Back in October, the Obama Administration Justice Department issued a memorandum that seemed to constrain federal enforcement of laws against marijuana possession in states where 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 violating the memorandum’s guidelines:
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”….
Given these disagreements [ over the interpretation of state law] 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….
This recent district court decision upholding the prosecution of a medical marijuana distributor in California (a state which has legalized medical marijuana under state law), reaches much the same conclusions about the meaning of the memo as I did. Like me, the judge noted the very loose nature of the memo’s restrictions. He also made this relevant point:
Even if Defendant’s prosecution were contrary to the guidance set forth in the Memorandum, dismissal of the Indictment would not be warranted. Defendant has not pointed to any authority for dismissing an indictment because it is contrary to internal Department of Justice guidelines…. Indeed, the Memorandum specifies that it is not intended “to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter …. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.”
Despite campaign rhetoric to the contrary, the Obama Administration has yet to make any genuine progress against the infringements on civil liberties and constitutional federalism created by the War on Drugs. If the president really wanted to stop federal medical marijuana prosecutions in states where medical marijuana is legal under state law, he could have issued a clear and unequivocal executive order forbidding federal prosecutors from doing so, or instructed the attorney general to issue a firm policy guidance to that effect. Unfortunately, he chose not to do so.
In fairness, the preceding Bush Administration was probably even worse on this front. That, however, is not much consolation to me or other critics of the War on Drugs.
shipwreckedcrew says:
Or, he can continue to comply with his oath of office to see that the laws passed by Congress be faithfully executed until such time as Congress deems it appropriate to change them.
See, not complicated.
Title 21 still makes it a felony to cultivate or distribute marijuana.
When Congress changes that, it’ll let DOJ know.
March 11, 2010, 4:26 amARCraig says:
You forgot the second half of the oath he took. If banning marijuana is “regulating interstate commerce” then I’ve got a big nice building across from the Capitol I’d like to sell you.
March 11, 2010, 4:47 amleo marvin says:
I assume his failure to do so reflects his well-founded expectation of a barrage of partisan attacks that would follow. There are only so many battles to which he can allocate political capital. If this wasn’t something the Republicans would extract a political price for, do you doubt he’d have done what you suggested?
March 11, 2010, 5:17 ampublic_defender says:
Yes, a few prosecutions have gone forward, but the Bush Administration was waging war on medical marijuana. Prosecutors pick and choose their priorities, but it would be very, very unusual for a prosecutor to publicly say, “I think that law is wrong, so I won’t enforce it.” Yes, there are constitutional challenges to enforcing federal marijuana laws, but those have been rejected (rightly or wrongly) by the highest court in the country.
I’d be interested in how career prosecutors look at this, but I think that Obama has gone about as far as he properly can to limit the damage of a dumb but constitutional law.
March 11, 2010, 5:27 ampublic_defender says:
I’m sorry of this starts a thread-jack, but my defense of prosecutors shows another important point that I did not intend when I posted it. It explains why so many conservative lawyers are decrying the attacks on lawyers who represented people the Bush Administration accused of being terrorists.
Lawyers have a job to do. I don’t always like the laws prosecutors enforce against my clients. Heck, the prosecutors don’t always like the laws. But when the legislative branch passes a law, the executive signs it, and the courts have upheld it, it’s the law. And prosecutors have a duty to enforce it.
Of course, prosecutors must prioritize their resources. Obama’s memo does just that. But they can’t just say, “I think the court was wrong when it approved that law, so I won’t enforce it at all.” A single prosecutor cannot override the will of the legislature, the executive who signed a law, and the courts who approved it.
And of course, there are plenty of abuses in the “war on drugs,” many committed by prosecutors. It’s fair to condemn those violations and to criticize Obama for not doing enough to stop them. It’s also fair to criticize any given prosecution as a misuse of prosecutorial discretion. But it’s not fair to condemn Obama for failing to unilaterally refuse to enforce a valid criminal statute.
If you don’t like the law, complain to Congress. If you don’t like the US Supreme Court’s decisions, complain to that Court. But Obama and the prosecutors under him have a job to do.
March 11, 2010, 5:54 amcboldt says:
– But it’s not fair to condemn Obama for failing to unilaterally refuse to enforce a valid criminal statute. –
March 11, 2010, 6:21 amWatch what they do, and don’t believe a word that they say. But then, the public is quite gullible.
