Federal Enforcement Policy De-Prioritizing Medical Marijuana:

Statements from Pres. Obama, his spokesman, and the Justice Department
Although federal criminal law does not have an exception for the medical use of
marijuana, several statements made by Barack Obama, Attorney General Eric Holder, and their
spokespeople in 2008, 2009, and 2010 reflected that the enforcement of federal criminal laws
against those complying with state medical marijuana laws would not be an enforcement priority.
In 2011, U.S. attorneys and the office of the Attorney General backtracked on prior statements,
indicating that larger-scale providers could be targeted, but that enforcement against patients and
those caring for them would not be a priority. Here is a collection of statements from Barack
Obama, his spokesperson, and the Department of Justice on federal law enforcement and medical
marijuana.
During a March 22, 2008 interview with Gary Nelson, editorial page editor for the
Oregon newspaper Mail Tribune, Barack Obama stated: What I'm not going to be doing is using
Justice Department resources to try to circumvent state laws on this issue simply because I want
folks to be investigating violent crimes and potential terrorism. We've got a lot of things for our
law enforcement officers to deal with.1
In a February 5, 2009 article in The Washington Times, White House spokesman Nick
Shapiro said, The president believes that federal resources should not be used to circumvent
state laws, and as he continues to appoint senior leadership to fill out the ranks of the federal
government, he expects them to review their policies with that in mind.2
When asked during a press conference on February 25, 2009 if recent raids on medical
marijuana providers in California represented American policy going forward, U.S. Attorney
General Eric Holder responded, No. What the president said during the campaign, you'll be
surprised to know, will be consistent with what we'll be doing in law enforcement. He was my
boss during the campaign. He is formally and technically and by law my boss now. What he said
during the campaign is now American policy.3
On March 18, 2009, during a question-and-answer session with reporters at the Justice
Department, Holder clarified his previous statement. He said, The policy is to go after those
people who violate both federal and state law Given the limited resources that we have, our
focus will be on people, organizations that are growing, cultivating substantial amounts of
marijuana and doing so in a way that's inconsistent with federal and state law.4
In October 2009, Holders stated policy was memorialized in a memo written by then
Deputy Attorney General David W. Ogden to United States attorneys in states with medical
marijuana programs. The memo said that law enforcement efforts targeting drug manufacturing
and trafficking should not focus federal resources . . . on individuals whose actions are in clear
and unambiguous compliance with existing state laws providing for the medical use of

Gary Nelson, He favors long-term timber-payments solution, Mail Tribune, March 23, 2008. Full comments from
video of interview at http://granitestaters.com/candidates/video_obama_02.html
2
Stephen Dinan and Ben Conery, DEA pot raids go on; Obama opposes, Washington Times, February 5, 2009
3
YouTube video: http://www.youtube.com/watch?v=kjZeW2fcQHM
4
Devlin Barrett, Attorney General Signals Shift in Marijuana Policy, Associated Press, March 18, 2009

marijuana.5 The Ogden memo provided a list of characteristics of illegal drug trafficking
activity of potential federal interest, which included sales to minors, violence, ties to other
criminal organizations, and unlawful possession of firearms.
New Mexicos first licensed producer was licensed 2009, and U.S. Attorney General Eric
Holder was specifically asked about the federal governments take. He said, For those
organizations that are doing so sanctioned by state law and do it in a way that is consistent with
state law, and given the limited resources that we have, that will not be an emphasis for this
administration.6
During a May 10, 2010 hearing before the House Judiciary Committee, Congressman
Jared Polis (D-CO) asked Attorney General Holder, Do you believe do you agree that
statements that could be reasonably taken as threatening to businesses that are legal in our state
are, in fact, contrary to your stated policy? Holder replied, Well, again, if the entity is, in fact,
operating consistent with state law, and is not does not have any of those factors involved that
are contained in that Deputy Attorney General memo, and given, again, the limited resources that
we have and our determination to focus on major traffickers, that would be inconsistent with what
the policy as we have set it out.7
In late June 2011, the DOJ seemingly backtracked on prior statements. Following a series
of letters from United States attorneys that seemed at odds with prior statements by the White
House and the DOJ, Deputy United States Attorney General James Cole issued a memo stating
that the DOJs view of the efficient use of limited federal resources as articulated in the Ogden
Memorandum has not changed. It said it is likely not an efficient use of federal resources to
focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana
as part of a recommended treatment regimen consistent with applicable state law, or their
caregivers.8 However, the Cole memo defined caregivers as those caring for seriously ill patients
and not commercial operations cultivating, selling or distributing marijuana. It noted legislation
to authorize large scale cultivation with revenue projections of millions of dollars based on the
planned cultivation of tens of thousands of cannabis plants and claimed 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.
Federal enforcement policy is currently unclear. The Cole memo said that consistent
with resource constraints and the discretion that prosecutors may exercise, people who are in
the business of cultivating, selling or distributing marijuana, even in a manner consistent with
state law could be targeted. When asked if the federal government would exempt large-scale,
non-profit medical marijuana collectives under this policy, Justice Department spokesman
Matthew Miller declined to comment.9
During a congressional committee meeting on December 8, 2011, U.S. Rep. and House
Judiciary Committee member Jared Polis (D-CO) attempted to clear up some of this ambiguity.
Polis pressed Attorney General Holder to clarify some medical marijuana enforcement issues. He
began by asking Holder whether the Ogden memo is still current and enforced, to which Holder

