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.
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