Medical Marijuana: Justice Department Says It's Illegal And the Feds Will Arrest You

June 30, 2011

Chris Roberts, SF Weekly

President Barack Obama's stance on medical cannabis has been nebulous: As candidate, he said the drug war was a failure and that it was "appropriate" for doctors to prescribe pot to treat illnesses. As president, Obama's Justice Department said chasing after pot growers and users was a poor use of federal resources, even as the DEA continued to bust law-abiding medical marijuana providers and distributors. For a few weeks now, activists have been waiting for Attorney General Eric Holder to "reclarify" exactly what the Justice Department plans to do about medical marijuana that is legal in some states yet illegal when it comes to the feds. In a memo dated June 29, Deputy Attorney General James M. Cole did just that: Marijuana is illegal, and the federal government can prosecute any user at any time for growing, selling, or transporting it, state law be damned, he wrote.

Consider the Obama administration's view on pot clarified -- and consider cannabis activists furious, dubbing the memo a "reneging," "backpedaling," "insane," and "beneficial only to Mexican drug cartels and law enforcement agencies that rely on drug asset forfeitures."

At least they know where they stand.

In our cover story in April, SF Weekly reported that while legally worthless, Justice Department memos are nonetheless influential documents that guide actions by local governments and how they handle pot-producing factories all the way down to the lowest-level closet grower's operation. This latest memo isn't the first time the department has given guidance on medical cannabis. In October 2009, it issued the now-famous "Ogden memo"  in which the Justice Department said prosecuting state legal cannabis was a waste of resources.

That helped spark a medical marijuana boom -- "It's legal!" was the prevailing wisdom -- until our own Melinda Haag, the U.S. Attorney for the Northern District of California, penned another missive earlier this year reminding any and all interested parties that federal law outlaws cannabis and anyone growing it is a criminal subject to prosecution and incarceration.

Fast forward to Wednesday and the following statement from Cole: "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States," the deputy attorney general wrote in a memo under the heading "Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use."

"The Department's view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling, or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws."

SF Weekly contacted the Justice Department for comment shortly before the close of business on Thursday; we have yet to receive a response. 

Medical marijuana advocates were borderline apoplectic. "This rolls out the red carpet for illicit dealers," fumed Morgan Fox, communications director for Washington-based Marijuana Policy Project, a pro-legalization lobbying group. "The only people that will benefit from this are law enforcement groups that depend on asset forfeiture, and Mexican drug cartels. Patients, local communities, and every American taxpayer will bear the brunt of this insane policy."

What's more, the Justice Department just caught itself in its own web of lies, according to Kris Hermes, media specialist for patient advocacy group Americans for Safe Access.

"The claims of Deputy AG Cole that threatening public officials with arrest and prosecution is consistent with the Ogden memo is incredible," Hermes wrote in an e-mail. "This so-called clarification upholds the recent status quos of aggressive enforcement against state and local medical marijuana laws, in direct contradiction to Obama's comment on the campaign trail that he was 'not going to be using Justice Department resources to try to circumvent state laws.'"

This hard-line stance comes a week after Rep. Ron Paul (R-TX) introduced federal legislation that would finally remove medical marijuana from the same category as drugs like heroin.

Could Obama's turn against legal medical marijuana be seen as purely political, a move to placate the Republicans in Congress at a time when he needs their support to raise the debt ceiling?

Maybe, but if so, it's misguided, according to Tom Angell of Law Enforcement Against Prohibition.

"This president is simply continuing the harassment and interference policies of the Bush Administration when it comes to actually providing patients with their doctor-recommended medicine," Angell wrote in an e-mail. "With 80 percent of the public supporting medical marijuana, this doesn't seem like a very smart reelection strategy."

Be the first to Comment

Please check your e-mail for a link to activate your account.