Lots of blogospheric celebration today about Eric Holder’s formal release of policy guidance (already foreshadowed by Holder himself in February) about the enforcement of federal cannabis laws in states that allow the use of cannabis for medical purposes. I think the guidance is sound, and I’m glad that even Glenn Greenwald is willing to credit the Obama Administration with having done the right thing.
That said, there’s much less here than meets the eye.
1. Even under Ashcroft and Gonzales, the DEA wasn’t actually going around California busting cancer patients for marijuana possession. As far as I know, all of the patients arrested were growing cannabis and supplying it to others. That is, they were arrested not as patients but as growers and sellers.
2. Even under the new policy, it’s not clear to what extent the massive California “dispensary” trade is protected. It appears that the Attorney General has chosen (wisely, in my view) to accept the “medical” veneer at face value, but that leaves the problem that neither Prop. 215 nor S.B. 420 permits for-profit retail sales. Prop. 215 allows for production and possession by a patient or a patient’s “primary caregiver;” S.B. 420 allows for co-operatives. Neither contemplates proprietary enterprises with multi-million-dollar annual sales.
Holder’s memo provides, in relevant part, that U.S. Attorneys
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.
The Los Angeles District Attorney has already challenged the legality of LA’s 600 dispensaries under the state law; in addition, the City Attorney is challenging the spots that have opened up in defiance of a moratorium established by the LA City Council. So even ignoring the facts that the clubs mostly buy their pot from strictly illicit growers and that their tame docs will write you a “recommendation” for cannabis to treat your hangnail, it’s not clear which, if any, are actually operating in “clear and unambiguous compliance with existing state law.”
Footnote I continue to think that the right thing to do about the medical uses of cannabis is clinical research to convert whole cannabis into a prescription drug; it would be useful if the National Institute on Drug Abuse decided to stop using its monopoly on research cannabis (a restriction that applies to no other controlled substance) to obstruct such research. I can’t see how any other decision would be consistent with the Administration’s commitment to allowing science to make policy rather than vice versa.
Second footnote With support for flat-out cannabis legalization now at an all-time high of 44% (in the face of a generation’s worth of anti-pot propaganda), with opposition strongly concentrated in the elderly population, the debate over medical cannabis will likely be overtaken by events; I’d give even money on legalization with fifteen years. Legalization without commercialization (on a grow-your-own or consumer co-op basis) would be preferable, but that seems an improbable outcome.