"Prosecuting and raiding medical marijuana users," he said in the summer of 2007, is "really not a good use of Justice Department resources." Later he extended that statement to include medical marijuana growers and promised that "I'm not going to be using Justice Department resources to try to circumvent state laws on this issue." Early in his administration, Obama's attorney general, Eric Holder, reiterated these points.
The Drug Enforcement Administration apparently didn't get the message.
Two weeks ago, DEA agents busted a medical marijuana grower in Highlands Ranch, Colo. After the raid, Jeffrey Sweetin, the special agent in charge of the DEA's Denver office, declared: "It's still a violation of federal law. It's not medicine. We're still going to continue to investigate and arrest people." Last week the DEA raided a medical marijuana dispensary in Culver City, Calif.
These busts were the latest in a series of DEA raids that have violated President Obama's campaign promise to stop interfering with medical marijuana laws, which 14 states and the District of Columbia have enacted.
The Obama administration's failure to deliver on his promise is due not only to resistance from hard-liners like Sweetin but also to its own mixed signals.
Consider the memo that the Justice Department sent U.S. attorneys in November, telling them they "should not focus federal resources" on prosecuting people who grow or possess marijuana for medical purposes in compliance with state law. The memo said only "individuals whose actions are in clear and unambiguous compliance with existing state laws" would be eligible for the Justice Department's newfound tolerance. That language leaves a lot of leeway for federal interference in states where the requirements of medical marijuana laws are a matter of dispute.
Chris Bartkowicz, the Colorado grower arrested this month, says the patients he was supplying had designated him their "primary caregiver," a status that would allow him to grow at least six plants per patient. The Colorado Board of Health is considering regulations that would limit caregivers to five patients each and require them to do more than supply marijuana, but those rules weren't in place at the time of Bartkowicz's arrest.
Even if Colorado's courts would say that Bartkowicz's operation was legitimate, the Justice Department seems to be reserving the right to favor its own interpretation of state law. Among the factors that could expose a medical marijuana supplier to federal prosecution, the November memo lists "financial gains or excessive amounts of cash."
But Colorado's law says nothing one way or the other about how much compensation a caregiver can receive from a patient. So on what basis does the federal government decide that a grower's "financial gains" are illicit or that the amount of cash he has is "excessive?"
The Justice Department may think it's outrageous for medical marijuana growers to turn a profit, or even to get reimbursed for their expenses, but Colorado's law says no such thing. This sort of second-guessing is inconsistent with the president's commitment to respecting state autonomy in this area.
Meanwhile, drug warriors like Sweetin do not even pretend to be interpreting state law, as the new policy ostensibly requires. And given Obama's choice to head the DEA -- a Bush holdover who enthusiastically oversaw the agency's medical marijuana raids as acting administrator and as special agent in charge of the L.A. office -- it's no wonder Sweetin feels confident in asserting that the president's promises mean nothing.
Jacob Sullum, a senior editor at Reason magazine, is the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin).
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