Obama Admin Memo on Medical Marijuana Stirs Dismay and Anger

The medical marijuana movement is reeling after the Obama Justice Department released a memo last week declaring that it might prosecute large-scale medical marijuana cultivation operations and dispensaries even in states where they are operating in compliance with state laws. Advocates reacted with dismay and disappointment, even as they plotted strategies about what to do next.

The memo, written by US Deputy Attorney General James Cole, "clarifies" the October 2009 memo from then-Deputy Attorney General David Ogden that told federal prosecutors not to focus their resources on patients and providers in compliance with state laws. The earlier memo gave some substance to President Obama's campaign promise not to persecute medical marijuana patients and providers in states where it is legal.

But after the 2009 memo, federal officials watched aghast as a veritable medical marijuana cultivation and dispensary boom took off in places such as Colorado and Montana, where dispensaries went from near zero to hundreds of operations, and as localities in California began considering huge commercial grows. The Justice Department responded with increased federal raids -- now at twice the rate of the Bush administration, according to Americans for Safe Access, the nation's largest medical marijuana advocacy organization -- and earlier this year, sent threatening letters from US Attorneys to governors and legislators in states considering or implementing medical marijuana distribution programs.

Those letters "are entirely consistent with the October 2009 memorandum," Cole argued in last week's memo. "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all states. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels," Cole continued.

Noting that "some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance," Cole reiterated the Ogden memo's message 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."

He then took care to narrowly define the term "caregiver," which is commonly applied to people growing medical marijuana for authorized patients. "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."

Cole then went on to write that it is not the Obama administration's position that has changed, but facts on the ground. "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," he wrote.

The 2009 memo "was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law," Cole continued. "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... 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."