Pubdate: Thu, 20 Oct 2011
Source: Phoenix New Times (AZ)
Copyright: 2011 New Times, Inc.
Author: Ray Stern


The new federal crackdown on medical marijuana announced on October 7 
by the four California U.S. Attorneys sent chills throughout the 
industry. It was a stunning reversal by the Obama administration.

Only two years ago, Deputy U.S. Attorney General David Ogden wrote 
his infamous "Ogden Memo," announcing the feds wouldn't bother 
businesses in compliance with their own state laws. It proved a dose 
of Miracle-Gro to California, where pot-selling stores multiplied 
since voters approved the state's 1996 medical marijuana law. By late 
last year, California reportedly had more dispensaries than Starbucks outlets.

Colorado also made it legal in 2000, seeing a similar explosion of 
new storefronts. The same thing was happening to varying degrees in 
16 states, from Arizona to Washington, New Jersey to Delaware.

But the feds' tolerance wasn't quite what it seemed. While legal weed 
grew to an estimated $10 to $100 billion industry -- no one's quite 
sure of the exact figure -- activists noticed an alarming 
undercurrent to the rhetoric: Raids on growers and dispensaries 
actually increased under Obama.

As hundreds of thousands of state-approved, doctor-recommended 
patients happily bought their medicine in well-lit stores from 
knowledgeable "budtenders," the ire of cops and prohibitionists rose.

The first sign of Obama's subterfuge came in late 2010, as California 
prepared to vote on a ballot proposition that would have legalized 
growing and possessing small amounts of marijuana for anyone over the 
age of 21. Under pressure from teetotalers -- nine former Drug 
Enforcement Agency chiefs begged Obama to oppose the measure -- 
Attorney General Eric Holder said that it didn't matter what 
Californians thought. The feds would continue to bust people 
regardless of the election.

The measure got 46 percent of the vote, but not enough to pass. Yet 
the medical side of things kept going strong -- too strong for Obama.

When the Oakland City Council prepared to authorize large-scale 
cultivation centers, Melinda Haag, the U.S. Attorney for California's 
Northern District, issued the first in what would become a series of 
letters from her fellow attorneys general. She reminded residents -- 
in no uncertain terms -- that marijuana was still criminalized under 
federal law, considered equal to heroin or meth, irrespective of its 
medicinal value.

Nor did she care what California law said. Her "core priority" would 
be to prosecute "business enterprises that unlawfully market and sell 
marijuana" under federal law.

Over the next few months, attorneys general from Maine to Washington 
wrote their own increasingly menacing letters. In Washington, the 
feds even threatened to arrest state workers who helped facilitate 
the industry.

Then the Obama administration released a new letter to "clarify" 
Ogden's memo. Deputy U.S. Attorney General James Cole verified the 
about-face: The only people safe from arrest were the "seriously ill" 
patients and their caregivers.

Everyone else? Be forewarned.

The letter didn't just target those directly involved in the trade. 
Cole was also threatening supporting industries -- read: banks -- 
with money laundering charges for dealing in the proceeds from 
marijuana. Obama had launched a full-on attack on the industries 
essential to any functioning enterprise.

Banks responded by canceling their weed-related accounts. "Perhaps 
there may be a few financial institutions here or there that are 
still accepting accounts," says Caroline Joy, a spokeswoman for the 
Colorado Bankers Association. "Those facilities don't want to reveal 
who they are."

The president's push grew louder last month. The U.S. Alcohol, 
Tobacco and Firearms bureau warned medical-marijuana patients that 
they couldn't legally use pot and own or buy guns.

Then came a one-two punch.

On October 5, the IRS ruled that one of the largest California 
dispensaries, Harborside Health Center, owed $2.5 million in taxes 
because federal law precluded standard deductions for businesses 
engaging in illegal activity.

In other words, Obama was not only blowing off state laws. He was 
declaring that legal businesses were now nothing more than criminal 
rackets. And he was carving away every tool they needed to function.

Harborside's owner said he'd go out of business if the IRS didn't 
reverse course. Dispensaries nationwide saw it as a crippling decision.

Then came another blow two days later: The bombshell dropped by 
California's four U.S. Attorneys.

They were now going after people who leased stores and land to the 
pot industry. Violators were given 45 days to close doors, uproot 
plants, and kick out renters. The penalty for not acting: Seizure of 
property and arrest.

