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May 4, 2011

Why is the Obama Administration now talking up federal prosecutions of state medical marijuana providers?

The question in the title of this post is prompted  by this interesting new AP article, which is headlined "States reassess marijuana laws after fed warnings."  Here are excerpts:

Several states have started reassessing their medical marijuana laws after stern warnings from the federal government that everyone from licensed growers to regulators could be subjected to prosecution.

The ominous-sounding letters from U.S. attorneys in recent weeks have directly injected the federal government back into a debate that has for years been progressing at the state level.

Warnings in Washington state led Gov. Chris Gregoire to veto a proposal that would have created licensed marijuana dispensaries. Gregoire, the chair of the National Governors Association, now says she wants to work with other states to push for changes to federal marijuana laws to resolve the legal disputes caused by what she described as prosecutors reinterpreting their own policies. "The landscape is changing out there. They are suggesting they are not going to stand down," Gregoire said.

The Department of Justice said two years ago that it would be an inefficient use of funds to target people who are in clear compliance with state law.  But U.S. attorneys have said in their recent memos that they would consider civil or criminal penalties for those who run large-scale operations — even if they are acceptable under state law. In a letter to Gregoire, Washington state's two U.S. attorneys warned that even state employees could be subject to prosecution for their role in marijuana regulation....

Letters with various cautions have also gone to officials in California, Colorado, Montana and Rhode Island.  Federal authorities recently conducted a series of raids at grow operations in Montana, helping push lawmakers to put stricter limits on the industry. Federal raids also targeted at least two dispensaries in Spokane on Thursday, a day before Gregoire decided to veto the proposed law.

More than a dozen states have approved the medical use of marijuana, which is not legal under federal law.  About half of those states regulate medical marijuana dispensaries. The impact of the U.S. attorneys' letters is growing.  New Jersey is in the process of preparing to implement its new medical marijuana law, but Gov. Chris Christie's administration doesn't want to get operations fully up and running until it can get some clarity about the legal warnings issued in other states and how they might affect New Jersey workers and marijuana operators....

The federal comments have angered supporters of medical marijuana, who had believed that the Obama administration was honoring state laws.  Ezra Eickmeyer, political director for the Washington Cannabis Association, said it appears prosecutors are operating under a more aggressive policy.  "Coming in and trying to strong-arm legislatures is way over the top," Eickmeyer said.  "We would have expected this sort of thing form the Bush administration, but not Obama."

May 4, 2011 at 10:33 AM | Permalink


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I believe the executive branch of the federal gov. should vigorously enforce existing law or Congress should change it. I am curious if Bill Otis and I are in agreement on this.

Posted by: Steve Prof | May 4, 2011 12:01:11 PM

I'm particularly bothered by the threat U.S. Attorneys have made against state officials who enforce state marijuana supply regulations, for two reasons. First, the threats are baseless--I don't think state officials actually violate federal law by merely licensing marijuana shops, and the federal memos are conspiciously vague about the legal theory under which federal prosecutors would proceed. State officials aren't aiding and abetting private violations of federal law; instead, they're merely doing what they're constitutionally entitled to do -- they're refusing to punish private conduct Congress proscribes. Second, the threats, though baseless, seem to have derailed passage of state supply side regulations (e.g., the Governor of Washington just vetoed legislation that would've licensed marijuana dispensaries, ostensibly out of fear that USAs would prosecute state employees who enforced the new law). Ironically, this may result in even fewer state controls on marijuana suppliers than would otherwise have existed, and that can't be good from the federal government's point of view. Many people are going to use the drug regardless, so why not let states try to bring the "medical" market under some supervision and prevent massage leakage into the recreational market? Some regulation would be better than the status quo under state law, which is anarchy on the supply side.

Shameful plug -- I've just completed an Article for the Stanford Law & Policy Review on Obama's approach toward medical marijuana, available here (along with my other pieces on this interesting federalism battle),http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1768127.

Posted by: Rob Mikos | May 4, 2011 1:15:45 PM


One theory for prosecution I've seen is that the state officials would knowingly be handling the proceeds of drug trafficking and thus expose themselves to criminal liability. Even token amounts for processing license applications would be enough under this theory.

