Marijuana

Waiting for the Cannabis Crackdown

Obama's inconsistency on medical marijuana is reason to doubt his tolerance of legalization.

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Two weeks ago, nearly 10 months after voters in Colorado and Washington decided to legalize marijuana, the U.S. Justice Department finally responded. Its announcement, which took the form of a memo to U.S. attorneys from Deputy Attorney General James Cole, promised neither acceptance nor confrontation, saying only that the Justice Department probably has better things to do than prosecute newly legal marijuana growers and sellers, provided state regulation is strict enough to allay federal concerns.

This conditional forbearance was widely interpreted as a "green light" for legalization. But anyone familiar with the Obama administration's inconsistent, disingenuous approach to medical marijuana has to wonder whether the Cole memo truly signals a newfound respect for state policy choices.

Cole listed eight "enforcement priorities" that Colorado, Washington, and the 18 states where marijuana is legal for medical but not recreational use will be expected to address. The three most significant probably are "preventing the distribution of marijuana to minors," "preventing the diversion of marijuana from states where it is legal under state law in some form to other states," and "preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use." But the list also includes "preventing the growing of marijuana on public lands," "preventing marijuana possession or use on federal property," "preventing revenue from the sale of marijuana from going to criminal enterprises," "preventing violence and the use of firearms in the cultivation and distribution of marijuana," and "preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs."

If a state fails to adequately deal with these issues, Cole said, the Justice Department may yet decide to prosecute state-approved suppliers or "challenge the regulatory structure itself." This exercise of prosecutorial discretion is completely one-sided, subject to suspension at any time. Not only can the Justice Department change its policy at will; it is the sole interpreter of these eight goals and the sole judge of whether states are doing enough to reach them. Just to give you a sense of the ambiguity and subjectivity inherent in Cole's criteria, the feds could say all bets are off if campers in national parks are caught smoking pot, if a 22-year-old buys marijuana at a state-licensed store and shares it with his 20-year-old brother, if pot shop owners exercise their Second Amendment rights by keeping guns for self-protection, or even if cannabusinesses make money, since all of them are "criminal enterprises" under federal law.

Further grounds for skepticism can be found in two earlier Justice Department memos that Cole mentions. The first, issued in October 2009 by Cole's predecessor, David Ogden, seemed to fulfill promises by President Obama and Attorney General Eric Holder that the Justice Department would not try to undermine state medical marijuana laws by targeting suppliers who comply with them. Ogden told U.S. attorneys that "as a general matter" they "should not focus federal resources" on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." He listed criteria for federal prosecution, such as "sales to minors," "sale of other controlled substances," and "financial and marketing activities" inconsistent with state law, that made sense only when applied to suppliers, which jibed with what Obama and Holder had repeatedly said.

The Ogden memo inspired a "green rush" of cannabis entrepreneurs in states with medical marijuana laws, provoking outrage among federal drug warriors, who launched a crackdown more aggressive than anything seen under George W. Bush. In June 2011, seeking to retroactively justify these raids, seizures, and arrests, Cole issued a memo falsely claiming that the Justice Department's policy of forbearance had always been limited to patients and their caregivers. According to Cole's gloss, the feds never imagined that people would make money by supplying patients with marijuana, even though the Ogden memo clearly contemplated that prospect. Given Cole's willingness to lie about the policy he was contradicting and Holder's willingness to bless that lie, even while continuing to promise tolerance of medical marijuana dispensaries, the latest memo has to be taken with a shakerful of salt.

As Tom Angell, chairman of Marijuana Majority, puts it, "My optimism is tempered by the fact that despite the Justice Department's 2009 announcement that it shouldn't be a priority to bust medical marijuana providers operating in accordance with state law, this administration went on to close down more state-legal marijuana businesses in one term than the Bush administration did in two terms." Fool me once…

This article originally appeared at Forbes.

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42 responses to “Waiting for the Cannabis Crackdown

  1. …the Justice Department probably has better things to do than prosecute newly legal marijuana growers and sellers…

    Apparently not.

    1. Emperor / Ayatollah Obozo means to say, “Y’all voters is ignernt and stooopid when y’all legalizes pot, so I’m a gonna tax the livin’ SNOT out of y’all so as to foster freedom an’ democrassy an’ stuff an’ stuff in ferrin’ lans, while y’all stoopid basturds can’t be a havin’ NON of that them thar bad “freedom/democracy” stuff-an-stuff at home, ya SEE?!?!?” Freedom and democracy is for them that FORIEGNERS, not for stupid American state voters, ya GOT that??!?!?! Goddamit, how stupid ARE you non-Obama-worshippers, now?!?!!?

      1. Who filed criminal charges against pain patient Angela Raich in 2002??

        Was it Obama appointed Eric Holder?

        No, it was the compassionate small government President Bush appointed conservative John Ashcroft.

        Who wrote the opinion enforcing the 1937 Federal law over the California State medical pot law passed by California leftists in 1996?

