By Jacob Sullum
At an oversight hearing before the House Judiciary Committee last Thursday, Rep. Jared Polis (D-Colo.) asked Attorney General Eric Holder whether it is still Justice Department policy that people who comply with state medical marijuana laws "should not be an enforcement priority." Holder initially responded by focusing on patients, saying, "If in fact people are not using the policy decision that we have made to use marijuana in a way that's not consistent with the state statute, we will not use our limited resources in that way."
As I explained in the October issue of Reason, a policy of prosecutorial forbearance that applies only to patients does not amount to any real forbearance at all, since the feds generally do not take on cases involving small amounts of marijuana, regardless of how the drug is used. Making medical marijuana patients a low enforcement priority does not represent a shift in policy and does not mark the Obama administration as any more tolerant than the Bush administration in this area. Polis therefore asked Holder specifically about medical marijuana providers licensed and regulated by the state of Colorado, contrasting them with California dispensaries, which operate in a legal gray area. Noting the ongoing federal crackdown in California, he asked Holder "whether our state regulation...passed with strong bipartisan majorities in both chambers of our legislature, provide[s] any additional protection to Colorado from federal intervention." Holder's response:
I'm not familiar with it, but I'd have to look at it. But again, our thought was that where a state has taken a position, has passed a law, and people are acting in conformity with a law, not abusing the law but acting in conformity with it, and, again, given our limited resources, that would not be an enforcement priority for the Justice Department.
Polis then noted that "legal, regulated medical marijuana shops and dispensaries in Colorado" often have trouble opening bank accounts, because financial institutions worry that they could be implicated in money laundering if the Justice Department treats dispensaries as criminal enterprises. "Is there any intention of the Department of the Justice to prosecute bankers for doing business with licensed and regulated medical marijuana providers in the states?" Polis asked. Holder's response:
If...the people seeking to make the deposits are acting in conformity with state law, that would not, again, be an enforcement policy for the Justice Department.
There are no ironclad guarantees here, of course, because this is all a matter of prosecutorial discretion and could change tomorrow. But since 2009 Holder has consistently said that medical marijuanaproviders who comply with state law are a low enforcement priority. His underlings, meanwhile, have been contradicting him left and right. As long as dispensaries are "violating federal law," the special agent in charge of the DEA's Denver office said in February 2010, "they’re at risk of arrest and imprisonment." Last February, Melinda Haag, the U.S. attorney in San Francisco, told Oakland's city attorney, "We will 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." Last month a spokesman for André Birotte Jr., the U.S. attorney in Los Angeles, summed up the message from federal prosecutors in California this way: "At the end of the day, California law doesn't matter." And neither, apparently, does Eric Holder.