Obama’s Chimerical Marijuana Policy

January 20

Americans cry tears of joy and relief as Barack Obama is inaugurated. His supporters include millions of citizens who hope the new President will take steps to end marijuana Prohibition.

Jan. 22

DEA agents conduct a raid on a South Lake Tahoe cannabis
dispensary run by a wheelchair-bound entrepreneur named Ken Estes. They seize about five pounds of herbal medicine and a few thousands dollars. No arrests are made. “It was a typical rip-and-run” says Estes… Pro-Cannabis (PC) activists protest that DEA was ignoring promises made by the new President during the campaign.

Feb. 2

Eric H. Holder, Jr. is confirmed by the U.S. Senate as Attorney General, the top federal law-enforcement post. The AG heads the Department of Justice, which oversees the Drug Enforcement Administration as well as the network of U.S. Attorneys who prosecute cases in U.S District Court.

Feb. 3

Four cannabis dispensaries in the Los Angeles area are raided
simultaneously by DEA squads:. “They took everything,” says an employee of the Beach Center in Playa Del Rey, “right down to the television. The computer, patient files, medicine, cash in the register. That’s it, we’re done. It’s just too bad. Our patients have epilepsy, cancer, MS, diabetes. Two of our patients have one leg. They’re gonna have to travel a lot farther and go to places that aren’t as safe for them.” PC activists led by Americans for Safe Access protest at a rally in LA and deluge the White House with emails.

Feb. 4

White House spokesman Nick Shapiro appears to blame the raids on Bush-Administration holdovers, telling the Washington Times, “The President believes that federal resources should not be used to circumvent state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal government, he expects them to review their policies with that in mind.” PC reform groups spin Shapiro’s comment as a conclusive victory. According to the Marijuana Policy Project, the White House is “signaling an end to the federal war on state medical laws” and the new approach represents “a sea change.”

Feb. 11

DEA agents take part in a raid on the MendoHealing Co-operative farm in Fort Bragg, California.

Feb. 25

Attorney General Holder holds a press conference with Acting DEA Administrator Michele Leonhart (a Bush appointee) to discuss drug-related violence in Mexico. More than 20 minutes in, a reporter asks, “Right after the inauguration there were some raids on California medical marijuana dispensaries. Was that a deliberate decision by you, by the Justice Department? Is that a prediction of policy going forward? Do you expect those sorts of raids to continue despite what the President said during the campaign?”

Holder replies: “Well, what the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing here in law enforcement. He was my boss during the campaign. He is formally and technically and by law my boss now. So what he said during the campaign is now American policy.” Holder’s response is worth checking out on YouTube (search “Holder marijuana”). He’s been in office less than a month, the press conference was called on another topic, it’s obvious that he doesn’t know what promises, exactly, his boss may have made regarding medical marijuana, but he gamely commits to carrying them out.

Reformers spin Holder’s line as another win. MPP posts a video clip
headlined “Holder Says ‘No More DEA Raids’ in Press Conference.” But Holder never spoke those words, the quotation marks are duplicitous.

Feb. 27

In Los Angeles, Southern District US Attorney Thomas P. O’Brien directs prosecutors in his office to stop filing charges, issuing subpoenas, and applying for search warrants in cases involving medical marijuana dispensaries. O’Brien’s order is emailed by Christine Ewell, head of the office’s Criminal Division.

March 6

US Attorney O’Brien rescinds his week-old order and instructs prosecutors to go forward with medical marijuana cases. Evidently O’Brien had believed media reports that Holder intended to end such prosecutions, and was complying in hopes of keeping his job. (US Attorneys traditionally submit pro forma letters of resignation, enabling a newly elected President to replace them at will.)

Somehow O’Brien got word during the week that the old approach was still acceptable. His flip-flop was reported by Scott Glover in the LA Times, along with his spokesman’s attempt to rationalize it: “prosecutors target people they consider egregious offenders, such as those accused of selling drugs to minors or proprietors with past drug convictions.”  (California law does not prohibit the use of marijuana by minors who have physician approval. Glover, relatively new to the beat, reported the disinformation as fact.)

March 18

AG Holder tells reporters in Washington that the Justice Department does not intend to prosecute cannabis dispensaries that comply with state law. “The policy is to go after those people who violate both federal and state law. To the extent that people do that and try to use medical marijuana laws as a shield for activity that is not designed to comport with what the intention was of the state law, those are the organizations, the people, that we will target. And that is consistent with what the president said during the campaign.”

March 19

PC activists tell the media that Holder’s remarks represent another big win. “Today’s comments clearly represent a change in policy out of Washington,” says Ethan Nadelmann  of the Drug Policy Alliance to the LA Times. “He [Holder] is sending a clear message to the DEA.” But Drug Warriors contend that Holder’s policy statement vindicates the approach they’ve taken all these years. The US Attorney’s spokesman in Los Angeles, Thom Mrozek, tells the Times: “In every single case we have prosecuted, the defendants violated state as well as federal law.”

LA Times reporters summarize Holder’s announcement of the new Obama policy thus: “Holder said the priority of the new administration is to go after egregious offenders.” Note how close this is to their previous summary of the US Attorney’s priorities under the old Bush policy: “prosecutors target people they consider egregious offenders.”

