In 2005, the United States Supreme Court struck a blow against the medicinal use of marijuana and against the notion that states can enact and enforce their own laws without being trumped by the federal government. In the Gonzalez v. Raich decision, the High Court used the Constitution’s much-abused “interstate commerce” clause as a basis on which to uphold a federal prosecution of two women who grew and used small amounts of marijuana under a doctor’s care, in compliance with California’s law permitting medicinal use of marijuana.
The Raich opinion personified the perspective of the administration of George W. Bush toward medicinal marijuana useage as well as state’s powers. On October 19th, in a partial but welcome reversal of that Bush-era policy, the Department of Justice issued new guidelines for United States Attorneys in those states (California and 14 others) that have medicinal marijuana laws on the books. Henceforth, so long as individuals in those states are using marijuana for medical purposes and are in full compliance with the laws of their state, federal prosecutors are not to pursue prosecution of those people. The Justice Department memo did provide that if any number of other factors were present (such as violence, sales to minors, ties to other criminal actions, and so forth), prosecution by the feds might be warranted.
The October 19th memo does not signal a wholesale reversal of the federal anti-controlled substances effort; but it does illustrate that the Obama Administration, and Attorney General Eric Holder, are bringing a fresh and more common sense-based approach to at least this aspect of federal drug policy.