Even as Republican lawmakers in states like Indiana begin to open up committees to explore the possibility of legalizing marijuana, especially so that patients with health problems can legally use the drug as medicine, the Justice Department (DOJ) appears set to maintain a strict policy of discouraging and even outright deterring the movement toward legalization.

A DOJ memo released last week provides reason for alarm among those in favor of decriminalizing marijuana, as it signals the federal government may leave medical marijuana patients and caregivers alone but cultivators or distributors of marijuana could still face prosecution.

Noting an “increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes” and the fact that some planned “industrial marijuana cultivation centers” have “revenue projections of millions of dollars” that will likely involve the “cultivation of tens of thousands of cannabis plants,” the memo clarifies the federal government never intended to shield such industrialized production, even if the production might be legal under a state’s law(s).

“Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.  Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution.  State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA.  Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.”

In October 2009, US Deputy Attorney General David Ogden sent a memo that supporters of marijuana legalization thought to be a signal the federal government might be backing off on efforts to deter the use of medical marijuana. The Ogden memo outlined guidance for federal investigation in states with medical marijuana laws saying investigations “should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

The ACLU, however, has sent a letter to the DOJ suggesting the Cole memo deviates from the suggested policy described in 2009. The letter also mentions recent letters sent by US attorneys in Washington, Montana, Arizona, Colorado, Rhode Island and Vermont. The letters from US attorneys suggest people, including state employees and state licensed providers of medical marijuana who use marijuana, may be prosecuted, even if they are compliant with state law.

According to the ACLU, the US attorney letters create two significant problems: (1) it appears the DOJ seek to undermine the public legislative process in states through law enforcement and prosecutions and (2) they indicate the DOJ may be intent to obstruct states’ moves to set up legal marijuana distribution centers that allow for healthy and safe distribution of the drug to patients.

Perhaps even more striking, the ACLU alleges this memo conflicts with the DOJ’s response to a lawsuit that arose from “a 2002 DEA raid of a medical marijuana garden sanctioned by City and County officials” in Santa Cruz, California. The lawsuit was thrown out in 2009. DOJ attorneys indicated there had been a “policy shift” and even entered a stipulation in response to concerns from plaintiffs in the case that “the federal government might at any moment abandon the new policy and revert to enforcement that would endanger legitimate entities complying with state law and working most closely with local and state governments to implement state laws.” The ACLU is appropriately concerned the DOJ may reinstate the case, as it officially departs from the position laid out in the Ogden memo.


It’s worth reviewing what has happened in the past six months with regards to state laws passed on medical marijuana and the federal government renewing its standoffish position toward medical marijuana use and production.

Arizona decriminalized the use of medicine marijuana in 2010. In June, California-based company weGrow opened a “superstore-sized garden center in Phoenix” to make it possible for people to purchase all the products and services necessary to “responsibly cultivate” marijuana on their own.  But, as the center was set to open, Gov. Jan Brewer filed a lawsuit against her state’s own law, potentially undermining the outcome of a democratic vote in her state by Arizonans. [As the ACLU pointed out, she didn’t like the federal government when it sought to enforce laws on immigration after SB1070 passed but on marijuana? No problem.]

The DOJ sent a letter to the Washington Democratic governor Chris Gregoire. Responding to Gov. Gregoire’s request for guidance on how a bill allowing “state employees to license growers and sellers of the product, as well as retail locations” might conflict with the federal government, the DOJ wrote:

This [bill] would authorize conduct contrary to federal law and thus, would undermine the federal government’s efforts to regulate the possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they 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. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the CSA.

The intimidating and threatening letter ultimately deterred Gov. Gregoire from signing the bill, when it came to her desk in April.

In March, a California seller of medical marijuana claimed the IRS was seeking to destroy the medical marijuana industry. Lynette Shaw of the Marin Alliance for Medical Marijuana (MAMM) planned to take the IRS to court for auditing her tax returns in 2008 and 2009, disallowing her foundation’s business deductions and demanding “millions of dollars in back taxes.” Shaw sought to have marijuana classified as a “controlled substance” and not a narcotic so tax deductions for dispensaries could be legal. (Medical marijuana has been legal under Proposition 214 since 1996.)

Bryan Gonzalez, a border guard, was fired in January for suggesting to a co-worker that marijuana should be legalized. The government issued the guard a “termination letter,” which described Gonzalez as holding “personal views that were contrary to the core characteristics of Border Patrol Agents, which are patriotism, dedication and esprit de corps.” Gonzalez was asked by Customs and Border Patrol’s Office of Internal Affairs if he “wanted to overthrow the American government” and if he was a socialist. The ACLU naturally slammed this “ideological purity” test and Gonzalez filed a lawsuit.

Finally, while the aforementioned might be disturbing, nothing poses a threat to a person’s right to privacy or the Fourth Amendment, which guards against unreasonable searches and seizures, like an 8-1 decision by the Supreme Court in May that warrantless searches are permissible. If the police smell marijuana smoke or think they hear evidence being destroyed, they can under “exigent circumstances” break down a door and bust people they may not even be targeting.

Contrast the US Supreme Court ruling with a Massachusetts high court ruling in April that “police can no longer search or seize someone they suspect of possessing a small amount of marijuana,” because Question 2, according to the ACLU, “made possession of an ounce or less of marijuana a civil infraction instead of a crime.”

A report has been released indicating medical marijuana is now seen as a $1.7 billion market. In fact, Scotts Miracle-Gro is exploring the possibility of going after medical marijuana growers to boost sales of its lawn and garden supplies. Yet, the federal government seeks to maintain “law and order,” even if it means violating what conservatives might call the “free market” by deterring the rise of a robust medical marijuana industry in America.

Isn’t what happened in Massachusetts how it should work? Citizens vote or push state representatives to pass legislation to legalize or decriminalize marijuana. Cases involving possession of marijuana go to court in states, where possession is no longer criminal. The court issues a ruling in line with what the citizens of the state support and the new state laws. Yet, unfortunately, the federal government seems to want state leaders to behave more like Arizona Gov. Brewer and obstruct decriminalization efforts by invoking federal laws in ways that subvert democracy.

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."