In a 7-2 vote on Tuesday, the Supreme Court ruled that deportation is not mandatory if a legal immigrant is convicted of possessing a small amount of marijuana.
The ruling was in response to Moncrieffe v. Holder. Immigration officials automatically deported Adrian Moncrieffe, a Jamaican citizen who has lived in the United States since he was three years old, after he was convicted under Georgia law for possession and intent to distribute 1.3 grams of marijuana.
“Justice Sonia Sotomayor wrote on behalf of the majority that a conviction for marijuana possession does not rise to the level of an aggravated felony if it is a small amount and the defendant was not being paid for it,” reported Reuters.
Moncrieffe could still face deportation, but Tuesday’s ruling means that he and others like him can contest the decision in further immigration proceedings.
At a hearing discussing the controversy surrounding Operation Fast & Furious, which allowed numerous firearms to be transferred to operatives for Mexican drug cartels, the attorney general got some questions on another drug war problem: the crackdown on medical marijuana.
Congressman Jared Polis (D-CO) asked Attorney General Holder if the Department of Justice intended to leave medical marijuana states alone as was promised in the Ogden Memo in 2009, as well as whether the recent crackdown in California on medical marijuana providers would be extended to other states.
Holder’s response was the same one that has been parroted by the administration again and again: medical marijuana is not an enforcement priority, given the department’s limited resources.
If that is true, what are the U.S. attorneys in California, Washington, Oregon, Montana, and Michigan doing? It seems as if they’ve been spending a lot of time and effort on a “low priority” lately.
Is Holder lying, or has he let the dogs at DOJ off the leash while he tries to explain why the federal government allowed guns to “walk” into Mexico that were later used to murder U.S. law enforcement agents?
Here is the clip:
The last two weeks have been full of announcements from the federal government about marijuana policy. None of them has been positive, and none of them should be surprising.
First, the Department of Justice stated that it retained the ability to prosecute anyone who cultivates, processes, or distributes medical marijuana, regardless of state law. As noted earlier on this blog, this is not really a change in policy, but it is certainly disappointing to see the Department of Justice is unwilling to publicly recognize the legitimacy of state medical marijuana laws and would rather have patients purchasing their medicine from dangerous, illicit dealers.
Then, in a move that shouldn’t have surprised anyone, the Drug Enforcement Administration, the agency tasked with determining the legal status of drugs according to the Controlled Substances Act, decided to keep marijuana as a Schedule I substance. This classification means that the DEA will continue to assert that marijuana has no accepted medical use and should continue to be a high enforcement priority. Never mind the growing mountain of peer-reviewed studies that show the medical efficacy and relative safety of marijuana. The DEA will only pay attention to government studies, which are not approved unless the goal is to find negative effects, not medical benefits. We should not expect them to reschedule marijuana in the foreseeable future, especially since marijuana enforcement is an easy source of cash and prestige. Americans for Safe Access is currently appealing the decision in federal court, however, and hopefully they will gain some traction on this point and force the DEA to recognize the evidence in support of medical marijuana.
All this was followed by the release of the National Drug Control Strategy, which basically states that the Obama administration will continue to use scarce resources to combat the use of marijuana through criminal justice means, as well as a slightly increased program of harm reduction (which the President has said was going to be his primary focus). The strategy admits that marijuana use is at its highest in the last eight years, yet wants to continue the same strategy it has been utilizing during that same period!
The new strategy also mentions medical marijuana and, while admitting that there may be some medical uses for individual components of marijuana, continues to say that it should pass through the FDA approval process. This would be nice, if we could get all the federal agencies whose stamps of approval are needed to actually allow such research. So far the efforts of those trying to go through the official research and approval process have been blocked. In addition, the new strategy claims that medical marijuana “sends the wrong message to children” and increases the likelihood of adolescents using marijuana. This point ignores the fact that in most medical marijuana states, teen use has actually decreased since passing medical marijuana laws. Data supporting this can be found in the Marijuana Policy Project’s Teen Use Report.
So what does all this mean?
It means that all we can expect from the federal government is support of the status quo. We might get some minor concessions here and there, and the fact that the Ogden Memo has been (mostly) followed by the DOJ should not be overlooked. However, we should not look to the federal government to change policy in any drastic way simply of its own free will. They must be legally compelled to do so.
