What's Up With Obama's Approach To MMJ?
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What's Up With Obama's Approach To MMJ?
Posted by CN Staff on May 05, 2011 at 18:33:15 PT
By Steven Wishnia
Source: AlterNet
USA -- In October 2009, the Justice Department declared that prosecuting medical-marijuana users and caregivers who clearly comply with state laws was not a wise use of its resources. That declaration has dominated public perception of President Barack Obama's policy on the issue-minimal progress, but is a welcome improvement on his predecessors.
In reality, however, the Obama administration has attacked medical-marijuana providers on several fronts. Since January 2010, it has staged more than 90 raids on dispensaries and growers, according to figures collected by the patient-advocacy group Americans for Safe Access. That represents a pace double the Bush administration's, says ASA spokesperson Kris Hermes. The administration has also threatened state officials with prosecution if they participate in licensing or regulating medical marijuana. The Internal Revenue Service has expanded auditing dispensaries for tax evasion, on the grounds that drug-trafficking enterprises cannot legally claim business-expense deductions.In April, ASA gave Obama an F for his policy on medical marijuana. He's "no better than Bush," says Hermes.Allen St. Pierre of the National Organization for the Reform of Marijuana Laws calls that stance "hyperbolic." "The previous ten presidents did nothing," he says. Obama has "taken the federal hand off the scale a wee bit."'Most notably, the Veterans Administration and the Department of Housing and Urban Development have revised regulations to acknowledge the use of medical marijuana.For example, although federal zero-tolerance laws prohibit illegal-drug users from living in public housing or receiving rent subsidies such as Section 8, HUD has given local housing authorities in states that allow medical marijuana the discretion to not evict users.Still, St. Pierre worries that the combination of raids and IRS harassment is seriously endangering medical marijuana. An unfavorable court decision regarding the IRS audits "could end medical cannabis," he warns. "They're going the Al Capone route."The VA is the bright spot, says Michael Krawitz of Veterans for Medical Cannabis Access. Although it still forbids its doctors from recommending marijuana, and possession is illegal on VA property, last year it changed its regulations so that medical-marijuana use is no longer an automatic violation of "pain contracts"-agreements patients sign in which they state that they're not going to abuse their prescription painkillers.In practice, Krawitz says, some VA doctors still refuse to accept medical-cannabis use, but "the feedback I've gotten from veterans, especially Vietnam-era veterans, is that it's the first time the VA did something because it's the right thing to do. Vets really appreciate that."Overall, he says, "I'm just completely baffled by what the administration is doing. They're using the DEA and the IRS, but they're trying to look like they're not going after medical marijuana."Raids Keep Coming Meanwhile, federal raids on dispensaries continue. On March 14, on the eve of the Montana Senate's vote to repeal the state's medical-marijuana law, federal agencies raided 26 growers and dispensaries there. Hermes calls that "intimidation, with specific intent to undermine a state law." On April 28, DEA agents raided more than five dispensaries in Spokane, Washington.The Spokane raids came three weeks after Michael C. Ormsby, federal prosecutor for eastern Washington, had sent letters to the landlords of more than 40 dispensaries in the area, warning them that their property could be forfeited if they continued to rent to drug traffickers."Nearly half have reported that they have evicted their tenants to comply with federal law," says Ormsby spokesperson Tom Rice.The touchstone here is a memorandum that Deputy Attorney General David W. Ogden sent to federal prosecutors in October 2009. In it, he told them that they "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 medical use of marijuana." Prosecuting cancer patients and their caregivers, he added, "is unlikely to be an efficient use of limited federal resources."However, a February 2011 letter from U.S. Attorney Melinda Haag, federal prosecutor for the Bay Area and Northern California, to Oakland City Attorney John Russo significantly narrowed that policy. While the "Ogden Memorandum" says the federal government will not prosecute individual patients, she wrote, "we will enforce the [law] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity regarding marijuana, even if such activity is permitted under state law."The Ogden memo does not grant dispensaries anything remotely resembling immunity, Rice emphasizes. He points to clauses that state that "prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the department" and "claims of