October 14, 2011
What is the status of medical marijuana in California? May people possess it, use it, distribute it, sell it? Those ought to be easy enough questions to answer, but because of state and local fumbling on the issue, they're not. And now, after last week's announcement by federal authorities of a crackdown on dispensaries, the answers may be harder than ever to nail down. So complicated are the legal and enforcement issues surrounding medical marijuana that the attempt by California's four U.S. attorneys to bring some clarity — just like earlier attempts by federal Justice Department officials — actually makes things murkier.

The core of the problem is the same as it has always been: the interplay, and conflict, between the federal prohibition of marijuana and the state authorization of medical use under Proposition 215, passed in 1996. Any law student will tell you that federal law prevails, but that's hardly the end of the matter.

Before last week's announcement, the best-known attempt at clarity came in the form of a 2009 memo from U.S. Deputy Atty. Gen. David W. Ogden. "The Department of Justice is committed to the enforcement of the Controlled Substances Act in all states," the memo said. "Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime and provides a significant source of revenue to large-scale criminal enterprises, gangs and cartels."

But the memo went on to state that it would be an inefficient use of scarce resources to prosecute people "whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."

So what is "clear and unambiguous compliance"? Purveyors kept pushing the envelope until supporters of fully legalized marijuana argued that they had virtually achieved their goal.

Now the U.S. attorneys say marijuana sellers and the cities that allowed them to set up shop have gone too far. Under the guidelines laid out in the Ogden memo and other federal advice and instructions, they appear to be correct. But where does that leave us? Will the federal government target those dispensaries located near schools and parks, as one prosecutor suggested? And if so, does that give a safe harbor to others? Or will prosecutors move against anyone in the marijuana industry who is making a profit, as one U.S. attorney spokesman said they would? Will they go after "large-scale industrial marijuana cultivation centers," as one Justice Department official said? Can they at least cite a state that they believe does it right and will be left alone?

Federal prosecutors have respected the wishes of California voters and their counterparts in more than a dozen states to allow people to acquire and use medical marijuana out of courtesy and prudence, not because they believed they had to. They, or their successors, could at any time go further, and scrutinize, for example, whether use is truly medical. The balance between federal and state marijuana laws has been re-calibrated for now, but for there to be any reliable truce, we need guidance from California Atty. Gen. Kamala Harris on what constitutes "clear and unambiguous compliance" with state medical marijuana laws. Then we need some unambiguous guidance from the feds about what they can live with, rather than a long period of silence and then a sudden snap to attention.
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