Ogden and Cole
For the second time in two years the Department of Justice has issued a memorandum outlining how it will enforce the federal laws forbidding distribution and possession of marijuana. The question is whether these indicate a real change in policy, a response to tight budgetary constraints, a temporizing move, or just a publicity stunt. The best analysis is that they show an actual change in policy.
Roughly two years ago, with about fifteen states (now up to twenty) having adopted medical marijuana laws and very different federal enforcement tactics in the various states, the Department of Justice tried to clarify and unify its response to those laws. In a memorandum by Assistant Attorney-General Ogden, it stated that the government had no interest in prosecuting patients or their care-givers acting in conformity with state laws, but would continue to vigorously pursue those connected with criminal enterprises or operating for profit.
The Ogden memo had radically different results in different states. In New Mexico and Colorado, with tightly controlled distribution systems, the U. S. Attorneys took virtually no actions, allowing the state systems to function. But in Montana and especially California, where the state laws were not comprehensive in regulating production and distribution and many local governments were resistant to implementation, some of the U. S. Attorneys became aggressive in collateral attacks on growers and distributors.
Several things have occurred since the Ogden memo was issued. First, the aggressive actions of two of the four California USAs aroused substantial public opposition and resentment while they did little, if anything to disrupt the access of growing numbers of Californians to medical marijuana (what they may have done to large-scale marijuana businesses is another story). Then several more states, at an increasing rate, approved state laws recognizing medical marijuana. The number of states is now up to twenty, containing around thirty percent of the national population.
While the task of enforcement got larger and the methods used prove to be ineffective, resources for enforcement shrank. The Congressional budget sequestration imposed drastic across the board cuts on all federal agencies, including the Department of Justice and its subsidiary departments including the DEA, Bureau of Prisons, U. S. Attorneys, and public defenders. These budgetary constraints were a large part of the reason that Attorney-General Holder announced that the Justice Department would discontinue the practice of imposing mandatory minimum sentences for non-violent drug cases.
In 2012, Colorado and Washington, both states with existing medical marijuana laws, passed referenda legalizing the sale and possession of marijuana in those states. Since those new laws were inconsistent with the federal law still controlling in those states, many anxiously awaited the federal reactions to these laws.
One set of voices was conspicuously absent from the discussion of these issues. From the 1970s into the 1990s, Congress had consistently tightened the federal drug laws, making them even more draconian. Yet, when the states began challenging its authority, first with California’s medical marijuana referendum in 1995, Congress did nothing.
The Justice Department responded to these events in a memorandum from Assistant Attorney-General Cole in August, 2013. The Cole memo repeated the Ogden statement that the federal government had no interest in prosecuting individual users and low-level dealers. It then stated that it would refrain from action against the Colorado and Washington law (and by implication, laws later passed by other states) if their fulfilled eight stated criteria.
These criteria should also serve as a restraint on some U. S. Attorneys who have used the vague generalities of the Ogden memo as a hunting license to go after the higher levels of the medical marijuana distribution chain in some states. This comment is not a criticism of the Ogden memo. It was attempting to establish guidelines for acting in the unknown – and unknowable – future of a nascent industry. Vague generalities were the best that could be done at the time.
Within hours of the release of the Cole memo, A-G Holder announced he would be working with federal banking regulators to find some method to allow banks to extend normal banking services to regulated marijuana businesses that have to operate under money-laundering statutes, RICO and CCE statutes and FDIC insurance requirements. He expressed two reasons for this action. Requiring these enterprises to operate on a cash only basis makes them targets for robbery, exposing the public to increased violence; and use of routine banking services creates an audit trail that can prevent diversion of receipts to criminal organizations like the Mexican Cartels.
After the Cole memo was released, Sen. Patrick Leahy called a hearing of the Senate Judiciary Committee to look into it, saying that it was time to put drug control on a more reasonable basis. Of those called to testify, only one raised even tepid objections to the actions taken by the Justice Department.
Taken together, the Ogden and Cole memos and the circumstances surrounding them show a major change in the government’s thinking on marijuana regulation. Is that change merely a passive recognition of federal impotence? An attempt to shift responsibility to the states? Or the first step to a major reform of federal drug law? At this early stage, only a fool would try to predict the exact path that will be followed, but one thing is certain. Federal drug law has taken a large, and irreversible step toward drug law reform.