As many expected, the Department of Justice released a memo today backtracking from the “Ogden Memo” of two years ago, saying the intent of the 2009 memo was not to shield cultivation, sale and distribution from federal prosecution, even if it complied with state law.
Earlier tonight Tom Angell from Law Enforcement Against Prohibition sent out an email containing the new Justice Department Memo, which you can read below.
MEMORANDUM FOR UNITED STATES ATTORNEYS
FROM: James M. Cole Deputy Attorney General
SUBJECT: Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use
Over the last several months some of you have requested the Department’s assistance in responding to inquiries from State and local governments seeking guidance about the Department’s position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use o f marijuana (the “Ogden Memo”).
The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale o f marijuana is a serious crime that provides a significant source o f revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.
A number of states have enacted some form of legislation relating to the medical use of marijuana. Accordingly,the Ogden Memo reiterated to you that prosecution of significant traffickers of illegal drugs, including marijuana, remains a core priority, but advised that it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers. The term “caregiver” as used in the memorandum meant just that: individuals providing care to individuals with cancer or other serious illnesses, not commercial operations cultivating, selling or distributing marijuana.
The Department’s view of the efficient use of limited federal resources as articulated in the Ogden Memorandum has not changed. There has, however, been an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes. For example, within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants.
The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. Consistent with resource constraints and the discretion you may exercise in your district, such persons are subject to federal enforcement action, including potential prosecution. State laws or local ordinances are not a defense to civil or criminal enforcement of federal law with respect to such conduct, including enforcement of the CSA. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.
The Department of Justice is tasked with enforcing existing federal criminal laws in all states, and enforcement of the CSA has long been and remains a core priority.
cc: Lanny A. Breuer Assistant Attorney General, Criminal Division
B. Todd Jones United States Attorney District of Minnesota Chair, AGAC
Michele M. Leonhart Administrator Drug Enforcement Administration
H. Marshall Jarrett Director Executive Office for United States Attorneys
Kevin L. Perkins Assistant Director Criminal Investigative Division Federal Bureau of Investigations
In other words, the federal government has free reign when it comes to overriding state law and going after medical marijuana. Those in the medical marijuana industry had better brace themselves, the DEA has absolutely nothing holding them back.