federal enforcement policy de-prioritizing medical marijuana

8/9/2019 Federal Enforcement Policy De-Prioritizing Medical Marijuana

http://slidepdf.com/reader/full/federal-enforcement-policy-de-prioritizing-medical-marijuana 1/4

Federal Enforcement Policy De-Prioritizing Medical Marijuana:Statements from Pres. Obama, his spokesman, and the Justice Department

Although federal criminal law does not have an exception for the medical use of

marijuana, several statements made by Barack Obama, Attorney General Eric Holder, and their

spokespeople in 2008, 2009, and 2010 reflected that the enforcement of federal criminal laws

against those complying with state medical marijuana laws would not be an enforcement priority.

In 2011, U.S. attorneys and the office of the Attorney General backtracked on prior statements,

indicating that larger-scale providers could be targeted, but that enforcement against patients and

those caring for them would not be a priority. Here is a collection of statements from Barack

Obama, his spokesperson, and the Department of Justice on federal law enforcement and medical

marijuana.

During a March 22, 2008 interview with Gary Nelson, editorial page editor for the

Oregon newspaper Mail Tribune, Barack Obama stated: “What I'm not going to be doing is usingJustice Department resources to try to circumvent state laws on this issue simply because I want

folks to be investigating violent crimes and potential terrorism. We've got a lot of things for our

law enforcement officers to deal with.”1

In a February 5, 2009 article in The Washington Times, White House spokesman Nick

Shapiro said, “The president believes that federal resources should not be used to circumvent

state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal

government, he expects them to review their policies with that in mind.”2

When asked during a press conference on February 25, 2009 if recent raids on medical

marijuana providers in California represented American policy going forward, U.S. Attorney

General Eric Holder responded, “No. What the president said during the campaign, you'll be

surprised to know, will be consistent with what we'll be doing in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. What he said

during the campaign is now American policy.”3

On March 18, 2009, during a question-and-answer session with reporters at the Justice

Department, Holder clarified his previous statement. He said, “The policy is to go after those

people who violate both federal and state law … Given the limited resources that we have, our

focus will be on people, organizations that are growing, cultivating substantial amounts of

marijuana and doing so in a way that's inconsistent with federal and state law.”4

In October 2009, Holder’s stated policy was memorialized in a memo written by then

Deputy Attorney General David W. Ogden to United States attorneys in states with medical

marijuana programs. The memo said that law enforcement efforts targeting drug manufacturing

and trafficking 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

1 Gary Nelson, “He favors long-term timber-payments solution,” Mail Tribune, March 23, 2008. Full comments from

video of interview at http://granitestaters.com/candidates/video_obama_02.html2 Stephen Dinan and Ben Conery, “DEA pot raids go on; Obama opposes,” Washington Times, February 5, 2009

3 YouTube video: http://www.youtube.com/watch?v=kjZeW2fcQHM

4 Devlin Barrett, “Attorney General Signals Shift in Marijuana Policy,” Associated Press, March 18, 2009



marijuana.”5 The Ogden memo provided a list of characteristics of “illegal drug trafficking

activity of potential federal interest,” which included sales to minors, violence, ties to other

criminal organizations, and unlawful possession of firearms.

New Mexico’s first licensed producer was licensed 2009, and U.S. Attorney General Eric

Holder was specifically asked about the federal government’s take. He said, “For those

organizations that are doing so sanctioned by state law and do it in a way that is consistent withstate law, and given the limited resources that we have, that will not be an emphasis for this

administration.”6

During a May 10, 2010 hearing before the House Judiciary Committee, Congressman

Jared Polis (D-CO) asked Attorney General Holder, “Do you believe — do you agree that

statements that could be reasonably taken as threatening to businesses that are legal in our state

are, in fact, contrary to your stated policy?” Holder replied, “Well, again, if the entity is, in fact,

operating consistent with state law, and is not — does not have any of those factors involved that

are contained in that Deputy Attorney General memo, and given, again, the limited resources that

we have and our determination to focus on major traffickers, that would be inconsistent with what

the policy as we have set it out.”7

In late June 2011, the DOJ seemingly backtracked on prior statements. Following a series

of letters from United States attorneys that seemed at odds with prior statements by the White

House and the DOJ, Deputy United States Attorney General James Cole issued a memo stating

that the DOJ’s “view of the efficient use of limited federal resources as articulated in the Ogden

Memorandum has not changed.” It said “it is likely not an efficient use of federal resources to

focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana

as part of a recommended treatment regimen consistent with applicable state law, or their

caregivers.”8 However, the Cole memo defined caregivers as those caring for seriously ill patients

and “not commercial operations cultivating, selling or distributing marijuana.” It noted legislation

to authorize large scale cultivation with “revenue projections of millions of dollars based on the

planned cultivation of tens of thousands of cannabis plants” and claimed the “Ogden

Memorandum was never intended to shield such activities from federal enforcement action and

prosecution, even where those activities purport to comply with state law.”

