Aclu Asks Holder To Clarify His Medical Marijuana Policy

[Michael Komorn]

ACLU Asks Holder to Clarify His Medical Marijuana Policy

 

Jacob Sullum | May 11, 2011

 

The American Civil Liberties Union is asking the Justice Department to clarify its position on medical marijuana in light of recent threats by U.S. attorneys to prosecute providers even when they comply with state law. In a March 9 letter to Attorney General Eric Holder, Laura Murphy, director of the ACLU's Washington Legislative Office, and Jay Rorty, director of its Criminal Law Project, note the contradiction between those threats and the forbearance promised in an October 2009 memo from David Ogden, then the deputy attorney general, and in public comments by Holder himself. They cite a statement that Holder made while visiting New Mexico, which licenses medical marijuana dispensaries, in June 2009. Here is how it was reported by The New Mexico Independent:

 

The nation's top cop said Friday that marijuana dispensaries participating in New Mexico’s fledgling medical marijuana program shouldn't fear Drug Enforcement Agency raids, a staple of the Bush administration.

 

U.S. Attorney General Eric Holder, speaking in Albuquerque during a meeting focused on border issues, including drug trafficking, said his department is focused "on large traffickers," not on growers who have a state's imprimatur to dispense marijuana for medical reasons.

 

"For those organizations that are doing so sanctioned by state law, and doing it in a way that is consistent with state law, and given the limited resources that we have, that will not be an emphasis for this administration," Holder said.

 

That statement, like the March 2009 quote I cited in today's column on this subject, is pretty hard to reconcile with a threat to "to enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law," as U.S. Attorneys Jenny Durkan and Michael Ormsby put it in their April 14 letter (PDF) to Washington Gov. Christine Gregoire.

 

The Ogden memo (PDF) is more equivocal than Holder's public comments, full of qualifiers and weasel words, but it leaves the clear impression that the DOJ is not interested in prosecuting bona fide dispensaries that are explicitly authorized by state law. Ogden even lists factors that might lead federal prosecutors to conclude that a dispensary is not legitimate, which necessarily means that some dispensaries are:

 

Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law and may indicate illegal drug trafficking activity of potential federal interest:

 

• unlawful possession or unlawful use of firearms;

 

• violence;

 

• sales to minors;

 

• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

 

• amounts of marijuana inconsistent with purported compliance with state or local law;

 

• illegal possession or sale of other controlled substances; or

 

• ties to other criminal enterprises.

 

Yes, Ogden says the list is not exhaustive, and he adds that prosecution may be justified despite compliance with state law "in particular circumstances where investigation or prosecution otherwise serves important federal interests." But the implication is that, by and large, providers who comply with state law need not worry about federal prosecution. Furthermore, as Murphy and Rorty note, Santa Cruz medical marijuana providers represented by the ACLU agreed to drop their lawsuit challenging the DEA's raids after DOJ lawyers "asserted that the Ogden Memo announced a significant policy shift, under which those individuals and entities that use or distribute marijuana in full compliance with state medical marijuana laws would no longer be targeted by federal law enforcement."

 

Yet one DOJ spokeswoman told me "there is no inconsistency" between the recent prosecution threats and the policy described by Ogden, while another told The New York Times: "This is not a change in policy. It's a reiteration of the guidance that was handed down in 2009 by the deputy attorney general." By their account, Obama's policy is indistinguishable from Bush's, which makes you wonder what all the fuss was about. The Ogden memo was pointless unless it signaled something more than a preference for not bringing penny-ante charges against cancer patients with an ounce in the drawer or a few plants in the yard—the sort of case the feds don't have the resources to pursue even if they wanted to.

 

Last August, our own Mike Riggs, who was writing for The Daily Caller at the time, reported that unnamed DOJ and White House officials "argued that the gist of the Holder memo was that the DEA would 'not focus its limited resources on individual patients with cancer or other serious diseases.'" My response at the time was that "if the administration's official position is now that dispensaries are fair game regardless of what state law says, Obama and Holder are even more full of bunny muffin than I thought." I have to say I am surprised by how utterly full of bunny muffin they turned out to be. Why make a big deal out of respecting state policy choices while openly undermining them? Did they think no one would notice?

