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Justice Department Will Allow Washington, Colorado Marijuana Legalization

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eric-holder-marijuanaIn a historic move, the US Department of Justice under Attorney General Eric Holder released a memo of guidance to US Attorneys to allow the states of Washington and Colorado to move forward with their implementation of legal, regulated marijuana markets.

Entitled “Guidance Regarding Marijuana Enforcement”, Deputy US Attorney General James M. Cole explains how this new memo supersedes the so-called “Ogden Memo” regarding the federal priorities in medical marijuana states.  Cole writes, “The guidance set forth herein applies to all federal enforcement activity… concerning marijuana in all states.”  As written, this memo promises to not only allow Colorado’s and Washington’s recreational marijuana programs to proceed but should also relieve federal pressure against medical marijuana programs in the twenty states and Washington DC.

The Obama Administration makes clear that it intends to enforce the Controlled Substances Act (CSA) but notes that the Justice Department is “committed to using its limited investigative and prosecutorial resources to address the most significant threats”.  The memo then lists eight priorities US Attorneys should consider for federal marijuana enforcement, which include distribution to minors, sales by gangs and cartels, diversion to non-legal states, covering for other crime, use of violence and firearms, drugged driving, spoiling public lands, and marijuana on federal property.

So long as the states’ medical and recreational programs address these priorities, the memo promises “conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above.”  The memo even suggests that “a robust system may affirmatively address those priorities…”; however, the Obama Administration will be taking what Attorney General Holder called a “trust but verify” approach when speaking today to state governors during a conference call.  If, in Justice’s opinion, the states fail to uphold these eight federal priorities, the Obama Administration “may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.”

In a paragraph relevant to America’s largest medical marijuana dispensary, Oakland’s Harborside Health Center, and many other large, for-profit or non-profit dispensary operations, the Administration explained that “prosecutors should not consider the size or commercial nature of a marijuana operation alone” when deciding whether to prosecute, rather they should weigh each case against the eight listed federal priorities.

Of course, the final paragraph of the memo makes clear that this is merely a memo of guidance to federal prosecutors and it makes no guarantees and creates no rights whatsoever for those engaged in the state-lawful cultivation, distribution, sales, and possession of marijuana.  It remains to be seen whether this memo is truly a watershed moment for federal acceptance of marijuana legalization.  The last time a Department of Justice memo guided US Attorneys not to waste prosecutorial resources on medical marijuana providers who were “in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” we saw the Obama Administration engage in the most medical marijuana raids of any presidential term in history.

Complete text of the memo is provided below:

August 29, 2013

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS

FROM:  James M. Cole
Deputy Attorney General

SUBJECT: Guidance Regarding Marijuana Enforcement

In October 2009 and June 2011, the Department issued guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act (CSA). This memorandum updates that guidance in light of state ballot initiatives that legalize under state law the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale. The guidance set forth herein applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning marijuana in all states.

As the Department noted in its previous guidance, Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large-scale criminal enterprises, gangs, and cartels. The Department of Justice is committed to enforcement of the CSA consistent with those determinations. The Department is also committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way. In furtherance of those objectives, as several states enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:

  • Preventing the distribution of marijuana to minors;
  • Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels;
  • Preventing the diversion of marijuana from states where it is legal under state law in some form to other states;
  • Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity;
  • Preventing violence and the use of firearms in the cultivation and distribution of marijuana;
  • Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use;
  • Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and
  • Preventing marijuana possession or use on federal property.

These priorities will continue to guide the Department’s enforcement of the CSA against marijuana-related conduct. Thus, this memorandum serves as guidance to Department attorneys and law enforcement to focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with anyone or more of these priorities, regardless of state law.[1]

Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.

The enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement. The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests. A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice. Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities.

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 set forth above. 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 law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms.

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 resources 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 the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above.

As explained above, 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 listed above. Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system. A marijuana operation’s large scale or for-profit nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority. The primary question in all cases – and in all jurisdictions – should be whether the conduct at issue implicates one or more of the enforcement priorities listed above.

As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law. Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA. Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances. This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal. It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution. Finally, nothing herein precludes investigation or prosecution, even in the absence of anyone of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.


[1] These enforcement priorities are listed in general terms; each encompasses a variety of conduct that may merit civil or criminal enforcement of the CSA. By way of example only, the Department’s interest in preventing the distribution of marijuana to minors would call for enforcement not just when an individual or entity sells or transfers marijuana to a minor, but also when marijuana trafficking takes place near an area associated with minors; when marijuana or marijuana-infused products are marketed in a manner to appeal to minors; or when marijuana is being diverted, directly or indirectly, and purposefully or otherwise, to minors.

