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Obama administration issues medical-marijuana non-interference guidelines (updated with full text)

Another tiny step forward.

Associated Press

A 3-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.

It’s a positive step, and having a detailed memo is certainly better than some vague statements by the Attorney General (I’ll be interested to see exactly what it says), but based on these preliminary reports, it still amounts to little more than a well meaning, but toothless, suggestion.

You want to make a statement? Tell the DEA and federal prosecutors that medical marijuana cases are completely off-limits in medical marijuana states (strictly state jurisdiction), unless specifically invited in by the state government (and not just local law enforcement). Now that would be a good start.

Update: Glenn Greenwald briefly discusses this and other drug war trends in his post today.

Update 2: It’s interesting that the administration chose to roll this out on a Monday, and even went so far as to advance prep the AP on the story. Rather than dumping it in the trash (ie, when the White House wants to downplay a story, they release it with a bunch of other stuff on Friday afternoon to reduce the coverage), they seem to be promoting it.

This seems to be a positive development — perhaps recognition that not being against medical marijuana is politically savvy? Too soon to tell.

I’m also interested by the fact that all the medical marijuana advocates seem to be trumpeting this heavily as a total victory, even before the text of the memo is released. This could be good strategy, as it may help spin the rest of the media to play it that way. But it also has the potential to lead to disappointment when the next DEA medical marijuana raids happen in California following the caveats in the new guidelines (and they will).

Update 3: Full text of the memo after the jump…

Link [Thanks, Cannabis]

October 19,2009

MEMORANDUM FOR SELECTED UNITED STATES ATTORNEYS

FROM: David W. Ogden, Deputy Attorney General

SUBJECT: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

This memorandum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting States and among local jurisdictions within those States. Rather than developing different guidelines for every possible variant of state and local law, this memorandum provides uniform guidance to focus federal investigations and prosecutions in these States on core federal enforcement priorities.

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.

The Department is also committed to making efficient and rational use of its limited investigative and prosecutorial resources. In general, United States Attorneys are vested with “plenary authority with regard to federal criminal matters” within their districts. USAM 9-2.001. In exercising this authority, United States Attorneys are “invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.” Id. This authority should, of course, be exercised consistent with Department priorities and guidance.

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities.

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.

Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it 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. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.

Your offices should continue to review marijuana cases for prosecution on a case-by-case basis, consistent with the guidance on resource allocation and federal priorities set forth herein, the consideration of requests for federal assistance from state and local law enforcement authorities, and the Principles of Federal Prosecution.

cc: All United States Attorneys

Lanny A. Breuer
Assistant Attorney General Criminal Division

B. Todd Jones
United States Attorney
District of Minnesota
Chair, Attorney General’s Advisory Committee

Michele M. Leonhart
Acting Administrator
Drug Enforcement Administration

H. Marshall Jarrett
Director
Executive Office for United States Attorneys

Kevin L. Perkins
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation

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28 comments to Obama administration issues medical-marijuana non-interference guidelines (updated with full text)

  • bill

    I wonder if one could make a case, if one were busted by the feds in a non-medical use state, of unequal enforcement if one claimed medical benefits?

    Probably not, but it seems similar to allowing people touse cough drops in one state but not another.

  • It would be a good start, but also unconstitutional, I believe. I don’t think the executive branch has the discretion to decide which laws it will enforce and which laws it won’t enforce. Prosecutorial discretion is one thing, but a blanket policy directive to not prosecute crimes under 21 USC sections X, Y, and Z would likely be an unconstitutional violation of separation of powers. I’m not sure who (other than Congress, I suppose) would have standing to bring a claim against the President of acting unconstitutionally… but still. While none of us wants to see federal drug laws enforced, we shouldn’t want the president to have the authority to decide what federal laws do get enforced and federal laws do not get enforced. A republican president might very well decide not to bring any white collar prosecutions, or any civil rights prosecutions as a matter of administration policy.

    For example, imagine the following directive: “Attention United States Attorneys: from this date forward, you shall not bring any criminal prosecutions for violations of the Internal Revenue Code. All righty then!” Signed by President Sarah Palin.

