Yesterday the world of weed changed dramatically, no matter what the paranoid “sky is falling” stoners want to tell you.
The US Department of Justice and the nation’s top cop, Eric Holder, released a memo yesterday that allows for Colorado and Washington to move forward with their adult use cannabis programs without interference (and states with medical programs); as long as the programs do not cross certain boundaries and are well regulated. The announcement is a watershed moment in cannabis reform, no matter what your tin-foil hat conspiracy buddies want to tell you about it being a trap .
Sometimes the world changes. I cannot fathom how a person could read the memo released and come away feeling more paranoid than before. Here is the beginning of the memo for review, and we will get to the real ground breaking shit in the second half in a minute:
Office of the Deputy Attorney GeneralAugust 29, 2013MEMORANDUM FOR ALL UNITED STATES ATTORNEYSFROM: James M. Cole, Deputy Attorney General
SUBJECT: Guidance Regarding Marijuana Enforcement
In October 2009 and June 2011, the Department issued guidance to federal prosecutors concerning marijuana enforcement under the Controlled Substances Act (CSA). This memorandum updates that guidance in light of state ballot initiatives that legalize under state law the possession of small amounts of marijuana and provide for the regulation of marijuana production, processing, and sale.The guidance set forth herein applies to all federal enforcement activity, including civil enforcement and criminal investigations and prosecutions, concerning marijuana in all states.(TRANSLATION: THE PEOPLE HAVE SPOKEN AND WE HAVE UPDATED OUR MARCHING ORDERS. THE GUIDANCE IN THIS MEMO APPLIES TO ALL FEDERAL ENFORCEMENT ACTIVITY. THIS MEANS YOU!)As the Department noted in its previous guidance, 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 Department of Justice is committed to enforcement of the CSA consistent with those determinations. The Department is also committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way. In furtherance of those objectives, as several states enacted laws relating to the use of marijuana for medical purposes, the Department in recent years has focused its efforts on certain enforcement priorities that are particularly important to the federal government:(Some have pointed to this statement as evidence that there is NO sweeping change happening. I beg to differ. I also beg to remind people that while there has been enforcement, there has also been a lot of weed sales tolerated over the past years too.)
- Preventing the distribution of marijuana to minors; (Cool with that)
- Preventing revenue from the sale of marijuana from going to criminal enterprises, gangs, and cartels; (Cool with that)
- Preventing the diversion of marijuana from states where it is legal under state law in some form to other states; (Extra cool with that. Why? Because defining the difference in diversion from states where it is legal to those where it is not seemingly opens the door for interstate commerce from states where it is legal to other states where it is legal, no? Maybe wishful thinking, but I am an optimist.)
- Preventing state-authorized marijuana activity from being used as a cover or pretext for the trafficking of other illegal drugs or other illegal activity; (Cool with that. stay off the dope)
- Preventing violence and the use of firearms in the cultivation and distribution of marijuana; (Cool with that, hate violence and guns.)
- Preventing drugged driving and the exacerbation of other adverse public health consequences associated with marijuana use; (Cool with that. even WA states flawed DUI bill has not resulted in mass arrests…just Seattle PD handing out Doritos at Hempfest)
- Preventing the growing of marijuana on public lands and the attendant public safety and environmental dangers posed by marijuana production on public lands; and (Cool with that. If I gotta pay rent, so do you)
- Preventing marijuana possession or use on federal property. (Cool with that. I was in Yosemite the other day burning fat joints and no one seemed to notice or care. The world has changed)
These priorities will continue to guide the Department’s enforcement of the CSA against marijuana-related conduct. Thus, this memorandum serves as guidance to Department attorneys and law enforcement to focus their enforcement resources and efforts, including prosecution, on persons or organizations whose conduct interferes with any one or more of these priorities, regardless of state law.
Now the big paranoid response to this is that “This is just like the Ogden memo and look how many people got fucked on that one.”
