This article appeared in the November 18, 2013 edition of The Nation.
In February 2013, three months after Colorado and Washington legalized recreational marijuana, a sullen Gil Kerlikowske, head of the White House Office of National Drug Control Policy (ONDCP), shared his regrets with the Canadian magazine Maclean’s. “The administration has not done a particularly good job,” he said, “of, one, talking about marijuana as a public health issue, and number two, talking about what can be done and where we should be headed on our drug policy.” People in mourning are given to melodrama, but Kerlikowske’s attempt to blame marijuana legalization on poor messaging was evidence of psychosis.
From day one of Obama’s presidency, the press—from local outfits to the major networks—had hailed his administration’s promise to treat drugs as a “public health issue” as if it were a novel idea. It wasn’t. White House Czar Calls for End to ‘War on Drugs,’ the headline of a 2009 Wall Street Journal profile of Kerlikowske, could just as easily have been written in 1996 about Gen. Barry McCaffrey, drug czar under Bill Clinton. Another popular Kerlikowske line—“You can’t arrest your way out of the drug problem”—similarly echoed McCaffrey’s statement that “the solution to our drug problem is not in incarceration.”
This tradition of critiquing the drug war while continuing to wage it was similarly evident in the 2012 claim by the ONDCP that marijuana’s potency has “almost tripled over the past 20 years”—a statement only slightly less hysterical than its warning to parents, ten years earlier, describing today’s marijuana as having “potency levels ten to twenty times stronger” than the pot of their generation. Anti-legalization advocate Kevin Sabet, who worked on drug policy under both George W. Bush and Obama, has described the potency of today’s marijuana as “five-to-six times greater” than the pot that baby boomers smoked in their youth. (While it’s true that you can buy stronger pot today, you can also—thanks to the botanical tinkering of the medical marijuana community—find strains that are milder. If boomers can’t find the pot of their youth these days—stuff grown and sold before the Controlled Substances Act—it’s because prohibition historically encourages a disproportionately high potency-to-volume ratio. See: bathtub gin.)
Nevertheless, Obama’s drug policy was hailed as revolutionary by the press even as the Drug Enforcement Administration wreaked havoc on medical marijuana communities in California, Colorado and Montana during his first term. On September 25, 2012, in the midst of re-election season, the DEA tried to shut down more than seventy medical marijuana dispensaries in and around Los Angeles. According to LA Weekly’s reporting at the time, “Federal authorities sent warning letters—which tell operators to shut down—to 68 stores. Additionally, three shops were hit with asset-forfeiture lawsuits and another three were raided via search warrant.”
Yet the next day, CNN ran a segment titled “The ‘War on Drugs’ Withdrawal: Administration Focusing on Prevention.”
Ineffective messaging was clearly not the problem. By November 2012, Americans likely knew as much as an average person could be expected to know about Obama’s supposed public-health-centered approach to drug policy. Yet in Colorado, Washington and Massachusetts (states where medical marijuana was on the ballot), voters still pulled the lever in favor of liberalization. In Arkansas—a state that Mitt Romney won by a landslide—a medical marijuana initiative received more votes than Obama.
Support for legalization has only increased in the last year. A Gallup poll released in late October found that 58 percent of Americans think recreational marijuana should be legal. A Public Policy Polling survey conducted weeks earlier found majority support for legalizing pot in deep-red Texas. A legalization initiative in Portland, Maine, had majority support as of late October, and studies suggest that if Californians voted on the issue today, they’d legalize pot despite refusing to do so in 2010. As with so many issues, the federal government is lagging behind the rest of the country.
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The disconnect between narrative and reality when it comes to the Obama administration’s drug policy can be partly traced to a memo released by the Justice Department in October 2009. Raids on dispensaries and growers had already picked up following Obama’s inauguration, despite his campaign promise to cease targeting state-legal pot clubs. But this memo, colloquially referred to as the Ogden memo, was supposed to change that. It stated that medical marijuana would not be a priority for federal law enforcement unless it was being grown or sold in conjunction with a larger criminal enterprise.
The memo inspired celebration among medical marijuana advocates, and a sense of relief in state and local lawmakers. Yet less than a year later, DEA agents raided the home of 68-year-old Joy Greenfield, a Mendocino County, California, resident who grew marijuana with the blessing of her local sheriff. Agents destroyed Greenfield’s plants and seized her money and computer. As they have many times since, the DEA and US Attorneys then had the records sealed—a common practice in cases where releasing information might reveal the identity of a tipster or jeopardize an investigation, but hard to understand in the case of Greenfield, whom officers didn’t even bother to arrest. If the real goal is to conceal the extent to which agents have targeted small-time growers with no ties to cartels or interstate trafficking operations, however, sealing such records is an effective way to do so.
A June 2013 report issued by Americans for Safe Access found that the DEA had carried out some 270 medical marijuana raids under Obama—twelve more than had been conducted in the previous twelve years combined. It calculated that the Obama administration had spent $300 million “interfering” with state medical marijuana laws in the last four and a half years, outspending the Bush administration (both terms) by $100 million.
The Ogden memo was not only supposed to prevent these raids; to those in the medical marijuana industry, it had sent a message encouraging the industry’s growth. Indeed, some have said that the reason the number of raids carried out under Obama spiked is due explicitly to the sheer number of dispensaries that set up shop after the memo’s release.
In January 2013, an anonymous White House official told the Huffington Post that the Ogden memo had been misconstrued: it was never meant to encourage the industry’s growth. “If you read the memo, with the exception of a few words you maybe could’ve worded better, it’s really not that different from current law,” the source told reporters Ryan Grim and Ryan J. Reilly. “It took us by surprise, I will tell you, the way it was received in the beginning, and then the media ran with that narrative, that this was a change in policy and Obama’s gonna allow medical marijuana shops.
