Holder Memo, Part II?

Obama seems inclined to accommodate WA and CO. Hard question remains.

On hot-button social issues, Barack Obama prefers to lead from behind. So when Barbara Walters asks him “Do you think marijuana should be legalized?” and he replies, “I wouldn’t go that far, but …” there’s a pretty strong signal there.

The stance toward Colorado and Washington State Obama enunciates in the interview seems to be the same one Eric Holder tried to take about medical marijuana in 2009: it’s still illegal; we’ve got bigger fish to fry and won’t go after users, but will concentrate on large-scale criminal enterprises.

Here’s the key passage from the Holder memo:

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.

When Holder said that, marijuana advocates nationwide, and specifically the marijuana industry in California, gleefully misinterpreted him as having declared open season. They then purported to have terribly hurt feelings when DEA and the U.S. Attorneys did in fact go after large-scale criminal enterprises in the “medical marijuana” business. Prominent pot advocates bitterly critized Obama (but never the much more hawkish Romney) this year’s campaign. (The chief spokesman for the Colorado initiative encouraged pro-pot Coloradans to vote for the Libertarian candidate; for those keeping score at home, Colorado was the marginal state.)

Having been burned that way once has to make the Administration more cautious this time. But apparently Obama is still inclined to accommodate rather than to fight.

Of course, saying that the feds aren’t going arrest users isn’t saying much; they’re not arresting users now, except on federal property. The question is whether Colorado and Washington are allowed to go ahead and establish systems of taxed and regulated cannabis sale, in accord with the will of their voters but in flagrant violation of federal law.

Stay tuned.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

25 thoughts on “Holder Memo, Part II?”

  1. As long as the laws are on the books, he cannot declare them null and void, but he will never pursue members of the choom gang in whatever state with any kind of zeal.

    I hate to insert a totally irrelevant point in any thread, but I am wondering why it is not a standard practice among publishers to post errata on their books’ web pages. Specifically, in reading Nate Silver’s The Signal and the Noise, I have found two fairly glaring errors which could confuse some readers. On page 28 the labels of the third and fourth columns at the top of the page are incorrect; “correlated” should read “correlated” and vice versa. On page 250, on the fifth line of the third paragraph, “ about 90 percent of the false hypotheses are correctly rejected” should read “about 80 percent…” to match the figure on page 251, where 720 of 900 false hypotheses have negative statistical tests.

    How can we create a movement to get publishers in this day and age to post misprints and other errata on the web sites of the books they print? Should this not be nearly universally done?

    1. As long as we are complaining about other things, on a recent ‘High Chapparal’ Kathy Kirby was singing glibly about ‘Fly me to the Stars’ when of course there are no scheduled flights of this kind, or even chartered, available to the general public at the present moment. And one other small point. Why is it that these new lurex dancing tights go baggy at the knees after only a couple of evenings fun? Bring back the old canvas ones I say. It is incredible, isn’t it, that in these days when man can walk on the moon and work out the most complicated hire purchase agreements, I still get these terrible headaches. Well . .. I seem to have wandered a bit, but still, no harm done. Jolly good luck.

      1. And these days you can’t find Wheatena anywhere for love or money. It used to be on the shelf right next to Cream of Wheat. Ask for it now, and these young folks give you a blank look like they never heard of it.

        Plus these damn kids listening to Cliff’s Notes on their damn iPods. In my day, we had to buckle down and read the Cliff’s Notes for Moby Dick. Not any more. Buncha lazy bums.

      2. And dammit, why did they stop calling Carter’s Little Liver Pills by their full name?

    2. ¨“correlated” should read “correlated” and vice versa.¨
      Naturally so.

      1. Oops; “Correlated” should read “uncorrelated” and vice versa.

        Let us keep striving to replace man’s inhumanity to man with its opposite.

  2. I am astonished and dismayed that those words were “misinterpreted.” That’s mind-boggling.

    In thirty years of dealing with federal government contracting officers, I learned that anything I wrote–even the most trivial “I will comply with your direction”–had to be worded very carefully. In all that time, I doubt I ever crafted a paragraph better or more non-ambiguously than the one you quoted.

    1. You are presuming good faith on the part of those who misinterpreted, but there was none, hence Mark’s use of the modifier “gleefully”

    2. I’m not quite certain that there was any possibility of a medical marijuana supplier (regardless of it’s compliance with California law) that Holder didn’t consider and treat as a “commercial enterprise producing and selling marijuana.”

      Everyone thought he meant “if you are complying with state law, we’ll leave you alone.” That wasn’t at all how he acted.

    3. In all that time, I doubt I ever crafted a paragraph better or more non-ambiguously than the one you quoted.

      I thought it was very well done too. Since we are drifting today: similar but different to your comment, recently I re-wrote a contract amendment to add several detailed paragraphs for holding harmless and limiting liability for damages for an entity I do work for. The contractor’s representative kept re-writing and finally I sent it to the entity’s lawyer and asked them to choose the wording. Sadly, they punted and didn’t take my text. I just took some pictures of damage my text would have anticipated and made the contractor pay. Now? Gloves on soon, I think.

      Anyway, I never presume good faith anymore. Sad, but necessary.

