U.S. Department of Justice Medical Marijuana Policy-An Analysis

Here is the three-page October 19, 2009 memorandum from the Deputy Attorney General 91664043ledeentitled, “Investigations and Prosecutions in States Authorizing the Medical Use of Marijuana.”

This action is many steps in the right direction.

Most importantly, this is a formal acknowledgment by the Federal government of the reality of medical use of Cannabis on a mass scale. This is in many respects more significant than the 30-year old compassionate use program that was closed to new patients in 1992. Whether this is grudging recognition of the extensive scientific support for using Cannabis medically, simply honoring a campaign pledge, or bowing to public opinion, it is very important politically and symbolically. At a minimum, this memorandum should encourage state legislators to change their minds if they have been reluctant to vote for a state medical marijuana law on the ground that such a state law might conflict with federal law. In addition, this change encourages scientific researchers to redouble their search for potential medical benefits from Cannabis. They can see that their research is likely to be rewarded with application in the patient community. And, the announcement of this memorandum must give hope to those who are now in prison, or who have been sentenced to prison, who were operating or planning bona fide medical marijuana dispensaries, and their loved ones, that their sentences might be commuted.

The memorandum reflects the political and organizational conflict within the Department of Justice. The Department reiterates that “marijuana is a dangerous drug” and that “the illegal distribution and sale of marijuana is a serious crime.”

Unfortunately this memorandum offers less formal protection that any legitimate dispensary operator or care giver wants and really needs.

The memorandum says investigators and prosecutors “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 unfortunate reality is that “clear and unambiguous compliance” is an extraordinarily high standard to achieve in general. When the conduct is entirely prohibited by federal law, the state laws were often deliberately written with ambiguity to avoid “positive conflict” with the Controlled Substances Act (sec. 708 of the Controlled Substances Act, 21 U.S.C. 903). Until DEA reschedules Cannabis and Congress revises federal law, this will be an area of law that is inherently and inescapably filled with ambiguity.

The memorandum suggests seven circumstances that suggest an absence of “clear and unambiguous:”
* unlawful possession or unlawful use of firearms;
* violence;
* sales to minors;
* financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering and/or financial gains or excessive amounts of cash;
* amounts of marijuana inconsistent with purported compliance;
* illegal possession or sale of other controlled substances; or
* ties to other criminal enterprises.

But the memorandum itself is ambiguous. For example, every medical marijuana user, grower or care giver who possesses a firearm — even if owned legally under every other circumstance — arguably is per se an unlawful firearms possessor under federal law which prohibits possession of firearms by a person who is an unlawful user of a controlled substance (18 U.S.C. 922(g)). How does that prohibition square with the U.S. Supreme Court’s ruling that possession of firearms is constitutionally protected as an aspect of the right to self defense in last year’s case of District of Columbia v. Heller, 554 U.S. ___ (2008) — especially considering the high value of Cannabis and the risk of armed robbery or burglary of the premises where it is grown, kept or dispensed?

And speaking of “ambiguity,” the Department of Justice is certainly ambiguous when using terms such as “amounts of marijuana inconsistent with purported compliance” or “financial gains or excessive amounts of cash.” That’s clear, isn’t it?

Well, perhaps the retrograde elements in the Department of Justice need to see how this operates and that “the world as we know it” does not collapse, before moving to the next logical step.

But all that aside, this is enormously important progress for the nation. Whole Cannabis has enormous potential as a medicine. This memorandum allows progress in making that potential real across a wide front of society, science and law.

by Eric E. Sterling. Source.

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