May 10, 2011; Source: | The American Civil Liberties Union issued a letter on Monday protesting the fact that U.S. attorneys in a number of states where medical marijuana is legal have been threatening prosecution of state licensed providers and growers of medical marijuana – many of which are nonprofit. Up until this started happening, the states that have such laws were working on the assumption that the Department of Justice would not, in fact, prosecute such cases where state and federal marijuana laws are contradictory.

This assumption did not emerge out of thin air. In 2009 Deputy Attorney General David Ogden wrote in a memo, “As a general matter, pursuit of [DOJ drug enforcement] priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the use of medical marijuana.”

Later that year Eric holder wrote, “For those organizations that are [possessing and distributing medical marijuana] sanctioned by state law and do it in a way that is consistent with state law, and given the limited resources that we have, that will not be an emphasis for this administration.”

But a spokesperson for the DOJ was quoted in the New York Times on Sunday saying that the threats from U.S. attorneys in Washington, Montana, Colorado, Arizona, Rhode Island and Vermont are “a reiteration of the guidance handed down by Ogden in 2009. This sparked the ACLU’s call for clarification.

The ACLU has a dog in this fight since in 2009 it relinquished a lawsuit against the feds based on the 2002 DEA raid of a California medical marijuana garden. The ACLU alleged that the federal government had selectively enforced federal marijuana laws in an attempt to undermine and disable the functioning of state medical marijuana laws.

The ACLU letter reads “If, contrary to the assurances its attorneys provided the court in the Santa Cruz case, the federal government’s enforcement policies now include ‘vigorously enforcing’ federal drug laws against individuals and entities who manufacture and distribute marijuana on a completely non-profit basis and in full compliance with state medical marijuana laws, it marks a significant departure from the federal government’s position in the Santa Cruz litigation and could lead to that case being reinstated in its October 2009 posture with discovery proceeding as originally planned.”

This has to be some of the most ludicrous misplacement of federal law enforcement energy we have seen – a prosecutorial shell game that places all involved in untenable positions.—Ruth McCambridge