Medical Marijuana Advocates Cautious About "New" Policy on Federal Marijuana Enforcement

The U.S. Justice Department issued a press release earlier today, announcing a memorandum from Deputy Attorney General James M. Cole that detailed a similar policy on recently adopted laws in the States of Washington and Colorado as it previously indicated for medical marijuana states. To the extent this new memorandum affects medical marijuana patients in Washington, Colorado and other states, advocates are taking a "wait and see" approach.

The Obama Justice Department indicates that as long as states that have passed marijuana laws "implement strong and effective regulatory and enforcement systems," the department will continue to rely on state and local authorities to "address marijuana activity through enforcement of their own narcotics laws" and will limit its efforts to "certain enforcement priorities that are particularly important to the federal government."

However, this memorandum comes after the Obama Justice Department obstructed the implementation of strict regulatory laws in medical marijuana states such as Montana, Vermont, and Washington. Despite memoranda in 2009 and 2011 from Deputy Attorneys General David Ogden and James Cole, respectively, citing similar assurances of a hands-off approach to marijuana enforcement in medical marijuana states, the Justice Department has spent more than $300 million to aggressively undermine the implementation of those laws.

"While we're hopeful that the Justice Department will adhere to these policies, our experience with the Obama Administration so far has been lots of double-talk," said Steph Sherer, Executive Director of Americans for Safe Access, which recently issued a report detailing the economic and social costs of federal enforcement. "In order to gain the trust of Americans, Obama's U.S. Attorneys must stop their aggressive and unnecessary enforcement campaigns in medical marijuana states."

None of the eight "enforcement priorities" outlined in today's memo have any bearing on how the Obama Justice Department has carried out its attacks in medical marijuana states, perhaps with the exception of "Preventing the distribution of marijuana to minors" if one construes prevention to mean limiting the distance of dispensaries to schools and parks further than state law requires. Threats of criminal prosecution and asset forfeiture by U.S. Attorneys have closed more than 600 dispensaries in California, Colorado and Washington over the past two years, based on their proximity to schools and other so-called "sensitive uses," even though no state law had been violated.

Interestingly, today's memo states that "in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities." However, one of the Justice Department's most high-profile and current prosecutions is a lawsuit filed by California U.S. Attorney Melinda Haag against Harborside Health Center, the state's largest dispensary. The lawsuit has prompted the City of Oakland to counter sue the Obama Administration.

Advocates claim they will continue to pursue a hands-off approach by the Obama Administration in terms of its actions against state compliant cultivation and distribution operations in medical marijuana states.