Federal Policy on Medical Marijuana Turns Corner
| By Americans For Safe Access | Published November 4, 2009 |
Justice Department Tells Prosecutors to Respect State Law
In a sharp departure from previous federal policy, the U.S. Department of Justice has softened its stance on medical cannabis. In a memo issued last month, the Justice Department told U.S. Attorneys that they should not expend resources prosecuting medical cannabis patients and their caregivers in states that have adopted laws allowing medical use.
The memo's tacit recognition of both the legitimate medical applications of cannabis and the rights of patients whose doctors advise them to use it marks a policy reversal from previous administrations, which have spent the past 13 years undermining state medical cannabis laws. The change makes good on a campaign promise of President Barack Obama, who said he sympathized with medical cannabis patients and opposed using federal resources to interfere with state medical cannabis programs.
The memo came shortly after ASA Executive Director Steph Sherer, Government Affairs Director Caren Woodson and Special Advisor David Krahl met with Justice Department officials in Washington D.C. and explained the need for a written directive.
"Medical marijuana patients and advocates have worked long and hard for this victory," said Sherer. "We're grateful that President Obama intends to keep his promise not to undermine state medical marijuana laws, but we still need a comprehensive national policy that promotes research and protects all patients."
The official DOJ memo addresses continuing federal raids and prosecutions targeting medical cannabis patients and providers in California and other states. While President Obama had said on the campaign trail that he would end the raids, Drug Enforcement Administration actions continued as his nominee for Attorney General, Eric Holder, went through the confirmation process, including four coordinated raids in Los Angeles on the day Holder was sworn in.
Following those raids in early February, a White House spokesman reiterated President Obama's 
intention to make good on his promise of a new policy, but said that change hinged on the appointment of new officials at the DEA and other agencies. Three weeks later, Attorney General Holder, appearing at a news conference with the DEA's acting administrator by his side, said that the President's campaign promise "is now American policy."
ASA had sought a written statement of that policy to guide federal prosecutors and judges. U.S. Attorneys in California and elsewhere had said that it would be business as usual with prosecuting medical cannabis cases until they were told to stop. Some federal judges have recently balked at imposing federal prison sentences and have sought clarification from the Justice Department about how the new policy affects federal defendants.
While the memo states that the new policy does not change federal law or alter the rules for federal marijuana trials, where evidence of medical necessity or compliance with state law is routinely excluded as irrelevant, advocates hope it will have an effect on the more than two dozen federal prosecutions of medical cannabis cases currently underway.
"The change of direction is what's most important," said ASA Chief Counsel Joe Elford. "This memo gives prosecutors a reason to think twice about bringing charges and judges a chance to reduce sentences or eliminate prison time."
Since California voters approved a medical cannabis initiative in 1996, federal officials have resisted and court battles have ensued. The Clinton Administration threatened to sanction any doctors who discussed medical cannabis with their patients, but the U.S. Supreme Court ruled that Constitutional free-speech protections prevented interference.
That did not preclude prosecution of patients, however, as the Supreme Court also said in a separate case that the federal government can bring charges against medical users who comply with state law. Under the Bush Administration, nearly 100 patients and caregivers were prosecuted in California alone, and the DEA carried out more than 200 "smash and grab" raids, where property was damaged and medicine and cash seized, but no arrests were made.
Voters and legislators in 14 states with a total population of more than 78 million Americans have enacted laws providing some measure of protection for those patients who use cannabis on the advice of their doctors.
