Marijuana Prohibition’s Legal Insanity Continues

Chris Weigant businessinsider.com

Like many other Americans, I thoroughly enjoyed watching historical documentarian Ken Burns’ recent Prohibition series, on PBS. But I was disappointed by its abrupt end. Burns took the easy way out and didn’t point out that right around the same time the legal federal prohibition on alcohol ended, the prohibition of marijuana was ramping up in a big way. And, while the alcohol-targeted Prohibition ended, this prohibition remains. In, fact, it is getting worse, as the Obama administration is continuing a crackdown on anyone who is approaching the problem in any sort of sane or rational manner — including local and state government officials.

The most enjoyable thing about watching a Burns series is learning historical information that you weren’t previously aware of, while being entertained at the same time. This combination of education and entertainment is a tough sell to America, and Burns never seems to disappoint. For instance, I learned that all during Prohibition, there was a medical loophole. You could go to your doctor and get a prescription for “medicinal” alcohol, and then legally buy some whiskey or brandy or whatever else you fancied. Also, there was a “home brew” exception for making your own wine at home. The other interesting things were the details on the lengths which both the federal law enforcers and the bootleggers themselves were willing to go through in their years-long game of cat and mouse.

Fast-forward to today. The Obama administration came into office promising a “science-based” drug policy. Within months, the Justice Department put out a memo which seemed to interject some common sense into the war on marijuana. The feds (said this memo, now known as “the Ogden Memo”) wouldn’t waste a whole lot of time or money going after people who were following their state’s laws when it came to the subject of “medicinal marijuana” (or “medical marijuana”).

This, while signifying a big step in the right direction, fell far short of a “science-based drug policy.” Or even, for that matter, a “fact-based drug policy.” As of this writing, 16 states and the District of Columbia have legalized (in some form or another) medicinal marijuana. That is 17 out of a possible 51 jurisdictions — precisely one-third of the country, to put it another way. One-third of our governments have decided that sick people are allowed to use marijuana. In other words, that marijuana has a valid medical use. If Attorney General Eric Holder were following any sort of science-based (or even fact-based) drug policy, he would admit this reality. He refuses to, in a fundamental way that (if addressed) could solve the entire federal/state legal problem.

Marijuana is what is known as a “Schedule I dangerous controlled substance.” Drugs are classified as to how harmful they are, both medically and socially, on this scale. I’ve written about this before, in an article written when the Ogden memo was made public:

Schedule I — which includes marijuana — differs from Schedule II in only one regard. From the Schedule I language: “The drug or other substance has no currently accepted medical use in treatment in the United States.” Schedule II drugs are just as illegal as Schedule I, but have “a currently accepted medical use with severe restrictions.” Schedule II drugs include: cocaine, opium, amphetamine, methamphetamine, PCP, and secobarbital. Possessing any of these without a prescription will get you locked up, but the possibility for a doctor to prescribe them exists within the law. Marijuana is not included in this list.

I’ve also written before about how easy this would be to change. In fact, Eric Holder can make it happen all by himself. The Controlled Substances Act also states: “the Attorney General may by rule … transfer between such schedules any drug or other substance….” Transferring marijuana to Schedule II would solve a lot of legal headaches, that much should be obvious to everyone. And since a third of the country has legalized its medical use, it is legally impossible to justify the fiction that marijuana “has no currently accepted medical use in treatment in the United States.”

I don’t expect Attorney General Holder to start admitting this inconvenient truth any time soon, however. A few months back, the Justice Department released another memo which represents almost a complete 180-degree turn in policy. Here are the relevant paragraphs:

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.

A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly, the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.

The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.

The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.

We are now seeing the impact of this new direction in policy, in three major (and majorly disturbing) ways. Federal prosecutors in California just sent letters out to landlords who are renting any space for any marijuana-related business, threatening them with federal seizure of their property if they don’t kick their tenants out within 45 days. State and local officials are also being threatened with federal prosecution for conspiracy to commit drug trafficking — for attempting to write some sane and workable rules and regulations on medical marijuana. And one of the bigger operations in Oakland, California, was just told by the Internal Revenue Service that he owes over two million dollars in back taxes. He owes this, the feds say, because he won’t be allowed to deduct the normal costs of doing business which every other business in America is entitled to — simply because of the nature of his business.

Taken together, this quite obviously represents a new phase of the Obama administration’s drug policy. It is not science-based, and it is not fact-based. It is escalating a needless war between state and federal law.

What it does appear to be based upon is further Drug War insanity. The feds will look the other way if you set up a small-scale operation providing people with their legal medicine, but if you are successful at this legal activity, then we will target you for some high-profile headlines.

Two key phrases from the recent memo show the extent of this insanity. As it points out, over the past year “several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers.” It goes on to state (emphasis added): “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.” Translated, what this means is any local or state official that writes any rule or regulation which doesn’t comply with the Controlled Substances Act, can be federally prosecuted, under the most stringent anti-drug laws available. This is not paranoid supposition, it is already happening in many places.

The PBS show Frontline recently aired a report (titled “Pot Republic”) where they interviewed Tommy Lanier, the National Marijuana Policy Coordinator (who “helps coordinate national marijuana strategy with the office of the White House drug czar). When asked specifically about “warning letters from their local U.S. attorneys, and now from Washington,” Lanier replied:

I think what the U.S. attorney’s done is an extremely great way to send a message to everybody that this is the position of the Department of Justice. And it doesn’t matter if you’re in California, Oregon, Washington, Michigan, this is the standard.