Laura Duffy, the U.S attorney from California's Southern District, 
went so far as to threaten media with prosecution for taking pot 
advertising. ( Disclosure: This newspaper accepts such ads. )

There was no doubt about it: Obama was intent on killing an entire 
industry -- in the middle of a depression, no less. Left unexplained 
was why, especially since he was giving the finger to voters in 16 
states just a year before he would face them in his own election.

Democratic strategists were perplexed. Roger Salazar, a California 
party consultant, believes the president may be trying to reach out 
to a broader base. But that doesn't explain the attack on his own 
base; Democrats support medical marijuana at high percentages. It 
doesn't even make sense in luring conservatives. With the country in 
economic tatters, no one has weed high on their radar.

Except one group, says Salazar: "It's a mystery, I think, it really 
is, where the pressure is coming from. My sense is it's coming from 
law enforcement."

Certainly Obama's threats are real. He may be loath to jail 
landlords, bankers or even dispensary owners. Arresting non-violent, 
state-sanctioned businesspeople wouldn't be popular. But his quieter 
war of chopping merchants off at the knees through credit and leasing 
would ravage the trade. Still, the president has thrown himself into 
an uphill fight. There is reason to believe medical marijuana will 
persist, despite his betrayal.

Marijuana Rally Is Medicine

Earlier this month, in a timely coincidence, the California Medical 
Association's board voted to encourage the feds to legalize marijuana.

Though spokeswoman Molly Weedn emphasizes that the decision by the 
doctors' group hinges on a call for more research, a report studied 
by the CMA board before its decision makes it clear that "" at the 
least "" marijuana shows promise as a medicine.

The CMA's Council on Clinical and Scientific Affairs "has also 
concluded that components of medical cannabis may be effective for 
the treatment of pain, nausea, anorexia, and other conditions."

The report goes on to say:

"Cannabinoids are presently thought to exhibit their greatest 
efficacy when implemented for the management of neuropathic pain, 
which is a form of severe and often chronic pain resulting from nerve 
injury, disease, or toxicity.

"The University of California Center for Medicinal Cannabis Research 
( CMCR ) recently reported to the California legislature the results 
of a number of studies. Four studies involved the treatment of 
neuropathic pain; and all four demonstrated a significant improvement 
in pain after cannabis administration."

The doctors note that while using marijuana may contain risks, such 
as addiction, they argue that its prohibition may be more dangerous 
than the drug itself:

"Under the current prohibition of cannabis, public health is also 
affected by increased rates of crime surrounding cannabis 
cultivation, sale and use. The California Legislative Analyst's 
Office estimates that the incarceration and parole supervision of 
cannabis offenders costs the state tens of millions of dollars annually."

Nationally, prohibition burns through billions of dollars in lives 
lost to the violence inherent in the black market, the incarceration 
of thousands of productive, non-violent Americans, and the lack of 
access to a beneficial medicine.

Are lots of people using weed without suffering from a medical 
problem? Absolutely. But just because you've heard that half or more 
of patients take the drug for "severe and chronic pain" doesn't mean 
they're all faking it.

In June, the Institute of Medicine estimated that 116 million 
Americans suffer from significant, chronic pain.

As more research comes in showing that pot can be an effective 
treatment, and with America's elderly population exploding in the 
coming decades, the interest in its medicinal qualities seems only 
likely to rise.

The Truth Will Prevail

Ignorance, false propaganda and rank political posturing tend to be 
the foundation of the anti-marijuana argument. ( Throw in 
bureaucratic turf protection as well. The DEA, for example, would 
need fewer agents if pot was decriminalized nationwide. )

A new Gallup poll shows that a record 50 percent of Americans believe 
marijuana -- and not just the medical kind -- should be legalized. 
The poll follows a continuing trend over the past several years of 
increasing support for legalization.

Obama has chosen to swim against the tide. But there's reason to 
believe his fight is about politics, not public safety. If this were 
about safety, alcohol would be his primary target.

Politics cause both sides to fudge the truth. Yet prohibitionists and 
the government have been particularly egregious. The government is 
using taxpayer dollars to prop up its side, with the U.S. Justice 
Department's 64-page booklet, "Speaking Out About Drug Legalization," 
being a prime example.

The booklet, distributed in print and online, states that "smoked 
marijuana is not scientifically approved medicine." Forget that by 
labeling it a drug on par with heroin, the DEA is curtailing the 
proper study of marijuana, since it prevents even scientists from 
possessing it for research. The publicly funded propaganda also flies 
in the face of the opinion of doctors, who see pot's potential as medicine.

