Read My Tea Leaves

Jacob Sullum
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Posted: Oct 12, 2011 12:01 AM
In their Oct. 7 press release announcing "coordinated enforcement actions" against medical marijuana dispensaries, California's four U.S. attorneys use the adjective "commercial" to describe their targets eight times and refer to "profit" nine times, not counting two mentions of "money" and one of "moneymaking." You might surmise from these clues that nonprofit organizations supplying marijuana to authorized patients need not worry about raids, forfeiture and prosecution -- but only if you are unfamiliar with the Obama administration's weaselly ways.

Barack Obama promised a more tolerant approach to medical marijuana, saying he would not "circumvent state laws on this issue." Instead, he has delivered a crackdown more aggressive than anything seen under George W. Bush, featuring more-frequent raids, threats to landlords and banks, and ruinous IRS audits. Although his underlings occasionally pretend they are respecting state law, they clearly have no intention of doing so.

California's Medical Marijuana Program Act, a 2003 law that supplements the Compassionate Use Act approved by voters in 1996, exempts qualified patients and their "primary caregivers" from state penalties for growing, possessing or distributing cannabis but does not cover distribution "for profit." When he was California's attorney general, Gov. Jerry Brown read this law, which allows patients and caregivers to grow marijuana "collectively or cooperatively," as permitting fees to "cover overhead costs and operating expenses" -- i.e., nonprofit sales.

Last week, Andre Birotte Jr., the U.S. attorney for the Central District of California, emphasized that for-profit distribution "is not what the California voters intended or authorized" and "is illegal under California law" -- statements that seemed consistent with an October 2009 Justice Department memo announcing a policy of prosecutorial forbearance for medical marijuana providers who comply with state law. Yet Birotte immediately cast doubt on his respect for the will of California's voters by declaring that "we have yet to find a single instance in which a marijuana store was able to prove that it was a not-for-profit organization."

Why not let California officials enforce California law? If dispensaries do not qualify for the medical exemption, their operators can be prosecuted in state court.

The Justice Department disdains such deference. Melinda Haag, the U.S. attorney for the Northern District of California, said she will close down dispensaries that violate a federal ban on drug sales within 1,000 feet of "schools, parks and other areas where children are present," whether not they comply with state law. She and her colleagues also claimed they were responding to nuisance complaints and violations of municipal ordinances, which is the job of local law enforcement agencies.

Haag has made it clear that federal prosecutors are determined to override state and local decisions. "We will enforce the (Controlled Substances Act) vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana," she wrote in a February letter to Oakland City Attorney John Russo, "even if such activities are permitted under state law."

So enough with the pretenses. The Justice Department's current position is that the tolerance promised by the president applies only to patients, which makes Obama's policy indistinguishable from his predecessor's, which in turn did not represent any restraint at all, since the federal government generally does not bother with cases involving small amounts of drugs, regardless of who is using them or for what purpose.

"The legalization advocates misread the tea leaves," says Kevin Sabet, who served until recently as senior policy adviser to drug czar Gil Kerlikowske. "They were very excited about their prospects, and they are disappointed."

The administration's assurances were considerably more explicit than tea leaves. Attorney General Eric Holder, for example, said, "The policy is to go after those people who violate both federal and state law," as opposed to "organizations that are (distributing marijuana) in a way that is consistent with state law." But Sabet is probably right about one thing: "Until federal law changes," he says, "I don't think we should expect to see major changes in medical marijuana policy."