How Much of a Difference will the Administration’s New Policy on Prosecuting Medical Marijuana Cases Make?

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.