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About Author

Executive Director: Russ Belville has been active in Oregon marijuana reform since 2005, when he was elected second-in-command of the state affiliate, Oregon NORML. After four years with Oregon NORML, Russ was hired by National NORML in 2009, working as Outreach Coordinator and hosting the NORML Daily Audio Stash podcast until 2012. Since then, Russ launched the 420RADIO marijuana legalization network and is the host of The Russ Belville Show, a live daily marijuana news talk radio program. Russ is also a prolific writer, with over 300 articles posted online and in print in HIGH TIMES, Huffington Post, Alternet, The Weed Blog, Marijuana Politics, and more.

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  • JamesGierach

    The letter of Neill Franklin of Law Enforcement Against Prohibition (LEAP) follows.

    September 6, 2013

    The Honorable Eric H. Holder, Jr.
    Attorney General of the United States
    United States Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530

    Dear Attorney General Holder:

    As an organization comprised of active and retired law-enforcement officials, judges,
    prosecutors, narcotic agents, probation, parole and correctional officers, Law
    Enforcement Against Prohibition (LEAP) congratulates the U.S. Department of Justice
    for taking a realistic and enlightened position regarding the regulated use and
    controlled sale of marijuana in Colorado and Washington. The federal government’s position is
    respectful of state sovereignty and voter-approved, marijuana ballot initiatives.
    Moreover, the position is also visionary in recognition of the need to transfer primary
    responsibility for the fight against drug abuse from law enforcement to the medical

    community and the campaign against drug use from law enforcement to family and

    individual citizens where it belongs, consonant with time-honored American values

    such as tolerance, freedom, sobriety, self-discipline and self-reliance.

    Understandably but unfortunately, law enforcement’s attention and energy has been
    diverted by the so-called “War on Drugs” from traditional police work like solving
    crime, apprehending criminals, and protecting citizens from violent lawbreakers.

    The drug war contortion of law enforcement has officers investigating who is

    consensually buying, using and selling drugs in an endless games of “Cat and Mouse,”

    “Drug Prohibition Monopoly,” and “To the Victor Goes the Prohibition Spoils.”

    This mistake is reminiscent of and repeats the alcohol Prohibition saga of nearly a
    century ago. For thirteen years, government once before sought to deploy law-enforcement
    resources in an unsuccessful effort to alter or curb society’s appetite for mind-altering
    substances by imposition of force and harsh law. The current mistake features mandatory
    minimum sentencing, explosive prison growth, dwindling privacy, policing for profit,
    informant law-enforcement and the erosion of constitutional rights.

    As a direct result of these prohibition movements, substances flourishes out of
    control, and alcohol and drug dealers and law enforcement profit greatly (It’s

    a “Trillion-Dollar Drug War”), but at dire cost to the public health, safety, welfare

    and the public purse.

    Because of the boon to law-enforcement budgets and the boodle law enforcement

    receives in non-budgeted forfeited drug-dealer riches, it is not uncommon for some

    law-enforcers and their organizational representatives (much like some drug-treatment,
    drug-testing, drug-counseling, drug-prison industries and other anti-drug benefactors)

    to favor a continuation of drug-war policies and practices forever. However, LEAP

    disavows the drug war and abhors the trend of policing for profit and the

    apportionment of seized drug profits among law-enforcement agencies. The

    practice warps the important mission of law enforcement, subverts personnel

    sworn to serve and protect, and pits law enforcement self-interests against the

    public interest.

    The self-interest is obvious as some such organizations argue disproven “marijuana
    gateway” folklore and cite misleading crime causation attribution to drug use.
    The truth is that drug use causes crime much less than drug prohibition causes
    crime. And to the extent that drug use may cause crime, under current
    prohibition practices and federal law, such drug use and crime data better
    reflect the consequences of a society that “prohibits drugs” than one that
    “legalizes drugs.” The further truth is that serious law enforcers know that
    crime is overwhelmingly caused by prohibition-driven markets (turf-wars) and

    prohibition-inflated drug prices. Inflated drug prices drive addicts to commit property

    crime and worse to support their often uncontrollable addictions.

    Crime and lawlessness is too high a price to pay for the law-enforcement luxury of

    a drug war. Disrespect for the law and the law-enforcers is too high a price to
    pay for a drug war. Intolerance, prosecution, judgment and incarceration of
    otherwise law-abiding drug users and drug sellers is too high a price to pay
    for a free society, especially when such intolerance is applied in such a
    racially discriminatory fashion as the drug war inevitably does.

    The best interests of society and public safety must trump the economic interests
    of street gangs, drug cartels and law enforcement that all benefit by
    continuing the failed and counter-productive War on Drugs.