        Conservative Justice Scalia in the 2005 decision Raich v Gonzales!

        Who will become president January 20, 2017? Attorney General Cruz who thinks Justice Scalia is the best Constitutional scholar ever?

        Would a President Cruz appoint someone with orders to ignore the Constitution, or would he appoint a conservative like John Ashcroft?

        Perhaps your hope is Jerry Brown runs again and wins the presidential election in 2016? He was the anti-Reagan governor who cleaned up after Gov Reagan back in the 70s, so as president he could clean up the disaster from Reagan’s crime war that has put so many pot smokers in prison.

  2. “I’ll take very improbable questions for $600, Alex”

  3. But anyone familiar with the Obama administration’s inconsistent, disingenuous approach to medical marijuana has to wonder whether the Cole memo truly signals a newfound respect for state policy choices.

    Of course not. The Obama administration does one thing: further its own power. It will be ambiguous so that it can change direction at any time. The people who take this as a green light do so at their own peril.

    1. I guess President Bush and his Ashcroft and Gonzales were better because they prosecuted individuals growing pot for medical treatment in California legally under State law without any sales at all for purely personal use?

      And they were superior because they took the case all the way to the Supreme Court to get an opinion from Justice Scalia stating that Angela Raich was a criminal for growing 6 plants under California law for her personal medical doctor prescribed pain management?

      A compassionate conservative Republican president would employ limited power to arrest every damn pot user because they would be totally consistent and predictable in rejecting State preemption of Federal power.

  4. OT, but this is what the Liar in Chief James Clapper had to say about the “economic” spying done by NSA on Petrobras, Brazil’s largest oil company:

    “In a statement Sunday, US Director of National Intelligence James Clapper reiterated that the US intelligence does not steal trade secrets.

    “The United States collects foreign intelligence — just as many other governments do — to enhance the security of our citizens and protect our interests and those of our allies around the world,” he said.

    It was “not a secret” that US intelligence agents collected economic and financial data, including information about terror financing, he stressed.

    The practice helped provide the US and its allies with “early warning” of potential international financial crises, as well as about the economic policy or behavior of other countries that could affect global markets.”

    Early warning about potential international financial crises. Right. Got it.

    1. I’ve noticed they’ve learned to not bother with denying the allegations of the act at least, like they initially did

      But I imagine the real use case scenario goes something like this:

      IRS: We’re not seeing the expected income reported on this guy’s tax returns. We think he has foreign investments.

      NSA: hmm.. oh forgot, we don’t need to go through FISA because we’re really investigating a foreigner, hehe. Saves us some time.

  5. The important question is whether the NFL will tolerate it.

  6. If I am reading this article correctly, you have parsed the language and determined that a government official making an official statement may not actually have said or meant what the average person might believe he said or meant? Hell, I didn’t even bother reading the thing and I could have told you that. Words spoken by a weasel are by definition weasel words and therefore you can’t trust a single word they say.

  7. Who is in charge of scheduling/rescheduling? The Executive? The Legislative?

    1. Theoretically, or realistically?

      1. To whom would I write a strongly worded letter?

      1. If that’s the case, it seems silly to wonder if Obama could possibly reschedule weed to… oh… Schedule IV but then it would be within his executive powers to say “Schedule II, bitches”, right?

      2. No matter the schedule, the law requires prison terms of 10 to life for possessing or growing a thousand pounds or 100 pot plants, even if used to produce hemp rope or paper.

  8. Jacob Sullum Asks Whether We Really Can Expect the Feds to Tolerate Marijuana Legalization

    And you people keep asking questions you already know the answer to…

  9. I never thought I would say this, but, barring some sort of catastrophe in Colorado, I think marijuana legalization is a won battle.

    As in, on marijuana legalizaiton we are where gay marriage was 5 years ago. The culture has already shifted and the opponents just don’t know it yet.

    Not that gay marriage doesn’t still have some victories in it’s future, but those victories are all but assured. Similarly, with what is happening in Colorado and Washington state, it’s more or less inevitable that mainstream culture is going to shift towards tolerance of marijuana use.

    The only thing I can see stopping it is some kind of sensational incident involving weed and killing or raping of children. Perhaps if there was some sort of hippie cult commue full of stoners making child porn, then MAYBE that might be enough to change the momentum.

    1. ” The culture has already shifted and the opponents just don’t know it yet.”

      I think the opponents do know it is a losing battle. But they will not go away quietly.

    2. The only thing I can see stopping it is some kind of sensational incident involving weed and killing or raping of children. Perhaps if there was some sort of hippie cult commue full of stoners making child porn, then MAYBE that might be enough to change the momentum.

      Ask and Ye Shall Receive.

    3. The proponents of redefining marriage didn’t really get a lot of traction until they framed the argument as one of civil rights and equal protection (if you don’t want to redefine marriage then you hate gays). I don’t see that happening with marijuana. Especially because there’s no social stigma against hating drug dealers.

