Latest DOJ Memo Emphasizes Why We Must Pass HR 2306, The Ending Federal Marijuana Prohibition Act Of 2011July 1, 2011
On Wednesday the Obama administration for the second time in two years issued a Department of Justice memorandum regarding the state-sanctioned use and production of medical cannabis. However, unlike the release of the 2009 ‘Ogden memo,’ which the administration promoted with great fanfare, the issuance of this week’s ‘Cole memorandum’ is strategically being downplayed by the Justice Department.
As for the content of the memo, which you can read in full here, it’s hardly surprising — particularly in light of the administration’s recent, and highly public threats to lawmakers in states wishing to enact medical marijuana laws or expand upon their existing programs.
Perhaps most notably, the memorandum states that the recent flurry of intimidating US Attorney letters to state lawmakers are ‘entirely consistent’ with the Obama administration’s position. In other words, the administration is now on record in support of claims made by US Attorneys in Rhode Island, Washington, and other states alleging that state employees could be targeted and federally prosecuted for simply registering and licensing medical cannabis patients or providers — a position that is even more extreme than that of the previous administration. (Notably to date, however, no state employee — or for that matter, no state sanctioned dispensary operator — has ever been prosecuted by the federal government.)
The memo goes on to state that the federal government distinguishes between individual medical cannabis patients and third party providers, indicating that it is a poor use of federal resources (rather than a poor use of judgment) to target the former, while indicating that the latter are fair game for federal prosecution. It states:
“A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly the Ogden memo reiterated to you that prosecution of significant traffickers in illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.”
Finally, the memo acknowledges that there has been an increase in the number of states that have either enacted or are considering enacting state laws allowing for the licensed production and distribution of cannabis to authorized patients. (To date, such state-licensed dispensaries are up and running in Colorado, New Mexico, and Maine; laws permitting such facilities are on the books in Arizona, Delaware, the District of Columbia, New Jersey, Rhode Island, and Vermont.) Clearly, the federal government is not at all pleased with this progress.
“The Odgen 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 the 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 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 financing laws.”
Regardless of how one wishes to interpret the latest memo from the DOJ, one thing is clear. States will never truly enjoy the freedom to experiment with alternative marijuana policies until the federal government is compelled to get out of their way. Only the passage of HR 2306, the ‘Ending Federal Marijuana Prohibition Act of 2011,’ can make that happen.
House Bill 2306 mimics changes enacted by Congress that repealed the federal prohibition of alcohol by removing the federal government’s power to prosecute minor marijuana offenders. It would eliminate the existing conflict between federal law and the laws of those sixteen states that already allow for the limited use of marijuana under a physicians’ supervision. Further, it would permit state governments that wish to fully legalize and regulate the responsible use, possession, production, and intrastate distribution of marijuana for all adults to be free to do so without federal interference.
State lawmakers should be free to explore alternate marijuana policies — including medicalization, decriminalization, and/or legalization — without being held hostage to archaic federal prohibition or the whims of the Department of Justice. Contact your member of Congress and urge him or her to vote ‘yes’ on HR 2306.
The Star-Ledger in New Jersey published the long awaited ‘clarifying’ memo on medical marijuana last night from the Department of Justice.
It appears from the letter that the Obama administration’s DOJ is going to continue to walk the fine line between allowing ‘self preservation’ for medical cannabis patients (i.e., a patient can possess and cultivate a small amount of cannabis for their personal use) and prohibiting what they call “large scale” medical cannabis cultivation and sales.
Deputy U.S. Attorney General James Cole, in a letter addressed to every state attorney general, reaffirmed “it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen … and their caregivers.”
But the large-scale growing and scaling activity seen in some states troubles the Obama administration, according to Cole’s letter.
“There has, however, been an increase in the scope of commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes,” according to the letter. “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 earlier memo “never intended to shield such activities from federal law enforcement and prosecution, even when these activities purport to comply with state law,” according to the letter
The Obama administration’s position on medical marijuana, circa 2009 (via the Ogden memo to all United States attorneys):
“The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
The Obama administration’s position on medical marijuana, circa 2011 (via the May 2, 2011 letter sent from the office of the United States Attorney, District of Arizona, to the Arizona Department of Health Services re: the implementation of the voter-approved Medical Marijuana Program):
“The United States Attorneys Office … will vigorously prosecute individuals and organizations that participate in the unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law.”
A lot can change in two years — including the administration’s attitude toward the state-authorized use and distribution of cannabis for medical purposes.
In April, NORML blogged about the U.S. Department of Justice, particularly U.S. Attorneys Jenny Durkan of Seattle and Michael Ormsby of Spokane, threatening “civil and criminal legal remedies” (read: sanctions) against Washington state citizens, including state employees, who assist with or engage in the production or distribution of medical cannabis, “even if such activities are permitted under state law.” The U.S. Attorneys’ threats came in response to an inquiry from Gov. Chris Gregoire, a Democrat, who most likely was seeking ‘political cover’ so that she could publicly ‘justify’ her veto of legislation (SB 5073) that sought to license and regulate the dispensing of medical cannabis to qualified persons, and would have enacted additional legal protections for patients who voluntarily participated in a statewide registry. The threats worked; Gov. Gregoire cited them in her veto statement Friday.