 

I'm also not sure what the political payoff is. How many of Obama's current or potential supporters are clamoring for medical marijuana raids? According to every poll on the question that I've seen, a large majority of Americans support legal access to marijuana for patients who can benefit from it, and I suspect the numbers are especially high among people who might vote for Obama. This seems like a situation where Obama could have dialed back drug law enforcement without suffering politically. He might even have benefited by making supporters who believed his medical marijuana promises less inclined to stay home on Election Day. My guess is that DEA agents and federal prosecutors are doing what DEA agents and federal prosecutors do, and Obama simply does not care enough to stop them, since he figures that any supporters who favor a more tolerant policy have nowhere else to go.

 

Last October I asked why drug policy reformers assume that Democrats are better than Republicans on this issue. With a Democratic administration refusing to tolerate even modest marijuana reforms while Republican presidential contenders call for heroin legalization, the question is even more timely today.

 

 

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[Guest Happy Guy]

I'm also not sure what the political payoff is. How many of Obama's current or potential supporters are clamoring for medical marijuana raids? According to every poll on the question that I've seen, a large majority of Americans support legal access to marijuana for patients who can benefit from it, and I suspect the numbers are especially high among people who might vote for Obama. This seems like a situation where Obama could have dialed back drug law enforcement without suffering politically. He might even have benefited by making supporters who believed his medical marijuana promises less inclined to stay home on Election Day. My guess is that DEA agents and federal prosecutors are doing what DEA agents and federal prosecutors do, and Obama simply does not care enough to stop them, since he figures that any supporters who favor a more tolerant policy have nowhere else to go.

 

With no political payoff, you have to ask why is the administration messing with anyone at all. Or could it be that this action is to do something positive for patients?

To answer this question you would have to closely examine who have been 'messed with'.

I can think of one very recent example in Lansing, MI. Was the federal action in Lansing a good or bad thing for patients? One thing we can learn from this is what type of 'dispensary' might be in the cross hairs. Rather than listening to the preliminary, possibly hyped, police reports. Let's look at this dispensary from what you might call 'patient view'.

 

Evolve info;

http://www.lansingcitypulse.com/lansing/article-5782-evolve.html

 

Search Archive: Home News Evolve

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. . Wednesday, April 27,2011

Evolve

2312 E. Michigan Ave., Lansing Hours: M-Sat 11 a.m.-8 p.m.

by City Pulse

Like a fortress of solitude, Evolve Medical Marijuana Services is located on Michigan Avenue between Lansing Art Glass and Alternative Choice Clinic on Lansing’s east side. Parking is available on the street in front and also in the back of this business. I paid a visit on a recent Thursday around 5:30 p.m. and attempted to enter through the front door next to Evolve´s neon "Open" sign. But the entrance was locked and all of the windows and doors were covered with what looked like contact paper. I knocked without response, then walked to the back entrance and spotted a door with a roof awning labeled “Entrance.” When I knocked at this locked door, I was greeted with a muffled, “Yeah?” When I explained I was trying to find the entrance, I was directed back to the front door. An employee opened the door a smidge and checked my identification. He then asked for my state medical marijuana registry card, which I don´t have yet because of the state´s backlog. Patients are supposed to take their application copies with completed certifications and proof of payment as legitimate documents to demonstrate program eligibility.

 

The employee indicated the application had to be “stamped” by the state Department of Community Health in order to be valid. One would only possess a stamped application copy if one hand-carried paperwork to the state office and requested a copy. I tried to argue this point, but the employee was unflappable. I was able to crane my neck to see that there was a lobby and service counter with medicines. Reportedly, this business sells medicine, medibles and clones.

