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December 14, 2012 10:45 AM Eric Holder’s Marijuana Memo

By Mark Kleiman

On hot-button social issues, Barack Obama prefers to lead from behind. So when Barbara Walters asks him “Do you think marijuana should be legalized?” and he replies, “I wouldn’t go that far, but …” there’s a pretty strong signal there.

The stance toward Colorado and Washington State Obama enunciates in the interview seems to be the same one Eric Holder tried to take about medical marijuana in 2009: it’s still illegal; we’ve got bigger fish to fry and won’t go after users, but will concentrate on large-scale criminal enterprises.

Here’s the key passage from the Holder memo:

As a general matter, pursuit of these priorities 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. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department.

When Holder said that, marijuana advocates nationwide, and specifically the marijuana industry in California, gleefully misinterpreted him as having declared open season. They then purported to have terribly hurt feelings when DEA and the U.S. Attorneys did in fact go after large-scale criminal enterprises in the “medical marijuana” business. Prominent pot advocates bitterly critized Obama (but never the much more hawkish Romney) this year’s campaign. (The chief spokesman for the Colorado initiative encouraged pro-pot Coloradans to vote for the Libertarian candidate; for those keeping score at home, Colorado was the marginal state.)

Having been burned that way once has to make the Administration more cautious this time. But apparently Obama is still inclined to accommodate rather than to fight.

Of course, saying that the feds aren’t going arrest users isn’t saying much; they’re not arresting users now, except on federal property. The question is whether Colorado and Washington are allowed to go ahead and establish systems of taxed and regulated cannabis sale, in accord with the will of their voters but in flagrant violation of federal law.

Stay tuned.

[Cross-posted at The Reality-based Community]

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Mark Kleiman is a professor of public policy at the University of California Los Angeles.