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Many critics of the War on Drugs, myself included, were happy to see the Obama adminstration’s new memo urging federal prosecutors not to pursue cases against medical marijuana users in states where such use is legal under state law. The administration’s policy could potentially offset some of the negative effects of the Supreme Court’s 2005 decision in Gonzales v. Raich, which held that Congress’ power to regulate interstate commerce gave it the authority to forbid the possession of medical marijuana even in cases where the marijuana in question had never been sold in any market or left the state where it was grown (I criticized Raich in this article).

However, as Jacob Sullum points out, the policy may not make much difference in practice, especially in California (the state with by far the biggest concentration of medical marijuana cases). The key sticking point is that the memo only applies to uses of medical marijuana that are in “clear and unambiguous compliance with state law”:

During his presidential campaign, Barack Obama repeatedly promised to stop federal interference with state laws that allow the medical use of marijuana. On Monday the Justice Department seemed to deliver on that promise with a memo telling U.S. attorneys to avoid prosecuting people who use or provide medical marijuana in compliance with state law.

The new policy sounds a lot better than the Bush administration’s refusal to tolerate any deviation from federal law in this area. But because of disagreements about what compliance with state law requires, it may not make much difference in practice.

This week’s memo . . . tells federal prosecutors in the 14 states that recognize cannabis as a medicine they “should 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.”

In California especially, that phrasing leaves a lot of wiggle room for federal meddling. Last fall the California Supreme Court rejected the idea that medical marijuana suppliers are legal as long as their customers designate them as “primary caregivers.” Patients who are not up to growing marijuana on their own can still organize as “collectives” or “cooperatives,” but local officials disagree with state officials and each other about what that means. Los Angeles County District Attorney Steve Cooley, for example, maintains that state law does not permit over-the-counter sales, which would make virtually all of the 800 or so medical marijuana dispensaries in L.A. illegal.

Given these disagreements at the state and local level, it will usually be difficult to prove that any given medical marijuana user is in “clear and unambiguous compliance state law,” as opposed to merely arguable or probable compliance with it.

It’s also worth noting that the memo doesn’t actually tell prosecutors to forego pursuing cases against even those distributors and users who are in “clear and unambiguous compliance.” It merely says that “as a general matter,” such prosecutions are “unlikely to be an efficient use of limited federal resources.” A prosecutor who thinks that a given case is an exception to this generalization or believes that his office has some excess or underutilized “resources” might still pursue such cases. The memo also outlines numerous situations where prosecution of medical marijuana distributors and users is still encouraged:

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

• unlawful possession or unlawful use of firearms;
• violence;
• sales to minors;
• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
• amounts of marijuana inconsistent with purported compliance with state or local law;
• illegal possession or sale of other controlled substances; or
• ties to other criminal enterprises.

Several of these – especially that dealing with “financial and marketing activites inconsistent with the terms, conditions, or purposes of state law” are extremely broad. Almost any paid transaction between a medical marijuana user or a dealer might be described as one involving “financial gains” or “excessive amounts of cash” inconsistent with “purported compliance with state or local law.” The memo gives no guidelines for determining how much money is “excessive,” nor does it specify how to tell the difference between permissible marketing activites and forbidden ones. Given that compliance with state law much be “clear and unambiguous,” it would not be hard for a prosecutor to go after virtually any medical marijuana distributor.

The memo is still a step forward from the Bush Administration’s aggressive pursuit of medical marijuana cases; for example, it might at least give cover to US attorneys who are already inclined not to pursue these cases, but were afraid to follow their inclinations previously. But it falls a long way short of actually ending federal prosecution of medical marijuana cases, even in states where medical marijuana use is permitted by state law.

Categories: Commerce Clause, Federalism, War on Drugs    

    14 Comments

    1. Perseus says:

      I noticed that Los Angeles County District Attorney Steve Cooley has interpreted the law in a way that makes virtually all over-the-counter sales at clinics illegal. If federal prosecutors decide to adopt that interpretation, there will be no difference in practice.

      October 23, 2009, 7:50 pm

    2. Fub says:

      But it falls a long way short of actu­ally end­ing fed­eral pros­e­cu­tion of med­ical mar­i­juana cases, even in states where med­ical mar­i­juana use is per­mit­ted by state law.

      The most obvious shortcoming is that nothing prevents the next POTUS from saying “sic ‘em”.

      October 23, 2009, 8:24 pm

    3. Guest12345 says:

      Isn’t there a bit of an equal protection issue here? If the feds wanted to leave this question to the states, then the proper response is to establish standards that are applied to all states. Something like requiring particular amounts of marijuana to be present before prosecution by federal prosecutors and anything less is left to the locals.

      October 23, 2009, 9:06 pm

    4. Oren says:

      Guest, quite a bit of Federal Law makes reference to State Law in a manner similar to this policy. No one has ever seriously considered that these statutes violate equal protection.

      See, e.g. 16USC§3372(2)(A) et seq, which make numerous violations of State Laws into concurrent violations of Federal Law.

