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Medical marijuana: The Justice Department speaks – again

Medical marijuana suppliers complain that the Justice Department is tightening the federal government's approach to enforcement. That's a disingenuous response to the department's latest directive that medical marijuana is not a business – though suppliers sure want it to be.

By Jonathan Caulkins / August 8, 2011


Medical marijuana advocacy groups are howling that a new memo from the Justice Department on medical marijuana enforcement represents a major and unfair policy shift. But they are being disingenuous.

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The June 29 memo largely reaffirms one from October 2009 – known as the "Ogden" memo. If, after the authorities said, "Don't do 'X,' " as they did in Ogden, but people continued to do "X" with a nod and a wink, then they now have no right to complain when the authorities remind them that they could be prosecuted.

What exactly is the "X" that they are not supposed to do?

It is making a living by supplying marijuana to large numbers of healthy, recreational users who meet the letter of state medical marijuana laws, but not their spirit – which is to provide compassionate recourse to people with serious diseases.

Both memos advise US attorneys that individual marijuana users with serious illnesses – and their caregivers – are not an enforcement priority, but those in the business of cultivating, selling, or distributing marijuana are.

Whether people ought to be legally treated with marijuana for cancer, AIDS, or certain other illnesses is a separate matter, worthy of its own debate but not one I will take up here. The majority of the American public say the answer is "yes"; the Drug Enforcement Administration (DEA) says "no," most recently in a June 21 letter denying a request to reclassify marijuana to allow medical use.

Letter versus spirit of state laws

The DEA's view that marijuana has no currently accepted medical use and has a high potential for abuse will likely be appealed through the courts. In the meantime, the Obama administration's position is not to interfere with medical marijuana growth and use that comply with the letter and spirit of state and local laws.

The problem comes when the letter of the law is inconsistent with the spirit. Many – though not all – of the 16 state medical marijuana statutes (plus the District of Columbia) make it easy for recreational users to obtain medical recommendations.

Whether those loopholes came from good-faith but incompetent efforts to implement a responsible system, or whether they deliberately exploited medical marijuana to achieve de facto legalization, can be known only to those who wrote the laws. It is clear, though, that such laws often allow far more than the public realizes or the Justice Department will tolerate.