The memo declared that prosecutors “should not focus federal resources in your states on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Ogden's directions went on to give federal agents the authority to go after those whose marijuana distribution actions go beyond what is allowed by the various state laws. In essence, the memo gave prosecutors wide discretion in determining which cases to pursue and which to ignore based on their interpretation if any state laws are being broken. On the surface, this seems like a compassionate gesture towards those suffering pain from maladies like cancer, glaucoma, and spasticity. However, upon closer inspection, the Administration simply didn't go nearly far enough and its position is fraught with peril.
First of all, how can there be a law that the government doesn't enforce. I realize there are a lot of old outdated laws on the books that governments do not enforce, but federal drug laws are a big deal. Now, don't get me wrong I would like to see all substance laws repealed on the grounds that individuals have an absolute right to do to their bodies what they choose as long as it doesn't violate the rights of others. Of course, being stoned, driving a car, and hurting another through those actions should still be illegal. But, if you want to smoke a joint in the privacy of your home it is your natural right to do so.
The problem with the Administration's new position on medical marijuana is that instead of saying go ahead and break the law and we will look the other way the Justice Department should be petitioning Congress to repeal the law outright. What law will he decide not to enforce next immigration laws? Oops, I forgot he doesn't already. After all, isn't the President nullifying an act of Congress because he is refusing to enforce its law? This is no different than when states nullify an act of Congress or when juries release defendants because they believe the law the accused is being tried for is unjust or unconstitutional. In both circumstances Uncle Sam gets snooty and cries fowl. Why is the President any different? Perhaps Congress should sue him at the Supreme Court to require him to enforce the law.
It is also concerning that the Administration is giving wide discretion to prosecutors in pursuing cases. Naturally, some prosecutors are more gung-ho than others when it comes to prosecuting these types of cases. Thus, equal protection of the law could be violated simply because there is no concrete legal standard involved only the judgment of individual prosecutors. And besides where is it ordained that federal agents have any role in enforcing state laws? This is clearly a violation of our institutionalized federal system. Next thing you know, FBI agents will be given the jurisdiction to issue traffic tickets on the nation's interstate highway system. No, federal agents enforcing state laws will lead to a further erosion of state's rights and bring us that much closer to federal hegemony over all matters.
Of course, drug laws are not within the realm of the federal government per Article 1, Section 8 of the Constitution anyway. The states retain the right to regulate drugs under the 10th Amendment. There are state pharmaceutical laws and licensure in all 50 states. You would think that somebody in the political establishment could come up with a common sense compromise that protects states' rights yet maintains regulation over medical pot. Perhaps federal law banning its use could be eliminated and control of the issue totally transferred to the individual states. The states could then treat pot like they treat codeine and Prozac – as a behind the counter drug dispensed by pharmacies like CVS, Rite Aid, and Walgreens. After all, like the aforementioned drugs pot does have significant medicinal value. This approach would ensure that worthy patients receive the medication their doctors prescribe, states would retain their right to regulating drugs, and federal prosecutors could focus their attention where it belongs on cases like mail fraud and illegal immigration.
At the end of the day there will be no peace on our streets until Washington ends the so called “War on Drugs” completely. In all fairness to the Administration, with its recent medical marijuana stand it has gone further than any previous administration in at least attempting to curb one abuse of that conflict. Let's hope this experiment goes well and as a result Mr. Ogden issues another memo declaring the federal war on drugs over.
Kenn Jacobine teaches internationally and maintains a summer residence in Haywood County, North Carolina. For a podcast of this post go to: The View from Abroad.