New DoJ policy on “medical” cannabis

A sensible policy, but not clear how much it changes things.

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.

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:

16 thoughts on “New DoJ policy on “medical” cannabis”

  1. Mark,

    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;

    OK, but that might take a while. What do you consider the best interim policy?

  2. After reading statements from Walters, the simple sentence "Congress has determined that marijuana is a dangerous drug" seems refreshingly calm. I almost read it as "Marijuana is Schedule I because Congress says so (we won't be making the first move on that)."

    Sativex's Phase III trials started in 2007, so maybe those are nearing completion. They're claiming positive Phase III data, but could those be from UK trials?

  3. OK, Mark, let's get some facts in this:

    1) There are about 800 dispensaries, not 600

    2) Out of 13.5 million residents of the greater LA area, there are <300,000 people with medical cannabis prescriptions. About .3%. Wow, such tame docs.

    3) "Strictly illicit growers", because you know this how? I mean, I assume it too, but you KNOW it. Can you bring some facts to the table here?

    4) A generations worth of anti-pot propaganda? "Reefer Madness" was produced in 1936, more than 70 years ago. That's 3 generations+. and still 44% believe that it should be legal.

    5) I'll trust the DA's office stats when they produce some references, not "street value" inflated to more than 10x its actual retail value. Why do YOU, with decades of experience, give them any credence at all?

    6) When you can show that there are any real quantity of fraudulent prescriptions out there, as opposed to "I believe it to be so, so it is so," then I will start believing that it's a real problem. In the meantime, any day you want to go sit at a doctor's office, I'll go with you and we can try to actually ascertain who is real and who isn't.

    7) With the new DA and the new LA county sheriff engaged in a pissing match over who can be tougher on potheads, we're not talking about true enforcement priorities, but theatre. Shame on you for promoting it.

  4. As to converting cannabis into a lab produced drug, a cancer patient made the comment that smoking is the ideal delivery system. It enters the system immedeatly eliminating the problem of under or over medicating. Take a puff, wait a minute, if you need more take another puff.

  5. 44% favor legalization, but suppose that marijuana were, like alcohol, now legal — what percent would favor keeping it legal? I'd guess about 99%. Perhaps we should eliminate from these polls anyone who unquestioningly favors the status quo, no matter what it is.

  6. Mark, why do you favor making another drug with mild to zero negative effects subject to the whims of the FDA? Wouldn't simple legalization make more sense? Prescriptions for anti-biotics, highly addictive narcotics and other drugs with severe adverse social consequences for misuse is one thing but why is it necessary to regulate something who's main social consequence appears to be a bad case of the munchies?

  7. Bill, try telling that to the large numbers of people coming in asking for treatment for their cannabis habits. (I'm not including those sent by the courts.) Cannabis is less habit-forming than alcohol, but one chance in ten of becoming a heavy daily user for a period of many months doesn't meet my definition of "zero negative effects." Your mileage may vary.

  8. Mark,

    "large numbers of people coming in asking for treatment for their cannabis habits" Cite please?

    BTW, my earlier comment hasn't shown up. Any ideas?

  9. "mild to zero negative effects"

    Mark follows up with saying there "zero" negative effects doesn't match reality. What about "mild" effects? For instance, "Cannabis is less habit-forming than alcohol" seems to suggest that it should be less regulated than alcohol in various ways — I say this knowing you want more regulation of alcohol (at least per certain posts). But, I second the desire for quantification of "large numbers" and so forth. "Large numbers" also want treatment of overeating.

  10. "grow-your-own or consumer co-op basis"

    The former is impractical for loads of people, the second I guess is environmentally useful … let's promote consumer co-ops for lots of things! Still, probably not so practical for everyone. More nefarious things are sold than marijuana & unless we stop making them commercial, I don't think marijuana needs to be in some special class in that regard.

  11. "I’d give even money on legalization with fifteen years."

    I agree, hopefully sooner. Aside from marijuana not really being bad for you (go ahead, present evidence), criminalization doesn't work; more people smoke pot in America than in any other country.

    It's amazing that we have banned marijuana while simultaneously admitting that it has medical benefits.

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