DOJ Clarification of Medical Marijuana Policy Still Unclear

Jul 07, 2011

attorney general, Cole, Department of Justice, DOJ, Holder, Obama administration, Ogden Memo

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.