    The solution is for the legislature to repeal prohibition, not for the executive branch (whether state or federal) to set policy directives to preferably not prosecute certain crimes. That just gives prosecutors even more discretion than they already have and certainly more than they deserve. It means they will follow the policy when it comes to wealthy, white offenders but ignore the (non-binding) policy when it comes to poor, dark-skinned people. Insofar as they are already doing that, let them justify their actions without an easy citation to some vague, unenforceable policy directive. Drug prohibition has already resulted in more disdain for the rule of law than we can possibly afford to bear.

  • If it’s unconstitutional it’s probabaly a lesser constitutional evil than the infringement of people’s rights. Also, I think lots of politicians are looking for a soft-sloped way out of this, thus the frustrating one-slice-at-a-time approach.

    Besides that discretion will always be exerted. It’s simply an economic fact of life that we have to use what scarce resources we have in the best way possible. Had Obama not made it explicit we’d just have seen some other less transparent choice be made.

  • paul

    I really don’t know if it is considered unconstitutional if the president actively refuses to enforce a law. They certainly can ignore or fail to enforce laws, which they do all the time as a matter of priorities. But actively refusing may be unconstitutional and creates tension between the 3 branches of government. “The supreme court has made their decision, now let them enforce it”–President Andrew Jackson

    BruceM, as for imagining President Sarah Palin refusing to enforce the Internal Revenue Code, I am like Han Solo–I can imagine quite a bit. Just the thought of starving the Beast in a meaningful way sends shivers down my spine. Imagine throwing out the whole, incomprehensible vat of spaghetti, with all its loopholes, corrupt deals, favoritism, and watching the federal bureaucracies shut down one after another…Man, that gets my blood pumping! Don’t tease, don’t tease…

    Jesper, I really like your comments about politicians looking for a way out. You’ve made a few of them, and they make sense. I agree that there must be a lot of politicians who really want to flip their position because they can see where this is eventually heading. And I’ll bet quite a few of them also see the damage current policy is doing and wish they could change it.

  • Pair this up with the Elle Magazine article on marijuana use for anxiety and what do you got? Us STILL Winning!

    If you havnt seen the Elle Mag article yet just click on my name and check out the awesome goodness that is the power of women.

  • Nick Zentor

    I seem to recall Obama also promised during his campaign to call the DEA dogs off of medical marijuana club raids in CA. There have been a number of raids in San Diego and surrounding counties, and now LA also, and Obama has done diddly squat to stop them. Apparently, the DEA and the more active political prohibitionists in CA find ways around Executive directives from the WH. That’s because the WH and the president are just mouth-pieces and figureheads for Corporate America and people have to realize that as such, it has no real backbone at all.

  • Bruce, while I agree that a blanket statement that the administration will not enforce a particular law would be problematic, there would certainly be a way to word it for it to work.

    Otherwise, why haven’t we seen torture prosecutions yet? There has been a big debate regarding whether or not Holder and the Justice Department would actually even investigate the obvious breaking of laws regarding torture.

    The administration has a tremendous amount of leeway to not enforce laws, otherwise they would be obligated to arrest every single medical marijuana user in the country, which would be ridiculous.

    So maybe I could revise my statement to: “Tell the DEA and federal prosecutors that medical marijuana cases are not a priority and assumed to be enforced by the appropriate state or local jurisdiction unless specifically invited in by the state government (and not just local law enforcement).”

  • Chris

    I hope this is all over the news tonight.

  • ezrydn

    Speaking of law enforcement, I’m waiting for the whining and knashing of teeth statements from all of them. As they’ve told us in the past, over and over, their minds go blank when they don’t get to slash and burn. “We don’t understand” and “What are we to do” will be the “song of the day” soon. And whether you’re a Dem or Repub, you have to admit that there’s been more happen on our “front” this year than has ever happened before, in reference to the feds. We started the snowball down the hill and it’s approaching avalanche status. Currently, it’s still rolling and gaining size.

  • The government, in the guise of the Harrison Narcotics Act of 1914, decided who could and could not use opiates – essentially becoming the third chair in the doctor’s office.

    It seems as though the government will be going after those “patients” abusing the medical marijuana system, once again determining just who can and cannot use any medicine recommended or prescribed by doctors.

    For those in drug policy reform to herald this new Obama “enlightenment” as anything more than respecting decisions made by states and their citizens will be a big mistake and, ultimately, work against the repeal of drug prohibition.