 

I tried to follow-up by telephone and discovered the number listed in City Pulse’s online directory was not working. I paid a second visit to Evolve at 7 p.m. on a Monday and found the business closed with the lights and the neon sign turned off. I knocked loudly to no response. There was a 3-1-3 area code number on a help wanted sign in the window. I called and spoke with the proprietor, who informed me that Evolve only accepts valid cards and applications that are stamped. When I indicated this would only cover individuals who applied in person to the state registry, he confirmed this was their policy. I asked about business hours and he indicated they were open 11 a.m. to 8 p.m., Monday through Saturday. I stated they were closed at the time of my visit and he indicated they must have been open. I told him I was standing outside the business and they were definitely closed, to which he replied: “They should be open.”

 

While other dispensaries in town have a well-organized staff and operation, Evolve looks like it needs more time to … evolve

[jimbojinx]

Like I have said it before and I will say it again....Hypocrisy is Rampant In Washington !!!!

 

Dr. Jinx

[Guest Happy Guy]

LANSING, Mich (WLMI) A Lansing medical marijuana dispensary has been shut-down after the owner apparently was selling heroin from the shop. The Michigan Avenue business was raided by police—the Lansing SWAT team and Tri-County Narcotics Squad used flash-grenades to gain entrance to the building. A man and woman were arrested for drug and weapons violations.

 

 

 

source; http://929wlmi.com/news/articles/2011/may/11/lansing-medical-marijuana-dispensary-raided/

[Guest Happy Guy]

Two Convicted Felons Arrested in Marijuana Clinic Drug Raid

Law enforcement warned it would happen -- illegal drugs being sold in medical marijuana shops. That appears to have been the motivation for a police raid in Lansing last night, where a narcotics team used flash grenades inside a shop on Michigan Avenue.

 

"They were really loud and smoky," said Jerry, a passerby. "I thought maybe they were tear gas. I didnt' know for sure."

 

What Jerry describes were flash grenades, used by the Lansing Police start team to create a diversion.

 

"Two employees of the store were arrested. They are both convicted felons," said Inspector Gene Adamczyk of the MSP.

 

The Evolve Medical Marijuana building, the one that was raided, is owned by the same couple that runs the medical marijuana shop next door. Employees there tell me they had to board up windows broken during the drug raid.

 

You can still see broken glass on the ground and inside the building.

 

"They yelled 'police search warrant' and busted in the door one of them busted that window," Jerry said.

 

Police wouldn't say whether or not they found heroin. The charges suggest they did not. According to the Ingham County Prosecutor's office, both suspects will be charged with posession with intent to deliver marijana -- a felony. One suspect also faces a second felony charge for carrying a gun in a motor vehicle. The second suspect also faces a misdemeanor charge for maintaining a drug establishment

 

"As individuals grow medical marijuana, organized groups, thugs, and thieves are going to try to deprive them of that and thus were going to see theft, were going to see assault, and possibly even homicide as a result of people wanting to steal someone else's medical marijuana," Adamczyk said.

[greenbuddha]

Already sent a little 'donation' to the ACLU and I'll be doing it again when I've got a little more extra cash.

[Darkmatter]

Last August, our own Mike Riggs, who was writing for The Daily Caller at the time, reported that unnamed DOJ and White House officials "argued that the gist of the Holder memo was that the DEA would 'not focus its limited resources on individual patients with cancer or other serious diseases.'" My response at the time was that "if the administration's official position is now that dispensaries are fair game regardless of what state law says, Obama and Holder are even more full of bunny muffin than I thought." I have to say I am surprised by how utterly full of bunny muffin they turned out to be. Why make a big deal out of respecting state policy choices while openly undermining them? Did they think no one would notice?

...I voted for this jack-wagon. I feel ashamed.

 

With no political payoff, you have to ask why is the administration messing with anyone at all. Or could it be that this action is to do something positive for patients?

Call me a crazy conspiracy nut, but I think it's all about the FDA. They do not want to be out of our lives, and out of our pockets. Medical Marijuana has outsold Viagra. They do not want us low flies getting in the way of that pay-off. God forbid that sick people got better and kept their money.

