The Medical Marijuana Memo: A Minor Gesture

Law, Politics & Current Events

Reactions today to the Department of Justice memo to U.S. Attorneys regarding prosecution of marijuana crimes in states with medical marijuana laws have been, for the most part, restrained. And they ought to be.

The memo is not, by any stretch of the imagination, a blow for federalism or a significant step towards de-criminalization. It’s couched in language about resource conservation, and simply says that prosecutors generally ought not exercise their discretion to spend scarce investigative and prosecutorial resources on targets whose conduct is in “clear and unambiguous” compliance with state medical marijuana laws. The memo explicitly preserves the feds’ standard argument that federal drug laws trump state laws under the Supremacy Clause:

Of course, no State can authorize violations of federal law, and the list of factors above is not intended to describe exhaustively when a federal prosecution may be warranted. Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are not expected to charge, prove, or otherwise establish any state law violations. Indeed, this memorandum does not alter in any way the Department’s authority to enforce federal law, including laws prohibiting the manufacture, production, distribution, possession, or use of marijuana on federal property. This guidance regarding resource allocation does not “legalize” marijuana or provide a legal defense to a violation of federal law, nor is it intended to create any privileges, benefits, or rights, substantive or procedural, enforceable by any individual, party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous compliance with state law or the absence of one or all of the above factors create a legal defense to a violation of the Controlled Substances Act. Rather, this memorandum is intended solely as a guide to the exercise of investigative and prosecutorial discretion.

In other words, it’s a mere gesture.

Last 5 posts by Ken

23 Comments

23 Comments

  1. Sparkylong  •  Oct 19, 2009 @10:35 am

    As a physician, I can see no use for so-called “Medical Marijuana.” Yes, I have heard the arguments, including those from a number of physicians (of somewhat dubious academic linneage), as well as the throngs of puppy-eyed patients who claim that nothing else comes close to the benefits of a little reefer.

    I don’t buy it.

    Hard core, weeks-to-live, end-stage cancer patients? There are multiple, well-known medications to address every conceivable symptom, including those that offer plenty of highs as a bonus. Marijuana may, truly, offer a number of symptomatic benefits, as well, but the fall-out to our society will be staggering.

    Furthermore, as not just a physician, but an emergency physician, there are no complications of drug addiction that I have not seen & treated at every stage, age group, social class, etc., etc. ‘Too many years in The Pit to have missed any of it. The Drug War is messy, with multiple land mines, administrative posturing, and all of the other rot, but what cannot be documented adequately is what our country would have been reduced to by 2009 had we not tried so hard all of these past years. I give you the formerly sparkling country of Switzerland, which relaxed its recreational drug laws to a pittance about a decade or so, ago. Zurich parks are now riddled with heroin abusers shooting up openly, tossing their syringes aside, and heading straight for the nearest needle exchange (only they don’t exchange needles; they just get fresh ones).

    Not everything necessary to keep civilization from completely polluting itself can be tidy. The Drug War certainly is not. Reducing some of the more draconian measures when the crime consists of a small amount of pot appears reasonable (on multiple levels), but any legalization of the drug, for any purposes, whatsoever, is not.

  2. Vedrfolnir  •  Oct 19, 2009 @11:02 am

    Assholes. Do medical journals mean nothing? Apparently they can’t see the mountain next to them that represents medical opinion. It’s safe!

  3. Ken  •  Oct 19, 2009 @11:24 am

    I am not a medical professional. I am a skeptic about whether medical marijuana has benefits that exceed the benefits of legal meds. But I’d be much happier if we didn’t have a federalized approach to marijuana.

  4. Bob  •  Oct 19, 2009 @11:57 am

    I say we make alcohol illegal again. Then we can be consistent, at least.

  5. eddie  •  Oct 19, 2009 @12:01 pm

    @Sparkylong: Thank god for the War on Drugs. If we weren’t locking people up for decades for the act of getting stoned and thereby creating a black market in which violence and murder are used to distribute a product that otherwise might be purchased in liquor stores, we could end up like Switzerland – and have parks infested with litterbugs.

  6. Mike  •  Oct 19, 2009 @12:13 pm

    We should also criminalize Prozac. I’m definitely tired of people walking around like zombies. Have the moral courage to deal with the cruel reality of life without drugs. Damn druggies.

