Gateway Drug Policy

Will Obama’s new medical marijuana directive actually change anything?


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.”

On 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.