[Guest Happy Guy]

...I voted for this jack-wagon. I feel ashamed.

 

 

Call me a crazy conspiracy nut, but I think it's all about the FDA. They do not want to be out of our lives, and out of our pockets. Medical Marijuana has outsold Viagra. They do not want us low flies getting in the way of that pay-off. God forbid that sick people got better and kept their money.

For your conspiracy theory to be proven you will have to show a clear path to the money.

 

For Medical Cannabis to be compared to Viagra, the drug will not only have to be rescheduled to make it eligible for prescriptions, our medical cannabis law would have to be repealed. Our law says that insurance companies will not be charged for the drug. This is an excellent thing about our state law. Pharma can't come here to Michigan and clean up.

 

When the Obama administration sends a memo to a state like Arizona saying they shouldn't set up state run distribution networks, and when you look at their law saying a patient can't grow for themselves if a dispensary sets up with 25 miles of their home, then you see that The Memo was really helping out patients. Now, the only question I have is, was this just a lucky break for us patients, or is Obama in our corner by design? Either way, the memo can easily be seen as a good thing for patients that grow for themselves and don't want to lose their grow rights to a dispensary that gets set up within 25 miles of your home.

[Letterhead954]

Happy Guy, are you suggesting that the memo's sent to Arizona and the other states are really the Feds efforts to protect patients? I hope not, since that would be ludicrous. I really don't think the warning memo to AZ was because the Feds thought patients there were getting the shaft. Or am I not getting your point? Are you saying that even though what the Feds are doing is bad, the unintended consequence is that it's good for patients?

[+wolfgang]

Last October I asked why drug policy reformers assume that Democrats are better than Republicans on this issue. With a Democratic administration refusing to tolerate even modest marijuana reforms while Republican presidential contenders call for heroin legalization, the question is even more timely today."MK

 

Thats what I would like to know as well,hopefully ppl are just sick of both parties telling us how to live when to bunny muffin,what to eat,and when and when we CANT use our medication. Screw them. Vote Johnson 2012

[Guest Happy Guy]

Happy Guy, are you suggesting that the memo's sent to Arizona and the other states are really the Feds efforts to protect patients? I hope not, since that would be ludicrous. I really don't think the warning memo to AZ was because the Feds thought patients there were getting the shaft. Or am I not getting your point? Are you saying that even though what the Feds are doing is bad, the unintended consequence is that it's good for patients?

If you were a patient in Arizona, that was told you can grow for just a little while longer, just until the state has their money grubbing dispensary monopoly set up, you might understand how the memo is helping you. This memo is like a 'stay of execution' for those patients growing for themselves in Arizona. It's like Underdog coming to their rescue, at the last minute, before they go back to the underground illegal growing. I can relate because that's where I'm headed when this comes here. Just because Arizona is 'way down there' doesn't mean it's not coming 'up here'. Dig your feet in and help! The direction Arizona is headed in has nothing for real medical cannabis patients. It only helps businesses legally take away what patients should keep, their grow rights. Patients NEVER EVER should lose their right to grow like in Arizona. Are you understanding where I'm coming from now? If you let them rape patients down there, they will be darn good and hungry when they get here. Big, hungry, and powerful dispensary interests coming home to roost because you let Arizona brother and sister patients swing in the wind.

[+wolfgang]

the memos coming out of AZ and RI are from appointed attorney that BO put into place.CHANGE

[Guest Happy Guy]

the memos coming out of AZ and RI are from appointed attorney that BO put into place.CHANGE

The memos are stopping patients from losing their grow rights. Do you understand that? Or are you applauding that? I can't tell.

