Global Ganja Report

Deputy Attorney General James Cole, the same who authored a notorious 2011 memo asserting that federal cannabis enforcement remains a "core priority" even in states that have passed medical marijuana laws, has just issued a new memorandum seeming to clarify Justice Department reaction to the legalization measures in Colorado and Washington state. While it is written in the usual dense bureaucratese that often hides as much as it reveals, on balance it appears to represent a retreat from the hardline posture the Obama administration has assumed regarding medicinal cannabis over the past two years. The text of the Aug. 29 memo is provided by our comrades at CelebStoner:

In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities… Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for. In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity…

The Department's previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resource to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal priorities…

However, both the existence of a strong and effective state regulatory system, and an operation's compliance with such a system, may allay the threat that an operation's size poses to federal enforcement interests. Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department's enforcement priorities...

"It's significant that U.S. Attorneys will no longer be able to use the size or profitability of a legal marijuana business to determine whether or not it should be a target for prosecution," summed up Tom Angell of the Marijuana Majority, "but the guidelines seem to leave some leeway for the Feds to continue making it hard for state-legal marijuana providers to do business."

Photo by Barbara Doduk

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