When asked further whether a local sheriff in California who has been working with medical marijuana growers (to come up with regulations for monitoring legal growers) could be under some kind of legal threat from the feds, Lanier answered:

Yes. Whether it’s a permit program, regulation or something like that, they’re against federal law. And yes, they could be a target.

In other words, threatening any state or local official who attempts to interject some sanity in this legal war over marijuana between the states and the federal government is the official White House policy right now. States, rather than being “laboratories of democracy” are being told instead that they cannot experiment with different medical marijuana laws at all — if such laws (passed by voter intuitive, for instance) are vague and have no real guidelines, that is one thing; but if states attempt to create specific rules, anyone involved in this effort will be threatened with 20 years in federal prison, or worse. That is, to put it mildly, insane.

There’s one other disturbing thing contained within that recent memo: “State laws or local ordinances are not a defense to civil or criminal enforcement of federal law….” This means, quite literally, exactly what it says. If you are a state attorney general and you attempt to draft medical marijuana regulations for your state (after it legalizes medical marijuana), not only will the federal government prosecute you as a conspirator and a major drug trafficker, but during your trial you will not be able to use the state law in your defense. That’s right — you won’t even be allowed to mention the fact that medical marijuana is legal in your state, during your trial. It’s called a “gag rule” and it should, indeed, provoke a gagging reflex in any sane American citizen who believes the Justice Department should be fair to a defendant’s ability to make his case to a jury. The feds instituted this gag rule to prevent “jury nullification”, which is what happens when a jury refuses to convict someone who technically broke a law — because the law itself is insane.

Looking back at the era of alcohol Prohibition is like examining a society that went crazy for a decade, in more ways than one. Unfortunately, looking at the Obama administration’s renewed vigor in denying the reality that one-third of the country has approved of medical use of marijuana is reminiscent of such a crazy period. This is not science. This is not medicine. This is not even admitting the legal doublethink which is required to classify a state attorney general — trying to thread the needle of writing sane regulations (on a policy the federal government refuses to be sane about) — with a major drug lord. That, right there, is insane. After all, even during Prohibition alcohol was available for medicinal uses.

Maybe it’s all about politics — although it is hard to see how this does any good for Obama politically. Cynics have suggested that this push to crack down on medical marijuana is a giant distraction of the problems Eric Holder (and, by extension, Obama) face on the stupidity of the “Fast And Furious” program, which allowed guns to cross the border to Mexico for unfathomable reasons. Holder is facing tough questions right now about this program, but it is more likely just coincidental. The recent memo was published back in June, for instance, and the Obama administration’s marijuana crackdown has been more of a gradual increase than a sudden surge.

Even separating the new Obama policy from any external coincidences, however, still doesn’t explain how this helps him politically. As Tom Angell, media spokesman for Law Enforcement Against Prohibition put it:

The administration clearly understood the political value in being perceived as pro-medical marijuana when the put out the October 2009 memo on respecting states’ rights to enact these laws. They even leaked it to the Associated Press on a Sunday night to ensure maximum exposure. I really don’t know what is behind the reversal of late. Perhaps it’s a case of career drug war zealots in the Department of Justice undermining a boss who is too busy to concern himself with medical marijuana issues. In any case, this isn’t going to play well politically for the administration in a contentious re-election fight at a time when 80 percent of Americans support medical marijuana. If the president knows what’s good for him, he’ll put a stop to the federal interference in states with medical marijuana laws.

This is a question I’d like to see answered by the White House: exactly what are you guys doing on this issue? What, to be blunt, have you guys been smoking?

This Drug War insanity occasionally crosses over into laughable irony. Also in the marijuana news from the past few weeks was the story of a 72-year-old woman in a car (as a passenger) who was pulled over by the cops in Oregon. The police found marijuana on the woman, but they had to let her go. The reason? She could prove she is one of the remaining four people who get their marijuana directly from the federal government — as medicine. She has glaucoma, and she qualified under an extremely narrow loophole (only a dozen or so people ever qualified for this program) in federal drug law which reaches back to the 1970s. She receives federal marijuana to treat her illness, and she brags about how well it works: “They won’t acknowledge the fact that I do not have even one aspirin in this house.” So the federal government legally provides medical marijuana to her and three others (100 pounds of it, since 2005), while at the same time insisting that marijuana has “no currently accepted medical use,” and while threatening to treat state and local governmental officials as the worst criminals possible for trying to unravel this massive federal legal doublethink. If the Department of Justice’s legal reasoning is correct — anyone facilitating such activities as distributing marijuana should be federally prosecuted to the fullest extent of the law — then the entire federal government is a drug trafficker, too.

Which is why I truly wish Ken Burns had dedicated at least a paragraph at the end of Prohibition to point out the much-longer insanity of marijuana prohibition that doesn’t just continue to this day, but is actually getting worse. The ultimate irony is that Barack Obama has admitted he used marijuana himself, back in the day. The question I keep hoping some intrepid reporter will ask him is: “Mister President, if you had been caught for your illegal drug use and prosecuted the same way your own Justice Department is now trying to prosecute medical marijuana providers, how would your life have turned out differently? If you had been forced to ‘pay for your crime’ back then, do you think it would have improved your life, or changed it radically for the worse?” And a followup question, as well: “Then how can you justify what Eric Holder is currently doing?”