    Rather than continue the failed War on Drugs, LEAP urges the president and the U.S.
    Congress to heartily embrace the leadership and wisdom exhibited by the people
    of Colorado and Washington regarding marijuana. Further, LEAP calls upon you,
    the president and congress to repeal the Controlled Substances Act, to declare
    illicit drugs a matter for state and local control, and to institute a national
    policy that aims to control and regulate drugs too dangerous to prohibit and,
    therefore, not regulate and control. For that reason, LEAP encourages the control
    and regulation of all illicit substances of common usage. And lastly, LEAP
    calls upon you, the president and congress to fight for the amendment (or
    repeal) of the three United Nations drug prohibition treaties that have served

    as the “Fountainhead of Drug Prohibition” worldwide and facilitated drug and

    law-enforcement problems everywhere as if the “one-size-fits-all” prohibition
    paradigm had succeeded.

    Sincerely,

    Major
    Neill Franklin (Ret.)

    NF/jeg
    cc: The Honorable Patrick Leahy – United States Senator
    James M. Cole – Deputy Attorney General…

  • JamesGierach

    Letter of Neill Franklin of Was Enforcement Against Prohibition.

    September 6, 2013

    The Honorable Eric H. Holder, Jr.
    Attorney General of the United States
    United States Department of Justice
    950 Pennsylvania Avenue, NW
    Washington, DC 20530

    Dear Attorney General Holder:

    As an organization comprised of active and retired law-enforcement officials, judges,
    prosecutors, narcotic agents, probation, parole and correctional officers, Law
    Enforcement Against Prohibition (LEAP) congratulates the U.S. Department of Justice
    for taking a realistic and enlightened position regarding the regulated use and
    controlled sale of marijuana in Colorado and Washington. The federal government’s position is
    respectful of state sovereignty and voter-approved, marijuana ballot initiatives.
    Moreover, the position is also visionary in recognition of the need to transfer primary
    responsibility for the fight against drug abuse from law enforcement to the medical

    community and the campaign against drug use from law enforcement to family and

    individual citizens where it belongs, consonant with time-honored American values

    such as tolerance, freedom, sobriety, self-discipline and self-reliance.

    Understandably but unfortunately, law enforcement’s attention and energy has been
    diverted by the so-called “War on Drugs” from traditional police work like solving
    crime, apprehending criminals, and protecting citizens from violent lawbreakers.

    The drug war contortion of law enforcement has officers investigating who is

    consensually buying, using and selling drugs in an endless games of “Cat and Mouse,”

    “Drug Prohibition Monopoly,” and “To the Victor Goes the Prohibition Spoils.”

    This mistake is reminiscent of and repeats the alcohol Prohibition saga of nearly a
    century ago. For thirteen years, government once before sought to deploy law-enforcement
    resources in an unsuccessful effort to alter or curb society’s appetite for mind-altering
    substances by imposition of force and harsh law. The current mistake features mandatory
    minimum sentencing, explosive prison growth, dwindling privacy, policing for profit,
    informant law-enforcement and the erosion of constitutional rights.

    As a direct result of these prohibition movements, substances flourishes out of
    control, and alcohol and drug dealers and law enforcement profit greatly (It’s

    a “Trillion-Dollar Drug War”), but at dire cost to the public health, safety, welfare

    and the public purse.

    Because of the boon to law-enforcement budgets and the boodle law enforcement

    receives in non-budgeted forfeited drug-dealer riches, it is not uncommon for some

    law-enforcers and their organizational representatives (much like some drug-treatment,
    drug-testing, drug-counseling, drug-prison industries and other anti-drug benefactors)

    to favor a continuation of drug-war policies and practices forever. However, LEAP

    disavows the drug war and abhors the trend of policing for profit and the

    apportionment of seized drug profits among law-enforcement agencies. The

    practice warps the important mission of law enforcement, subverts personnel

    sworn to serve and protect, and pits law enforcement self-interests against the

    public interest.

    The self-interest is obvious as some such organizations argue disproven “marijuana
    gateway” folklore and cite misleading crime causation attribution to drug use.
    The truth is that drug use causes crime much less than drug prohibition causes
    crime. And to the extent that drug use may cause crime, under current
    prohibition practices and federal law, such drug use and crime data better
    reflect the consequences of a society that “prohibits drugs” than one that
    “legalizes drugs.” The further truth is that serious law enforcers know that
    crime is overwhelmingly caused by prohibition-driven markets (turf-wars) and

    prohibition-inflated drug prices. Inflated drug prices drive addicts to commit property

    crime and worse to support their often uncontrollable addictions.