  • kaptinemo

    I tend to agree with Daniel. It’s going to take a while to seep into the bureaucratic ‘anti-drug’ hive mind that there has indeed been a ‘sea change’, so I fully expect there to be more raids until some pol stands up and asks just how much all this is costing the taxpayers…and former taxpayers on unemployment,who could sure use the money being p!ssed away in this nonsense. When that happens, the game is over.

    Until then, it’s ‘bidness as usual’ for DrugWarriors…and their enablers.

  • jhelion

    drudge picked up on it for his top headline, but the photo he used to accompany the caption is obama with a bunch of kids. frikken neocon shill.

  • The DOJ policy is good news, even if it is cautious and incremental, stating the obvious legal situation on the ground.

    It’s kind of hard to see what Obama and Holder could have done differently in stating this narrow carve out from Federal cannabis enforcement and still maintain his credibility on the one limited campaign promise he made not to prosecute legitimate patients who were complying with state law.

    I see the practical effect of keeping the US Attorneys and DEA “at bay” in California and other states that have a medical marijuana law. They will be less likely to jump into some state enforcement matter when a particular Sheriff or Supervisor type has an issue with dispensaries or growers in a given area.

    They will be forced to use state courts and face juries who will be less inclined to convict than if the matter were in Federal Court, like the Ed Rosenthal and Eddy Lepp “show trials”.

    FWIW, I don’t think there is a big jurisdictional problem as Bruce suggested: it’s not like they’re categorically telling fed LEOs not to enforce any of Title 18 of the US Code relating to “marihuana”…it’s a very limited carve out for medical use in certain states which allow it. While it could be argued that Congress should amend Title 18 to say this (this would be better, of course), it could also be easily argued that the fed jurisdiction here over “interstate commerce” is laughably small, even with the overreaching decision in the Raich case a few years back.

    And yeah, “Just Legalize It”, that article in Elle is sweet. So we’ve got Elle and Marie Claire on board, so all we need now is Vogue (models off heroin and Cannabis Cuture style zaftig bud grrllz) and Oprah and we’re made in the shade, baby, media-wise.

  • DdC

    I think this was a line in the sand for the LA DA making threats to close down all of the buyers clubs. Scam DEAgo hasn’t said much since his first statement to leave state law to states. A rather unLiberal, Federalist notion, maybe even approved by true Conservatives. Or something they couldn’t bark at without being hypocritical about guns. They were all banking on Feds to come to the rescue. As far as anything concerning the Ganjawar being Constitutional, nada. The CSA is a lie. Lies are not Constitutional. Neither was slavery but we held on to it. Overturning the CSA would be the only true Justice. This will keep conservative and elderly sick people without connections off the streets in most places, places with buyers clubs. Maybe the Growers can supply the Feds, instead of the Schwag Farm in Mississippi. Its still a fascist Ganjawar.

    Should it be legalized? Soon we will know?

    Marijuana: the law vs. 12 million people

    Life magazine Oct 31, 1969. 25-35

  • Key of the memo for me: “Congress has determined that marijuana is a dangerous drug.” Note the complete absence of Walters-era tactics (like “The DEA and HHS have proven marijuana to be a dangerous drug”).

    I read the subtext as: Congress (not science) says it’s dangerous, and when they’re ready, they can stop saying that.

  • Sukoi

    I think that the timing is important. Several states will have MMJ on the ballot in 2010 and this comes almost exactly one year before the vote. MMJ failed here in Texas partly because opponents touted that it would just cause problems because the feds would still prosecute. I think that the wind has effectively been taken out of that sail.

  • R.O.E.

    Im not sure how effective this “suggestion” will be. I mean really, these goons entrenched in full prohibition WILL look for any reason they can to stop people from using cannabis. Always have,always will,even after cannabis is legal,they will still fight it.

    The other thing I thought was that law should try to keep cartels,gangs and the criminal element in general out of medical Cannabis. They will only bring crime and violence to this, not to mention higher prices in my veiw. We want medical cannabis to not be ruined by those in crime.

    Guess we’ll wait and see if any legally operating dipensaries get raided, and what evidence would be brought against any raided.

  • R.O.E.

    Steve Clay:
    Ya its just a matter of time before they jump on the science band wagon and decide to stop saying cannabis is dangerous.

  • jayrollinhippie

    Have you never wondered why the US supreme Court in the 98 years of drug prohibition never undertaken A case involving the constitional standing of the drug laws,
    I have and the answe is simple even A blind dog could see they are not. They violate the entire intent of the constition.

