Medical Marijuana Policy, Then and Now

Medical marijuana advocacy groups are howling that a new memo from the Justice Department on medical marijuana enforcement represents a major and unfair policy shift. But they are being disingenuous.

That’s from an op-ed by Professor Jonathan Caulkins that puts paid to the hysteria over the revised Department of Justice guidance. As he makes clear, the new guidelines pose no threat at all to seriously ill people who patronize medical marijuana dispensaries.

The experience of medical marijuana in the Obama Administration illustrates the principle that every public policy decision is really two decisions: (1) What is the policy going to be? and (2) How will it be communicated? I have no inside information on how DOJ made these two decisions regarding their 2009 change in medical marijuana policy, but the first was more skillfully handled than the second.

I suspect DOJ didn’t realize that it would lose control of its message the moment the policy was introduced half-formed to the media without a developed policy and communication strategy to immediately follow on. The new, minimally-elaborated policy was spun for more than half a year by media-savvy, deep-pocketed legalization advocates as a sign that the administration in its heart was comfortable with large-scale marijuana production and use (Yes we cannabis!).

That misunderstanding more than anything cued state legislators to act, creating the medical marijuana industry in the United States. DOJ now clearly rues that development, but it might have been avoided by changing the enforcement practice without making a press announcement seven months before the written, detailed policy was ready. There aren’t that many federal prosecutors and all of them have telephones…why not reach out and touch your key people and leave it at that until you have all the details worked out for public consumption? That might have been easier than trying to put so much toothpaste back into the tube.

In fairness, perhaps a more careful rollout would have met the same fate. No policy issue plays the game of “telephone” on the Internet faster than anything related to marijuana. When the Department of Veterans Affairs announced it would not penalize veterans legally receiving medical marijuana from state sources, that policy transmuted into “VA is now providing medical marijuana” in less than 24 hours. That this was ludicrous on its face (the federal government would not pay federal employees to commit a federal felony) did nothing to stem the spin or the genuine misunderstandings.

We may be at a place in a our social and political discussion of marijuana that the federal government can’t take any moderate policy steps. One meme about President Obama is that he has flip-flopped on marijuana decriminalization, endorsing it as a senator and opposing it as President. But another equally likely scenario is that at this cultural moment, if a President said that he favored marijuana decriminalization, advocacy groups and the press would be touting the President’s full-throated endorsement of complete legalization of all drugs, with generous federal tax breaks to help the new industry get off the ground.


  1. Mark Kleiman says

    Just one footnote: the Federal government was paying Federal employees to commit Federal felonies at least from the establishment of Abu Ghraib to the departure of Don Rumsfeld as SecDef in 2006; torture is in direct violation of 18 U.S.C. 2340, and the orders to commit torture came from the top.

  2. Lars says

    So they’ve accidentally performed an experiment in partial decriminalization. What were the calamitous results, I wonder?

  3. Danny Mendez says

    Legalize it and get the feds out of my private life. True freedom is not pissible without the end of drug prohibition.

  4. Anonymous says

    True freedom is not pissible without the end of drug prohibition.

    Well said. I want drugs so I can piss away my freedom!

  5. says

    I think the fundamental problem is that the federal policy is based on a lie– that there’s no way smoking marijuana can have any medical benefits, and the state policies are based on a different lie– that medical marijuana is solely about medical treatment.

    The result is that you have a fundamental disconnect between what goals of the federal government and the goals of the state marijuana law reformers.

    On the federal side, the “hardline” position is no marijuana for anyone under any circumstances, and the “moderate” position is to retain the government’s prohibition on marijuana and its lie that smoking marijuana has no medical use, while also agreeing to let states slide on the issue of enforcement against sympathetic users such as cancer and glaucoma patients.

    On the state side, the “moderate” position is that bona fide medical users should be completely free from legal threats and should be able to purchase their medicine in a straightforward manner, and the “hardline” position is full legalization.

    The problem here is that even the “moderate” positions don’t overlap (and of course, the hardliners on each side help ensure that they never do). To satisfy the moderate state reformers, the federal government would need to take marijuana off of schedule I, allow free and unimpeded medical research on smoked marijuana, and stop enforcement of any laws against medical distributors or users. To satisfy the moderate federal types, states would need to seriously police against anyone not using marijuana for a medical purpose, medical marijuana would need to be very difficult to get, and the drug would have to stay on schedule I and there will be no research that might expose the government’s lie about it not having a medical use.