Brett Bellmore says:
When it comes to the constitutionality of a law, each branch has it’s own discretion: Congress can, and under it’s oath is obligated to, not pass laws it views as unconstitutional. The courts can strike down laws they see as unconstitutional. And the President, given his oath to uphold a Constitution that’s the highest law of the land, can, and should, refuse to enforce laws that he thinks unconstitutional. That any two of the branches fail to do their duty doesn’t relieve the third of it’s duty.
Of course, I suppose Obama could think enforcing federal drug laws contrary to state law is just bad policy, not unconstitutional. In that case he’d be obligated to enforce them anyway. More likely he doesn’t think about the Constitution at all, in that way, and doesn’t view promises as in any way binding, either.
Anyway, cheer up, Ilya! Obama has chosen other fronts to be worse on. That’s got to count for something, I suppose. (You can count with negative numbers…)
March 11, 2010, 6:29 ampublic_defender says:
Has he stopped the raids? No. But from what I’ve read, the stores are operating much more openly and with much less federal interference. Perfect? No. Better? Yes.
As to to the campaign promise, it was unwise to be speak that definitively. But when a President finds that a campaign promise would require him to violate a duty of the office, I would hope that the duty of the office wins out.
Again, the raids appear to have decreased. Medical marijuana stores appear to be operating much more openly and effectively. We have taken a step forward.
March 11, 2010, 7:27 amDon Miller says:
The growers and the distributors would be better served in making information about jury nullification available in their States
If the juries in these cases refuse to convict, the Feds will be forced to really rethink their priorities.
March 11, 2010, 8:06 amSara says:
It would seem to me, that prosecutor’s would focus on MJ shops that for whatever reason have increased criminal externalities. Thus, a state-legal MJ shop, that attracts other criminal activity would be a valid target under this policy.
March 11, 2010, 8:10 amPersonFromPorlock says:
Sorry, “the law is the law” is pretty much an exact translation of “befehl ist befehl,” and just as much a dodge. Almost everyone who’s a part of government swears an oath to defend the Constitution and the fact that everyone else along the way has failed to do their duty in no way excuses the next person from doing his.
Realistically, no one is expected to quit his job on a matter of principle, but let’s not confuse self-interested with principled behavior.
March 11, 2010, 8:24 amSarcastro says:
As per shipwreckedcrew, whose continual courtroom experience gives him special insight into separation of powers. It seems the key is total deference between them, without any tension at all.
The executive must totally defer to the legislative when executing laws, and has no discretion.
The judiciary must totally defer to the executive in wartime, and if they don’t they’re committing treason.
I think we should take this further! Deference is much better than tension, what with all the anger tension causes.
Total deference by prosecutors towards defense attorneys on even days of the month, but the opposite on odd days.
The executive should defer to any member of the American People if they manage to recite the pledge of allegiance backwards at exactly noon.
Order should defer to Freedom all of the time.
March 11, 2010, 9:03 amDuracomm says:
Obama lied medical pot plants died.
There needs to be a automated “Meet the new boss Same as the old boss” (thank you Mr. Pete Townshend) java utility for these Obushma, I mean Obama threads.
Obama and the L-Word The president’s habit of telling untruths
March 11, 2010, 9:24 amPatHMV says:
I don’t particularly support the libertarian position on drugs, but I think it’s a bit of a stretch to say that the Obama Administration has made “no progress” as you describe. There are 105 “medical marijuana dispensaries in Boulder. Until local officials imposed limits, there were hundreds of “medical marijuana” dispensaries in Los Angeles alone. There are similar stories in many other cities. There are literally hundreds of little clinics openly selling marijuana around the country, all operating in violation of federal law, that the Department of Justice has done nothing about.
Perhaps you see “no progress” because the government’s not doing that much different than the Bush Administration did, which also largely turned a blind eye to these pot stores, for the same reason… effective use of scarce resources. But that doesn’t change the fact that marijuana is far closer to being effectively legalized than it was 6 or 8 years ago.
And as a practical matter, do you think that ANY politician would think it was a sane use of political capital and resources to push for formal legalization of marijuana? I mean, as a Republican, I would love to see President Obama try to make progress on that… heck, I’d love to see him amend Obamacare to provide a mandate for insurance to cover medical marijuana! But of course such a move would be political suicide, because the public on the whole favors the status quo in this area at the moment.
