Justice Dept. Reminds States That Selling Pot Is Still a Federal Crime

In a new memo to federal prosecutors, the Department of Justice says that marijuana dispensaries and licensed growers in states with medical marijuana laws could still face penalties for violating federal drug laws. U.S. Deputy Attorney General James Cole wrote:

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 of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels.

This comes two years after then-Deputy Attorney General David Ogden released a memo that directed federal prosecutors "not to focus federal resources" on the prosecution of individuals who are in compliance with laws in the states that allow for the sale and use of medicinal marijuana, in what has become known as the "Ogden memo."

Memos from the Attorney General are not law, but often direct what states and localities are willing to do.

So what caused the change of heart?

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.

As in, we're looking at you Oakland.

On July 28, 2010, the Oakland city council approved a city-wide ordinance for the cultivation of medical marijuana in four new large-scale factories. In addition to improving public safety through the regulation of marijuana growth, the approved plan estimated that it would raise anywhere from $3 million to $38 million in permit fees and sales taxes.

A few months later in December, officials from the U.S. Justice Department and the U.S. attorney's office in San Francisco made it clear in closed meetings that the plan was in violation of state and federal laws, and could trigger multiple legal actions against the city.

Then in an open letter to Oakland, the U.S. attorney for the Northern District of California, Melinda Haag, said: "Individuals who elect to operate 'industrial cannabis cultivation and manufacturing facilities' will be doing so in violation of federal law."

This was one of a flurry of letters sent to cities and states across the country who were confused about how much the Ogden memo permitted them.

But not only are city-approved grow operations now under question, but approved dispensaries as well. Rhode Island's governor suspended licensing three medical marijuana dispensaries in early May after a similar warning.

On June 20, 2011 Reps. Barney Frank, D-Mass., and Jared Polis, D-Colo., asked for clarification on the Obama administration's policy on medical marijuana.

A week later Frank at Rep. Ron Paul, R-Texas, introduced a bill to remove marijuana from the list of federally controlled substances. The bill would not legalize marijuana, but would open it up for state's to regulate. Other sponsors of the bill are Democratic Reps. John Conyers of Michigan, Steve Cohen of Tennessee, Jared Polis of Colorado and Barbara Lee of California.

The new Justice Dept. memo doesn't really take a new stance, but it does clarify that the administration will not tolerate how far some states have gone.

It does uphold medical marijuana use for "serious conditions," as did the Ogden memo, and that going after medical marijuana users and "caregivers" still remains a low priority.

Sixteen states and the District of Columbia have legalized medical marijuana: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.

Learn more about the history of marijuana in American and California, from church-sponsored Reefer Madness to Pres. Carter's attempt to decriminalize. Also, check out KQED's ongoing coverage of the Republic of Cannabis.