    Crime and lawlessness is too high a price to pay for the law-enforcement luxury of

    a drug war. Disrespect for the law and the law-enforcers is too high a price to
    pay for a drug war. Intolerance, prosecution, judgment and incarceration of
    otherwise law-abiding drug users and drug sellers is too high a price to pay
    for a free society, especially when such intolerance is applied in such a
    racially discriminatory fashion as the drug war inevitably does.

    The best interests of society and public safety must trump the economic interests
    of street gangs, drug cartels and law enforcement that all benefit by
    continuing the failed and counter-productive War on Drugs.

    Rather than continue the failed War on Drugs, LEAP urges the president and the U.S.
    Congress to heartily embrace the leadership and wisdom exhibited by the people
    of Colorado and Washington regarding marijuana. Further, LEAP calls upon you,
    the president and congress to repeal the Controlled Substances Act, to declare
    illicit drugs a matter for state and local control, and to institute a national
    policy that aims to control and regulate drugs too dangerous to prohibit and,
    therefore, not regulate and control. For that reason, LEAP encourages the control
    and regulation of all illicit substances of common usage. And lastly, LEAP
    calls upon you, the president and congress to fight for the amendment (or
    repeal) of the three United Nations drug prohibition treaties that have served

    as the “Fountainhead of Drug Prohibition” worldwide and facilitated drug and
    law-enforcement problems everywhere as if the “one-size-fits-all” prohibition

    paradigm had succeeded.

    Sincerely,

    Major
    Neill Franklin (Ret.)

    NF/jeg
    cc: The Honorable Patrick Leahy – United States Senator
    James M. Cole – Deputy Attorney General

  • CPSCNY76

    Holder can now appear before the Senate committee and say nothing. This memo is a cover your ass and in no way provides any protections. It does indicate that public pressure is turning up the heat. Congress needs to do its job and represent the will of the people. Our form of government is that of checks and balances. As the administrative branch has failed us. Time for the Congress to set things right. I never thought that I would vote based on a single issue but the time has come to cross party lines.

  • 2buds4me

    Just a couple questions for you Mr Holder. To help us gauge your departments true intent with this memo.

    So then Mr Holder, have you heard of Charlotte Figi. Let me tell you about her… Now Mr Holder – do you still wish to deny Charlotte Figi her medicine?

    Does not the language in your memo clearly state you will seek to incarcerate Charlotte Figi’s parents? Her Doctors? Her caregivers? Her distributors? Her growers?

    You do understand that denying Charlotte Figi’s medicine will likely result in her early death. You have no problem with that?

    And, not being a doctor, what do you see has been the best course of medical treatment for Charlotte Figi?

    Do you still wish to hold to your departments primary prohibition in memorandum – Preventing the distribution of marijuana to minors?

    Let’s see how he does with questions like these.

  • jontomas

    I don’t think this is a repeat of the Ogden memo. This is simply a response to the now overwhelming public support for ending marijuana prohibition.

    This is the feds blinking – finally!

    Let freedom ring!

  • Vixxis

    Im with you Art.

  • Apparition

    Don’t forget that back in 2009 the (so called) justice department issued the Ogden memo. Since then Oaksterdam has been raided, Harborside has been constantly harassed, 100’s of growers and dispensaries have beed arrested or put out of business.

    This is just a memo. The US federal government NEVER deals in good faith.

  • Sarijuana

    I saw this headline, and was so optimistic and happy, but after reading it through, I really feel let down. More wishy-washy-they can do-whatever-they-want. This is disappointing. I want more. I want legislation that says even the DEA can’t kick my door in, or there will be hell to pay. Sorry. I had to vent.

  • MIKE

    I think that as our constitutional right to be free and pain free,genesis1 .29 weed is natural THE LORD GAVE US ALL SEEDS TO HELP US THROUGH OUR JOURNEY OF LIFE!!!!!!!!!!!!!!!!!!!!!!!!

  • dgand

    In some ways i see this as a step in the right direction, but in other ways i see it being too little of a step to be called a good one.. (in my openion).

    I still think its time for congress to step in and end this war. Clearly the people dont want it anymore.

  • Art

    Time for cautious optimism. This pronouncement may serve to “tip” other states on the issue of recreational use.

  • Troy Lee Best

    Now if we could get our own state of MI to stop fighting us and stealing our medicine. Guess 64% wasn’t enough. Mr Schuette, the floor is yours, assmunch.

    http://www.facebook.com/birthrightsofman

  • Craig

    There are currently ice crystals forming in hell at this very moment!!!

  • kycountry

    well fan me with a brick!