    Incidentally, emerging research suggests that most anti-depressants are no more effective than placebo. In fact, a lot of research suggests that medical treatment is only poorly associated with improved health outcomes. Heresy is often truth.

    I don’t see many doctors seeking to criminalize Prozac, though. Funny how that works: If I doctor can write a $cript, a drug is suddenly safe, effective, and mandatory.

  7. mojo  •  Oct 19, 2009 @12:18 pm

    Of course, the nice thing about laws the State chooses not to enforce is that they can change their minds in a flash if they need to “get” somebody, or want to look like they’re not “soft on crime” or whatever.

    If you’re not going to enforce the law, why have it on the books?

  8. Grandy  •  Oct 19, 2009 @12:25 pm

    Reducing some of the more draconian measures when the crime consists of a small amount of pot appears reasonable (on multiple levels), but any legalization of the drug, for any purposes, whatsoever, is not.

    Since an entire different drug, heroin at that, is causing uncited litter problems and uncited rampant use in Zurich, it makes sense to ban all drugs. Except tobacco, alcohol, and anything pharma comes up with. Because, you know, the kids. And because there’s only all drugs or no drugs (except tobacco, alcohol, and anything pharma comes up with). No room for anything in between.

    Your commentary about the problems with the War on Drugs rings false.

  9. Sparkylong  •  Oct 19, 2009 @12:43 pm

    Mike, the behavior of the vast number of persons medicated for Major Depression is imperceptible to the untrained eye. Selective Serotonin Reuptake Inhibitors are not major tranquilizers e.g., Thorazine & other anti-psychotics, nor are they even in the anxiolytic class, e.g., Valium. Non medical professionals often confuse these groups.

    There is always research that one can find to refute any single or group of studies. However, as far as anti-depressants v. placebo, the significant majority of behavioral literature supports the benefits of anti-depressants, especially when looks at suicidal ideation among tested & control groups. In terms of any emerging research or a lot of research suggesting that medical treatment is only poorly associated with improved health outcomes, I think that you are referring to psychiatric medical treatment, here, at least, contextually.

    Indeed, you may be referring to several specific groups of articles, but it is more helpful to cite them specifically so that a reader can have an opportunity to draw their own conclusions. If you are referring to conclusions based upon Meta Analyses of multiple, similar articles, it is important to know the orientation of the academic (or non-academic) who has summarized 500 hundred articles into a pity paragraph.

    Doctors are disinclined to criminalize medications that have had life-giving results to patients, as exemplified by their patients’ markedly increased quality of life. SSRIs have prevented an untold number of suicides. Many people know this about themselves, but keep this information private, as do their deeply grateful spouses & family members. This includes persons whom you know, Mike.

    Finally, doctors prescribe many, many medications that are, indeed, unsafe. All cardiac medication, for example. The therapeutic threshold for many of them is very low. In other words, 2 pills per day if life-saving; 3 is lethal. The amount of care & explanation offered to these somatically fragile patients is significant, but ever so worth it. These patients, in understandable contradistinction to patients who suffer from chemical depression, will not hesitate to describe their gratitude to their physician for these drugs.

    Medicine is an art as well as a science, Mike. Law can be that way, as well. The art part of practice requires the tincture of time to develop, but is, in many respects, when the best care of patients begins.

  10. Patrick  •  Oct 19, 2009 @1:58 pm

    Appreciating your concern for good science and rigorous analyisis of data Sparkylong, do you now think that your opening invocation of heroin abusers in Zurich was a good choice for a discussion of whether users of medically prescribed marijuana in California should be prosecuted by the government of a nominally federal republic?

  11. Mike  •  Oct 19, 2009 @2:08 pm

    Doctors are disinclined to criminalize medications that have had life-giving results to patients, as exemplified by their patients’ markedly increased quality of life.

    The placebo effect would cause a similar increase in quality of life. Thus, noting that I know people who medicate is a red herring. FYI, my mom is bipolar and has been on meds her entire life. After dozens of different types of meds, she seems to have found the “right ones.” Could be due to placebo. Again, though, an improvement in her quality of life doesn’t establish causation.

