The Memo

The Obama Administration has issued an historic memo from the office of the Deputy Attorney General directing federal prosecutors not to arrest medical marijuana patients and caregivers who follow state laws.

Here’s the memo:

October 19, 2009

MEMORANDUM FOR SELECTED UNITED STATES ATTORNEYS

FROM: David W. Ogden, Deputy Attorney General

SUBJECT: Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana

This memorandum provides clarification and guidance to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana. These laws vary in their substantive provisions and in the extent of state regulatory oversight, both among the enacting States and among local jurisdictions within those States. Rather than developing different guidelines for every possible variant of state and local law, this memorandum provides uniform guidance to focus federal investigations and prosecutions in these States on core federal enforcement priorities.

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. One timely example underscores the importance of our efforts to prosecute significant marijuana traffickers: marijuana distribution in the United States remains the single largest source of revenue for the Mexican cartels.

The Department is also committed to making efficient and rational use of its limited investigative and prosecutorial resources. In general, United States Attorneys are vested with “plenary authority with regard to federal criminal matters” within their districts. USAM 9-2.001. In exercising this authority, United States Attorneys are “invested by statute and delegation from the Attorney General with the broadest discretion in the exercise of such authority.” Id. This authority should, of course, be exercised consistent with Department priorities and guidance.

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department’s efforts against narcotics and dangerous drugs, and the Department’s investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities 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. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. 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. To be sure, 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 when otherwise pursuing the Department’s core enforcement priorities.

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

* unlawful possession or unlawful use of firearms;
* violence;
* sales to minors;
* financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
* amounts of marijuana inconsistent with purported compliance with state or local law;
* illegal possession or sale of other controlled substances; or
* ties to other criminal enterprises.

Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it 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. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

Finally, nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law. Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.

Your offices should continue to review marijuana cases for prosecution on a case-by-case basis, consistent with the guidance on resource allocation and federal priorities set forth herein, the consideration of requests for federal assistance from state and local law enforcement authorities, and the Principles of Federal Prosecution.

cc: All United States Attorneys

Lanny A. Breuer
Assistant Attorney General Criminal Division

B. Todd Jones
United States Attorney
District of Minnesota
Chair, Attorney General’s Advisory Committee

Michele M. Leonhart
Acting Administrator
Drug Enforcement Administration

H. Marshall Jarrett
Director
Executive Office for United States Attorneys

Kevin L. Perkins
Assistant Director
Criminal Investigative Division
Federal Bureau of Investigation

Jeremiah Vandermeer
Jeremiah Vandermeer

Jeremiah Vandermeer is Chief of Operations of Cannabis Culture and Editor of Cannabis Culture Magazine & Pot TV.

Comments

8 Comments

  1. Dan-o on

    Read and comprehend the memo before you get excited. Actually NOTHING has changed.

  2. Cremater on

    There is one word in this document that makes it nothing but worthless pandering and tells us it will be business as usuall.

    That word is GUIDANCE.

    This word makes none of the “suggestions” in this memo legally binding. I dont know the reasoning behind producing the memo or the motivation, but it is nothing but guidance. It even states clearly in the memo that the feds still have the ability to do as they wish based upon thier opinion.

    In fact, I think that the White House is comfortable with the fact that that thier justice departments are fully stocked with drug warriors and so issuing this guidance memo in all reality means nothing other than the ability for the Whitehouse to direct the heat to elswhere and claim that they told the justice department that they shouldn’t prosecute, even though they allowed them to continue prosecutions at thier own discretion.

    Empty BS is what this is.

  3. one12alpha on

    “Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors ARE NOT EXPECTED to CHARGE, PROVE, or OTHERWISE ESTABLISH any state law violations.”

    In other words, the DEA can still continue on doing what they’ve been doing, if they are not expected to prove state law violation….such as it is now.

    “This guidance regarding resource allocation DOES NOT “legalize” marijuana or PROVIDE A LEGAL DEFENSE TO A VIOLATION OF FEDERAL LAW, nor is it 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.”

    So when the DEA does raid, regardless of compliance to state law (being as they don’t need to prove its violation) there is STILL no defense in federal court in regard to medical marijuana.

