WASHINGTON – The U.S. Justice Department says that marijuana dispensaries and licensed growers in states with medical marijuana laws could face prosecution for violating federal drug and money-laundering laws.
In a policy memo to federal prosecutors obtained Thursday by The Associated Press, Deputy Attorney General James Cole said a 2009 memo by then-Deputy Attorney General David Ogden did not give states cover from prosecution.
Starting in February, 10 U.S. attorney's offices have asserted they have the authority to prosecute medical marijuana dispensaries and licensed growers in states with medical marijuana laws. Prosecutors, the states complained, are not even willing to declare that state employees who implement such laws are immune from prosecution.
State officials say that following a two-year period in which federal prosecutors gave breathing room to state medical marijuana laws, the Justice Department is now toughening up its position as more states move toward opening facilities to dispense marijuana.
Sixteen states and the District of Columbia have legalized the medical use of marijuana, with programs in various phases of development. The states are: Alaska, Arizona, California, Colorado, Delaware, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington.
In 2009, the Justice Department told prosecutors they should not focus investigative resources on patients and caregivers complying with state medical marijuana laws.
The new memo says that view 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," says the new memo by Cole.
The deputy attorney general said within the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately operated industrial marijuana cultivation centers.
"Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants," Cole wrote.
Cole said that 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."
Cole added: "Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law."
On Thursday night, Justice Department spokeswoman Tracy Schmaler said that the medical marijuana statement by Cole does not represent a new policy, but rather clarifies the policy, as reflected in the recent letters by U.S. attorney's offices to officials in a number of states.
In view of the letters sent by the prosecutors in recent months, Arizona officials have taken the U.S. government to court, seeking a ruling on whether strict compliance with the state's medical marijuana law protects Arizona residents and state employees from federal prosecution.
Rhode Island Gov. Lincoln Chafee suspended plans to license three dispensaries after U.S. Attorney Peter Neronha warned that opening such facilities could lead to prosecution.
New Jersey Gov. Chris Christie has said he wanted assurances from federal officials that they won't pursue criminal charges against state-sanctioned medical marijuana programs before he agrees to implement a state law that allows the programs. New Jersey adopted a law to allow medical marijuana in January 2010, just before Christie took office.
Chris Goldstein, a spokesman for the Coalition for Medical Marijuana of New Jersey, said what the latest Justice Department memo means to New Jersey depends on how Christie interprets it and whether he uses it as a reason to halt the program.
"It doesn't change the situation much other than that the governor continues to leave patients hanging out on a limb," Goldstein said.
A spokesman for Christie declined to comment on the letter. A spokesman for the New Jersey attorney general also said they were reviewing the letter.
The letters from federal prosecutors started coming five months ago, in all but one instance in response to requests for guidance from state or local officials.
The first came from U.S. Attorney Melinda Haag, who advised the Oakland, Calif., city attorney that "we will enforce" federal marijuana law "vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law."
Haag's letter addressed an unusual situation: the fact that a year ago, Oakland became the first city in the country to authorize the licensing of marijuana cultivation operations.
But the issue quickly spread beyond Oakland.
In a five-week span starting in mid-April, officials in Hawaii, Washington, Montana, Colorado, Rhode Island, Arizona, Vermont and Maine received letters with wording similar to that in the Oakland letter, all but Rhode Island in response to requests for clarification from the states.
In Rhode Island, Neronha, the U.S. attorney, wrote to the governor that the anticipated operations "of the three centers appear to permit large-scale marijuana cultivation and distribution."
"Such conduct," Neronha wrote, "is contrary to federal law and thus, undermines the federal government's efforts to regulate the possession, manufacturing and trafficking of controlled substances. Accordingly, the Department of Justice could consider civil and criminal legal remedies against those individuals and entities who set up marijuana growing facilities and dispensaries."
On June 20, Reps. Barney Frank, D-Mass., and Jared Polis, D-Colo., asked Holder to clarify the Obama administration's policy on medical marijuana.
A week ago, Frank and Rep. Ron Paul, R-Texas, introduced a bill to remove marijuana from the list of federally controlled substances and cede to the states enforcement of laws governing pot.
DeFalco reported from Trenton, N.J. Associated Press writer Geoff Mulvilhill in Trenton contributed to this report.