I love our movement’s Utopian rewriting of history on this one. If you listened to our side of the argument, everyone behaved like Saints after the first memo, and this completely out of left field attack was made on our peaceful Dudley-Do-Right community of non-profit weed caregivers. OH THE TRAGEDY!!!
But I was there. I remember the day the Ogden memo came out. I also recall that it inspired the Colorado legislature to develop and implement the program there that has been mostly successful and has allowed for more people to get in the game and make some money under a state sanctioned program than ever before.
I also recall that every jackass with a few thousand bucks of weed and a cash register opened a dispensary in areas with no regulation and when the local planning commission questioned them, or decided they did not want that use in their jurisdiction, they all decided to sue the city, tell the sheriff to eat a bowl of dicks, and disregarded public sentiment based on their belief that Attorney General Eric Holder had given them the right to do whatever they pleased.
I also remember every alternative weekly rag in the State of California filling up with ads of half-naked broads hovering over a smoking bong offering weed sacks for $25. I recall jackass dispensaries doing flier drops at high schools. I remember every weed grower doubling their garden size and pushing their weight to the max. I remember dispensaries setting up shop right next door to day cares and telling the day care operators that they just needed to deal with it.
But the enforcement that followed the Ogden memo had nothing to do with our behaviors. Nothing. It was all just a trap to arrest a very small percentage of the industry and to charge them with crimes so that we could pack the jails with unsuspecting dispensary operators who were complete and total angels. (rolls eyes)
Now do not get it twisted…..I am not supporting or defending the enforcement actions of this administration; but I am also not naive enough to think that our overzealous actions following the memo had zero to do with it all.
Shit rolls uphill before it rolls downhill. If we piss off enough local officials, law enforcement, and concerned citizens they are going to demand that something be done. When we take the position of a free-for-all race to the bottom, are we surprised when local and state officials demand the feds take enforcement actions?
Were there some cases brought where the people who were targeted did not deserve it? YES. Absolutely yes. That is the sad and unfortunate part of law enforcement. From reading the discovery in my case, I can tell you for certain that these dudes know a hell of a lot less than we think they do. It does not surprise me when a good dude like Chris Williams is caught up in the nightmare because law enforcement has no idea of who is who, or what is what, in this evolving landscape of limited weed enforcement.
Now we can choose to be skeptics and see this momentous shift in federal enforcement policy as “more of the same,” or as some have dubbed it “Ogden v.2.0.” That would be a huge mistake and here is why….it disregards the entire second half of the memo and the SWEEPING instructions it gives as to how to interact with state licensed programs. Check it out:
Outside of these enforcement priorities, the federal government has traditionally relied on states and local law enforcement agencies to address marijuana activity through enforcement of their own narcotics laws. For example, the Department of Justice has not historically devoted resources to prosecuting individuals whose conduct is limited to possession of small amounts of marijuana for personal use on private property. Instead, the Department has left such lower-level or localized activity to state and local authorities and has stepped in to enforce the CSA only when the use, possession, cultivation, or distribution of marijuana has threatened to cause one of the harms identified above.(Here is the set up for the kicker. basic translation: We have already allowed states to enforce, or not enforce, the CSA at their discretion for possession and low level stuff)(But peep this out. Here is where this memo departs from Ogden in a HUGE way.)
