MEDICAL MARIJUANA LAW - department of justice guidelines

Medical Marijuana Law



As stated by numerous news sources, the United States Deputy Attorney General has set forth and published new guidelines regarding marijuana enforcement that is applicable to people living in specific states that have laws allowing medical marijuana as well as states where marijuana has been legalized.  While the updated policy is a significant step in the right direction, it is important to note that it is not a Get out of jail free card.  The United States government did not change the status of marijuana as a Schedule I substance and did not revoke the Federal Controlled Substance Act.  The memorandum is not law – it is only a set of guidelines from the United States Attorney General’s Office to all United States District Attorneys.  There are four United States District Attorneys in the State of California.  The memorandum sets forth no strict standards which require any local United States District Attorney to follow the guidelines. 

We in the medical marijuana field watched in total dismay in 2011 when the DEA began with a full court press against many medical marijuana collectives in defiance of the 2009 Ogden Memorandum.  Dispensaries operators and patients in various cities watched and Federal District Court Judges scolded local federal prosecutors but could do nothing with their hands tied - bound by federal law. 

The purpose behind the more recent memo appears to be a response to both economic issues and rapidly changing policy regarding the use of medical marijuana and recreational marijuana.   This new approach, along with other attitude changes (Senator John McCain, a notorious anti marijuana politician, recently made a statement “perhaps we should legalize marijuana”) may encourage other states to allow medical marijuana or recreational marijuana.  As more and more states allow medical marijuana or recreational marijuana, federal courts will be more likely to accept the medical use of marijuana under the new guidelines where the right to use medical marijuana would be considered a fundamental right. In Lawrence v. Texas the United States Supreme Court held that America’s acceptance of a person’s right to exercise his or her sexual preference had become so commonplace that Texas’s sodomy laws were countercultural and violated a person’s individual constitutional rights.  As more and more states adopt laws allowing the use of medical marijuana, the use of medical marijuana will become more strongly entrenched in our culture and the courts will be forced to recognize that the Controlled Substance Act as countercultural and violates our individual constitutional rights. The Ninth Circuit Court of Appeals noted - the day when the Controlled Substance Act is thought to be countercultural and a violation of our individual constitutional rights may be just around the corner but it’s not here yet. 

Roughly 80 percent of the population supports the use of medical marijuana and it appears that the federal government is slowly taking notice of that trend. People must recognize the fact that the cultivation, use and possession of medical marijuana continues to have inherent risks.  The DEA is still in operation and none of the California Federal District Attorneys have made statements or made their policies concerning medical marijuana known.  Odds makers appear to think that Hillary Clinton will be our next president and she has pledged to end marijuana raids against users in states where MMJ use is legal. She also opposes decriminalization of recreational marijuana.  While national opinion regarding the medical use of marijuana appears to be becoming supportive, local governments remain strongly against medical marijuana collective dispensaries as does the League of California Cities.   Local Federal District Attorneys are political appointments but that does not mean that they are immune to strong - local political pressures. 

               The May 2013 decision by the California Supreme Court has forced the medical marijuana industry to become more inventive in their approach to one problem… very few people know how or are physically able to produce their own medical marijuana.  The Deputy United States Attorney’s new policy, if followed by local district attorneys and the DEA, would make these inventive approaches less experimental and clarify the direction of the MMJ industry.   The key issue is whether local DA’s and the DEA will adhere to the new policy – meanwhile the War on Medical Marijuana continues. 

Charles M. Farano is a criminal defense and land use lawyer who represents medical marijuana patients, grower’s medical marijuana consultants and medical marijuana collective dispensaries. Visit our websites -  -


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