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AG's Memorandum Takes Federal Heat Off Medical Marijuana

John Commins, for HealthLeaders Media, October 20, 2009

U.S. Attorney General Eric Holder issued formal guidelines for federal law enforcement agencies across the nation, advising them to focus resources on "serious drug traffickers" and away from patients and their caregivers who are using marijuana in compliance with laws in 14 states authorizing the drug's use for medical purposes.

"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said in a media release announcing the guidelines. "This balanced policy formalizes a sensible approach that the department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."

The memorandum stresses that the guidelines are "intended solely as a guide to the exercise of investigative and prosecutorial discretion" by federal prosecutors, and not a back-door effort to "legalize" marijuana, which the federal government still classifies as a dangerous drug. The guidelines also do not provide a legal defense to a violation of the federal Controlled Substance Act.

A criminal marijuana operation that would prompt a federal investigation would have characteristics that include: the use of firearms; violence; sales to minors; money laundering; amounts of marijuana inconsistent with purported compliance with state or local law; marketing or excessive financial gains similarly inconsistent with state or local law; illegal possession or sale of other controlled substances; and ties to criminal enterprises, the guidelines state.

The guidelines also state that prosecutors should not be deterred from pursuing a criminal case if it appears that state laws are being used as a pretext for running a criminal drug enterprise. For that matter, the memorandum says federal prosecutors reserve the right to prosecute people who are otherwise in "clear and unambiguous compliance" with state medical marijuana laws if the "investigation or prosecution otherwise serves important federal interests."

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