The enactment of state laws that endeavor to authorize marijuana production, distribution, and possession by establishing a regulatory scheme for these purposes affects this traditional joint federal-state approach to narcotics enforcement.(The world has changed) The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health, and other law enforcement interests.(Since the world has changed, we are going to have to trust that states with these programs know what they are doing) A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice.(If the state has an effective program that is really working, we must respect it) Jurisdictions that have implemented systems that provide for regulation of marijuana activity must provide the necessary resources and demonstrate the willingness to enforce their laws and regulations in a manner that ensures they do not undermine federal enforcement priorities. (If the local and state authorities are doing their job and making sure their programs do not violate one of the 8 points above, then we should leave them alone)In jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana, conduct in compliance with those laws and regulations is less likely to threaten the federal priorities set forth above.(If these states put their best foot forward in regulating these systems, we should leave them alone) Indeed, a robust system may affirmatively address those priorities by, for example, implementing effective measures to prevent diversion of marijuana outside of the regulated system and to other states, prohibiting access to marijuana by minors, and replacing an illicit marijuana trade that funds criminal enterprises with a tightly regulated market in which revenues are tracked and accounted for.(Further clarification….”If the program is working and not crossing our boundaries then we should leave them alone). In those circumstances, consistent with the traditional allocation of federal-state efforts in this area, enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity. (PAY ATTENTION HERE! STATE LAWS AND THEIR ENFORCEMENT SHOULD TAKE PRECEDENT!!!!) If state enforcement efforts are not sufficiently robust to protect against the harms set forth above, the federal government may seek to challenge the regulatory structure itself in addition to continuing to bring individual enforcement actions, including criminal prosecutions, focused on those harms. (Just as important….IF YOU FUCK UP AND DO NOT DO A GOOD JOB OF ENFORCING AND REGULATING YOUR SYSTEM WE WILL BE FORCED TO TAKE ACTION. I am guessing they are talking directly to us here my fellow Californians.)
The Department’s previous memoranda specifically addressed the exercise of prosecutorial discretion in states with laws authorizing marijuana cultivation and distribution for medical use. In those contexts, the Department advised that it likely was not an efficient use of federal resources to focus enforcement efforts on seriously ill individuals, or on their individual caregivers. In doing so, the previous guidance drew a distinction between the seriously ill and their caregivers, on the one hand, and large-scale, for-profit commercial enterprises, on the other, and advised that the latter continued to be appropriate targets for federal enforcement and prosecution. In drawing this distinction, the Department relied on the common-sense judgment that the size of a marijuana operation was a reasonable proxy for assessing whether marijuana trafficking implicates the federal enforcement priorities set forth above. (BIG ONE HERE! We know we issued you a memo before about medical marijuana that may have given the impression that ONLY small users and sick people were not to be targeted. We sort of told you that if a place was big enough that they might be a good target….now read the NEXT paragraph where they say they were wrong!)
As explained above, however, both the existence of a strong and effective state regulatory system, and an operation’s compliance with such a system, may allay the threat that an operation’s size poses to federal enforcement interests.(This is fucking money right here. “However…we were wrong. If there is a strong regulatory system in place that the organization is in compliance with then the size of their operation should not matter. That is huge.) Accordingly, in exercising prosecutorial discretion, prosecutors should not consider the size or commercial nature of a marijuana operation alone as a proxy for assessing whether marijuana trafficking implicates the Department’s enforcement priorities listed above.(You can no longer send letters and press forfeiture or criminal charges on people just because they are big and popular. The place has to actually violate one of the issues listed above. This is a shot across the bow of Northern District US Attorney Melinda Haag and I am sure Harborside and BPG are extremely thrilled.) Rather, prosecutors should continue to review marijuana cases on a case-by-case basis and weigh all available information and evidence, including, but not limited to, whether the operation is demonstrably in compliance with a strong and effective state regulatory system.(Instead of making some bullshit decision to prosecute based on size you must actually do some work and see if the group is in compliance or not with state law. That is a huge fucking victory.) A marijuana operation’s large scale or for-profit nature may be a relevant consideration for assessing the extent to which it undermines a particular federal enforcement priority. The primary question in all cases – and in all jurisdictions – should be whether the conduct at issue implicates one or more of the enforcement priorities listed above. (Your marching orders are listed above and your cases should only involve issues that violate one of the 8 reasonable principles listed above).
So when I hear the lunatic fringe of cannabis dismiss this memo based on their “once bitten-twice shy” view of the situation, I have to wonder if they are reading the same memo as I am. When I hear the “Don’t fall for it. It is a trap” bullshit floating around, I have to step back and wonder if some people will ever really allow the world to change.
Is there a reason to move forward with caution and to hold the administration’s feet to the fire? Yes. Of course.