“The smart legalizers ran with that too,” the source went on, “even though the really smart ones knew, when you read that memo, there really wasn’t much of a change from the Bush administration. All of a sudden, it took on a life of its own.”
To correct the impression that it had given a green light to medical marijuana providers, the Justice Department released a new memo on June 29, 2011. Named after Deputy Attorney General James Cole, it was marketed as a “clarification.” While the Ogden memo hadn’t been too explicit about who constituted a “caregiver,” the Cole memo defined the term explicitly as an individual who cares for patients, “not commercial operations cultivating, selling or distributing marijuana.” Practically overnight, dispensary operators and growers who thought they were free and clear so long as they didn’t traffic, work with gangs or sell to kids found themselves in the same category as the members of organized crime.
The Cole memo came just a few months after a dramatic DEA raid of Montana Cannabis. Grower Chris Williams, among others, was arrested and charged with drug trafficking while in possession of a firearm (many medical marijuana growers keep otherwise-legal firearms on their property in case actual criminals attempt to hold them up for cash or pot). Insisting that he was abiding by Montana state law when he was arrested, Williams refused to take a plea deal. A federal judge forbade him from referring to the Ogden memo or Montana’s medical marijuana law in his own defense; he was convicted and faced ninety years in prison. The case generated outrage and media attention, and in early 2013, federal prosecutors showed Williams a rare display of mercy, arranging for his sentence to be reduced to five years.
The Cole memo made clear that such raids and arrests would continue unabated. In 2012, US Attorney Wendy J. Olson, an Obama appointee, ordered raids targeting the homes of fourteen owners and employees of head shops in Idaho. When agents raided the home of Kirk and Hannah Farrar, they yanked the couple’s 12-year-old daughter out of bed and marched her downstairs at gunpoint, where they made her lie facedown next to her parents. They also took the Farrars’ screaming 2-year-old son out of his crib and refused to let them hold him “for what seemed like an eternity,” as Farrar would later recall. Farrar and his wife were both charged, and though he has yet to go to trial, his wife’s sentence—for a crime apparently serious enough to justify ransacking their home and terrifying their children—was ten months’ probation, 150 hours of community service and a $300 fine.
Even more troubling than these militant tactics are the efforts that the Justice Department has made to preserve them. In 2007, while searching for a drug trafficker, DEA agents committed a wrong-door raid on the home of Thomas and Rosalie Avina. The couple were forced onto the floor at gunpoint; agents swore at them and threatened them, all actions that are considered standard fare. But what was done to their daughters, 14 and 11, was shocking. DEA agents roused the older girl from her bed and shouted at her to lie facedown on the floor. The younger girl, however, went into a terrified shock. When she failed to comply with the agents’ orders to “get down on the fucking ground,” the young girl was dragged off her bed and onto the floor, where DEA agents handcuffed her at gunpoint. Later, the agents realized they’d made a mistake and allowed the girls to move freely about the house.
Although this incident occurred during the Bush years, it was Obama’s Justice Department that would tell the Ninth Circuit Court of Appeals in 2012 that “there is no evidence that the force used by the agents in handcuffing plaintiffs while they secured the residence was excessive or unreasonable in any respect.”
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In Washington, DC, these past few years, you’d never know there was a war over pot happening in the hinterland. No one talks about the geriatric growers deprived of their life savings, like Greenfield, or the people facing life sentences for growing pot, like Williams, or the little girls being woken up and tossed around by men dressed like soldiers. Members of the Obama administration who live and work in DC tell a story about the war that not only conflicts with what legalization and decriminalization advocates say, but with what US Attorneys across the country have said. In June 2012, for instance, Attorney General Eric Holder told members of the House Judiciary Committee that his department was not raiding medical marijuana dispensaries that were in compliance with state law. When a committee member responded that news reports suggested otherwise, Holder replied, “See, this is inconsistent with these little things called the facts.”
He went on: “But one has to deal with the reality that there are certain people who took advantage of these state laws and a different policy that this administration announced than the previous administration had, and have come up with ways in which they are taking advantage of [this] and going beyond that which the states have authorized.”
But there are reasons to believe the future will be different. In August, Holder told the American Bar Association that he had instructed federal prosecutors not to seek mandatory minimum sentences for low-level drug offenders, which he defined as drug offenders not associated with organized crime. Criminal justice advocates hailed Holder’s announcement, although the discretion it leaves in the hands of US Attorneys like Wendy Olson, for example, show that it is not a fix-all. As for how the administration will deal with Colorado and Washington: after remaining tight-lipped for almost a year, the Justice Department finally announced in August that it would take a wait-and-see approach to legal marijuana, so long as Washington and Colorado aggressively regulated their new industries, kept marijuana out of the hands of young people, prevented pot from being trafficked across state lines, and monitored the impact on “public health.” Some people praised the memo, which also bore Cole’s signature, as a new chapter in drug policy; others have been more cynical, noting, for instance, that it could be another Ogden memo. Some of the memo’s provisos will prove difficult to meet: state borders are porous, and pot from medical marijuana states has been found in every corner of the country. There’s no reason to think that recreational pot won’t also make its way to prohibition states (some of which will likely turn to legalization the same year Obama’s successor is chosen).
Ultimately, however, what stands in the way of meaningful change is the Controlled Substances Act. As long as it is in place, the Justice Department will bring forward marijuana prosecutions. President Obama is unlikely to spend political capital pushing to change federal law. The man marijuana reformers elected in 2008 will likely leave office in January 2017 having changed as little as possible.