    If you are referring to conclusions based upon Meta Analyses of multiple, similar articles, it is important to know the orientation of the academic (or non-academic) who has summarized 500 hundred articles into a pity paragraph

    There was a uproar at a recent APA meeting. The psychiatric community has been in denial, though you know very well about what I speak.

    In any event, your entire comment is non-responsive. Your initial comment stated: “legalization of the drug, for any purposes, whatsoever, is not [reasonable].”

    Well, why not? Why is it OK to alter my brain chemistry using Prozac but not marijuana?

    As is often the case, we need only follow the money. A doctor can write a $cript for Prozac; but not for marijuana. Thus, the medical trade guild opposes marijuana legalization.

  12. Al  •  Oct 19, 2009 @2:57 pm

    Marijuana may, truly, offer a number of symptomatic benefits, as well, but the fall-out to our society will be staggering.

    Such as?

  13. Windypundit  •  Oct 19, 2009 @3:06 pm

    Sparky, you wrote

    Furthermore, as not just a physician, but an emergency physician, there are no complications of drug addiction that I have not seen & treated at every stage, age group, social class, etc., etc. ‘Too many years in The Pit to have missed any of it.

    Have you treated prisoners? I’m just wondering, because what you’re advocating is putting a lot of people in prison. How is the general health of our prison population? Would you say it’s a healthy lifestyle?

    Zurich parks are now riddled with heroin abusers shooting up openly, tossing their syringes aside,

    Other than doing it openly, how is that different from here?

  14. Patrick  •  Oct 19, 2009 @3:36 pm

    Other than doing it openly, how is that different from here?

    There are more of them.

    I consider myself pretty liberal on drug policy but I’m not, actually. I think that marijuana should be decriminalized so that Philip Morris and RJ Reynolds can make a joint that’s as pure as a tobacco cigarette, which is to say not very but at least it won’t contain paraquat. Unlike Sparkylong, I don’t think that the problem of marijuana use outweighs the problem of a militarized federal police state. And I don’t believe that marijuana is the magic gateway drug any more than alcohol or nicotine.

    As for opiates, that’s a more difficult problem. Heroin isn’t the gateway. Like Yog Sothoth, heroin is what lies beyond the gate. Open use and legality or near-legality don’t seem to have caused many social problems in Sweden, but Sweden is a dead country and has been since Peter the Great knocked the snot out of Charles XII, ending the threat of Swedish militarism forever. And Switzerland hasn’t fought a war since Suvorov conquered it in pre-Napoleonic wars against the French Republic, possibly the greatest feat of the greatest general in history.

    But in more vital countries that aren’t populated by welfare-abusing zombies, like China and Russia, opiate abuse has caused horrible social problems, enough that the Chinese finally had to elect Mao Zedong as a law-and-order candidate to clean up crime on the streets. As for the Russians, they’re dying off so fast, in part because of heroin, that soon there won’t be any left. And THEN who will the Germans fear? The second front will be gone!

    Despite the fact that Sweden and Switzerland are “western” countries, I suspect that America, in some intestinal way, at the gut, is a whole lot more like Russia and China. Open heroin use would turn us into zombies, with catastrophic results for the world when we begin eating people.

    What does this have to do with marijuana? I’m not sure, as I don’t buy into the gateway drug claim, but I do know that a nation of 300 million zombies might destroy the entire planet.

    And that would be a shame.

  15. Sparkylong  •  Oct 19, 2009 @3:58 pm

    Patrick, you are correct. It was only after I submitted my comment, did I realize that it had nothing, whatsoever, to do with Ken’s discussion.

    Mine was a purely medical model, based upon data as well as 20 years in emergency medicine (where I did, indeed, treat prisoners. Daily). The newer model, so-to-speak, being evaluated in some progressive states of decriminalizing recreational drug abuse & placing addicts into clinical rehab settings vis-a-vis jail / prison, is on the right track. I voted for a like bill, recently. It gets messy when pushers & dealers are addicts, themselves, as profiteering from street drug sales is & should remain a criminal act.

    No, I am not in favor of clinical disease processes, such as drug addiction, being a basis for incarceration. I don’t know of any physician that does, let alone front line ER docs who see the fall-out of addiction as does no other clinician. As for altering of ones brain chemistry using marijuana v. Prozac, one cannot compare these two chemical agents as they are utterly different from each other. Moreover, there are no cumulative effects of long-term SSRI use–at least of which we know, currently–as opposed to those that are well known with chronic marijuana use over a long period. This is a specious argument.

