THE MEDICAL MARIJUANA MESS

Federal and Local Laws Are at Odds. Its Time for Government to Clear
Up the Confusion

What is the status of medical marijuana in California? May people
possess it, use it, distribute it, sell it? Those ought to be easy
enough questions to answer, but because of state and local fumbling
on the issue, they're not. And now, after last week's announcement by
federal authorities of a crackdown on dispensaries, the answers may
be harder than ever to nail down. So complicated are the legal and
enforcement issues surrounding medical marijuana that the attempt by
California's four U.S. attorneys to bring some clarity - just like
earlier attempts by federal Justice Department officials - actually
makes things murkier.

The core of the problem is the same as it has always been: the
interplay, and conflict, between the federal prohibition of marijuana
and the state authorization of medical use under Proposition 215,
passed in 1996. Any law student will tell you that federal law
prevails, but that's hardly the end of the matter.

Before last week's announcement, the best-known attempt at clarity
came in the form of a 2009 memo from U.S. Deputy Atty. Gen. David W.
Ogden. "The Department of Justice is committed to the enforcement of
the Controlled Substances Act in all states," the memo said.
"Congress has determined that marijuana is a dangerous drug, and the
illegal distribution and sale of marijuana is a serious crime and
provides a significant source of revenue to large-scale criminal
enterprises, gangs and cartels."

But the memo went on to state that it would be an inefficient use of
scarce resources to prosecute people "whose actions are in clear and
unambiguous compliance with existing state laws providing for the
medical use of marijuana."

So what is "clear and unambiguous compliance"? Purveyors kept pushing
the envelope until supporters of fully legalized marijuana argued
that they had virtually achieved their goal.

Now the U.S. attorneys say marijuana sellers and the cities that
allowed them to set up shop have gone too far. Under the guidelines
laid out in the Ogden memo and other federal advice and instructions,
they appear to be correct. But where does that leave us? Will the
federal government target those dispensaries located near schools and
parks, as one prosecutor suggested? And if so, does that give a safe
harbor to others? Or will prosecutors move against anyone in the
marijuana industry who is making a profit, as one U.S. attorney
spokesman said they would? Will they go after "large-scale industrial
marijuana cultivation centers," as one Justice Department official
said? Can they at least cite a state that they believe does it right
and will be left alone?

Federal prosecutors have respected the wishes of California voters
and their counterparts in more than a dozen states to allow people to
acquire and use medical marijuana out of courtesy and prudence, not
because they believed they had to. They, or their successors, could
at any time go further, and scrutinize, for example, whether use is
truly medical. The balance between federal and state marijuana laws
has been re-calibrated for now, but for there to be any reliable
truce, we need guidance from California Atty. Gen. Kamala Harris on
what constitutes "clear and unambiguous compliance" with state
medical marijuana laws. Then we need some unambiguous guidance from
the feds about what they can live with, rather than a long period of
silence and then a sudden snap to attention.