March 11, 2010, 9:34 amPatHMV says:
PersonFromPorlock… yes, all officials take an oath to support the Constitution, and one of the things provided for in the Constitution is that, as a practical matter, the Supreme Court is the last word on what is and is not Constitutional. So if, as a public official, you take it upon yourself to ignore a law whose Constitutionality has been upheld by the Supreme Court, you are violating both your oath to uphold that law AND your oath to uphold the Constitution, which necessarily includes supporting the decisions of the Supreme Court.
Yes, “orders are orders” is not a defense when you’ve done horrific things which should be to you and everybody else obviously and plainly wrong. But that does not mean that everybody must and should go it alone in deciding what laws and orders to follow in the ordinary course of business. The guy who killed the abortionist, George Tiller, was a murderer, because Tiller’s actions were legal under our current laws, but he would have made the same claim you do about refusing to follow an unconstitutional or unjust law.
Respect for the law includes respect for our system and process for interpreting and applying the law.
March 11, 2010, 9:41 amShelbyC says:
There’s nothing wrong with the president declaring laws unconstitutional on his own and declining to enforce them. Since the fed regulation of mj is clearly outside of the scope of the commerce clause, he should do that.
March 11, 2010, 9:50 amDavid M. Nieporent says:
Well, when you say he “can’t” say that, you mean he can. He has an independent duty to decide whether a law is constitutional, and not enforce the ones that aren’t. (It’s rather bizarre to suggest, as you do, that he can decline to prosecute a clear criminal because he doesn’t want to spend the money to do so, but not because he thinks it unconstitutional.)
Even if your theory were true, of course, he could pardon anybody prosecuted for violating this law; he hasn’t done so.
March 11, 2010, 9:53 amepluribus says:
Exactly. He could fight the war on marijuana and thereby lose the more important war on health care, or financial regulation. Republicans would be delighted if he did just that. Take a stand on a peripheral issue that is so contrary to conservative and moderate public opinion that the moderates desert him in record numbers. Then the Republicans can declare victory, and laugh all the way to the mid-term polls. And resume their vigorous prosecution of marijuana offenders.
March 11, 2010, 10:04 amPatHMV says:
Shelby… you have an unusual understanding of the word “clearly.” 6 justices of the United States Supreme Court disagree with your view of the commerce clause, at least in conjunction with the necessary and proper clause. That doesn’t mean your position isn’t right (the Supreme Court is far from infallible), but it does mean that the law is not “clearly” as you describe it.
March 11, 2010, 10:14 amBob from Ohio says:
Nobody actually believes that the “medical” pot stores are operating legally under California or Colorado law. They are just being used as cover for regular pot sales.
So, the “clear and unambiguous compliance with state law” isn’t there. Far more accurate to say: “clear and unambiguous violations of state law”.
March 11, 2010, 10:14 amCornellian says:
the preceding Bush Administration was probably even worse on this front.
Gee, you think?
March 11, 2010, 10:47 amAF says:
Indeed, it is so manifestly unfair to criticize Obama for this that one questions where Professor Somin is coming from in this post.
March 11, 2010, 10:54 amChris Bell says:
Ilya,
The District Court decision you cited above involves an arrest made before President Obama’s memo was sent out. Since that time, there have been very few such raids. (I won’t say none. There have been a few DEA offices that continue to perform the raids. It seems to me that these people should be fired. But still, there are fewer.)
I think that President Obama has done about as much as he can constitutionally do. Even though I support marijuana legalization, I would not support a direct statement by Obama that he will not enforce valid federal law. His memo, which tells prosecutors to focus on more important things, is the best you’re going to get without a change in the law.
One area of improvement: Obama could fire one of the few US Attys or DEA Chiefs that continue to perform raids for “misallocating resources.” THAT would be a clear signal.
March 11, 2010, 11:00 amyankee says:
I guess I’m nobody then. Evidence?
The real weak point in the system is “compassionate” doctors who will rubber-stamp anyone’s request for a medical marijuana prescription. That may be a violation by the doctors, but it’s not a violation by the dispensary. It’s not the dispensary’s job to determine if the prescribing physician’s standards are too lax.