    The Obama Administration wanted to take the “moderate” federal approach. That’s not acceptable, short term or long term, to even the moderates who are pushing the reform of state marijuana laws. No amount of communication could change that– the only thing that could really change that would be a federal commitment to actually LEGALIZE the medical use of marijuana. And that means no more schedule I, no more lies about it not having any medical benefits, no more bans on research, and no more raids on medical distributors.

  6. says

    Dilan – I think you hit it quite well with the federal government’s hardline vs. moderate positions. The problem is that their moderate position isn’t really a position — it’s an attempt to show themselves to be “moderate” and not the horrible ogres who would put cancer patients in jail. However, they to it without giving any kind of clear line as to where that position falls (or how those cancer patients are supposed to obtain their medicine). Thus, the states have no way to utilize that information in any practical way, making the federal “moderate” position almost indistinguishable from their “hardline” position in practical application.

  7. Matthew Meyer says

    Footnote number two: the federal government has, apparently, been paying federal employees to commit the felony of production and distribution of cannabis: it’s called the Compassionate Investigational New Drug program, and it has been supplying cannabis since 1976 or so.

  8. says

    . The problem is that their moderate position isn’t really a position — it’s an attempt to show themselves to be “moderate” and not the horrible ogres who would put cancer patients in jail.

    I think it’s partly that, but I think it is partly something else.

    The reality is that the medical marijuana laws ARE, in part, not simply a way to distribute marijuana to the desperately ill who have been screwed over by federal prohibition, but also an attempt to undermine federal marijuana enforcement. That’s one reason why the Oakland Cannibis Cooperative and Raich cases were litigated all the way to the Supreme Court. The people who wrote these initiatives selected some of the most compelling cases for marijuana use and passed laws that basically dared the feds to continue maximalist enforcement, but the ultimate goal was not simply to get a few cancer patients access to marijuana but to poke some holes in federal policy that would allow for wider distribution of pot, either by changing public opinion about marijuana, forcing the federal government to lift some its more draconian policies, or creating channels through which recreational pot could also flow.

    The federal government knows this. So their response is to try and do the absolute minimum to try and ensure that, as you said, they don’t look like ogres, while also trying to ensure that the medical marijuana laws don’t actually have their intended effect of undermining the more general system of marijuana prohibition.

    Of course, there is no actual way to thread this needle. The only way to ensure that there is no spillover and nobody without a serious medical need obtains medical marijuana is to crack down very hard on dispensaries and basically exercise forbearance only in those cases where you have a seriously ill person who manages to obtain marijuana through a distribution channel that is not likely to result in any distribution to recreational users.

    Because, in the end, just like any other drug that both has legitimate medical uses and recreational uses, there’s no way to ensure access for medical users without at least some spillover into recreational users. You can look at any prescription drug that has both sorts of uses (e.g., morphine, oxycontin, erectile dysfunction medications) and you can see this happening.

    A reasonable accommodation of state medical marijuana laws requires federal acceptance of at least some crossover usage. And for various reasons (because they desperately want to avoid doing anything that might undermine their broader recreational marijuana policy), the federal government does not want to take that step. So we have a standoff. As I said, no better communication from the Obama Administration could have bridged this gap. Only the acceptance that making sure that good channels of medical distribution outweighs whatever increase in recreational use that might result would have bridged the gap, and the federal government is not there yet.

  9. Tony Aroma says

    “it’s an attempt to show themselves to be “moderate” and not the horrible ogres who would put cancer patients in jail. ”

    You have to really give the feds the benefit of the doubt to call their policy an attempt to not look like ogres. The most recent DOJ memo said straight out they were leaving cancer patients alone because of their limited resources. I interpret that to imply that they would happily arrest every single person who ever smoked a joint, if only they could. In no way could I interpret anything that was said in any memo to mean that not arresting terminal patients was the right thing to do.

  10. Rick Steeb says

    The feds need to remove Cannabis from Schedule I forty years ago. They must remove it from CSA scheduling altogether, and place it in the same schedule as tobacco. To keep Cannabis illegal while tobacco and alcohol are dispensed freely would be PATENTLY UNACCEPTABLE.