      October 23, 2009, 9:14 pm

    5. Tim says:

      Guest12345: Isn’t there a bit of an equal pro­tec­tion issue here? If the feds wanted to leave this ques­tion to the states, then the proper response is to estab­lish stan­dards that are applied to all states. Some­thing like requir­ing par­tic­u­lar amounts of mar­i­juana to be present before pros­e­cu­tion by fed­eral pros­e­cu­tors and any­thing less is left to the locals.

      But they didn’t want to do that. Marijuana is regulated under the Controlled Substances Act throughout the United States, making it illegal in any quantity. This really isn’t about making marijuana legal, but rather refusing to enforce the law so that users will not face prosecution.

      Let me make it clear that I think marijuana should be legal for any and all use in any quantity, but that belief does not change the fact that it is currently illegal.

      October 23, 2009, 11:42 pm

    6. Einhverfr says:

      So…. Blame the federal goverment because California state law on the subject is vague?

      October 24, 2009, 12:48 am

    7. David Nieporent says:

      Ilya’s post actually understates the problem; any disposition of money that changes hands during a transaction can be deemed “money laundering.”

      Einhverfr: So….Blame the fed­eral gov­er­ment because Cal­i­for­nia state law on the sub­ject is vague?

      No. Did you read the post? Blame the federal government for pretending to forego medical marijuana prosecutions but actually creating a policy that allows individual prosecutors unfettered discretion to do whatever they were going to do before the policy was enacted.

      Here’s what the Obama administration should have said to prosecutors: You have better things to do than prosecute medical marijuana cases. In states where it is legal, you will not prosecute any cases related to medical marijuana, as long as the cases do not involve interstate distribution of said marijuana. Period.

      (Here’s what the administration also should have said: We will immediately lobby Congress to legalize medical marijuana.)

      October 24, 2009, 4:22 am

    8. Interesting News From Elsewhere « La Flog says:

      [...] Somin, a law professor from George Mason University, analyzes the Obama Administration’s memo regarding medical marijuana. Looks again like empty gestures [...]

      October 24, 2009, 9:56 am

    9. Oren says:

      Here’s what the Obama admin­is­tra­tion should have said to pros­e­cu­tors: You have bet­ter things to do than pros­e­cute med­ical mar­i­juana cases. In states where it is legal, you will not pros­e­cute any cases related to med­ical mar­i­juana, as long as the cases do not involve inter­state dis­tri­b­u­tion of said mar­i­juana. Period.

      Except that, as I understand it, California has a large number of growers and distributors with a medical license (really all they need is to get someone with a scrip to designate them primary caregiver) who divert large quantities to the intra-state black market. Your policy would protect them.

      [ Let me make it clear that I think mar­i­juana should be legal for any and all use in any quan­tity, but that belief does not change the fact that it is cur­rently illegal. ]

      October 24, 2009, 11:20 am

    10. Chris Bell says:

      It’s also worth not­ing that the memo doesn’t actu­ally tell pros­e­cu­tors to forego pur­su­ing cases against even those dis­trib­u­tors and users who are in “clear and unam­bigu­ous com­pli­ance.” It merely says that “as a gen­eral mat­ter,” such pros­e­cu­tions are “unlikely to be an effi­cient use of lim­ited fed­eral resources.” A pros­e­cu­tor who thinks that a given case is an excep­tion to this gen­er­al­iza­tion or believes that his office has some excess or under­uti­lized “resources” might still pur­sue such cases.

      Wouldn’t it be unconstitutional for the President to tell his USAs not to prosecute?

      October 24, 2009, 11:50 am

    11. David Nieporent says:

      Except that, as I under stand it, California has a large number of growers and distributors with a medical license (really all they need is to get some one with a scrip to designate them primary care giver) who divert large quantities to the intra-state black market. Your policy would protect them.

      So?

      —

      Wouldn’t it be unconstitutional for the President to tell his USAs not to prosecute?

      No. Why would it be? Prosecutorial discretion is not unconstitutional.

      October 24, 2009, 2:12 pm

    12. Leo Marvin says:

      David Nieporent: Here’s what the Obama admin­is­tra­tion should have said to pros­e­cu­tors: You have bet­ter things to do than pros­e­cute med­ical mar­i­juana cases.In states where it is legal, you will not pros­e­cute any cases related to med­ical mar­i­juana, as long as the cases do not involve inter­state dis­tri­b­u­tion of said mar­i­juana.Period.

      I agree that would have been better, but as a practical matter don’t you think that’s how what the administration did say will be interpreted?

      October 24, 2009, 11:15 pm

    13. Tweets that mention The Volokh Conspiracy » Blog Archive » How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make? -- Topsy.com says:

      [...] This post was mentioned on Twitter by PostRank – Economics, How To. How To said: #howto The Volokh Conspiracy » Blog Archive » How Much of a Difference … http://bit.ly/2CwyW3 #how [...]

      October 25, 2009, 4:25 am

    14. The Volokh Conspiracy » Blog Archive » As Predicted, New Justice Department Policy Didn’t Stop Federal Medical Marijuana Raids says:

      [...] medical marijuana is permitted under state law. I welcomed the memo as a small sign of progress, but pointed out that it doesn’t really constrain federal prosecutions in any meaningful way. Federal prosecutors could still undertake virtually any marijuana prosecution they wanted without [...]

      March 11, 2010, 3:11 am