The Marijuana Memos


Medical MarijuanaIn response to the increasing number of states that have authorized medical marijuana use during the past two years, the U.S. Department of Justice recently issued a memorandum to its field offices regarding federal enforcement of the Controlled Substances Act in such states. Many fear that the memo signals an impending federal crackdown on the production, distribution and possession of marijuana in these states, in contrast to the previously relaxed stance toward prosecution. To better understand the situation, here’s a background on the law.

State Laws

State laws regulating marijuana use can be divided into two categories: decriminalization laws and those that authorize medical use of marijuana. De-criminalization refers to the reduction of penalties for possession of small amounts of marijuana for personal use. Decriminalization statutes do not legalize possession, but treat it as a civil offense that subjects an offender to a monetary fine, instead of incarceration.

California, Colorado, Maine, Massachusetts, Nebraska, Oregon, Minnesota, Mississippi, Nevada, North Carolina, Ohio and Alaska have decriminalized possession of small amounts of marijuana to some extent. Connecticut is the most recent state to pass a decriminalization statute–that law went into effect on July 5, 2011.  Alaska has the most relaxed possession laws: For amounts up to 1 oz in the home or residence, there is no penalty (possession in public is a different story, however). Nevada has the strictest law (in terms of decriminalization)– it classifies possession of less than an ounce as a misdemeanor which carries the penalty of rehab and a fine.

Many states also have laws allowing the use of marijuana for medical purposes. These jurisdictions permit patients with certain conditions to possess and use marijuana while under the treatment of a physician. Many of these statutes include cultivation provisions, allowing patients to grow their own plants, and extend possession protection to the patient’s primary caregiver. Some statutes provide regulations for large scale cultivation and distribution, dispensaries for resale, and patient registries. States with medical marijuana laws on the books include Alaska, Arizona, California, Colorado (see also), Delaware, the District of Columbia, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. Maryland’s law is interesting because it provides for an affirmative defense of “medical necessity” to a charge of marijuana possession. The Montana legislature recently passed new restrictions on medical marijuana use within the state by making it harder for patients with chronic pain to get a prescription, limiting the number of prescriptions a doctor can write, and banning marijuana advertisements. Medical marijuana advocates have challenged the amendment in court.

Only five states have both decriminalized and authorized the use of medical marijuana: California, Colorado, Maine, Oregon, Nevada, and Alaska.

Federal Laws

In 1970, Congress enacted the Controlled Substances Act, codified at 21 USC 801 et seq. This law regulates the manufacture, distribution, importation, and possession of certain controlled substances, such as marijuana, which is defined in Section 802(16):

The term “marihuana” means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin. Such term does not include the mature stalks of such plant, fiber produced from such stalks, oil or cake made from the seeds of such plant, any other compound, manufacture, salt, derivative, mixture, or preparation of such mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of such plant which is incapable of germination.

The Act established five schedules of controlled substances based on their potential for abuse, medical use, safety and likelihood of dependence. The schedules, promulgated in 21 CFR 1308, classified marijuana as a Schedule I hallucinogenic substance because:

(a) The drug or other substance has a high potential for abuse.

(B) The drug or other substance has no currently accepted medical use in treatment in the United States.

(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

Since marijuana has “no currently accepted medical use” under the Controlled Substance Act, federal authorities may prosecute its possession for any purpose. This stand conflicts with state laws that have decriminalized marijuana and legalized the medical use of marijuana, particularly in DOJ field offices located in enacting jurisdictions. The City of Oakland’s plans to build a municipal marijuana growing operation, which would sell medical marijuana to local dispensaries and raise city revenues, illustrates this problem.

The Memos

In 2009, the Department of Justice issued what has come to be known as the Ogden Memo. This memo seeks to provide “uniform guidance to focus federal investigations and prosecutions in these [medical marijuana enacting] States on core federal enforcement priorities.” The memo reaffirms the United States’ interest in enforcing the Controlled Substances Act, but also recognizes that enforcement resources are limited, and should be focused efficiently. To this end, prosecutors should not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” but rather, “commercial enterprises that unlawfully market and sell marijuana for profit.”

Last week, the DOJ issued another memorandum on the subject, which is being called the Cole Memo. The Cole Memo reiterates the position of Ogden in light of jurisdictions that have “considered approving the cultivation of  large quantities of marijuana, or broadening the regulation and taxation of the substance.” The memo notes the “increase in the scope of commercial cultivation, sale, distribution, and use of marijuana for purported medical purposes,” and that “within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation
centers. Some of  these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.” The Cole Memo reminds prosecutors that “The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law.”

The memo was issued in response to a spate of letters that went out to states with current or pending medical marijuana laws. These letters are detailed in a lawsuit filed by the State of Arizona, which received such a letter.

The State of Arizona filed suit against the United States seeking declaratory judgement as to “whether strict compliance and participation by citizens and state employees in the AMMA [Arizona Medical Marijuana Act] provides a safe harbor from federal prosecution, or in the alternative, whether the AMMA is preempted by the Controlled Substances Act (“CSA”) and federal law.”

The complaint provides an overview of the recent enforcement overtures conducted by the DOJ. It describes letters sent to Arizona, Washington, Montana, Colorado, California, Rhode Island, Hawaii, Vermont, New Mexico, and Maine reminding them of the CSA, the Ogden position, and their potential liability under federal law. The letter to California specifically mentions the City of Oakland, which last year enacted legislation that would allow the city to grow medical marijuana to sell to local dispensaries. Oakland previously passed a law allowing the city to regulate and tax marijuana sold at these dispensaries.

The “Hang Letter” to California states that “[t]he Department [of Justice] is concerned about the Oakland Ordinance’s creation of a licensing scheme that permits large-scale industrial marijuana cultivation and manufacturing as it authorizes conduct contrary to federal law and threatens the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances.”

In response, “the Department is carefully considering civil and criminal legal remedies regarding those who seek to set up industrial marijuana growing warehouses in Oakland pursuant to licenses issued by the City of Oakland. Individuals who elect to operate ‘industrial cannabis cultivation and manufacturing facilities’ will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law.”

Arizona alleges that “The actions by the Defendant United States Department of Justice (“DOJ”) and its United States Attorneys demonstrate a calculated and coordinated effort on the part of the federal government to threaten prosecution of individuals including state employees who conduct lawful activities under a state’s medical marijuana law.”

What’s Next?

Oakland has scrapped its plans for large scale marijuana cultivation, and Arizona’s suit has been met with a motion to dismiss for lack of jurisdiction. Interestingly, the ACLU, which represents the defendant dispensaries, filed the motion. Defendants argue that Arizona was not actually threatened with prosecution, so no genuine case or controversy at issue exists. You can follow the case here. It’s brewing into an interesting state’s rights challenge, with Republicans (typically states’ rights proponents) on the side of the Feds.

Meanwhile, an unlikely pair of legislators, Barney Frank (D-Mass) and Ron Paul (R-Texas) have introduced a bill to reclassify marijuana under the federal law, and take it out of the purview of the Controlled Substances Act.

For more information:

NORML: National Organization for Reform of Marijuana Laws. This site has a great state by state legal guide.

KQED and Center for Investigative Reporting: Republic of Cannabis Special Report.