This is why we don’t need statements of policy, nice as they may be. We need different laws. We need something much more binding than policy statements, which can be distorted and rescinded at any moment without legal backing. It is imperative that we convince our legislators to support bills that will weaken the federal government’s control over marijuana policy and enforcement.
Please contact your representative in Congress, and tell them to support H.R. 2306. This bill would remove the federal government’s ability to interfere with state marijuana laws and policies. Legal change is what we really need if we want to see positive change in federal behavior.
On Wednesday, without any public announcement, Deputy Attorney General James M. Cole issued a statement reiterating the Obama administration’s promise not to waste federal resources going after medical marijuana patients and their individual caregivers. This is a good start. Unfortunately, the letter goes on to say that it maintains the right to prosecute anyone in the business of cultivating, selling, or distributing marijuana to those patients. According to the letter, compliance with state law is no protection from federal marijuana laws.
When I first heard this, I feared this would be devastating to dispensaries. After sleeping on it, however, I realized the policy is as clear as mud, and it’s hard to know if anything will actually change in practice.
Despite numerous past statements by the president and attorney general that they would not go after businesses that were following state law, the Department of Justice has always had the ability to enforce federal law in medical marijuana states any time they felt like it. The fact that raids subsided in states that had clear regulations in place since the “Ogden Memo” was released in 2009 was a boon for the medical marijuana industry and allowed many patients access to unparalleled products and services. It appears that the scope and scale of some of these businesses has ruffled someone’s feathers.
The new policy (which Cole says is not new at all but simply a restatement of the “Ogden Memo”) doesn’t specify that smaller dispensaries are off-limits, but it specifically mentions the type of huge operations that were planned by Oakland last year as the focus of concern. It does not say where the size cutoff is, which is very disturbing to anyone involved in the industry.
This will certainly have a chilling effect on the types of businesses that open in medical marijuana states (and rest assured, they will continue to open). In this way, it is a huge step back from the Ogden memo.
If the spirit of the Ogden memo was to create a sense of consistency in federal enforcement, to let patients and those who supply their medicine feel safe within their own states, and make states feel confident crafting their own laws to best control medical marijuana, then Cole’s statement is a major reversal.
But is it open season on dispensaries? Probably not.
Just because the DOJ has said that they can and may prosecute anyone involved in medical marijuana distribution, does not mean that they will. If the DOJ is publicly saying that this new statement does not reflect a change in policy, there is no guarantee that they are going to suddenly start prosecuting legitimate businesses in places with clear regulations to determine their compliance with state law – especially in the case of smaller operations. They don’t have the resources for such action now any more than they did in 2009. The general public certainly doesn’t support such actions, and the political ramifications of shutting down thriving, taxpaying businesses in an economic crunch could be disastrous for the administration. It should probably be noted that President Obama’s approval rating is 45%. Support for medical marijuana is 75% nationally.
So what should we do?
We need to take the Obama administration to task. We need to decry the confusion and fear caused by such unclear policy statements. And we must demand that the federal government support safe access to medical marijuana instead of driving patients to the illicit market.
At a time when the entire world is starting to recognize the folly of marijuana prohibition, and the efficacy of marijuana in medicine is being proven more and more often, the administration needs to be moving forward.
This new policy statement is a huge step back, even if it turns out to be merely symbolic.
Today, the Arizona Republic covered Gov. Jan Brewer’s outrageous, not-yet-filed lawsuit that calls the state’s voter-enacted medical marijuana law into question. Gov. Brewer alleged a major reason for the suit was fear that state employees could be in jeopardy. This claim was disingenuous given that Arizona U.S. Attorney Dennis Burke’s letter hadn’t mentioned state employees, and Brewer didn’t even bother to ask him if they would be at risk.
Apparently, reporter Mary K. Reinhart was more resourceful than Gov. Brewer. She spoke to U.S. Attorney Burke, who said "We have no intention of targeting or going after people who are implementing or who are in compliance with state law. But at the same time, they can't be under the impression that they have immunity, amnesty or safe haven." Burke also said they plan to focus drug enforcement on cartels and major trafficking, and that they have no intention to prosecute state employees.
