Medical marijuana patients catch a break (maybe)

October 21, 2:59 PMCivil Liberties ExaminerJ.D. Tuccille

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In what appears to be an important reversal of one area of the United States government's traditionally harsh drug policies, the federal Department of Justice has issued new guidelines (PDF) to U.S. Attorneys de-emphasizing the prosecution of individuals "in clear compliance" with state laws allowing for the use of marijuana as medicine, and shifting resources to "disruption of illegal drug manufacturing and trafficking networks." The memo should come as promising news for advocates of drug policy reform, and especially for growers, distributors and patients in the fourteen states that allow for medical marijuana. However, the new policy leaves plenty of room for continued prosecutions if officials are less than serious about shifting gears on drug prohibition.

The memo (PDF), signed by Deputy Attorney General David W. Oden, reads, in part:

The prosecution of significant traffickers of illegal drugs, including marijuana, and the disruption of illegal drug manufacturing and trafficking networks continues to be a core priority in the Department's efforts against narcotics and dangerous drugs, and the Department's investigative and prosecutorial resources should be directed towards these objectives. As a general matter, pursuit of these priorities 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. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.

One potential problem is the question of who will determine whether medical marijuana operations are in compliance with the law. Even in some states that have unambiguously legalized marijuana as medicine, many law-enforcement officials remain openly hostile to the reform and have often looked for excuses to arrest marijuana users and distributors. Such officials could provide an easy pretext for sabotaging reforms in marijuana policy If relied upon as resources for interpreting compliance with state laws. 

The California Police Chiefs Association released a position paper (PDF) just last month attacking marijuana use in general, as well as the popular referendum that legalized its use for medical purposes. The paper claimed, "The vast majority of those using crude Marijuana as medicine are young and are using the substance to be under the influence of THC and have no critical medical condition." This is important, because the Justice Department memo specifies, "nothing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law."

It's easy to imagine California police counseling federal prosecutors that most, if not all, medical marijuana use is a sham intended to justify recreational consumption.

Ultimately, the successful implementation of the Justice Department memo depends on U.S. Attorneys willing to see reforms put into effect, and not looking for excuses to continue harsh policies.

Even then, the new guidelines, while long-awaited by advocates of reform, fall far short of efforts in other countries, including Mexico, to decriminalize and even legalize recreational use of many drugs. Most reformers say that full legalization is needed to reduce the harm done by prohibition and to recognize the rights of individuals to do what they wish with their bodies and lives.

email J.D.: civilliberties (at) tuccille.com