March 11, 2010, 11:03 amShelbyC says:
Yeah, I know what you mean. I often disagree with folks, especially scotus, abut what the law clearly is. For example, the constitution clearly doesn’t say a dern thing about reading miranda warnings and yet… To me, the constitution clearly doesn’t give congress the power to regulate things effecting interest commerce, and they clearly can regulate interstate commerce in mj without regulating domestic production, so it seems to me that such regulation is clearly outside the scope of the commerce clause.
March 11, 2010, 11:03 amShelbyC says:
And PatHMV, I don’t think there’s anything wrong with a president declining to enforce a law that is unconstitutional even if it’s not clearly so.
March 11, 2010, 11:11 amOrenWithAnE says:
In practice, the DOJ has prosecuted people that are in arguable or probable non-compliance with the relevant State laws.
March 11, 2010, 11:19 amSarcastro says:
Yeah! The President should be more of a maverick, and shouldn’t give the other branches any respect or deference to their ideas of what the Constitution days!
March 11, 2010, 11:28 amArthur Kirkland says:
Just when some might begin to doubt this site’s claim to a libertarian tilt, this type of allowance rides to the rescue.
March 11, 2010, 11:29 amDave N. says:
Yes, and thank you for your defense of prosecutors. I have never felt that possession of a small amount of marijuana should be a felony (even when possession of any quantity of marijuana was a felony in my state). We had workarounds and I can’t think of a single case I prosecuted where a personal quantity of marijuana was treated as a felony or a defendant served even a day of jail time (unless arrested over a weekend or on other charges).
On the other hand, the time the police brought me 6 bales of marijuana — that had literally been put through a hay baling machine — I felt the person transporting it deserved not only a felony but also a prison sentence.
March 11, 2010, 11:31 amSarcastro says:
[What about the San Fransisco DA who ran on never seeking the death penalty? That seems analogous to me.]
March 11, 2010, 11:43 amDave N. says:
A decision to seek the death penalty is the ultimate discretionary act by a prosecutor. As far as I know, there are no state laws anywhere requiring a prosecutor to seek it, let alone take a death penalty case to trial.
I think that is quite different than not prosecuting a criminal violation just because the prosecutor disagrees with the law.
March 11, 2010, 11:46 amShelbyC says:
No, he should give just as much respect and deference to their ideas of what the Constitution says as they give to his.
March 11, 2010, 11:47 amSarcastro says:
[Does the SCOTUS listening to the solicitor general's arguments count as deference and respect to the President's views? What about Congress' nearly constant dialogue with the White House?
In actuality, I agree with you that at some point the President had better not enforce a clearly unconstitutional law. But I see stare decisis, Congress' actions, and previous Presidents' actions as being part of the analysis, thus constraining what is clearly unconstitutional.]
March 11, 2010, 11:55 amDuffy Pratt says:
What about the oath that the U.S. Attorney swears. They swear to defend the Constitution and to fulfill the duties of the office. Suppose that the president thinks a law is constitutional and the U.S. Attorney disagrees. Should the U.S. Attorney enforce it, decline to enforce it, or resign? How about the situation we envision here? Suppose the President orders the justice department not to enforce these laws because, in his view, they are unconstitutional. Now suppose that a U.S. Attorney disagrees with the President, and agrees with the Supreme Court. Should he enforce the law, thus defending the constitution? Or should he refuse to enforce the law, thus fulfilling the duty of his office by obeying his superiors? Or should he resign?
March 11, 2010, 12:01 pmFub says:
He may have gone as far as his political calculus tells him is politically useful. But he can properly order DOJ to make any prosecution to enforce any law as low a priority as he chooses.
If this were not so, then any prosecutor who declined to prosecute pre-Lawrence sodomy laws would have been in violation of his oath. Any governor who did not order his state DOJ to prosecute would likewise have been in violation.
Not so. For the same reasons as above.
Prosecutors have nigh unfettered legal discretion to decline to prosecute any law for a zillion reasons, from “we have more pressing priorities” to “we think this would have no jury appeal.” Maybe they would face political consequences, but they would not face legal consequences.
Any prosecutor who says “I have no choice but to prosecute” is lying. He has a choice. He is choosing the path of least political resistance.
Bingo! And if you claim your job violates your principles but you won’t risk being fired, you have unambiguously demonstrated that fear of the mere possibility of losing your job is more important than your principles.
Bingo!
Bingo!
March 11, 2010, 12:15 pmShelbyC says:
They should certainly be part of the analysis, especially for their persuasive value. But I don’t think a president should see himself bound by any of these.