March 20

The New York Times runs a piece by Solomon Moore headlined “Dispensers of Marijuana Find Relief in Policy Shift” -a subtle pun. Ethan Nadelmann is  quoted saying that the feds now recognize state medical marijuana laws as “kosher.” But the DEA thinks Holder is serving up a tasty pork loin. Spokesman Garrison Courtney “pointed out that the attorney general’s statement indicated that the federal authorities would continue to go after marijuana dispensaries that broke state and federal laws by selling to minors, selling excessive amounts, or selling marijuana from unsanctioned growers.”

March 25

DEA agents, guns drawn, raid a San Francisco dispensary, Emmalyn’s, confiscating their inventory and cash on hand. No arrests are made.

March 26 President Barack Obama, answering questions at an “online town hall,” initiates an exchange (ostensibly ad lib) with the moderator, economist Jared Bernstein:

Can I just interrupt, Jared, before you ask the next question, just to say that we, we took votes about which questions were going to be asked and I think 3 million people voted or—

DR. BERNSTEIN: Three point five million.

THE PRESIDENT: Three point five million people voted. I have to say that there was one question that was voted on that ranked fairly high and that was whether legalizing marijuana would improve the economy (laughter) and job creation. And I don’t know what this says about the online audience (laughter) but I just want, I don’t want people to think that… This was a fairly popular question, we want to make sure that it was answered. The answer is, no, I don’t think that is a good strategy (laughter) to grow our economy. (Applause.)

By choosing to comment on total legalization (an abstract future possibility­), the President avoids answering the concrete question of the moment: will he allow DEA to keep raiding medical marijuana “dispensing collectives” and their affiliated growers? Equally slick is the script that makes it seem as if he insists on addressing a topic his handlers want him to avoid. The lighthearted, unspoken “stoner” charge aimed at everyone who emailed a marijuana-policy question —and the attendant laughter— is just a way of saying “we know that the herb is widely used and hardly dangerous.”  Tell it to the DEA.

April 8

Joe Russoniello, US Attorney for the Northern District of California (a Bush appointee), says at a Hastings Law School forum that all medical marijuana dispensaries are profiteering operations in violaton of state law and therefore “fair game” for DEA raiders. He asserts that marijuana is “a more dangerous substance” than alcohol or tobacco… Dispensary operators who draw “reasonable compensation” and who only obtain their cannabis from and sell it to collective members hope they can be distinguished from “egregious offenders.”

The borderline between Hope and Denial is hard to make out sometimes.

Obama’s Campaign Statements: The Ominous Side

Three-quarters of the American people want the laws changed so that marijuana can be used as medicine. What Barack Obama actually said while running for President in 2008 suggests that he will reprise the Clinton approach to this demand: stall in the name of science. The appointment of Eric Holder and Chief of Staff Rahm Emmanuel —two veterans of the Clinton White House— is further evidence that we’re in for a re-run.

Sen. Obama was twice drawn out on the subject by reporters in Oregon (the state where a primary win sealed the nomination for him). In March the candidate told Gary Nelson of the Medford Mail Tribune:

“When it comes to medical marijuana, I have more of a practical view than anything else. My attitude is that if it’s an issue of doctors prescribing medical marijuana as a treatment for glaucoma or as a cancer treatment, I think that should be appropriate because there really is no difference between that and a doctor prescribing morphine or anything else.

“I think there are legitimate concerns in not wanting to allow people to grow their own or start setting up mom and pop shops because at that point it becomes fairly difficult to regulate. Again, I’m not familiar with all the details of the initiative that was passed [in Oregon] and what safeguards there were in place, but I think the basic concept that using
medical marijuana in the same way, with the same controls as other drugs prescribed by doctors, I think that’s entirely appropriate…

“I would not punish doctors if it’s prescribed in a way that is appropriate. That may require some changes in federal law. I will tell you that -I mean I want to be honest with you: whether I want to use a whole lot of political capital on that issue when we’re trying to get health care passed or end the war in Iraq, the likelihood of that being real high on my list is not likely… What I’m not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. We’ve got a lot of things for our law enforcement officers to deal with.”

In May James Pitkin of the Willamette Week asked, Would you stop the DEA’s raids on Oregon medical marijuana growers?”

To which Obama replied: “I would because I think our federal agents have better things to do, like catching criminals and preventing terrorism. The way I want to approach the issue of medical marijuana is to base it on science, and if there is sound science that supports the use of medical marijuana and if it is controlled and prescribed in a way that other medicine is prescribed, then it’s something that I think we should consider.”

Expect a Commission to Study the Marijuana Question to be appointed in due course. Our lobbyists will hail it as a big step in the right direction. And you’ll start hearing that Obama really had to restrain himself during the first term, but during the second term he can really implement… change.

FRED GARDNER edits O’Shaughnessy’s, the Journal of Cannabis in Clinical Practice. He can be reached at fred@plebesite.com



Fred Gardner is the managing editor of O’Shaughnessy’s. He can be reached at fred@plebesite.com