This sounds like, in practice, the Arizona U.S. Attorney plans to abide by the 2009 Ogden memo that advises against targeting those in clear and unambiguous compliance with state laws, and by prior statements by U.S. Attorney General Eric Holder and President Barack Obama.
In practice, as MPP has reminded lawmakers, the federal government has not been targeting those dispensaries that are state-registered, complying with state law, and operating in states with clear regulations and registration requirements. There have been no raids on dispensaries or licensed producers in New Mexico, Colorado, or Maine.
We hope this marks the beginning of the end of the scare tactics from U.S. Attorneys. We also believe that any alleged violation of state law should be up to state — not federal — law enforcement officials and/or courts to consider.
Join in the campaign to ensure the federal government does not interfere with state medical marijuana laws by asking your representative in Congress to support three bills in Congress that would provide legal protection to those complying with state law.
This week has seen a sudden explosion in DEA raids of medical marijuana businesses, leaving patients, caregivers, and activists reeling.
On Monday, 26 medical marijuana businesses throughout Montana were raided by task forces comprised of federal and local law enforcement. As usual, some arrests were made and anything of value seized as evidence under sealed warrants. Interestingly, these raids began within minutes of a vote that stalled the bill to repeal Montana’s voter-approved medical marijuana law. Patients and employees of medical marijuana businesses have been mobilizing with the help of Americans for Safe Access to respond to these strong-arm tactics.
This travesty was repeated Tuesday when the DEA and local law enforcement raided two West Hollywood dispensaries. This occurred shortly after a measure to tax medical marijuana businesses in Los Angeles passed, adding even more legitimacy to the industry there. (A video about the raids is at the bottom of this post, courtesy of ReasonTV.)
It should be noted that the Justice Department “Ogden Memo” instructs federal law enforcement not to spend resources going after medical marijuana businesses as long as they are following state law. Of course, the Justice Department thinks all these businesses were violating state law, but is that for them to decide, or the states?
From all accounts, the California dispensaries that were raided were model businesses. Unfortunately, Montana’s medical marijuana law is vague when it comes to dispensaries, but there are several bills currently being considered by the state legislature that would establish their legality and a system of tight controls. For the DEA to go in now like angry thugs, when the exact extent of the law is in a state of flux, is unacceptable.
The manner in which these raids are taking place is equally unacceptable. These businesses are trying to follow every law and pay their taxes like any other legitimate business. Yet, when their compliance is in question, the federal government attacks them with threats and violence, taking money and destroying property. Where else does this happen? If an automobile manufacturer accidentally miscalculates its taxes or unintentionally steps outside of an unclear law, charges are filed and the issue is dealt with in court peacefully. Federal agents don’t kick down the factory doors, destroy all the cars on the lot, or sell off the factory equipment. They don’t handcuff the autoworkers and force them to lie on the ground with guns in their faces.
This aggression toward medical marijuana businesses must stop.
Please click here to ask President Obama to stand by his promises and end the raids.
Today, I've been doing a lot of thinking about Charles C. Lynch – a man who you must have already heard about here or in any number of news stories about his case. Charlie is one of the last victims of George Bush’s war on medical marijuana.
This is a man who complied with every state and local medical marijuana law and was even told by federal officials that they would leave him alone so long as he complied with these statutes. What Charlie didn’t expect was for a rogue county sheriff to call in the DEA to arrest and prosecute him under draconian federal marijuana laws, after being frustrated by California’s state law that should have protected him.
On Monday, Charlie faces sentencing on five counts of federal drug crimes in the U.S. District Court in Los Angeles. He is facing up to 20 years in prison for helping sick and dying patients to obtain their medicine in a safe, clean setting.
Charlie's sentencing comes only five days after U.S. Attorney General Holder confirmed that the nation’s policy on medical marijuana has changed for the better.
[caption id="attachment_369" align="alignright" width="373" caption="Charlie posing with a supporter during a rally at the Los Angeles federal courthouse, October 2008"][/caption]
All of us here at MPP – and indeed anyone who has ever met Charlie – are feeling a little sick right now thinking of what this good man is going through. Hopefully Charlie's judge is also sympathetic and will take state law – not to mention the recent policy change at the DOJ – into consideration before handing down a sentence.
Charlie’s tragic story is a painful reminder of just how important our work is and how our destructive marijuana policy affects people's real lives, every day.