[Letterhead954]

If you were a patient in Arizona, that was told you can grow for just a little while longer, just until the state has their money grubbing dispensary monopoly set up, you might understand how the memo is helping you. This memo is like a 'stay of execution' for those patients growing for themselves in Arizona. It's like Underdog coming to their rescue, at the last minute, before they go back to the underground illegal growing. I can relate because that's where I'm headed when this comes here. Just because Arizona is 'way down there' doesn't mean it's not coming 'up here'. Dig your feet in and help! The direction Arizona is headed in has nothing for real medical cannabis patients. It only helps businesses legally take away what patients should keep, their grow rights. Patients NEVER EVER should lose their right to grow like in Arizona. Are you understanding where I'm coming from now? If you let them rape patients down there, they will be darn good and hungry when they get here. Big, hungry, and powerful dispensary interests coming home to roost because you let Arizona brother and sister patients swing in the wind.

I see your point, and it's a good one. I've gotten the impression though that you believe that that's why the Feds are doing this, to protect patients, and that therefore the memo's are a good thing. The memo I read, though I don't know if the one sent to AZ was different, says that they will go after large grows and dispensaries even if they're legal by state law. If they are able and willing to do that, no matter what one may think of dispensaries, what makes you think that the next step won't be to come after the rest of us? Just because they say so? My hope is that the Feds would stay out of this completely and let the states handle it. We know where the Feds would take it.

[Guest Happy Guy]

I see your point, and it's a good one. I've gotten the impression though that you believe that that's why the Feds are doing this, to protect patients, and that therefore the memo's are a good thing. The memo I read, though I don't know if the one sent to AZ was different, says that they will go after large grows and dispensaries even if they're legal by state law. If they are able and willing to do that, no matter what one may think of dispensaries, what makes you think that the next step won't be to come after the rest of us? Just because they say so? My hope is that the Feds would stay out of this completely and let the states handle it. We know where the Feds would take it.

There is no reason to think that the feds would go after us small time growers. We stay in private. We mind our own business. We aren't trying to get rich off patients. So many things make us different than dispensaries. We are the original health care reformers that supply ourselves with no burden on society.

 

You are ignoring the fact that some STATES are so greedy that they will trample patients to get the money. Those very states are mentioned in the memo. The memo is the only 'fence' stopping the hogs from trampling the patients.

 

Large grows and dispensaries have spit on our rights. They continue to be pushy piggies. Who do you think proposed the rule that says if a dispensary sets up within 25 miles of you that you CAN'T grow anymore? YES, bingo, large grows and dispensaries thought that one up. I can't say stongly enough (on here) how bad they are for patient rights. They represent the end of growing as us patients know it today. Do everything you can to slow them down so you can grow another day. If you are a small grower, know who has the knife at your throat, if you are not a small grower and a cannabis patient, meet your slave masters, the dispensary owners and all those they bribe.

[Guest Happy Guy]

I see. So Marinol can no longer be sold in Michigan. Nor Sativex when it is approved. I didn't realize that.

 

Go OBAMA and DEA! Making the world safe for patients!

Our law says that insurance can't be charged for medical cannabis. It's a HUGE hurdle for Pharma here. No insurance, no money for prescriptions. Sativex is medical cannabis and Marinol is not.

 

ACLU, make patient grow rights first and foremost and I will donate too. Sticking up for large grows and dispensaries that push for monopolies makes my stomach turn and my blood boil. Why didn't they attack Arizona when they set up the monopoly rules that will squash patients' rights? Obama had to do it. I have to say, I didn't expect it. It was a welcome surprise.

[Highlander]

Our law says that insurance can't be charged for medical cannabis.

 

Where? I don't see this. I do see where it says that insurance companies are not required to pay for mmj - but nothing suggesting they can't:

 

 

"Nothing in this act shall be construed to require:

 

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana."

[Guest Happy Guy]

Where? I don't see this. I do see where it says that insurance companies are not required to pay for mmj - but nothing suggesting they can't:

 

 

"Nothing in this act shall be construed to require:

 

(1) A government medical assistance program or commercial or non-profit health insurer to reimburse a person for costs associated with the medical use of marihuana."

'Not required'. You don't expect private insurance companies to volunteer to pay for it do you? At $1500 a month per patient? I don't think so. It's in our law for a reason.