In fact, the threats worked so well, that in recent days U.S. Attorneys in other states with active medical marijuana programs have begun issuing similar menacing statements.
Last week in Colorado, where state regulators have licensed over 800 state-licensed medical cannabis dispensaries, U.S. Attorney John Walsh sent a letter to the state’s Attorney General alleging that the federal Justice Department will “vigorously” prosecute individuals or organizations engaged in “unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.” A spokesman for Walsh’s office adds, “In the eye of the federal government, there’s only one type of marijuana. And marijuana is a Schedule I controlled [federally prohibited] substance.”
Arizona U.S. Attorney Dennis Burke fired off a similarly worded letter this week to Will Humble, the director of the state Department of Health Services, which is overseeing the implementation of Proposition 203. Under the law, which was approved by voters last fall and was enacted on April 15, the state must register qualified patients who have a doctor’s recommendation for cannabis and also license dispensaries to provide it to them. However, according to Burke, said dispensaries that are compliant with the state’s law will “not [be] protect[ed] from [federal] criminal prosecution, asset forfeiture, and other civil penalties.”
Finally, in Rhode Island, Gov. Lincoln Chafee announced this week that he is suspending the state’s nascent medical marijuana distribution program, set to begin this June. In March, the representatives from the Rhode Island Department of Health selected three applicants to operate the state’s first-ever, government licensed medical cannabis dispensaries. (The dispensaries program was initially approved by lawmakers in 2009, but the winning applicants were not decided upon until two years later.) Predictably, Chafee’s abrupt change of heart came after receiving a hand-delivered letter from U.S. Attorney Peter F. Neronha Friday threatening to prosecute civilly and/or criminally those involved in the dispensary program.
“Mr. Obama’s … true intention is to stifle the development of any viable legal cannabis distribution industry. By sending threat letters to Rhode Island and Arizona, states that have created clear and unambiguous laws for medical cannabis providers to follow, it is obvious that Mr. Obama isn’t opposed to medical cannabis, per se, but terribly opposed to medical cannabusiness.
Belville adds: “If (medical cannabusiness) establish (themselves), people will become accustomed to safe, secure, well-run businesses that deliver consistent, reliable, tested cannabis products. They’ll appreciate the way these places revitalize sagging economies, provide jobs, and contribute taxes to budget-starved localities. They’ll realize all the scaremongering by the government about what would happen if marijuana was legal, even for sick people, was hysterical propaganda. [And] they’ll begin to wonder why we don’t just legalize cannabis for everyone, create more jobs, raise more revenue, and use these established businesses as the distribution points.”
#1 Obama Administration: Don’t Focus On Medical Marijuana Prosecutions
United States Deputy Attorney General David Ogden issued a memorandum to federal prosecutors in October directing them to 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.” The directive upheld a campaign promise by President Barack Obama, who had previously pledged that he was “not going to be using Justice Department resources to try to circumvent state laws on this issue.” Read the full story here.
#2 Public Support For Legalizing Pot Hits All-Time High
A majority of U.S. voters now support legalizing marijuana, according to a national poll of 1,004 likely voters published in December by Angus Reid. The Angus Reid Public Opinion poll results echo those of separate national polls conducted this year by Gallup, Zogby, ABC News, CBS News, Rasmussen Reports, and the California Field Poll, each of which reported greater public support for marijuana legalization than ever before. Read the full story here.
#3 Lifetime Marijuana Use Associated With Reduced Cancer Risk
The moderate long-term use of cannabis is associated with a reduced risk of head and neck cancer, according to the results of a population-based control study published in August by the journal Cancer Prevention Research. Authors reported, “After adjusting for potential confounders (including smoking and alcohol drinking), 10 to 20 years of marijuana use was associated with a significantly reduced risk of head and neck squamous cell carcinoma.” Read the full story here.
#4 AMA Calls For Review Of Marijuana’s Prohibitive Status
In November, the American Medical Association resolved that marijuana should longer be classified as a Schedule I prohibited substance. Drugs classified in Schedule I are defined as possessing “no currently accepted use in treatment in the United States.” In a separate action, the AMA also determined, “Results of short term controlled trials indicate that smoked cannabis reduces neuropathic pain, improves appetite and caloric intake especially in patients with reduced muscle mass, and may relieve spasticity and pain in patients with multiple sclerosis.” Read the full story here.
#5 California: Lawmakers Hold Historic Hearing On Marijuana Legalization
State lawmakers heard testimony in October in support of taxing and regulating the commercial production and distribution of cannabis for adults age 21 and older. Additional hearings, as well as a vote on Assembly Bill 390: the Marijuana Control, Regulation, and Education Act, are scheduled for January 12, 2010. Read the full story here.