March 11, 2010, 12:16 pmOrenWithAnE says:
Yes, those are his options, although the middle one might lead to him being fired for insubordination.
As a personal matter, I think the threshold for resignation ought to be pretty high but of course USAs can resign over whatever they want. By way of example, Comey et. al.’s threat to leave the Bush DOJ over the TSP seems to me appropriate to the gravity of the situation. A threat over prosecution of MMJ distributors seems overblown. YMMV.
March 11, 2010, 12:17 pmOrenWithAnE says:
No, but it puts the bar much higher for him.
March 11, 2010, 12:21 pmSimon Jester says:
How about a “tie goes to the runner” rule where laws of dubious constitutionality are routinely not enforced on those grounds?
The oddest and most dangerous doctrine I have ever discovered in law is the “presumption of constitutionality” – seems that it should be exactly to the contrary.
Were I a prosecutor, I would never prosecute a defendant who violated a law that I perceived as unconstitutional. As a public servant, my job would be to serve the public by erring on the side of freedom.
For the above reason, SJ will certainly never be a prosecutor. A shame, as the jester is the only sane one in the court.
March 11, 2010, 12:28 pmARCraig says:
If Obama weren’t a violent hypocrite, like his predecessors, he would simply issue a complete national amnesty for Federal marijuana laws, like Carter did with the draft dodgers. Prohibition is as much as a disastrous, bloody failure for marijuana as it was for alcohol, and at least alcohol prohibition was constitutionally authorized. I see nothing but the basest of political sliminess when the third President in a row we know smoked marijuana continues to violently assault and imprison mere plebes for doing the same.
There is no moral justification for using the state’s monopoly on force to do barbaric harm to those whose only “crime” is the cultivation, distribution, or use of marijuana. The original “tax stamp” ban should never have been passed, the Supreme Court should be ashamed of Gonzales v. Raich, and the President absolutely has the authority to unilaterally not enforce laws he finds unconstitutional or immoral. If Congress doesn’t like it they can impeach him, but aside from that no one could force his hand.
March 11, 2010, 12:55 pmsubpatre says:
Ilya Somin writes: “In fairness, the preceding Bush Administration was probably even worse on this front.”
That is not fair. Bush never promised, said, hinted, or implied that he would reduce federal prosecutions against marihuana, medical or other wise. Nor did Bush do the opposite; to increase prosecutions. Yet prosecutions actually decreased under Bush, due to allocations of (what they claim are ‘scarce’) resources.
In contrast, Obama made a point of telling people he would stop —not just decrease— federal prosecutions for otherwise legal marihuana. People voted for him on that basis. Stacey, and possibly many of the others arrested that night (only medical marihuana dispensers raided), set up businesses and operated on the basis that Obama’s statement was true. They got screwed.
The decline in cases charged started under Bush, and seemingly that pattern hasn’t changed under Obama. I’m not quite sure how this is ‘less worse’ than Bush, who to give the devil his due, was truthful
much of themany times. This is one more example in a long string of examples where Obama promised something, then turns 180º back on it.In his own way —by making the government be perceived as manipulative and deceitful when entrapping innocent citizens— Obama advances libertarianism . . . to some degree. IMO libertarianism isn’t best advanced that way, but many people use examples of government abuse to promote that cause.
March 11, 2010, 1:01 pmArthur Kirkland says:
Many prosecutors deserve support and praise — more than deserve opprobrium, in my judgment. Your described reasoning concerning marijuana offenses, for example, occupies the first category.
March 11, 2010, 1:03 pmArthur Kirkland says:
The Tommy Chong case alone secures the Bush administration’s position in the anti-liberty, hypocritical (one who chugs drugs as a playboy, then chases drug users for political points, is an especially reprehensible person), noxious column.
Chong, by the way, was never charged with being with a quarter-mile of a marijuana seed, bud or leaf. He was chased, ensnared, prosecuted and jailed for selling water pipes by one of the Bush adminstration’s foremost culture warriors, Mary Beth Buchanan.
March 11, 2010, 1:11 pmNI says:
Oh come now, there’s a fairly obvious reason Obama wouldn’t say the war on drugs is unconstitutional that everyone seems to have missed. If the Commerce Clause doesn’t authorize the war on drugs, then neither does it authorize about half of the rest of the federal government, including every entitlement program. No president, Democrat or Republican, has the necessary political death wish to start down that road.