    “NOR DOES THIS GUIDANCE PRECLUDE INVESTIGATION OR PROSECUTION, EVEN WHEN THERE IS CLEAR AND UNAMBIGUOUS COMPLIANCE WITH EXISTING STATE LAW, in particular circumstances where investigation or prosecution otherwise serves important federal interests.”

    in other words, even if you follow state law, you can still be prosecuted.

    “For example, prosecution of INDIVIDUALS WITH CANCER OR OTHER SERIOUS ILLNESSES, who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources”

    It is unlawful (and unethical) to question a persons illness/disability. The specific ailments, and injuries of patients are privileged and confidential information. It is protected by HIPAA.

    Why, or how, they expect an establishment to operate with no financial gain is beyond me. There must, at the very least, be enough income to cover the overhead of cannabis production. Including staff salary, building rental/mortgage, utilities, license, etc. This one very specific part of the legislation needs to be changed.

    Even non-profit organizations are allowed to pay their employees a salary. Now I can understand placing a cap, on the annual income for staff members, at a reasonable level… Or even requiring that the staff be credentialed as a pharmacy tech/pharmacist. I also don’t see it as unreasonable to require the establishment to produce their own product, with quality controls in place. Or for multiple establishments to acquire their product from one or more domestic producers, who’s gross product is carefully logged and accounted for in every step of the chain of custody…

    It’s not unreasonable to think there is room for improvement in the medical marijuana industry. After all, it IS medication. And as such there should be quality control, and accountability. If an establishment were required to account for every gram of product (with respect to reasonable loss from handling) from start to finish, there would be very little room for other than medical distribution. As is the case for Schedule 2 substances, like vicodon, percocet, or marinol(THC pill)…

    In the end however, this memo achieves very little in the way of progress. At least it RECOMMENDS federal prosecutors to shift their attention away from patients.

  4. Lygeia on

    This memo is a step in the right direction even if it is a baby-step, as the above posters have rightfully pointed out.

  5. dan-o on

    I’d be very shocked to learn that this was anything other than a vote grab. Obama is facing a tough challenge to his health care reform movement. Millions of pot smokers see this memo/policy shift as a nod in their direction and may be more inclined to vote for congressmen that support him. As mentioned in another post, there is nothing to say this isn’t a government version of whack-a-mole. Stick your head out and see.

  6. Anonymous on

    I agree with first commenter that this is a rather small and empty handed win for anti-prohibitionists. Yes, it is most certainly a step in the right direction to allow states to regulate themselves in accordance to voter enacted referendums, written someone in the Constitution i believe, and a huge change of pace from the Nazi-Bush regime, but the attorney generals office still clearly states, “The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug…”. Obviously the workings of politics and legislation take time (except when conglomerate funded) and this is a big win for medical states, but the Drug Czar’s office and NIDA still run cannabis inspired violence ads, and the DEA refuse to remove cannabis from schedule one. How did the FDA approve Marinol without cannabis becoming at least schedule two? At the very least, I do however commend Obama on his realist/constitutional approach to states/individuals rights to medical cannabis. A big change from all the horror stories of the past 8 years. I wonder if G.W. returned to his college habits after leaving office? Here a line, there a line, everywhere a beer beer, Ol’ McBush did us in, eeee iiii eeee iiii ooooo!!!!

  7. slade420 on

    After reading this memo it is clear there is not much substance to it. There is nothing stopping the raids of Los Angeles which the state attorney says 100% of dispensaries are opperating illegal.

    “financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/OR FINANCIAL GAINS…”

    How can they operate without making some profit. You must PAY rent for a store front. You must PAY for electricity and other services. You have to PAY employees, growers, you name it. Unless they start getting government subsities or collect from health insurance,how can one survive?

    “Nor does this guidance preclude investigation or prosecution, even when there is clear and unambiguous compliance with existing state law, in particular circumstances where investigation or prosecution otherwise serves important federal interests.”

    What is that supposed to mean? Really? Sounds like quite a loop-hole for the DEA. What are these interests? Locking up people like Marc Emery for political reasons? This memo is just that, a memo. It takes away no prosecuting power in medical marijuana states.