  3. “But apparently Obama is still inclined to accommodate rather than to fight.”

    Is there an echo in here? I keep hearing that.

    1. There are 27 deaths reported in today’s elementary school shooting in Connecticut.
      If this does not make Pres. Obama ready to take on rather than accommodate the gun lobby, then I cannot imagine if anything will make him take a stand on anything.

        1. The knife lobby is responsible for far fewer deaths than the lobby agitating for drum clips, banana clips, giant clips, large-cpacity clips…

          1. Charles, the swimming pool lobby may be linked to quite a few deaths, but probably not many deaths of bystanders who just happened to be in the wrong place at the wrong time when a swimming pool jumped on them and drowned them.

  4. “Terribly hurt feelings?”

    Charlie Lynch got pinched for providing cannabis to a teenage cancer victim through his parents.
    Matt Cohen was paying taxes and working with the sheriff’s department when federal jackboots came after his livelihood and liberty.
    Wheelchair-bound Richard Lee had his business raided as retribution for his outspoken political advocacy on the ill-fated Proposition 19.
    Chris Williams is going to get almost 3x as many years in jail as child-rapist Jerry Sandusky–for being a farmer.

    Look, I love a good benefit-cost analysis as much as the next man. Multivariate analysis turns me on.

    But this isht is immoral. Ethically speaking, the federal laws prohibiting cannabis and punishing providers with sentences worse than serial child rapists–these laws are poop. They need to be resisted. Mr President Barry “Choom Gang” Obama should use the same, er, discretion that he used on the (never-passed) DREAM Act and on (non-defense of) DOMA and he ought to stop prosecuting farmers. It’s unethical and it needs to stop.

    1. I don’t know the details, but I agree in spirit. When it comes to medical marijuana, or even just marijuana, “large-scale criminal enterprises” doesn’t really get me there. Were they buying from violent thugs? did they off their competitors? Or, were they just selling pot, which as of *now,* happens to be illegal … for reasons no one ever seems able to explain in a way that makes any sense.

    2. Speaking of Holder, don’t forget banks that launder drug money and get off Scot-free, yet the working-class individual loses everything and gets a criminal record.

  5. Dear Ed Whitney,

    “As long as the laws are on the books, he cannot declare them null and void, but he will never pursue members of the choom gang in whatever state with any kind of zeal.”

    You are dead wrong.

    As a real world example, there was a legal under state law medical pot shop in the same mall as our local cafe. Since I go to the cafe often I was able to observe its the terrible problems it caused for everyone. Which were none. There was no crime, no littering, no nothing. Just a storefront where, under tight security, folks with a prescription could buy their state law legal pot.

    By the way, you don’t help your argument at all by throwing out vast, unrelated comments about things that have nothing to do with the post’s topic. The Choom gang thing didn’t help either.

    One fine day the Feds raided the place with the whole war on drugs lineup. Guys in DEA jackets, SWAT team gun teams etc. The dispensary is gone now.

    The Feds are on the case–and medical pot users tremble.

  6. The new draft of the cannabis liberalisation law in Uruguay is here. Via this page, which also links to the texts of the Washington and Colorado initiatives.
    Contrary to earlier reports, the Uruguayan government does not propose a state production monopoly, but a strict licensing régime. Growing for personal use and small cooperative clubs will also be allowed.
    Thre doesn´t seem to be anything about the international implications, in particular denunciation of the UN Single Treaty.

  7. From the Holder memo:

    >>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.

    The standard here for the Feds to initiate action is anything other than “clear and unambiguous compliance with existing state laws.” That’s an unusually low standard — to me, it sounds like they don’t even need probable cause that the CA law has been violated. It’s not that the violation has to be clear and unambiguous — the compliance does. (And it’s a determination of the law enforcers, not a court, which is relevant here.) Prosecution under Federal law would, of course, be subject to the “reasonable doubt” standard. But the question wouldn’t be whether state law was violated, but Federal law.

    So what do state laws say? Here’s the text of California Proposition 215, which itself has some ambiguities.


    >> (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: 
   (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief.

    A physician who fraudulently makes a recommendation for a person who is not sick would be in violation of the law, or at least his compliance would not be “clear and unambiguous.” So would a supplier who knowingly honored such recommendations. They might not meet the requisite burden of proof for state prosecution, but they meet the much lower standard that Holder has outlined.

  8. While the Feds have not eliminated medical marijuana dispensaries in California, they have certainly forced a lot of them to close, either by raiding them, or threatening landlords with property confiscation. Most of those that remain open keep very low profiles, relative to what was going on before.

    Before the Feds got aggressive, the local free newspaper (the Sacramento News & Review) started to have so many advertisements for dispensaries and other cannabis-related businesses that they actually created a separate section just for them and related articles. That is gone now. TV ads for MMJ recommendation providers started to appear. Even the Sacramento Bee was dipping its toe into cannabis-related advertising. Not any more (to my knowledge).

    Starting a business to grow or sell marijuana in CO or WA strikes me as a very risky proposition at this juncture, and it seems like the risk grows the more successful the business becomes, but who knows? I hope the Feds stay out of it, or better yet, formally change the legal status of marijuana, e.g., de-list it from the Controlled Substances Act.

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