He might argue that the war on drugs violates a fundamental liberty right, or privacy, or some penumbra or other, and if there weren’t ample caselaw going the other way I’d even agree with him. But I doubt the Supremes would be any more receptive to a challenge to the war on drugs on individual liberty grounds than they were to a commerce clause challenge.
March 11, 2010, 1:48 pmOff Kilter says:
Ilya: “In fairness, the preceding Bush Administration was probably even worse on this front. That, however, is not much consolation to me or other critics of the War on Drugs.”
Not much consolation to those who spend years in prison and have their lives destroyed either, I suspect.
March 11, 2010, 2:21 pmMalvolio says:
How is that “fairness”? Yes, many presidents in history were more energetically opposed to marijuana that Obama, but Obama is the president we have now! Moreover, Obama promised he stop enforcement of Federal marijuana laws in medical-marijuana states.
It’s difficult to defend his actions by saying “Congress made the law”. The executive has to set priorities and if a law that makes sick people sicker, puts honest people in jail, costs a lot of money, has almost no discernible benefits, and that you promised not to enforce is not a good candidate for the bottom of the pile, what is?
March 11, 2010, 3:08 pmsubpatre says:
There is the string of vacuous campaign promises by Obama, and after inauguration the writing of a memo —now discovered to be so weasel-worded as to be worthless— by his appointed attorney.
Beyond that, is there any evidence that “he is actually doing something”?
March 11, 2010, 5:03 pmOrenWithAnE says:
(1) Your tenure of office might be quite short if your boss doesn’t share your particular judgment.
(2) In many cases non-enforcement of the law decreases the freedom of the populace to set binding law (according to both a democratic legislative process and a due judicial one) for their own governance.
Seconded.
March 11, 2010, 6:01 pmpublic_defender says:
Medical marijuana shops appear to be thriving many places now. They weren’t under Bush. That’s a big difference in practice.
March 11, 2010, 6:56 pmsubpatre says:
There is no medical marihuana available at all in Maryland, Virginia, or Washington DC. Zero. Yet you attribute recent ‘thriving’ to federal policy?
Six states (via their state legislative procedures) legalized MM since Bush’ last election. Yet you call this ‘federal practice’.
If you want a serious conversation, show evidence of reduced federal arrests and prosecutions; evidence that is shockingly absent.
March 11, 2010, 9:16 pmleo marvin says:
I agree. Anyone who’d put pot through a hay baler deserves a long prison term.
Or so I’m told. :)
March 12, 2010, 4:47 ampublic_defender says:
Yes. Medical marijuana stores are open. That’s a major change. Each open store is open in defiance of federal law. The fact that federal authorities do not use their power to close down the stores is progress. That would not have happened under Bush.
Obama never promised to end federal marijuana prosecutions. He did promise to allow medical marijuana. He hasn’t fully kept that promise, but he has made enormous progress in that direction.
March 12, 2010, 5:26 amsubpatre says:
That is due to change in state laws and policies. Not federal. There’s no evidence that federal arrests and prosecutions have been reduced.
Is “hasn’t fully kept” a code for ‘big fat liar’? There is nothing to show an iota of change in federal practices from Bush to Obama. “Enormous progress” has been a worthless, weasel-worded memo.
Hope all you want but there has been no change.
March 12, 2010, 9:11 amOrenWithAnE says:
subpatre — there have been no new prosecutions of bona-fide MMJ dispensaries since Obama took the DOJ. The defendant in this case is nothing more than a regular drug dealer using the MMJ statute as convenient cover for his enterprise. He was in gross violation of State law (read the factual record).
IOW, it’s hard to square your complaint with the fact that State law abiding medical patients are no longer being targeted for prosecution, at least as far as I’ve heard. If you want to cite a single case in which a patient/caregiver/dispensary that was genuinely about medical marijuana (and not about recreational marijuana with a medical veneer) being prosecuted, I’d like to hear about it.
March 12, 2010, 9:46 amInteresting News from Elsewhere « La Flog says:
[...] out the President didn’t actually give any real protection for medical marijuana use in states where it is [...]
March 12, 2010, 11:22 amJoeSixpack says:
I was going to make a comment here, but I forgot what we were talking about.