It's a strategy that's trickled to states with functionaries unhappy 
about executing the voters' will. Last December in Arizona, Will 
Humble, the state's Department of Health Services director, held a 
news conference about the state's new Medical Marijuana Act. He took 
a moment to remind reporters that more than 1,000 Arizonans died last 
year from accidental overdoses from prescription drugs.

But when asked how many of those died from marijuana, Humble refused 
to answer -- to chuckles from the audience. He referred the question 
to his chief medical officer, Laura Nelson, who would only say she'd 
"have to do the research on that" before she could answer.

Then Nelson began stammering about the danger of marijuana due to 
"car accidents" -- though she had done no research on that, either.

The CMA's new report, interestingly enough, sheds light on statements 
like Nelson's. It says that prohibitionists often make 
unsubstantiated claims about car crashes or other purported harms. 
Studies disagree on its risks to motorists, though there's no 
question that booze increases the chances of a crash, the report 
says. Moreover, simulated driving tests reveal that pot smokers 
overestimate their degree of impairment and "compensate effectively."

If one were a cynic, one might also view U.S. Attorney Laura Duffy's 
threat to target advertising as a less than subtle threat to control 
the debate.

True: Federal law prohibits advertising illegal drugs. Google, for 
example, agreed to pay a $500 million fine this summer for taking 
online ads promoting "rogue" Canadian pharmacies.

But pot dispensaries are legal businesses within their states. Under 
Duffy's threat, the feds will have their say, while the pro-pot 
message would be erased from public view.

Kent Scheidegger, legal director for the conservative Criminal 
Justice Legal Foundation, tells New Times that Duffy's threat gave 
him the willies.

"They're on much thinner ice going after the newspaper," says 
Scheidegger, who otherwise believes the feds should enforce its own 
laws against marijuana. "... Maybe there is a political strategy."

It's called the "shut them up" strategy.

There Will Be Pushback

Federal law is, for now, on the side of the prohibitionists.

Scheidegger downplays the state victories handed to medical 
marijuana. He says if the American people want to change the law, 
they need to encourage Congress to do so.

Yet that ignores a basic political reality: It's extremely difficult 
for any politician to stand up for marijuana. He or she will be 
quickly painted as pro-pothead.

Like women's suffrage, the medical marijuana movement has -- in ten 
states, anyway -- benefited by the direct democracy of citizens 
initiatives. These elections have taken the pulse of voters in a way 
that congressional elections cannot.

In six other states and Washington D.C., medical marijuana was 
legalized by local lawmakers. Other states are bound to vote in favor 
of decriminalizing pot in the next few years in spite of federal laws.

Phoenix attorney Ty Taber sees it as a major states' rights issue. 
"Basically, the citizens of these states ... they want marijuana 
legalized," he says. If Obama wants to play hardball, he says, 
"You're going to get pushback."

Taber represents Compassion First, a company that helps set up 
dispensaries. The firm sued Arizona after Governor Jan Brewer, in 
blatant defiance of voters' wishes, derailed the dispensary portion 
of Arizona's new law by instructing the Department of Health to 
reject applications. She simultaneously sued the federal government, 
asking a judge to rule on whether the state's new law was legal. ( 
Ironically, the U.S. Justice Department's civil department is 
defending against the lawsuit -- and if the feds win, Arizona might 
just get its first dispensaries. )

Compassion First wants the program implemented as Arizonans intended, 
and to remove blockades Brewer has thrown in its path. For instance, 
Arizona requires dispensary owners to have been residents for at 
least three years.

But the point isn't so much whether or not the company will win its 
lawsuit or not -- it's that they're fighting back, and they're not alone.

Across the country, advocates are returning fire of their own in the 
court system. Which means Obama won't be able to do battle by the 
relatively cheap means of letters and threats. He'll likely end up 
burning through millions of dollars in litigation -- money he doesn't have.

Taber thinks the president may have underestimated his foe. "The 
people behind this marijuana movement -- they're committed. They are 
zealots. And these are smart people -- not stoners saying, 'Hey dude, 
pass another slice of pizza.'"

Half-Hearted Crackdowns Don't Work

The latest crackdown will be bad for the pot business. No question. 
But Obama could be doing much, much more.

