Medical marijuana: The Justice Department speaks – again

Medical marijuana advocacy groups are howling that a new memo from the Justice Department on medical marijuana enforcement represents a major and unfair policy shift. But they are being disingenuous.

The June 29 memo largely reaffirms one from October 2009 – known as the "Ogden" memo. If, after the authorities said, "Don't do 'X,' " as they did in Ogden, but people continued to do "X" with a nod and a wink, then they now have no right to complain when the authorities remind them that they could be prosecuted.

What exactly is the "X" that they are not supposed to do?

It is making a living by supplying marijuana to large numbers of healthy, recreational users who meet the letter of state medical marijuana laws, but not their spirit – which is to provide compassionate recourse to people with serious diseases.

Both memos advise US attorneys that individual marijuana users with serious illnesses – and their caregivers – are not an enforcement priority, but those in the business of cultivating, selling, or distributing marijuana are.

Whether people ought to be legally treated with marijuana for cancer, AIDS, or certain other illnesses is a separate matter, worthy of its own debate but not one I will take up here. The majority of the American public say the answer is "yes"; the Drug Enforcement Administration (DEA) says "no," most recently in a June 21 letter denying a request to reclassify marijuana to allow medical use.

Letter versus spirit of state laws

The DEA's view that marijuana has no currently accepted medical use and has a high potential for abuse will likely be appealed through the courts. In the meantime, the Obama administration's position is not to interfere with medical marijuana growth and use that comply with the letter and spirit of state and local laws.

The problem comes when the letter of the law is inconsistent with the spirit. Many – though not all – of the 16 state medical marijuana statutes (plus the District of Columbia) make it easy for recreational users to obtain medical recommendations.

Whether those loopholes came from good-faith but incompetent efforts to implement a responsible system, or whether they deliberately exploited medical marijuana to achieve de facto legalization, can be known only to those who wrote the laws. It is clear, though, that such laws often allow far more than the public realizes or the Justice Department will tolerate.

For instance, the demographics of California medical marijuana users – mostly young, healthy males with long histories of marijuana use – resemble those of recreational marijuana users, not of people receiving traditional health-care services. In one study of 4,117 individuals, the typical person seeking medical marijuana was a 32-year-old male who started using marijuana as a teenager.

A similar study obtained data from medical charts and physician interviews for 1,655 consecutive applicants. Fewer than 5 percent were diagnosed with the diseases that motivate voters to support medical marijuana programs (HIV/AIDS, cancer, or glaucoma). Applicants most commonly reported seeking marijuana to relieve pain, improve sleep, or relax. Yet because California allows medical marijuana for any "illness for which marijuana provides relief," the denial rate was less than 2 percent.

It is hard to move beyond anecdotes in California because the state does not require patients to register. Montana is more instructive. Until recently, when Senate Bill 423 dramatically revised the state's 2004 Medical Marijuana Act, Montana had both a mandatory registry and lax criteria for determining who was eligible.

Under the original law, almost half of all marijuana users in Montana had obtained medical authorization (30,036 registered users out of an estimated 66,000 past-month users of all kinds). If the nation as a whole had the same number of patients per capita as Montana, that would be 9.5 million medical marijuana users, compared with 16.7 million people using marijuana in the past month for any reason.

It is no mystery how so many recreational users could obtain medical recommendations in Montana and elsewhere. The statutes are written to enable it, sometimes with subtle word changes like replacing "and" with "or."

Montana's old law, for instance, had defined qualifying patients as those who had a specified disease or any one of a range of symptoms, including pain that is severe or chronic. Michigan, Rhode Island, and Arizona, by contrast, require that the pain be both severe and chronic.

In Canada, patients generally must not only have the symptom, but that symptom also has to arise from one of a set of specifically listed diseases. (Exceptions are made for end-of-life care and conditions that a specialist verifies have been resistant to conventional treatments.)

Likewise, Montana's law had defined written certification concerning the disease and symptom to be a signed physician recommendation or the patient's medical records alone. Rhode Island, in contrast, defines written certification as the patient's medical records and a statement signed by a medical practitioner.

Federal prosecutors and enforcement agencies are unlikely to use scarce resources to arrest individual users, regardless of whether or not they have a medical recommendation, or whether the recommendation pertains to AIDS or anxiety.

However, suppliers are a legitimate target. Some dispensaries operate under state laws that protect "caregivers." But they are caregivers only in the sense that pharmaceutical companies and drug store chains are care-givers, which is to say only in a truly tortured sense of the term. The plain reading of "caregiver" is not a business but an individual, such as a friend or family member who is caring for the person who is ill.

Targeting tax revenue from marijuana

Overall, the Justice Department has been clear and consistent in its policy. If there is something new, it is the explicit statement that state and local laws do not protect "those who engage in transactions involving the proceeds" of selling drugs. They face prosecution under "federal money laundering statutes and other federal financing laws."

That may be a warning to state and local governments not to plan on collecting taxes on medical marijuana – and perhaps an advance warning not to expect to collect taxes if a state legalized marijuana more generally, as California's failed Proposition 19 almost did last year.

The nation is trying to sort out whether it wants marijuana to be a medicine, a legal intoxicant that businesses can produce for recreational users, or both – or neither. And if a medicine, is it only for certain serious conditions, or for run-of-the-mill stresses, aches, and pains?

The Justice Department is accommodating local autonomy with respect to medical use by grievously ill individuals, but not for businesses trying to supply the general marijuana market. Those who want to exploit medical marijuana to achieve backdoor legalization may be disappointed, but they really have no cause to be surprised – let alone outraged – by the Justice Department's position.

Jonathan Caulkins is Stever professor of operations research and public policy at Carnegie Mellon Univeristy's Heinz College. He is also coauthor, with Mark Kleiman and Angela Hawken, of the recent book "Drugs and Drug Policy: What Everyone Needs to Know."