March 12, 2010, 3:35 pmsubpatre says:
What a sorry, evidence-free string of excuses. In fact, this MMJ case was one of a dozen MMJ arrests in that county alone. The dispensary was setup under, and in compliance with, California law. Despite your assertion of ‘common criminal’ the federal court recognized otherwise; it just said that Holder’s memo was weasel-worded and it didn’t matter that —not if— Stacy complied with state law.
Got to love the sequence:
- Obama promises to no more MMJ arrests.
- federal arrests continue exactly as before
- feds find targeting outlets easier than individuals
- arrestees automatically labeled ‘not bonafide’ providers
- Oren shifts goalposts to medical marihuana patients*
Hopey
changeydopey scammed a bunch of potheads, and Oren is there to smear crap over the victims in order to hide what is happening..
March 12, 2010, 5:55 pm* “On March 19, 2009, Holder explained that the Justice Department had no plans to prosecute pot dispensaries that were operating legally under state laws.” – United States v. Stacy
OrenWithAnE says:
What part of California State law allows them to make sales (as was documented by the Deputies) on the street and without checking ids? You claim is just factually false. They were setup under California law and then proceeding to flout it at every opportunity.
Let me be clear that, in the hypothetical world in which this defendant scrupulously adhered to California law, I would completely agree with you. Our dispute is simply a factual one.
I did no such thing, I reiterated that the goalposts were always set on dispensaries operating in strict compliance with the law, not on those using the law as a fig leaf.
[ Of course, I wish that MJ were completely legal anyway. Obama could adopt a policy more in line with my desires by refusing to prosecute any MMJ dispensaries in arguable compliance with State law (which a fellow commenter suggested earlier). That is not, regrettably, his policy. ]
March 12, 2010, 8:05 pmpublic_defender says:
All medical marijuana facilities that stay open do so only because federal authorities exercise their discretion not to prosecute. They are unequivocally illegal under current federal law as interpreted by the United States Supreme Court. That so many have opened and remain open is a testament to how seriously things have changed.
March 12, 2010, 8:12 pmsubpatre says:
The court —a federal court— says clearly and unequivocally you are blatantly misrepresenting that.
After some digging, the local newspaper —not sympathetic to Stacy— illuminates exactly what was happening. But before that quote, another which shows OrenWithAnE’s misrepresentation:
No street sales, the allegation against Stacy was ‘not having enough of a meaningful relationship’ with the undercover cop. Caught shifting the goalposts one way to MMJ patients, Oren denies it and wrenches them in yet another direction to claim that he never meant that, he meant MMJ dispensaries operating —not content with legal operation— but be in ‘strict compliance’. More weasel words.
The facts are thus: Stacy has the misfortune to live and operate his dispensary in San Diego. He did everything according to state law, followed state legal advisories, even paying legal counsel to advise him of statutes and pitfalls.
But San Diego doesn’t want MMJ and doesn’t want to comply with state law —suing the state to SCOTUS level and losing every step— and is still attempting resistance. As the local DA put it:
MMJ —and Stacy— is being targeted by San Diego, and the feds are happily playing along. There is nothing that indicates Stacy did anything wrong, anything different from what is legal in the rest of the state. Oren’s claim of ‘street sales’ is gratuitous and fabricated.
We are still left with the sequence:
- Obama promises to no more MMJ arrests.
- federal arrests continue exactly as before
- feds find targeting outlets easier than individuals
- arrestees automatically labeled ‘not bonafide’ providers
- Oren shifts goalposts to MMJ
legalstrictly legal dispensaries.Hopey dopey scammed a bunch of potheads into voting, and Oren is smearing crap over the victims in order to hide what is happening.
March 14, 2010, 11:08 amBob says:
Very simple thing the admin. could do that would be unquestionably legal as to both legislation and admin.: get the DEA to register some or all of the dispensaries as mfrs. & distributors.
Even simpler thing the local jurisdictions could do: have the police operate the dispensaries, in enforcement of their state law on this particular controlled substance. Such officers are exempt from registr’n under federal law. And that is enforcement, as long as they see to it that the product is not dispensed to those not allowed to receive it under state law.
March 14, 2010, 10:07 pmHeadlines says:
[...] Marijuana Arrests in States Where Medical Marijuana Is Legal Under State Law”–headline, Volokh.com, [...]
March 15, 2010, 11:42 am