DOJ Issues Medical Marijuana Investigation and Prosecution Guidelines; DEA Issues Statement

October 22, 2009

By Larry K. Houck

In a departure from US DOJ policy, Attorney General Eric Holder announced formal federal guidelines for U.S. Attorneys in states that have authorized marijuana for medical use.  The guidelines, set out in an October 19, 2009 memorandum authored by Deputy Attorney General David Ogden, were sent to the U.S. Attorneys in the fourteen states that have enacted laws authorizing marijuana for medical treatment.  Marijuana is a Schedule I controlled substance under the federal Controlled Substances Act.  Schedule I drugs are those that lack a currently accepted medical use in treatment in the United States.

U.S. Attorneys will continue reviewing marijuana cases on an individual basis consistent with DOJ resource allocation and federal priorities set out in the guidelines.  Investigation or prosecution of activities that are legal under state medical marijuana laws conflict with the federal resource allocation and priorities.

The guidelines mandate that the federal government not investigate or prosecute “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”  This would include individuals using marijuana for medical treatment and their caregivers that provide marijuana to them.  Prosecution of “commercial enterprises that unlawfully market and sell marijuana for profit,” including operations that hide behind local or state law, remain an enforcement priority.

While the guidelines preclude investigation and prosecution of activities clearly and unambiguously compliant with state law, the memorandum states that it is to serve only as a guide to investigative and prosecutorial discretion.  The guidelines state that nothing precludes investigation or prosecution when there is reasonable basis that state law compliance is but a pretext for illegal activity or when it serves other important federal interests.  The guidelines list the following indications of conduct not “in clear and unambiguous compliance with applicable state law that may indicate “illegal drug activity of potential federal interest”:

  • Unlawful possession or unlawful use of firearms;
  • Violence;
  • Sales to minors;
  • Financial and marketing activities inconsistent with state law;
  • Amounts of marijuana inconsistent with state or local law;
  • Illegal possession of other controlled substances; or
  • Ties to other criminal enterprises.

The guidelines state that the list is not exhaustive.  So, the presence of these or other factors can trigger investigation and prosecution of activities legal under state law.

The Drug Enforcement Administration (“DEA”) announced on October 22 that the agency welcomes the guidelines, asserting that “[i]t is not the practice or policy of DEA to target individuals with serious medical conditions who comply with state laws authorizing the use of marijuana for medical purposes.”  But what about the not-for-profit cooperatives or even the for-profit dispensaries that provide marijuana to ill individuals?  DEA stated that consistent with DOJ’s guidelines, it “will continue to identify and investigate any criminal organization or individual who unlawfully grows, markets or traffics marijuana or other dangerous drugs.”  But “criminal” or “unlawful” under which laws, the federal laws or individual state laws?