in place, such as California, Montana and Washington." Walsh's relatively light-handed approach may be the best example of regulation's value as a talisman against federal meddling, since a nascent cannabis industry has been openly operating in Colorado for years.