    Mike, you are a close awareness of your own parent’s treatment for Bi-polar Disorder, and I am gratified that she currently has found a combination of medications that appear to be effective. Some patients find equilibrium with the first dose of Lithium. For others, their DNA is far less accommodating. Furthermore, Bi-Polar Disorder, itself, is quite unfortunately over diagnosed and to a significant extent. All too often, it is inappropriately given to patients who appear all but incapable of receiving a dx of a personality disorder, usually Borderline or Narcissist–neither of which responds to any chemical treatment. You are missing the point, however, of all of the persons whom you do know, of whom you do not know their underlying dx of (most commonly) Major Depression–with its many varied presentations. Their lives are sometimes immeasurably improved yet are hinged upon being faithful to take medication each & every day. Many would skip two meals a day before they would voluntarily re-enter a world of profound darkness, out of which they were pulled by an astute doctor.

    Finally, I personally know of no physicians who ‘follow the money’ & do not advocate open marijuana use because it would somehow financially impact them negatively. They are seeing too many patients under current managed care regimens, as it is.

  16. Rick H.  •  Oct 19, 2009 @4:52 pm

    Sparkylong: Please use paragraph breaks if you want me to scan through all your water-muddying non sequiturs.

    as opposed to those that are well known with chronic marijuana use over a long period

    Aha! Yes! Now we can finally discuss the topic at hand! Hint: appeals to your own authority don’t count.

  17. jb  •  Oct 19, 2009 @6:25 pm

    Ahh medical marijuana, where the opponents sound like anti-gay marriage activists.

    “The consequences will be dreadful!” “What consequences exactly?” “Umm…they will be dreadful.”

  18. Sparkylong  •  Oct 19, 2009 @8:42 pm

    Rick H., duly noted. Occasional sites contract paragraph breaks into one long & toxic block of verbiage. Somehow (despite lack of obvious evidence in this blog), I had thought that this was one of them, so I made no attempt to do so. I write quickly, as time permits, and–alas–non sequiturs do occur. I see that they are as irritating to you as they are to me. Thank you for scanning, nonetheless. As for appealing to my own authority, no, that is not my goal, by any means. Appealing to my experience, that…well, it counts for something as it does for all of us. As to jb, if my arguments beg the question, then by all means, spell them out. As I am unforgiving to those who do, I wish to be no less forgiving when I, myself, do so. ‘Cheers.

  19. jb  •  Oct 20, 2009 @5:55 am

    Sparkylong,
    In this thread I have read 1 specific bad thing that will result from legalized marijuana: the Swiss problem. That refers to a different, and far worse, drug, and one whose legalization does not lie down a slippery slope from marijuana legalization.

    What I would like is a bullet point list of bad things that will happen if marijuana is legalized, and a refutation of this bullet point list of good things:

    1) Reduction of huge wastes of money on enforcement
    2) Financially ruining some nasty Mexican drug gangs
    3) Increase in revenue through taxation
    4) Reduction in prison population and the deleterious effects thereof (costs, devastation of inner-city areas, police corruption, etc)

    I am alleging that legalizing marijuana and keeping cocaine, heroin, etc illegal will lead to the above 4. Where is the bullet point list of specific bad things that will happen?

  20. Patrick  •  Oct 20, 2009 @6:09 am

    Sparkylong, I appreciate your fighting the good fight against our horde of libertarians, so I’m going to insert paragraph breaks into your comment above, based on where I think you would have placed them. This will be a good faith effort.

    We can’t allow you to edit your comment unfortunately, as that would give you the Key of Solomon and the Rockingchair of Ultimate Slack all rolled into one.

    I do appreciate one brave man fighting against many, even when I disagree with him. Never let them get you down.

  21. Patrick  •  Oct 20, 2009 @6:22 am

    Also, let’s not forget Alaska. The day Sarah Palin was named as McCain’s vice presidential pick I donated a small sum of money to the McCain campaign because she’d been built up as the freedom-loving, corruption-fighting goddess queen of the first state to leave pot abusers alone.