      1. I would think that once weed is an out-in-the-open multi-billion dollar industry, and the feds selectively persecute someone, especially someone who is doing everything to comply with state law, then they are going to have an equal protection claim.

        1. Feds will simply say that federal law trumps state law. The end.

          1. Justice Scalia ruled you can’t grow pot for your own personal use to treat your medical condition under doctor prescription and legally with a State permit.

            Raich v Gonzales 2005.

    4. This. Too many people have used marijuana or know people who have used marijuana with little or no negative consequences, or with negative consequences entirely supplied by the state.

      Younger people are more and more supportive of legalization. Demography and reality are on the side of legalization.

        1. Oh, they’ll keep doing holding actions, but they’re the Germans and it’s October 1944. The end is in sight.

          1. Where’s the legal challenge?

            The SSM people got homosexuals declared a protected class so they could sue based upon a civil right argument. Are dope users and dealers a protected class? Quite the opposite.

            I’m not seeing any legal grounds for changing the law at the federal level, and I seriously doubt it will happen unless it’s challenged in court. Which isn’t going to happen.

      1. “Younger people are more and more supportive of legalization. Demography and reality are on the side of legalization.”

        But young people don’t vote. And by the time they do vote, they have kids and their views change. I hope you are right and it does change.

        1. Older people grew up with “pot leads to heroin” and assorted other BS. Many of them still believe that. Most younger people would laugh at that crap. I’m not saying it’s going to happen tomorrow, but it’s inevitable. I would be very surprised if federal criminal laws against pot are still in place in 2020.

          1. The problem is that the generation that knows weed is harmless is the boomers, and they have had plenty of power for decades to legalize pot. Yet they haven’t.

      2. If this was true it would have been legalized when the Baby Boomers came to power. Unfortunately the “I’m not the problem, it’s everyone else” mentality isn’t going anywhere.

        1. The Baby Boomers, despite their reputation, are / were hardly of one mind about pot. Nixon was elected (in a landslide) for a reason.

          1. Parenthood has this odd way of turning people into drug warriors.

  10. if a 22-year-old buys marijuana at a state-licensed store and shares it with his 20-year-old brother

    All the more reason we need to push the age up to 24 or 26 like how it is for insurance purposes, for the children. College “kids” won’t be just a euphemism anymore!

    if pot shop owners exercise their Second Amendment rights by keeping guns for self-protection

    Arizona was supposed to be more anti-Fed, and while they pushed for nullification on Obamacare, even as far as proposing Bill SB1475 to make enforcing Obamacare a felony, they were totally OK with the Feds coming in and sending Sandusky to 10 years in prison for this reason

    or even if cannabusinesses make money,

    I suspect CO will just roll over too. But what happens in WA with the state in charge of the biz?

  11. Regardless of whether or not Obama is being disingenuous, this “guidance” may have next to zero influence on the next administration’s policy.

    Furthermore, there’s enough ambiguity in the guidance — what exactly is a good enough regulatory structure to avoid prosecution? — to give an especially-aggressive US Attorneys leeway in doing whatever the heck he wants. Localities and police agencies that simply do not want legalization can simply file multiple complaints with the US Attorney’s Office complaining about how the state’s regulatory structure is deficient, no matter how idiotic and frivolous, and that may be enough to trigger a wide-ranging criminal FICO prosecution against anybody involved in implementing the law or selling the supposedly-legal product.

    The ONLY way to stop this is to seize power away from the DEA and US Attorneys by passing legislation on the Congressional level to stop this madness. There is zero scientific basis as to why marijuana is classified with heroin and crack cocaine and Congress should do what it is supposed to do — oversee and correct madness in the government.

    I personally support the legalization of EVERYTHING. If you are doing something that doesn’t harm anybody else, go for it. Government should ONLY get involved if you harm somebody else (duh!) or if you are truly looking for a way to cure your abuse (and then only to without judgment refer you to professionals or charities that have expertise).

  12. “Not only can the Justice Department change its policy at will; it is the sole interpreter of these eight goals and the sole judge of whether states are doing enough to reach them.”

    Arbitrary law, arbitrary enforcement.

  13. I do not believe this is a constitutional issue but rather a social one, and the people have spoken at the polls. How much longer do Americans allow this type of behavior from their so called elected representatives ? Nixon made cannabis a schedule one drug….Nixon. peace

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  15. Who is in charge of scheduling/rescheduling? The Executive? The Legislative?

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  16. Ultimately it doesn’t matter.

    Prohibition of cannabis is over in Colorado for sure. Anyone and everyone that’s 21 is now looking in to or growing cannabis.

    There’s no way the feds are going to do house to house eradication of cannabis.

    Doesn’t matter what they do with the commercial end… I know that at least in Park County, the DEA would have to bring in all their own personell… they won’t get any help from the local LEOs.

    Cannabis is NON-Addictive… period! http://thecleangame.net/2013/0…..ve-period/

    High CBD strains are on the rise… strains that don’t get you high and only medicate.

    Push Cannabis Truth!

    Keep it Clean! 😀

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