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.