Federal enforcement policy is currently unclear. The Cole memo said that “consistent

with resource constraints and the discretion” that prosecutors may exercise, people who “are in

the business of cultivating, selling or distributing marijuana,” even in a manner consistent with

state law could be targeted. When asked if the federal government would exempt large-scale,

non-profit medical marijuana collectives under this policy, Justice Department spokesman

Matthew Miller declined to comment.9

During a congressional committee meeting on December 8, 2011, U.S. Rep. and House

Judiciary Committee member Jared Polis (D-CO) attempted to clear up some of this ambiguity.

Polis pressed Attorney General Holder to clarify some medical marijuana enforcement issues. He

began by asking Holder whether the Ogden memo is still current and enforced, to which Holder

5 David Ogden, Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States

Authorizing the Medical Use of Marijuana , United States Department of Justice, Office of the Deputy Attorney

General. October 19, 20096 KOB-TV, “Feds: Medical marijuana producers not a target,” June 5, 2009.

7 http://blogs.westword.com/latestword/2010/05/jared_polis_questions_attorney.php

8 James M. Cole, Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions

Seeking to Authorize Marijuana for Medical Use. United States Department of Justice, Office of the Deputy Attorney

General. June 29, 20119 John Hoeffel, “Justice Department shoots down commercial marijuana cultivation,” Los Angeles Times, July 2, 2011.



simply replied, “yes.” Polis went on to ask for further clarification regarding the Cole memo.

Holder responded:

What we said in the memo, we still intend, which is that, given the limited

resources that we have, and if the states that are … that have medical marijuana

provisions, and if you take into account the Cole memo, if in fact people are not

using the policy decision that we have made to use marijuana in a way that’s notconsistent with the state statute, we will not use our limited resources in that way.

Polis then made reference to the recently announced DOJ crackdown on medical

marijuana in California and asked whether the state of Colorado might have additional protection

from federal intervention based on its extensive and thoughtful state regulatory and licensing

system. Holder again reassured him, claiming, “Where a state has taken a position, as it passed a

law, and people are acting in conformity with the law, not abusing the law but acting in

conformity with it, and again given our limited resources, that would not be an enforcement

priority for the Justice Department.”10

In an April 2012 Rolling Stone interview, Pres. Obama was once again reminded of his

2008 campaign pledge not to “use Justice Department resources to try and circumvent state lawsabout medical marijuana” and questioned about his administration’s raids on medical marijuana

providers. In his response, Pres. Obama again focused on the distinction between individual users

of medical marijuana and large-scale producers and operators:

What I specifically said was that we were not going to prioritize prosecutions of

persons who are using medical marijuana. I never made a commitment that

somehow we were going to give carte blanche to large-scale producers and

operators of marijuana – and the reason is, because it’s against federal law. I

can’t nullify congressional law. I can’t ask the Justice Department to say, “Ignore

completely a federal law that’s on the books.” What I can say is, “Use your

prosecutorial discretion and properly prioritize your resources to go after things

that are really doing folks damage.”11

Pres. Obama went on to claim that as a result of his policy, there have not been

prosecutions of individuals using marijuana for medical purposes.

Following the letters issued by U.S. attorneys, some governors placed a hold on

implementing new or improved medical marijuana legislation, citing concerns that state

employees could be federally prosecuted for implementing state medical marijuana laws. One

such governor, Arizona Gov. Jan Brewer (R), filed a lawsuit asking whether Arizona’s law was

preempted by federal laws. In response to the suit, the DOJ filed a motion to dismiss because

there was no case or controversy. The department stated that there was no “genuine threat that

any state employee will face imminent prosecution under federal law” and noted that “plaintiffs

can point to no threat of enforcement against the State’s employees.”12

10 http://www.youtube.com/watch?v=DCNutE9nUVk&feature=player_embedded

11Wenner, Jann S. “Ready for the Fight: Rolling Stone interview with Barack Obama,” Rolling Stone, May 10, 2012.

Available online at http://www.rollingstone.com/politics/news/ready-for-the-fight-rolling-stone-interview-with-barack-

obama-2012042512

Assistant Attorney General Tony West, DOJ Assistant Branch Manager Arthur R. Goldberg, Trial Attorney with the

United States Department of Justice Scott Risner, Federal Defendant’s Motion to Dismiss and Memorandum of Law in

Support Thereof , United States District Court, District of Arizona case No. 2:11-cv-01072-SRB. August 1, 2011.



It has been about two years since the U.S. attorneys’ letters and Cole memo were issued.

All of the states with dispensary programs, except Delaware, have either resumed implementation

of their programs or never stalled implementation. Arizona and New Jersey's first dispensaries

opened in December 2012. Rhode Island, Vermont, and Washington, D.C. are all expected to

have dispensaries open this spring, with Massachusetts and Connecticut joining them later this

year. In Maine, New Mexico, and Colorado, state-regulated dispensaries continue to operate as

they have since 2009-2010. State workers have not been targeted in any of the states, nor havelicensed, regulated dispensaries complying with state laws. (The one exception is

that Colorado’s U.S. attorney sent threatening letters to dozens of dispensaries that were located

within 1,000 feet of schools, forcing them to close or move.)

!"#$%&# ($)*+ ,-./

federal enforcement policy de-prioritizing medical marijuana

Documents