The Medical Marijuana Bait-and-Switch

By Mark Wilson

The federal government raid and shut-down of Oaksterdam University in Oakland, California is the culmination of a bait-and-switch that began in 2009 with the Justice Department’s “Ogden Memo.” The Ogden Memo was ostensibly a clarification of federal policy on raiding medical marijuana dispensaries in states where such dispensaries are legal under state law. The Department, wrote Deputy Attorney General David Ogden, should expend resources only in situations where dispensary activities accompanied violence, possession of firearms, ties to criminal enterprises, or other activities not within the scope of state laws. The Justice Department simply did not have the resources to target all dispensaries, which were still in violation of the federal Controlled Substances Act.

Fairly quickly, the Administration backed away from the Ogden Memo. Throughout 2010 and 2011, the Drug Enforcement Administration continued raiding dispensaries. Last June, a new memo emphasized thatall dispensaries should be a top priority for the Justice Department. Just last week, San Francisco District Attorney George Gascón surprisingly announced that he considered all twenty-one of the city’s dispensaries illegal, though he later recanted and declared his support for medical marijuana.

And now we have Oaksterdam University, arguably the Bay Area’s most famous and high-profile dispensary. Oaksterdam, a nonprofit organization, made its name selling medical marijuana and providing instruction on growing marijuana and operating dispensaries.

Perhaps Oaksterdam was naïve in relying on federal assurances that dispensaries like itself wouldn’t be targeted, even as the Administration continued raiding dispensaries like itself. It’s not readily apparent that this course of action was designed to mislead in the sense that the Administration encouraged dispensaries to come out of the shadows so that it could strike. More likely, the Administration’s change of mind was political, not a complex chess strategy. From what I read in the papers, 2012 is an election year, and in such a contentious atmosphere, President Obama wouldn’t want to be confronted with evidence that he permitted the sale of The Devil’s Weed.

Politics, however, still isn’t a good enough reason for this sucker punch. Either medical marijuana is legal–or at least not a DOJ priority–or it isn’t. This capriciousness has to stop. The wisdom of the War on Drugs or the classification of marijuana under Schedule I notwithstanding, taxpaying businesses are forfeiting their assets thanks to unclear guidelines. If the Administration had been forthright and said that it was going to continue dispensary raids, perhaps Oaksterdam could have spent its money on lobbying Congress to amend the Controlled Substances Act. Instead, Oaksterdam relied on what turned out to be misplaced assurances that the DEA would overlook dispensaries otherwise on the straight-and-narrow.

Municipal governments also suffer from this bait-and-switch. In 2009, cash-strapped Oakland passed a taxon medical marijuana sales, which are legal under California law. Perhaps Oakland was just as naïve as Oaksterdam in believing that there was revenue to be had in medical marijuana. How long until George Gascón re-changes his mind?

At this point, the dispensaries’ legal status is a secondary concern. We’re just looking for a straight answer on enforcement from the federal government.

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