Medical pot proponents upset with Obama administration

July 10, 2011

Greg Moran, San Diego Union-Tribune

In late 2009, the U.S. Justice Department issued a memo that gave proponents of medical marijuana something to cheer about.

The policy memo said U.S. attorneys around the country should not use investigative resources on prosecuting “individuals whose actions are in clear and unambiguous compliance” with the laws in 16 states that allow medical marijuana, including California.

Advocates for those laws took that as a significant shift from when the Bush administration aggressively prosecuted medical marijuana providers and users in those states.

But now, many of those advocates — including ones in San Diego — are dismayed and claiming the Obama administration is reneging on that 2009 policy memo. They also are concerned anew about the specter of federal prosecutions in medical marijuana states.

At issue is a June 29 memo from Deputy Attorney General James Cole to all U.S. attorneys. In it, Cole says there has been a rise in the commercial cultivation of marijuana on a large-scale for medical marijuana purposes.

He wrote that the 2009 memo was never intended to shield those people from federal prosecution — even if they are complying with state medical marijuana laws. The memo says it is not an efficient use of resources to prosecute individuals with illnesses or their caregivers under federal law.

But it defines caregivers as individuals who give care to others with cancer or other serious illnesses, and not “commercial operations cultivating, selling or distributing marijuana.”

To medical marijuana supporters, that language repudiates the earlier position and opens the door to prosecuting dispensaries or cooperatives that provide marijuana to many individuals.

“Everyone in the community is now on red alert,” said Eugene Davidovich, chairman of the San Diego chapter of Americans for Safe Access, a medical marijuana advocacy group. “This memo gives the green light for the federal government to continue to interfere with state medical cannabis laws.”

The U.S. Attorney’s Office in San Diego declined to comment on Cole’s memo or its effect on local policy. The Justice Department said the memo is not a policy change but reinforces the 2009 directive and was done in response to the increased commercial cultivation of marijuana for medicinal uses in some local areas.

Some cities in California, such as Oakland, have considered local laws that would authorize large-scale marijuana farms. That has caught the attention of federal prosecutors.

Alex Kreit, a law professor at the Thomas Jefferson School of Law in San Diego and former head of the city’s medical marijuana task force, said Cole’s memo shows the Obama administration policy on medical marijuana is the same as its predecessor’s.

“I think this memo is clearly walking back (on) what they said in the previous memo,” Kreit said.

That backtracking might have been spurred by the fact prosecutors around the country in states that allow medical marijuana continued to bring cases in federal court, even after the 2009 memo, he said.

In San Diego, there have been several such prosecutions, including one against Vista dispensary operator James Stacy, who received probation after pleading guilty to manufacturing marijuana. Stacy had argued he complied with all state laws and opened his dispensary believing the Obama administration’s stance of not prosecuting people obeying state law.

Kreit said Cole’s memo denotes a “big change” in policy by the Obama administration. The memo came after 10 U.S. attorneys had written letters to officials in several states saying federal proseuctors have the authority to prosecute dispensaries even when state law allows medical marijuana use.

The Cole memo also alarmed activists because it appears to indicate that state officials might be open for prosecution if they “knowingly facilitate” the cultivation, sale or distribution of the drug.

“It’s one of the most alarming aspects of this new statement,” said Michael Cindrich, a San Diego lawyer who specializes in medical marijuana cases.

The government’s position was reinforced on Friday when the Drug Enforcement Administration formally rejected a petition filed nine years ago by medical marijuana proponents to reclassify the drug. They had sought to remove marijuana from the most restrictive category under the Controlled Substances Act.

DEA Administrator Michele Leonhart wrote that the petition was being rejected for several reasons. Among them, she said: “Marijuana has no currently accepted medical use in treatment in the United States.”

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