Deputy Attorney General James Cole issued a memorandum today clarifying the Justice Department's position on recreational and medical marijuana enforcement.
While backing the Controlled Substances Act, which outlaws marijuana, and calling it a "dangerous drug," Cole wrote to all U.S. Attorneys:
"In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities… Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity…
"The Department's previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resource to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal priorities…
"However, both the existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests. Accordingly, 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."
The DOJ's priorities are as follows:
1. Preventing the distribution of marijuana to minors;
2. Preventing revenue from sale of marijuana from going to criminal enterprises, gangs and cartels;
3. Preventing the diversion of marijuana from states where it is legal under state law in some forms to some states;
4. Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
5. Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
6. Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana;
7. Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
8. Preventing marijuana possession or use on federal property.
The reference to a marijuana operation's size could bode well for Oakland Harborside Health Center, which has been accused of being a "superstore" by the U.S. Attorney.
"It's significant that U.S. Attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution," says Tom Angell of the Marijuana Majority, "but the guidelines seem to leave some leeway for the Feds to continue making it hard for state-legal marijuana providers to do business."
Washington State "drug czar" Mark Kleiman adds: "This is news, but it’s not history. Still, the statement is, in one regard, more explicitly accommodating to state law than might have been guessed. Previous guidance had singled out large-scale, for-profit enterprises as targets. The new memo takes that away: even a big firm won’t be a target unless its operations impinge on one of eight specified federal priorities."