Is there also a reason to celebrate this huge victory and be hopeful that the world has indeed changed in our favor? Do we benefit more by automatically rejecting this historic policy shift in hopes of being right that it is some big trap? Does it make sense that the USDOJ would put forth such a robust memorandum and waste the administration’s political capital, only to trap a few more unsuspecting weedheads in the depths of their bloated prison system? Really? I just do not see it like that…..
The infamous Ogden memo was released in Obama’s first year in office. it was watered down and weak, and it was unfortunately misinterpreted heavily by both people in our movement and industry, as well as law enforcement and prosecutors. It was a politically correct and wishy-washy declaration that left a lot to be desired. It was carefully worded to not give too much power to either side of the argument, and it resulted in some bad behavior and terrible enforcement.
But it also allowed for the industry to flourish in many ways too. There is no denying that. The Ogden memo changed the game then, which is why it was so disappointing to see the administration pull back on it and appease law enforcement and NIMBY politicians with bullshit enforcement aimed at limiting Ogden’s impact. But there would be no Colorado or Washington systems in place without the Ogden memo, so remember that too in your “the sky is falling” hyperbole.
Now let me explain the last paragraph of the new memo for those who choose to disregard the entire content of this directive to look for their cynical place in history. Here is the part of the memo that declares that the USDOJ is not allowing a free-for-all and will still support the prosecutors overall decisions:
As with the Department’s previous statements on this subject, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion. (This memo does not change the law because we cannot do that. It is meant to provide direction to our US Attorneys) This memorandum does not alter in any way the Department’s authority to enforce federal law, including federal laws relating to marijuana, regardless of state law.(We are not giving up our right to enforce Federal laws if we want to.) Neither the guidance herein nor any state or local law provides a legal defense to a violation of federal law, including any civil or criminal violation of the CSA.(This does not give away pour right to prosecute if we really want to. we can still hang your ass if you get out of line)Even in jurisdictions with strong and effective regulatory systems, evidence that particular conduct threatens federal priorities will subject that person or entity to federal enforcement action, based on the circumstances.(Even if you are in a state with a good program, but threaten our system based on the 8 points above, we will come and bust your ass.) This memorandum is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.(This is a memo, and not a change in law. We cannot do that, so this memo is not evidence of guilt or innocence should we drag your ass to court.) It applies prospectively to the exercise of prosecutorial discretion in future cases and does not provide defendants or subjects of enforcement action with a basis for reconsideration of any pending civil action or criminal prosecution.(This memo is meant to direct US Attorneys to not prosecute most weed cases that are in compliance with state laws; but if we do, this is not a legally binding document that will get you off the hook. It is a suggestion to our staff.) Finally, nothing herein precludes investigation or prosecution, even in the absence of any one of the factors listed above, in particular circumstances where investigation and prosecution otherwise serves an important federal interest.(If one of our own decides to come after you, this document was not created for you to defend yourself with. If you fly across our radar, we can still come and fuck with you if we want.)
This is the paragraph that has everyone’s panties in a ruffle it would seem.
I do not get it. This is boilerplate “we reserve the right to do our job regardless of what this memo says” stuff. Of course they are going to make this qualification. They are not going to leave their people blowing in the wind.
All of the flack they caught from the lack of this clarity in the Ogden memo has made them certainly clarify their position. I do not think we could expect them to say “this memo is now the law of the land and if our enforcement divisions or prosecutors charge you with a crime, just show them this memo as evidence that you are free to go.”
I understand that some people will not acknowledge change has happened until there is a 100% stand down and our brothers and sisters are all released from prison. I appreciate that vigilance; but it also fails to recognize the momentous progress we have made and the fact that the world IS CHANGING rapidly.
If we cannot get on board and act like the world is changing then who will? If we cannot understand the huge victory this memo was for our community and continue to move forward and make these changes real and lasting in our community, then who will?
The world has changed. Act like it.
Or run around acting like everyone is out to get us and that this is just some trap to take your weed garden again. I will choose to have my glass be half full on this one. Join me is a toast to cannabis freedom.
I am going to write Eric Holder a thank you card today. Positive reinforcement can only help.