  • Pete: I certainly have a major problem with Obama refusing to allow any torture prosecutions.

    In reality some broken laws are more important to address than other broken laws. But that should be a pragmatic concern based on resources, harm/cost to society, and maintaining order. Once you start to make lists of which laws are more important than other laws, there will be problems. Plus, can’t we just assume that a first degree felony is more important to prosecute than a 3rd degree felony? That a 3rd degree felony is more important to prosecute than a class A misdemeanor, and so on…? In other words, the seriousness of the crime should be the guidepost for its priority of being enforced (insofar as such a priority exists).

    When selling some leaves is the same degree of seriousness as rape and murder, the problem is with the law in and of itself. the solution should be to change the law, not foster more disrespect for it. I don’t want to have a system where drug laws are kept on the books and there’s merely an unenforceable understanding that in most circumstances such laws will be declined to be enforced. As a lawyer, I simply can’t abide such a system. It makes a mockery of the law. of course, so does having people locked up for lengthy sentences for having touched a leaf. But one legal mockery should not be replaced with another.

    Even if there is a policy statement that drug sale/possession should be the lowest priority prosecutions when in full compliance with state law, the feds will still spend resources investigating such crimes (and they are still federal crimes no matter what the states do per the Supremacy Clause), and they will still bring prosecutions just to remind people of this fact. So maybe federal drug prosecutions will drop by 10% but they will increase in arbitrariness. Defendants will not be able to enforce the policy statement to get a drug charge dismissed, and people will have to presume that they are all at risk of federal prosecution no matter what state law is, and no matter what the “least important prosecution” policy of the federal government is.

    Here’s the question – would you commit a federal crime and risk going to federal prison based on nothing more than an internal DOJ policy statement that says federal prosecution of that crime is “not a high priority”? You can’t assert that policy as an affirmative defense at trial.

    Maybe the president has authority to staff the DOJ as he sees fit and he can set it up so that the entire DOJ controlled substances prosecution division consists of one unpaid intern. All other Assistant US Attorneys are transferred to other divisions of the DOJ.

    That’s what I’d do if I were president (among many other things to end drug prohibition). I see no reason why the president wouldn’t have sole authority over how the DOJ is staffed. It’s an agency of the executive branch.

  • DdC

    DESCRIMinalization: Decrim Myths, Decrim Facts
    By David Malmo-Levine, Cannabis Culture – September 30 2009

    Is marijuana decriminalization a step in the right direction or a crafty trick to widen the net of the Drug Warriors?

    Several people, spearheaded by Hunter Thompson, attacked the current strategy of decriminalized pot as “another trick.”
    – High Times, March 1977

    Nixon lied to schedule Ganja #1 – Lies are not Laws

    Richard Milhouse Nixon to Raymond P. Shafer”

    Pot Decriminalization Timeline

    1920: The British government passes the Dangerous Drugs Act, which controls the sale of cannabis tinctures. “Indian Hemp” is added to the Act in 1925.

    to

    2009 – August: Argentina legalizes personal possession of small amounts of marijuana. “Each individual adult is responsible for making decisions freely about their desired lifestyle without state interference,” the Court determined. “Private conduct is allowed unless it constitutes a real danger or causes damage to property or the rights of others.” This echoes the harm principle arguments made by Malmo-Levine and others that failed to persuade the Supreme Court of Canada in 2003.

    Celebrity Stoners: American High Society

  • Chris

    http://www.youtube.com/watch?v=bESa7zqTuqg
    check out this guy’s youtube channel.. basically he just shouts and rants about how bad cannabis is and how it funds terrorism and other crap like that. This video is his response to this news.

  • Prohibition funds terrorism, not drugs. It amazes me how small, fragile little minds can never comprehend cause and effect.

  • […] Obama administration issues medical-marijuana non-interference guidelines (updated with full text) […]

  • Duncan

    Chris, I watched as much of that rant as I could stand. But just before I cut him off he stated that there are people, albeit a teeny tiny percentage, that benefit from medical cannabis. To me this is a sign of great progress. Yes, the idiot is ranting hysterically, but 10 years ago do you think someone like that would have acknowledged any benefit whatever from medical cannabis?

  • I said it once and now I will say it twice…”I love President Obama and his wonderful family.”