Obama’s War on Pot
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.
Also In This Issue
Katrina vanden Heuvel: “Why Its Always Been Time to Legalize Marijuana”
Carl L. Hart: “Pot Reform’s Race Problem”
Kristen Gwynne: “Can Medical Marijuana Survive in Washington State?”
Atossa Araxia Abrahamian: “Baking Bad: A Potted History of High Times”
Various Contributors: “The Drug War Touched My Life: Why I’m Fighting Back”
And only online…
J. Hoberman: “The Cineaste’s Guide to Watching Movies While Stoned”
Harmon Leon: “Pot Block! Trapped in the Marijuana Rescheduling Maze”
Seth Zuckerman: “Is Pot-Growing Bad for the Environment?”