PENN: I think that the president’s been pretty consistent with that. He’s not in favor of legalization, we should be open about something like that. But what the president has done is take a really smart look at the Department of Justice and said, given the fact that the federal government has limited resources, we should be allocating them toward violent criminals and not towards non-violent criminals. We can see that not just in things like marijuana but in things like immigration reform where he’s going after and deporting violent criminals and making sure that if you’re a Dream Act eligible student that you know that you can apply for your deferred status. Wherever the federal government has an appropriate role, I think the president’s been very consistent in that. That’s something that I think folks should know.
There was a time when Penn’s statement was correct. In 2009, Deputy Attorney General David Ogden issued what is now commonly referred to as the “Ogden Memo.”In it, Ogden announced that federal prosecutors “should not focus federal resources . . . on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” Thus, if a state permits individuals to grow their own marijuana for personal medical use, DOJ would not prosecute them. The memo also announced that federal officials should not focus on people who provide marijuana to patients in compliance with state law — prosecuting “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.”
Less than two years later, however, DOJ significantly walked back the Ogden Memo. A 2011 directive from new Deputy Attorney General James Cole reiterated that “it is likely not an efficient use of federal resources to focus enforcement efforts on individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or their caregivers,” but it also defined “caregiver” narrowly to exclude “commercial operations cultivating, selling or distributing marijuana.” In the wake of the Cole Memo, several United States Attorneys offices brought federal law to bear against marijuana dispensaries — even dispensaries in full compliance with state law.
Even if it were desirable for every medical marijuana patient in the country to grow their own cannabis at home, for many patients it is simply not practical. Dispensaries, many of which are non-profit co-ops, are the only feasible option for many patients to obtain treatment prescribed to them by a physician and authorized by state law. These patients no doubt wish they lived in the world Penn described, but they do not anymore.