David Ogden, Memorandum for Selected United States Attorneys: Investigations and Prosecutions in States
Authorizing the Medical Use of Marijuana, United States Department of Justice, Office of the Deputy Attorney
General. October 19, 2009
6
KOB-TV, Feds: Medical marijuana producers not a target, June 5, 2009.
7
http://blogs.westword.com/latestword/2010/05/jared_polis_questions_attorney.php
8
James M. Cole, Memorandum for United States Attorneys: Guidance Regarding the Ogden Memo in Jurisdictions
Seeking to Authorize Marijuana for Medical Use. United States Department of Justice, Office of the Deputy Attorney
General. June 29, 2011
9
John Hoeffel, Justice Department shoots down commercial marijuana cultivation, Los Angeles Times, July 2, 2011.

simply replied, yes. Polis went on to ask for further clarification regarding the Cole memo.
Holder responded:
What we said in the memo, we still intend, which is that, given the limited
resources that we have, and if the states that are that have medical marijuana
provisions, and if you take into account the Cole memo, if in fact people are not
using the policy decision that we have made to use marijuana in a way thats not
consistent with the state statute, we will not use our limited resources in that way.
Polis then made reference to the recently announced DOJ crackdown on medical
marijuana in California and asked whether the state of Colorado might have additional protection
from federal intervention based on its extensive and thoughtful state regulatory and licensing
system. Holder again reassured him, claiming, Where a state has taken a position, as it passed a
law, and people are acting in conformity with the 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.10
In an April 2012 Rolling Stone interview, Pres. Obama was once again reminded of his
2008 campaign pledge not to use Justice Department resources to try and circumvent state laws
about medical marijuana and questioned about his administrations raids on medical marijuana
providers. In his response, Pres. Obama again focused on the distinction between individual users
of medical marijuana and large-scale producers and operators:
What I specifically said was that we were not going to prioritize prosecutions of
persons who are using medical marijuana. I never made a commitment that
somehow we were going to give carte blanche to large-scale producers and
operators of marijuana and the reason is, because its against federal law. I
cant nullify congressional law. I cant ask the Justice Department to say, Ignore
completely a federal law thats on the books. What I can say is, Use your
prosecutorial discretion and properly prioritize your resources to go after things
that are really doing folks damage.11
Pres. Obama went on to claim that as a result of his policy, there have not been
prosecutions of individuals using marijuana for medical purposes.
Following the letters issued by U.S. attorneys, some governors placed a hold on
implementing new or improved medical marijuana legislation, citing concerns that state
employees could be federally prosecuted for implementing state medical marijuana laws. One
such governor, Arizona Gov. Jan Brewer (R), filed a lawsuit asking whether Arizonas law was
preempted by federal laws. In response to the suit, the DOJ filed a motion to dismiss because
there was no case or controversy. The department stated that there was no genuine threat that
any state employee will face imminent prosecution under federal law and noted that plaintiffs
can point to no threat of enforcement against the States employees.12

10

http://www.youtube.com/watch?v=DCNutE9nUVk&feature=player_embedded
Wenner, Jann S. Ready for the Fight: Rolling Stone interview with Barack Obama, Rolling Stone, May 10, 2012.
Available online at http://www.rollingstone.com/politics/news/ready-for-the-fight-rolling-stone-interview-with-barackobama-20120425
12
Assistant Attorney General Tony West, DOJ Assistant Branch Manager Arthur R. Goldberg, Trial Attorney with the
United States Department of Justice Scott Risner, Federal Defendants Motion to Dismiss and Memorandum of Law in
Support Thereof, United States District Court, District of Arizona case No. 2:11-cv-01072-SRB. August 1, 2011.
11

It has been about two years since the U.S. attorneys letters and Cole memo were issued.
All of the states with dispensary programs, except Delaware, have either resumed implementation
of their programs or never stalled implementation. Arizona and New Jersey's first dispensaries
opened in December 2012. Rhode Island, Vermont, and Washington, D.C. are all expected to
have dispensaries open this spring, with Massachusetts and Connecticut joining them later this
year. In Maine, New Mexico, and Colorado, state-regulated dispensaries continue to operate as
they have since 2009-2010. State workers have not been targeted in any of the states, nor have
licensed, regulated dispensaries complying with state laws. (The one exception is
that Colorados U.S. attorney sent threatening letters to dozens of dispensaries that were located
within 1,000 feet of schools, forcing them to close or move.)

Updated March 2013