Attorney General Eric Holder was grilled on Thursday by the House Judiciary Committee. Directly confronting Justice Department policies concerning the regulation of medical marijuana, Representative Jared Polis asked questions which most concern the medical marijuana industry as it teeters between state and federal law.
Each of the 3 topics that Polis asked about received essentially the same answer. The simple message is this: Given their limited resources, the Department of Justice will not make it an enforcement priority to prosecute medical marijuana providers that are acting in conformity with state law.
You may be thinking that the medical marijuana community is breathing a sigh of relief, but this presents no drastic change in the official policy of the Department of Justice, and there is not sign that marijuana will disapear from federal view any time soon.
What is the policy?
Polis’ first few questions address the 2009 Cole Memo, an internal communication stating that the Justice Department would not use resources to prosecute medical marijuana providers, users, or individual caregivers — a definition Polis unsuccessfully tries to have Holder address.
The verbal acrobatics of his answer are difficult to navigate.
what we said in the memo we still intend. Given the limited resources that we have, if in fact people are not using the policy decision that we have made to use marijuana in a manner that is not consistent with the state statute we will not use our limited resources in that way.
The ambiguities of using marijuana in a manner that is consistent with state statute is what most medical marijuana users and providers are concerned with, yet the judgment remains in the hands of individual US Attorneys. Colorado’s clear regulation make this task easier, but certainly not fool proof, and no one in the industry doesn’t have concerns about the vagaries of federal interest in medical marijuana.
Is Colorado Safe?
Polis points out that US Attorneys in California recently announced a crackdown on providers which resulted in a precipitous decline in the number of storefront marijuana businesses.
Polis then cites Colorado’s ‘thoughtful’, comprehensive regulation and asks whether it offers protection from federal intervention. Holder’s answer isn’t any consolation to the many California businesses recently shutdown.
where a state has taken a position, and passed a [medical marijuana] law, and people are acting with conformity with the law, not abusing the law, given our limited resources, that would not be an enforcement priority for the justice department.
The vast gray area that Californian medical marijuana is mired in is the result of ambiguous laws combined with eager cannapreneurs — some more scrupulous than others — hoping to operate marijuana businesses. California could address this issue with state-wide regulation, but hasn’t, resulting instead in backlash from many communities banning storefronts altogether, as Sacramento did last week.
Polis then goes on to ask about medical marijuana businesses’ inability to obtain bank accounts.
…it makes the industry harder for the state to track, tax and regulate and in fact makes it prone to robberies because it makes it a cash business as well. Is there any intention of the Department of Justice to prosecute bankers for doing business with licensed and regulated medical marijuana providers in the states?
Holder’s response once again avoids any distinct statement leaving plenty of gray area to exploit in the future, and offers no solid reassurance to bankers who have no way of knowing who is operating within state law and who isn’t because the Colorado Medical Marijuana Enforcement Division hasn’t finished processing applications yet.
Again, consistent with the notion of how we use our limited resources, if the bankers and the people seeking to make deposits are acting in conformity with state law, that would not be an enforcement priority for the Department of Justice.
At least he sneaked the word ‘banker’ in there, because he was starting to sound like a broken record.
Since Holder gave no clear answers that would allow for banks to confidently accept medical marijuana accounts, or offered any clear guideline as to what protection Colorado has that California doesn’t, we can only assume that it is business as usual. On the other hand, we are very grateful to have the straightforward advocacy of Colorado Rep. Polis in Washington.