Gateway Drug PolicyWill Obama's new medical marijuana directive actually change anything?
Posted Monday, Oct. 19, 2009, at 7:20 PM ET
The Justice Department's announcement that the feds will no longer crack down on medical marijuana sellers who follow state laws will surely cheer the liberal/libertarian axis that wants the government to take a more relaxed stance on drug laws. It should also please conservatives who champion states' rights as the highest political ideal. But unlike most policies with such broad support, it might actually accomplish something.
The new memo, written by Deputy Attorney General David Ogden, urges district attorneys to defer to local marijuana laws rather than federal law, which prohibits all consumption and sales of the drug. The new policy is remarkably uncontroversial. Two-thirds of Americans think marijuana should be legal for medicinal purposes. Obama promised during his campaign to reduce crackdowns on dispensaries; opposition was minimal. Attorney General Eric Holder said in March that the crackdowns would stop and met with little objection. Monday's memo simply made it official. "This is a very safe policy," says Bruce Mirken of the Marijuana Policy Project. "There's no constituency for going after sick people."
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StumbleUponOn the one hand, the decision to defer to state laws means that existing local drug policies—however strict or lax—will remain in place. But on the other, many states take their cues from the federal government when it comes to drug policy. States could take the new policy as a tacit nod from Uncle Sam to go ahead and allow medical marijuana back home.
Take California. It has long experience with medical marijuana—voters approved the drug for sick people back in 1996—yet in many ways the state stands as a cautionary tale of what not to do. The main problem is that the California law is vaguely worded: It says patients can use marijuana for medical purposes, they can grow it, and they can buy it. But it doesn't specifically authorize anyone to start a pot business. The law's vagueness has led to roughly 1,000 dispensaries sprouting up in Los Angeles County since 2002. Now local law-enforcement officials are promising to bust them up, arguing that the law allows only nonprofit businesses.
Ogden's new memo won't change that. If you run a medical marijuana business in Los Angeles that the state deems illegal, the federal government can't help you. In fact, it can still raid your facility. The only dispensaries that will benefit directly from the new federal policy are those that were raided by the DEA under the Bush administration despite complying with California statutes. (President Bush claimed they violated the Controlled Substances Act, which prohibits the growing and consumption of marijuana.) But if California courts agree with the Los Angeles County district attorney that "about 100 percent of dispensaries in Los Angeles County and the city are operating illegally," those vendors are out of luck.
Where the new federal guidelines could have an effect is on states currently considering medical marijuana laws. Right now, 13 states allow some degree of medical marijuana consumption. (There are 14 if you count Maryland, which reduces the penalty if the marijuana you're caught using is for medical purposes.) Another dozen or so have bills moving through their legislature. In many cases, lawmakers have been skittish about OKing dispensaries for fear that the Drug Enforcement Administration would come and shut them down. Now that's no longer a concern. The memo also changes the way the federal government treats marijuana vendors in states that already allow medical marijuana. The drug is technically legal for medical purposes in New Mexico, but the only person with a license to sell it has refused reveal her identity for fear of federal punishment. Without that looming threat, the number of dispensaries is likely to increase.
Most states take their cues from the federal government on drug policy. The practice traces back to passage of the Controlled Substances Act of 1970, which aimed to create a uniform set of drug regulations across the country. During the drug war in the 1980s and '90s, the federal government started awarding grants to help states with law enforcement in exchange for aligning their drug policies with federal guidelines. So when the federal government signals its preference not to pursue medical marijuana users, states may take the cue.
First in line is probably New Jersey. Gov. Jon Corzine has said that if a medical marijuana bill landed on his desk, he'd sign it. In a recent debate, his two electoral opponents made the same promise. The state's Democratic leadership now expects a bill to pass the legislature some time in late November. "We're already getting calls from people in Atlantic City buying store fronts," says Allen St. Pierre of the National Organization for the Reform of Marijuana Laws. Massachusetts voters could approve a similar bill as soon as 2010, and Gov. Deval Patrick seems inclined to sign it. New York Gov. David Paterson would probably sign a medical marijuana bill, but the chaotic state legislature seems unlikely to produce one. Massachusetts and New York and Ohio have already decriminalized marijuana but haven't gotten around to legalizing medicinal marijuana consumption. The popular will is there—it's just a matter of time.
In his memo, Ogden stresses that this is not a small step on the slippery slope toward legalization: "This guidance regarding resource allocation does not 'legalize' marijuana or provide a legal defense to a violation of federal law." But the memo is still a strong symbolic deprioritization of low-level marijuana enforcement. Given limited resources, it says, we should focus on serious drug traffickers rather than small-time consumers.
The law also sets a precedent for leaving hot-button issues to the states. No one is saying—not yet, anyway—that if the federal government believes it should defer to the states on marijuana laws, then it should also defer to the states on, say, marriage laws. But the argument wouldn't be that much of a stretch. It's just ironic that the debate would take place under a liberal Democratic president.
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The problem with the CA law is the underlying theory was we all lived in a perfect communist collective. Everyone would grow according to their ability and all would partake according to their needs. None of this horrible money stuff was needed. SB420 even requires people to who wish to work together growing to do so, under section 11362.775, do so "collectively or cooperatively." Then reality hit.
We don't live in a communist collective. It doesn't define a collective nor does it align with CA law on operating cooperatives (which are, by definition, profit-making enterprises). SB420 doesn't, as the LA DA thinks, require money not change hands. It merely requires no one making a profit from growing medicine, but they can be compensated for their time, effort, and work for growing, a distinction so small as to be invisible. I don't pay a farmer to grow a tomato for me, I just pay him for all the work involved in doing so. People who work hard to grow a crop want to be paid by others for consuming part of that crop.
People, by and large, don't want to grow things. If they did, we'd all have vegetable gardens in our yards instead swimming pools. People want to just go and buy stuff, hence the dispensaries. The law never envision dispensaries, but didn't outlaw them either. Most places have worked to develop a good model for them and they have been very useful. Sacramento, Oakland, and SF have made the system work rather well.
The CA Supremes have been supremely unhelpful, too. They have several times held what a primary caregiver is not, without bothering to mention what one is. I think the plain language makes clear a primary caregiver is one who provides more care than anyone else. Thus, if a patient needed nothing more than an explanation how to use his medicine and advise on particular strains, a primary care giver could give just that and nothing else as long as no one else did more, but the court has held that not to be the case (People v. Mentch). The court keeps saying, "nope, not good enough" like they are a cover band for Escape the Fate.
LA has so many dispensaries, btw, because they didn't come up with a good ordinance and then proceed. They gave out emergency licenses, proceeding along willy-nilly, and then decided to write an ordinance. Of course, all the existing dispensaries have some thoughts on how that law should work. The DA is out of his mind on this issue and likely going to destroy his career over it (nothing like a well-financed and dedicated foe to stop a career). The fix for all this has been clear for some time and, once again, the beleaguered voters of CA will fill in where the legislature won't. Already circulating is a petition to move from the medicinal model, with its silly recommendations and SB420 cards, to a liquor model: licensed retailers who buy from licensed growers and sell to anyone over 21 with state ID to prove it. It should be on the ballot in 2010, along with the repeal of Prop 8 (the anti gay-marriage initiative). Should be a fun election.
-- MacAdvisor
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