The Volokh Conspiracy

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. 

Many doctors and patients believe there are many legitimate medical uses for marijuana, yet there is relatively little serious scientific evidence to support such claims, particularly as concerns smoking it.  One reason for this could be that the federal government makes it so difficult — indeed, virtually impossible — to conduct scientific research on marijuana’s potential medical benefits, as today’s NYT reports.

Lyle E. Craker, a professor of plant sciences at the University of Massachusetts, has been trying to get permission from federal authorities for nearly nine years to grow a supply of the plant that he could study and provide to researchers for clinical trials.

But the Drug Enforcement Administration — more concerned about abuse than potential benefits — has refused, even after the agency’s own administrative law judge ruled in 2007 that Dr. Craker’s application should be approved, and even after Attorney General Eric H. Holder Jr. in March ended the Bush administration’s policy of raiding dispensers of medical marijuana that comply with state laws.

“All I want to be able to do is grow it so that it can be tested,” Dr. Craker said in comments echoed by other researchers.

Marijuana is the only major drug for which the federal government controls the only legal research supply and for which the government requires a special scientific review.

Despite these limitations, fourteen states have legalized the medicinal use of marijuana, most recently New Jersey. Some are even beginning to debate going further and decriminalizing marijuana altogether.  States’ fiscal woes are only likely to reinforce this trend as legislators consider the potential revenue stream taxing legal marijuana could provide.

The WSJ editorial page was pathologically hostile to any discussion of drug legalization under the late Bob Bartley.  Under Paul Gigot, however, the Journal has broadened its range of published opinions and has even begun to publish the occasional pro-decriminalization op-ed piece.  The most recent was this piece last week by a New Jersey psychiatrist.  Could a call for decriminalization from within GOP ranks be far behind?

The AP reports on an increase in efforts to decriminalize marijuana possession or use at the state level.

Legalization bills were introduced in California and Massachusetts earlier this year, and this month, New Hampshire and Washington state prefiled bills in advance of their legislative sessions that begin in January. Marijuana is illegal under federal law, but guidelines have been loosened on federal prosecution of medical marijuana under the Obama administration.

Drug legalization proponent Ethan Nadelman’s thinks this shows “we are close to the tipping point” for marijuana legalization.  That seems like an overly optimistic assessment to me.    States cannot truly decriminalize marijuana so long as federal prohibition remains in place, and politicians are sufficiently risk averse that I doubt we will see any significant moves on the federal front in the near future.

I still think there are two exogenous factors that work in legalization’s favor.  First, the polling data I’ve seen suggests younger voters are much less supportive of marijuana prohibition than older voters.  Insofar as this represents a generational difference, this would suggest that opposition to marijuana prohibition would rise over time.  Second, as the story notes, many states are in dire need of new revenue sources.  This could make the legalization, and taxation, of marijuana more attractive to politicians.

According to Law Enforcement Against Prohibition, the FY 2010 Consolidated Appropriations Act will end restrcitions on the District of Columbia’s ability to implement the medical marijuana initiative passed by District voters several years back.  It will be interesting to see how the Justice Department responds.

The Washington Post reports on growing support for marijuana legalization.

The shift is widely described as generational. A Gallup poll in October found 44 percent of Americans favor full legalization of marijuana — a rise of 13 points since 2000. Gallup said that if public support continues growing at a rate of 1 to 2 percent per year, “the majority of Americans could favor legalization of the drug in as little as four years.“A 53 percent majority already does so in the West, according to the survey. The finding heartens advocates collecting signatures to put the question of legalization before California voters in a 2010 initiative.

The LA Times reports:

The American Medical Assn. on Tuesday urged the federal government to reconsider its classification of marijuana as a dangerous drug with no accepted medical use, a significant shift that puts the prestigious group behind calls for more research. . . .

In changing its policy, the group said its goal was to clear the way to conduct clinical research, develop cannabis-based medicines and devise alternative ways to deliver the drug.

“Despite more than 30 years of clinical research, only a small number of randomized, controlled trials have been conducted on smoked cannabis,” said Dr. Edward Langston, an AMA board member, noting that the limited number of studies was “insufficient to satisfy the current standards for a prescription drug product.”

This shift could be quite significant, as one major obstacle to medical marijuana has been the federal classification as a Schedule I controlled substance and the consequent limitations on medical research.

The Wall Street Journal has an editorial urging the Supreme Court to rule in favor of the property owners in Alvarez v. Smith, an important property rights case that I have been trying to draw attention to for a long time (see my recent Findlaw column on it and previous posts on the subject here and here):

With states and cities struggling with deficits, one fertile source of revenue has been money or property seized by police in possible connection with crimes. Not to be left behind, Illinois has pursued this tactic aggressively, using a law which encourages both police departments and prosecutors to take property for forfeiture, long before the accused ever get their day in court.

This practice was challenged at the Supreme Court recently in Alvarez v. Smith, where six people allege that police use of the Illinois Drug Asset Forfeiture Procedure Act violated their right to due process under the Fourteenth Amendment. Though forfeiture laws are designed to strip criminals of ill-gotten gains, three of the six were never charged with a crime. All six had their property or money taken without a warrant and had to wait for months or years without a hearing on the legitimacy of the forfeiture...

