A recent policy from the Obama Administration directs federal prosecutors not to prosecute medical marijuana cases in states where medicinal use of the drug has been approved. This means that even though federal law conflicts with some state laws, those who act in compliance with state laws will not be prosecuted. The advance announcement providing assurance of no prosecution to a select group of people weakens the foundation of our effort to reduce the use of illegal drugs.
This sets a dangerous precedent. For the first time, as far as I can recall, the chief federal law enforcement official stated that he will not enforce federal law when it conflicts with state law. This is truly the U.S. Constitution’s supremacy clause turned upside down. The federal drug enforcement agents in Arkansas (a state which does not authorize medical marijuana) will enforce the law differently from agents in California. This creates a situation with no overarching federal standard to which prosecutors can adhere.
But will the policy have any impact on federal prosecutors enforcing federal law? The memo authorizes federal prosecutors to use their discretion when deciding whether to use federal resources to pursue a marijuana case that does not break state law. But this is not new. Prosecutors have always had this discretion. They have never set a priority to make federal cases out of simple possession or medicinal use. Rather, the priority has always been targeting suppliers and major dealers. Under normal practice, a federal prosecutor would never pursue a true medical marijuana case. The memo is carefully worded to leave in place the historic discretion of prosecutors. The problem is not in the impact on prosecutors but rather the impression it leaves with the public that marijuana is somehow not a harmful substance despite the Attorney General’s statement that marijuana has not been decriminalized.
The new policy statement provides an even more confusing message to our teenagers. To a young person, there are two messages that come through loud and clear – marijuana may be good for you, and the federal government is not going to prosecute some cases. Teenage drug use may even increase under the new announcement. That is obviously not a good thing.
Further, the medical community is not in broad agreement on the benefits of medicinal marijuana. According to American Medical Association (AMA) findings, the medical community does not recognize smoking marijuana as a legitimate medical treatment. Is marijuana harmful or is it medicinal? Is it legal or illegal? Clarity of the laws is a necessary ingredient to successful enforcement of our laws. The new policy does not make it clear what is legal and what is illegal! This muddling of our prosecution policy cannot be beneficial to our efforts to reduce harmful drugs. Differing opinions on what drugs should be legal should be resolved by medical experts and by the old fashion way of passing and amending laws through elected representatives.
Overall, state laws authorizing medical marijuana have not proved workable. The sale of marijuana under the guise of treating patients has made it more difficult to prosecute anyone in the supply chain who claims the production, delivery and sale of marijuana is related to its medicinal use. Thus, whereas federal prosecutors previously did not focus on prosecuting people who fully comply with state law, now they will be even more pressed to enforce marijuana laws. Those who willfully break both state and federal laws will be that much more difficult to prosecute, for they can hide behind inconsistent laws and confused authority.