It gets even worse in the case of SF or Oakland where the city itself was looking at being part of the operation, as I understood it.

Posted by: Soronel Haetir | May 4, 2011 1:29:30 PM

Soronel --

That's a more plausible theory of liability than aiding and abetting a substantive violation of the CSA. But I'm still skeptical there's any case against state officials, at least under section 1957, which proscribes knowingly engaging in a monetary transaction involving more than $10,000 derived from criminal activity. The license fee may be less than $10,000; it might not be derived from criminal activity (if the dispensary has a legitimate source of income); and it's odd to say a state official is liable anytime he / she takes money from a drug dealer -- otherwise, how would they collect fines, seize large amounts of cash, etc. without running afoul of the statute. It's a better theory, but still problematic, to my mind.

Posted by: Rob Mikos | May 4, 2011 2:21:52 PM

In some states, people who possess marijuana are required by law to purchase and affix a stamp to their drugs. Presumably, state officials sell these stamps. This has been going on for a long time. But no one ever suggested those state employees are somehow complicit in the possession of marijuana. This is a political move to stifle any activity by states to implement democratically adopted laws.

Posted by: Anonymous | May 4, 2011 3:17:17 PM

What's puzzling to me here isn't so much whether these threats toward providers and state officials are credible (it seems very unlikely they'd go after state officials, for reasons stated above, though they may go after larger dispensaries), but why is the Justice Department going about it without any public statement from the top? At the beginning of Obama's presidency, there were very public statements from both he and Holder that they didn't see this as a priority. Now they are changing tack, without public statement. Wouldn't they reap some benefit from appearing tough on drugs in conservative constituencies? And people who favor medical marijuana are already going to be mad based on these actions unacompanied by public statement from the White House. So why not come out and say why you've changed your tune?

Posted by: Christopher Mommsen | May 4, 2011 4:45:18 PM


My personal theory is that this isn't coming from the top, that there is simply an incredible lack of direction on the part of the administration, at least when it comes to this area of law. So you have United States Attorneys looking to their own political future in the knowledge that Obama and Holder simply don't care enough to make them stop.

Part of this view is formed from these highlighted actions, other acts of the DEA in regard to doctors who may or may not be over-prescribing as well as how long it took the administration to get the DEA to stop raids that were already planned but were contrary to the newly stated policy. As well as how Obama has tried hard to avoid saying much of anything substantive on drug policy.

The thing is, I'm honestly not sure what areas of law or policy Obama does have a firm view on.

(BTW, am I the only one who finds it humorous that the Firefox spellchecker still flags Obama?)

Posted by: Soronel Haetir | May 4, 2011 5:30:24 PM

Yet another fruitless and obscene waste of taxpayer money. With prosecutors driving the agenda and judges marching in lock step behind.

Posted by: james | May 4, 2011 7:57:11 PM

personally i'd love to see some state attorney generals arrested and charged in this. Would love to see them try and aruge soverign immunity against federal prosectuors!

Posted by: rodsmith | May 4, 2011 8:39:10 PM

Wsahintion Cannabis association ,,EZRA is amoron,, clinton raided more clinics than anyone, Republicans r for state right u dumb ass, u dont even know the basis for political parties, so maybe if u lobbied thr right one we might not be discussing this,, Bush rarely raided any Cali clinics EVER. idiot

Posted by: mike | May 5, 2011 3:58:16 AM

republicans love state right,,ARIZONA ?? u idiots, u get republicans u get no hassle,,clinton raided more clinics than any prez,, ezra u moron

Posted by: mike | May 5, 2011 4:01:24 AM

funny how Denver is 35% illegal mexican, with a sanctuary policy and my commie prez wants to prosecute people that pay the state of CO to grow,, what r the mexicans paying the mayor,, doubt it,, R u GOD u decide what federal laws we enforce,, people pissed over illegal beaners in my state not ganja and still theypush on ignoring the people, and respecting illegal activity for a mf VOTE

Posted by: mike | May 5, 2011 4:05:43 AM

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