Under Illinois law, the state has 187 days after property is seized to file forfeiture proceedings. Meanwhile, of forfeited funds seized, 25% lands in the lap of the prosecutor’s office. Another 65% goes to the department that seized the property, giving police added incentive to take the property to pad their budgets. Justice Sonia Sotomayor noted this police incentive with concern....

We’re all for relieving criminals of illegal profits, but civil forfeiture laws must be used with caution and oversight lest they infringe on fundamental rights. Alvarez v. Smith provides an opportunity to restore the balance of justice to citizens. 

The points emphasized in the WSJ editorial are similar to those I and others have made previously. However, the WSJ piece is still noteworthy because it shows that at least some of the national media have finally begun to give the case the attention it warrants. It’s also telling that even the generally pro-law enforcement WSJ editorial page isn’t willing to endorse the government’s position in this case.

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.

The AP reports that the Justice Department will issue a memo formally establishing a new policy regarding the federal prosecution of marijuana possession and sale in states that have decriminalized medical marijuana.

The Obama administration will not seek to arrest medical marijuana users and suppliers as long as they conform to state laws, under new policy guidelines to be sent to federal prosecutors Monday.Two Justice Department officials described the new policy to The Associated Press, saying prosecutors will be told it is not a good use of their time to arrest people who use or provide medical marijuana in strict compliance with state laws. . . .

A three-page memo spelling out the policy is expected to be sent Monday to federal prosecutors in the 14 states, and also to top officials at the FBI and the Drug Enforcement Administration.

The memo, the officials said, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law. . . .

At the same time, the officials said, the government will still prosecute those who use medical marijuana as a cover for other illegal activity. The memo particularly warns that some suspects may hide old-fashioned drug dealing or other crimes behind a medical marijuana business.

In particular, the memo urges prosecutors to pursue marijuana cases which involve violence, the illegal use of firearms, selling pot to minors, money laundering or other crimes.

As I’ve noted on The Corner, assuming this is an accurate account of the guidelines, this is a positive step toward a more rational drug control policy and greater respect for state-level policymaking.

The Justice Department has to set prosecutorial priorities, as there are more federal crimes on the books than federal prosecutors can ever hope to prosecute.  The aim should be to focus federal resources in those areas where there is a distinct federal interest, or where the federal government has a comparative advantage of state and local law enforcement.  Where federal law conflicts with state law, prohibiting activities state laws allowed, federal efforts should still focus on those instances of alleged lawbreaking where there is a distinct federal interest, including spillover effects on neighboring jurisdictions.

The federal government has a legitimate interest in controlling interstate drug trafficking, but no particular interest in prosecuting those who seek to provide medical marijuana to local residents pursuant to state law.  So it only makes sense for the Justice Department to tell federal prosecutors to focus their efforts on those who are not in compliance with state law, such as those who use medical marijuana distribution as a cover for other illegal activities, interstate drug trafficking in particular.  California should be free to set its own marijuana policy, but the federal government retains an interest in preventing California’s choice from adversely affecting neighboring states.

Ideally, the federal government would treat marijuana like alcohol, retaining a federal role in controlling illegal interstate trafficking but leaving each state entirely free to set its own marijuana policy, whether it be prohibition, decriminalization, or somewhere in between.  Fourteen states have already decriminalized medical marijuana to some degree.  Were the federal government to allow states even greater autonomy, I suspect more would follow. I don’t expect the Obama Administration to promote such legislation, but it would represent the proper approach to marijuana use, medical and otherwise.  Nonetheless, the new guidelines appear to be a step in the right direction.

UPDATE: The memo is now available on the DOJ site in HTML and PDF.

A few days ago, Justice Antonin Scalia ruffled the feathers of the legal profession by suggesting that we are “wasting” too many of our “best minds” on law:

I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.

Scalia’s concern is a slight variation on the usual complaint that there are too many lawyers. But are there? The claim that there are too many lawyers is in serious tension with the other standard indictment of the legal profession: that lawyers cost too much. If there really were too many lawyers, one would expect their salaries to be relatively low. 

In my view, Scalia is half-right. We are indeed devoting more of our “best minds” to law than we ideally should; perhaps more of our merely average minds too. But the high salaries of lawyers suggest that there is a genuine demand out there for all that lawyering. Quite simply, we need a lot of lawyers because we have a lot of laws. In the criminal law field, the United States imprisons far more people than any other industrialized nation, in large part because we punish so many nonviolent offenders through our massive War on Drugs. The War on Drugs is, among other things, a full-employment program for criminal lawyers. In civil law, we have a massive tort law suit system and hundreds of state and federal regulatory agencies that issue mindbogglingly complex regulations that require interpretation by experts if you want to avoid costly liability. And of course we also have an extremely complex tax system that requires many people to hire tax lawyers if they want to keep the IRS off their backs.

As long as we have such a large and complex legal system with so many laws, we are likely to need a lot of lawyers too — including many of our “best minds.” To be sure, some of that complexity is the result of lobbying by lawyers themselves. The ABA and state bar organizations often oppose efforts to simplify the legal system or cut back on the size of government. But lobbying by lawyers is far from the main culprit responsible for our overgrown legal system. Many other interest groups are responsible too, as is the general public that supported many of the laws that created the need for large numbers of lawyers. The best way to safely reduce the number of lawyers is too cut back on the number of laws.