Mixed Messages

Last Friday the federal government ruled that marijuana has no accepted medical use and should remain classified as one of the most dangerous drugs in existence. It took the U.S. Drug Enforcement Agency nearly nine years to reach this conclusion. Medical marijuana advocates had asked that cannabis be removed from the list of schedule one drugs — the most restrictive category — in light of growing evidence that it helps treat such ailments as glaucoma, multiple sclerosis and the side effects of chemotherapy.

The DEA ignored that research, shining on the 16 states (and counting) that have legalized medical marijuana. The ruling was brilliant, in a way. It was as if the emperor, who’d finally been called out for wearing no clothes, thought long and hard about how to respond and eventually settled on baldfaced denial: “Yes I am.”

For more than 40 years the feds have said marijuana is as dangerous as heroin and worse than cocaine, morphine and PCP. As public acceptance of medicinal marijuana has grown (it is now overwhelmingly supported in public polls), this position has looked increasingly ridiculous. The feds have begrudgingly attempted to accommodate the shifting tide without actually altering position. The result has been mass confusion.

In October 2009 David Ogden, then-deputy attorney general, issued a letter to federal prosecutors. The memo claimed to provide “clarification and guidance” on federal enforcement priorities, but in fact the thing was chock full of doublespeak and vague, conditional language. For example, Ogden told prosecutors that “as a general matter” they probably shouldn’t go after patients with “serious illnesses” or their caregivers as long as they’re in “clear and unambiguous compliance with existing state laws.” Why? Not out of sound science or compassion, but because arresting them is “unlikely to be an efficient use of limited federal resources.”

Ogden’s memo was widely interpreted as evidence that the Obama administration would look the other way when it came to state-law-abiding dispensaries. Not coincidentally, the medical marijuana industry has exploded in the 21 months since, particularly in Colorado (dispensaries now outnumber Starbucks in Denver) and California. Medical marijuana, already a $1.7 billion industry, could reach $8.9 billion in five years, according to See Change Strategy, a financial research firm. Predictably, as the industry matures, suppliers are looking to consolidate and streamline production. The most notable example is in Oakland, where last June the city council authorized four massive, industrial-style growing facilities.

For the federal government, this was a step too far. Two weeks ago the Department of Justice took another uneasy stab at articulating its stance. In another letter to federal prosecutors, Deputy Attorney General James Cole bemoaned the specter of large-scale cultivation centers. “Some of these planned facilities have revenue projections of millions of dollars,” he complained, as if the industry isn’t already that large. “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.”

Again, the bottom line was that anyone caught with marijuana, for whatever reason, could be subject to federal prosecution. On that point Cole was as clear as day.

While the Ogden memo was seen as a green light for dispensaries (when, in fact, federal policy changed not at all), both the Cole memo and last week’s DEA ruling have been interpreted by medical marijuana advocates as a betrayal from the Obama administration. “The president is using intimidation tactics to stop elected officials from serving their constituents, thereby pushing patients into the illicit market,” Steph Sherer, executive director of Americans for Safe Access, said in a statement. Tom Angell, a spokesman for Law Enforcement Against Prohibition, agreed, saying “the only entity benefiting from President Obama’s stance on this is organized crime.” Even Jan Brewer, the anti-gay marriage, anti-immigration governor of Arizona, was annoyed, saying in a statement, “If this memo was an attempt to clarify, it failed.”

Local cultivators don’t seem too worried. In an email, Humboldt Growers Association President Joey Burger said he’s not bothered by the lack of clarity. “There are many large dispensing collectives that have been in operation for over a decade in California without any federal intervention because they are following local ordinances and regulated by their city or county,” he said. Like the feds, Burger objects to large-scale cultivation indoors, saying it’s a fire and theft risk and not energy efficient. He said the federal government’s saber rattling highlights the need for a medical marijuana ordinance in Humboldt County.

On Tuesday the county Board of Supervisors voted unanimously to move forward on a draft medical marijuana ordinance by focusing on two main issues — indoor cultivation and dispensary regulation — before tackling the complex challenges of regulating outdoor grows. To date there have been no local proposals for indoor grow operations anywhere near the scale of Oakland’s plans (even considering the downsized revisions). Meanwhile, the threshold for federal scrutiny remains mysterious. The federal government has signaled that regional ordinances and state laws will be respected only until they’re not.

Supervisor Mark Lovelace said that the federal government is merely trying to prevent a free-for-all. “Clearly, the larger the scale of cultivation and the more a local government benefits from that cultivation (as through taxation), the more likely it is to come in for federal scrutiny,” he wrote in an email last week.

Where exactly does the federal government draw the line? The Journal contacted the Department of Justice requesting specifics: How does it define “large-scale” cultivation? Is there a size limit for production facilities, even those in compliance with state law? If so, what is it? What besides cancer is considered a “serious illness”?

An email response from the agency’s public affairs office left those questions unanswered. “While we wouldn’t speculate on what action we might or might not take with respect to any particular matter, the Ogden memo was never meant to shield from federal enforcement large-scale industrial marijuana cultivation centers,” spokesperson Jessica Smith wrote, regurgitating her agency’s undefined terms. She reiterated that enforcement would not focus on individuals with serious illnesses or their caregivers.

The implication is clear: The federal government’s tacit acceptance of patients and caregivers will be extended to cultivators only if they continue to operate in the shadows, like drug dealers.

This article appears in Tales of Subversion.