  11. Francis says

    “Because, in the end, just like any other drug that both has legitimate medical uses and recreational uses, there’s no way to ensure access for medical users without at least some spillover into recreational users. You can look at any prescription drug that has both sorts of uses (e.g., morphine, oxycontin, erectile dysfunction medications) and you can see this happening.”

    Yeah, that’s obviously terrible. Sure providing relief to terminally-ill cancer or AIDS patients suffering unbearable agony is fine (I guess), but is it really worth the risk that some people will find a way to get a hold of medical marijuana simply for *shudder* fun?

    Seriously, could someone please explain to me why recreational marijuana use is not “legitimate”? Is recreational use of alcohol “legitimate”? If so, why? After all, alcohol is a toxic substance and responsible for hundreds of acute alcohol-poisoning deaths each year. (In contrast, it is physically impossible to fatally overdose on marijuana.) In addition, alcohol’s long-term health risks are estimated to be responsible for 35,000 deaths each year. (In contrast, the use of marijuana, even long-term, is not associated with higher levels of mortality.) The U.S. government estimates that alcohol contributes to 25 to 30 percent of all violent crime in America, including 30 percent of homicides and 22.5 percent of sexual assaults. It’s also estimated that alcohol abuse plays a role in close to 70% of cases of domestic and partner violence. (In contrast, marijuana use is not associated with increased violence. If anything marijuana use has a tendency to REDUCE the risk of violent behavior by pacifying the user.) Finally, alcohol is physically addictive. In extreme cases of alcoholism, the withdrawal symptoms can be so severe that they can lead to delirium tremens, which may be fatal. (In contrast, marijuana use is not physically addictive. At worst, marijuana-associated “withdrawal” is described by the U.S. National Academy of Sciences as “mild and subtle.”)

  12. Servetus says

    Some well-earned paranoid responses regarding what governments and politicians say, and then do, regarding marijuana policy is not a misinterpretation. Rather, it’s an attempt to read between the lines, to test the phraseology, to find loopholes the government can use to blur an originally stated position. It’s not as if activists haven’t been lied to before.

    In fact, if there is anyone likely to be deceitful or useless at English interpretations of drug science, it’s the prohibitionist. The dysfunction is a clue to the persona and culture of the prohibitionist, and it depicts an individual who is often steeped in superstitions and junk ideologies which oppose science. Source checking is critical, as these ideology junkies tend to distort and censor the database.

  13. says


    I agree that recreation is a perfectly legitimate reason for someone to smoke marijuana. The federal government, however, does not, and that explains why they are unwilling to take the steps necessary to actually ensure that medical users obtain their medication.

    Another way of stating this is that in theory, medical marijuana is something where there is some common ground between the feds and the marijuana reform movements in the states. But in practice, unless the feds accept that it’s OK to do something that will also supply pot to some recreational users as well, they will never be able to actually do what is necessary to ensure medical users can obtain it.

  14. Francis says


    Thanks for the response. Maybe I’m cynical but I don’t think the feds’ problem with medical marijuana is that such programs will facilitate recreational use. I think it’s their (correct in my view) assessment that such programs will ultimately erode support for continued criminal prohibition of recreational use. Admitting that marijuana has substantial medical benefits for some individuals undermines their attempts to demonize the substance. The widespread medical use also tends to normalize pot use and make it less scary to those folks (e.g. social and religious conservatives) who are most opposed to legalization.

  15. A Critic says

    “That this was ludicrous on its face (the federal government would not pay federal employees to commit a federal felony) did nothing to stem the spin or the genuine misunderstandings.”

    As someone else above pointed out, this is flagrantly false. The federal government grows and distributes tens of thousands of marijuana joints every year and has for decades to a handful of lucky patients. The reason the previous poster didn’t point out is WHY they do this. It’s because a court ruled that since these people will die if they are denied their life saving medicine the government must continue to grow and distribute them their medicine. There is an interesting contradiction here – for those who the government provides medicine, they can not be denied their medicine because of the essential life saving property of that medicine. For everyone else, they can be denied the very same medicine and they are denied the very same medicine.

    Prohibition = murder.

  16. says


    Ir’s both. They don’t want to erode support for prohibition, sure, but they also want to “make sure” that any exceptions that are made for medical users don’t make pot available for any recreational users. The problem is, that’s unrealistic.