    If she’d stayed a libertarian (which is what she was billed as at the start), rather than morphing into some weird theocratic whateveritis, I’d have voted for McCain instead of Barr, in the hope that she would succeed him. Tragic.

    I still think she’s very attractive in her hot librarian way, but will never vote for her.

  22. PLW  •  Oct 20, 2009 @8:38 am

    I’ll stick up for Sparky a bit too.

    re: marijuana/bad outcomes. There is good peer reviewed work that establishes a strong negative relationship between the price of cocaine/heroin and the level of violent crime/emergency room visits. I understand that we aren’t talking about cocaine, but there is some weaker evidence of a similar relationship for marijuana and alcohol. Start Here for crime and Here for ED visits

    Re: MJ as gateway- All the work I can find that tests for the gateway hypothesis finds it. Even controlling for as many confounders as you can come up with, it holds up. The usual approach does something like using something that makes marijuana easier to obtain (like lowering penalties) to predict cocaine usage several years later, controlling for the ease of obtaining cocaine. Easy MJ makes cocaine usage 5/10 years later higher.
    Start here.

  23. Sparkylong  •  Oct 20, 2009 @10:56 am

    Jb, your list is cogent, concise & helpful.
    As for # 1–reducing the huge government expenditure on drug enforcment–I’m not certain. If the legal need to enforce current laws against marijuana suddenly vanished overnight, I have an idea that the Feds would simply apply those same monies to beef up the fight against the real heavy hitters, namely heroin, cocaine & meth. That said, this would not be a bad thing, for those, truly, are destructive in ways that marijuana is not.

    (note paragraph spacing) As for # 2–financially ruining Mexican drug cartels–I suspect that, of all things, these notorious gangs would follow the same path as would the Feds mentioned above, namely concentrating exclusively on cocaine & heroin. They like their money, & they like their power, & it is likely that they would be loath to give up either. It is within the realm of possibility that they could become more ruthless than ever, with decapitated bodies showing up not only safely South of the border, but perhaps North, as well.

    As for # 3–Increase in revenue through taxation–I am presuming that you mean a taxation upon newly-legalized marijuana. Yes, this would certainly be true. Furthermore, it is likely that the taxation would eclipse that of current ‘sin taxes’ on booze & cigarettes. Yet one must consider that for this tax to make any sort of a genuine revenue booster for government, that untold millions of people would need to begin smoking marijuana, which is something that nobody wants.

    # 4–Reduction in prison population–Yes, this would reduce the # of persons in prison to a certain degree. Once again, however, my understanding is that many states’ prisons are currently so overcrowded that inmates convicted of non-violent crimes are being released early so that there is actual room for newly convicted criminals of violent crimes. Again, I am in favor of drug rehab for addicts as opposed to jail.

    Patrick, as I myself am a Libertarian–despite the party’s stance on drug legalization–I welcome responses from like-minded fellows, especially when some of their shrewder comments give me pause. In that sense, bring on the horde. In terms of your own thoughts on RJ Reynolds rolling joints on a massive scale, I can’t exactly say that it’s a glorious thought. ERs are already run ragged with the sheer volume of DUIs due to alcohol. Predicting the percent increase of DUIs due to alcohol and legalized pot would be difficult, but it would be sure to increase.

    As for your comments regarding full-scale legalization of all recreational drugs, including cocaine, heroin (&, presumably, meth), yes, I would concur with your ominous vision.

    In terms of marijuana being a potential gateway drug, PLW, I can tell you what I do know: in 20 years of ER, 100% of all patients whom I ever treated for meth, cocaine, heroin, or any others, all used marijuana first. However, a Ven diagram would demonstrate that this does not prove the gateway theory. Experientially, I think that it does, but even then, I realize that there is huge selection bias in terms of ER patients in the first place. Furthermore, it is not a double-blinded, randomized, entity with an equally large control group. Yet there is something to be said about year in & year out dealing with the effects of street drugs on the front lines.

    Finally, may I say that I have appreciated the attention to the subject at hand when my own errors of reasoning have been pointed out. Like any human being, it is a bit easier to respond when ones faulty judgment is pointed out with a bit of adult decorum vis-a-vis the giving in to the temptation for a smug reply. ‘Cheers.

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