He could go after patients. Over the summer, a federal judge ruled 
the DEA could peek at the names on Michigan's patient registry. 
Because marijuana is illegal under federal law, said Judge Hugh 
Brenneman Jr., patients can't expect privacy.

The feds could also hit pot-tolerant cities. The law doesn't allow 
municipal workers to be jailed in such prosecutions, but cities or 
counties could be heavily fined just for setting up zoning 
requirements for dispensaries.

There's a huge downside to that, of course. Obama will only appear 
mean and small for having sickly grandmas arrested. And fining cities 
just enrages residents picking up the tab -- the very people the 
president will need a year from now.

All of which leaves him fighting at partial speed. That, in turn, 
leaves the "zealots" Tyber mentions betting their money and freedom 
that even if the feds throw the book at some, it won't be them.

Last week, the feds raided several growing operations in California 
and Oregon, including one in Mendocino County that appeared to be 
playing by the state rules. But it seems safe to assume that few of 
the hundreds of other growers in Mendocino County did not uproot 
their crops in response -- just as the hundreds of dispensaries in 
California did not immediately close their doors after the feds' 
ominous warning on October 7.

The industry seems to be practicing a form of civil disobedience. And 
it has tens of thousands of seriously sick people behind it, who will 
holler loudly if they're forced back to the black market.

Indeed, there are some signs that Obama's crackdown will be what the 
SF Weekly's Chris Roberts calls a "Passive Aggressive" strategy. 
Rather than offend Americans with news footage of police raids, Obama 
has launched a war of attrition. Landlords, worried the feds will 
steal their property, will tell dispensaries to move out. Banks won't 
handle money for pot-themed businesses. Dispensaries will be taxed so 
heavily they won't be to cover the payroll or pay the electric bill.

Yet it remains to be seen whether federal prosecutors, who 
undoubtedly have even more serious criminals with which to contend, 
are willing and able to carry out the threat. When Jack Gillund, 
Melinda Haag's spokesman, was asked whether her office had the 
resources to go after every dispensary or grower who doesn't comply 
with the 45-day deadline, he offered a simple reply: "No comment."

Lauren Horwood, a spokeswoman for U.S. Attorney Benjamin Wagner in 
California's Eastern District, says Wagner's goal isn't to shut down 
everything. He's focusing on "large, professional, money-making 
operations -- the commercial operations."

Horwood also says that it's wrong to call it "Obama's crackdown." She 
says the California U.S. Attorneys decided to take action on their 
own because the situation has grown out of control among recreational 
users. But she acknowledges that they received Obama's blessing.

It's classic political strategy: Send the underlings out to take the 
heat, while the bosses hide under their skirts.

Either way, the end result casts Obama as even more zealous than 
George W. Bush. Bush threatened owners of dispensary properties in 
2007, but never followed up. Meanwhile, Colorado and other states 
have seen no similar crackdowns. Only time will tell whether Obama 
plans to destroy the entire medical marijuana industry, or merely 
smack California around for a bit.

"I'm willing to give the Obama Administration the benefit of the 
doubt," says Blair Butterworth, a Democratic consultant in Seattle, 
where about 100 dispensaries operate. "In California, they may be 
sitting on uncontrollable drug sales. They need to slap some wrists."

It's easy to pick on California, a state known for its excesses. But 
"the last thing Obama needs right now is to go to war nationally with 
the medical marijuana community," Butterworth says.

Leniency for marijuana users, medical or otherwise, continues to be a 
popular Democratic stance, he says. Butterworth is helping the 
campaign to put outright legalization on the Washington state ballot 
next year. He thinks it's got a good chance.

Of course, a successful election could just tick off the feds even more.

A Million Patients Can't Be Wrong

An estimated 1 million people in California have obtained a doctor's 
recommendation to grow and use marijuana legally.

More than 150,000 medical marijuana patients have registered in 
Colorado as of July.

Tens of thousands of patients are registered in the other weed-friendly states.

If the feds shut down every dispensary in the country, all these 
people will still be able to legally possess marijuana -- no matter 
where they bought it -- under their state laws.

The only difference is they'll be forced to go back to buying their 
weed from Mexican drug cartels, rather than Americans who provide 
jobs and pay taxes.

It's akin to the feds saying that Anheuser-Busch can no longer sell 
beer; they'd prefer that people only buy from Al Capone.

Hey, wait -- didn't something like that happen?
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MAP posted-by: Keith Brilhart