by Mike Hughes
On Wednesday, the Justice Department issued a new memorandum in an effort to further clarify – or perhaps obfuscate – the DOJ’s stance on medical marijuana prosecution.
In 2009 Deputy Attorney General David Ogden advised that law enforcement officials “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.”
The “Ogden Memo” seemed to signal a new laissez-faire approach to medical cannabis on the federal level – with the caveat that big fish breaking the law are still game: “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.”
A new memo, written by Deputy Attorney General James M. Cole and sent to U.S. attorneys June 29, claims to be in accord with the Ogden Memo. Cole seized on the not-too-terribly radical idea that U.S. attorneys probably shouldn’t waste federal resources prosecuting cancer patients who use cannabis legally under state law. However, the issue of state law is exactly where Cole appears to contrast Ogden.
While it’s true that the Ogden Memo was written with plenty of wiggle room allowing for federal prosecutions, in spirit the memorandum advised that U.S. attorneys reserve federal resources and potential prosecution for illegal pot traffickers who are hiding behind, but not following existing state law (“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”).
The problem is that since the Ogden Memo, some states (Rhode Island, New Jersey) have passed laws allowing for large-scale dispensaries and/or cultivation centers. New Jersey law allows for six non-profit Alternative Treatment Centers to be licensed by the state. While these centers ostensibly fit the criteria for legitimacy laid out by the Ogden Memo (non-profit, compliant with state law) Cole casts them in a different light based on their size.
According to the Cole Memo, “within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers … Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law … such persons are subject to federal enforcement action, including potential prosecution.”
This distinction (or obfuscation) leaves open the possibility of federal prosecution of state officials who are simply enacting state legislation by licensing and regulating these large-scale dispensaries. And while the notion of the Justice Department arresting and prosecuting New Jersey Governor Chris Christie for okaying a state dispensary system is preposterous, the fact that the federal government reserves the right to pursue prosecution of state employees does little to instill a sense of confidence in medical marijuana legislation.
In fact, the Cole Memo creates a reasonable defense for conservative governors (like Christie) to renege on medical marijuana legislation.