Legal Commentary

As Predicted, New Justice Department Policy Didn?t Stop Federal Medical Marijuana Arrests in States Where Medical Marijuana is Legal Under State Law

By Ilya Somin

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.

Full post as published by The Volokh Conspiracy on March 11, 2010 (boomark / email).