compliance with state or local law may mask operations inconsistent with the terms, purposes, and conditions of those laws."Did the department consider whether Spokane dispensaries were in compliance with state law before authorizing the raids? "No," Rice replies. One dispensary, he says, "was across the street from a grade school."St. Pierre is not shocked by the raids. Many growers push the limits, he explains. "The regrettable thing about the medical-cannabis industry is that it's often acting in violation of state law," he says. "50,000 plants is crossing that Rubicon."One thing that provoked the backlash in Montana, he adds, is that some dispensary owners were "charismatic." "Charismatic" in this context sounds like a euphemism for the kind of evangelistic stoner who believes that because they're doing Jah's work, providing the herb for the healing of the nations, they don't have to worry about following the finicky feinschmeckery of bureaucratic details-and that making money is doing well by doing good.Bill Panzer, a veteran Oakland defense lawyer, voices similar sentiments. Twenty-five years ago, he says, his clients were mostly pot smugglers "who knew they were taking a risk. Now, I'm representing people who think everything they're doing is completely legal. They're in for a rude awakening."California law is so murky, he says, that 98 percent of the state's thousand-odd dispensaries might be illegal. The only form that would be definitely legal, he adds, would be "a true socialist collective" in which all cultivated herb was divided equally among the members. Instead, he says, lots of people are setting up co-ops and "acting like sellers." The Obama administration has also continued Bush-era prosecutions of medical-marijuana providers. On May 2, Californians Dr. Mollie Fry and Dale Schafer turned themselves in to begin serving five-year federal mandatory-minimum sentences. Fry, a breast-cancer survivor, and Schafer, a hemophiliac, were raided in 2001. In 2007, they were convicted of manufacturing and conspiracy charges for growing more than 100 plants over several years. "The Obama administration vigorously fought an appeal of their sentence," says ASA.In any case, the federal Controlled Substances Act maintains that marijuana has no valid medical use, and thus any distribution of it in the guise of "medicine" constitutes criminal sale of a controlled substance. In the last few months, federal prosecutors have sent letters reiterating that to governors and other officials in several states, including California, Colorado, Hawaii, Montana, Rhode Island, and Washington. The letters threatened that any official involvement in licensing or regulating medical marijuana would expose state employees to prosecution."We maintain the authority to enforce the CSA against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activity is permitted under state law," the Colorado letter, dated April 26, stated. "It is well settled that a State cannot authorize violations of federal law."On April 14, the two federal prosecutors in Washington state warned Gov. Christine Gregoire that if the state licensed medical-marijuana cultivation and distribution, government employees who worked with such a system could be prosecuted, and state property forfeited.On April 29, Gregoire vetoed most of a bill to regulate medical-cannabis sales and production. The provisions she rejected included state licensing of dispensaries and a state register of patients. She said she feared state workers would be subject to arrest, and she urged the federal government to move marijuana to Schedule II under the Controlled Substances Act.IRS The IRS first went after dispensaries during the Bush administration, but it has greatly expanded such efforts under Obama.More than two dozen dispensaries are now being audited, according to Henry Wykowski, a former Justice Department tax prosecutor now in private practice in San Francisco. Most are in California, he says, including the massive Harborside facility in Oakland and a smaller one in Marin County; at least one is in Colorado. Allen St. Pierre says he expects the probes to expand to Rhode Island, Maine, Montana, and New Mexico.The law involved is Section 280E of the federal tax code, which prohibits drug-trafficking enterprises from claiming business expenses as deductions. "The government has brought 280E cases for years," says Panzer, but "as far as saying, 'hey, we can use this to go after dispensaries,' it started with Obama.""I think the IRS didn't know what to do, because of the conflict between federal law and state law," says Wykowski. "When it became clear that there weren't going to be wholesale prosecutions, they decided it was OK to audit."However, the one case to reach the courts so far yielded highly favorable results for medical marijuana. In 2007, the IRS assessed a defunct San Francisco dispensary called CHAMP--Californians Helping Alleviate Medical Problems--for $426,000 in back taxes and penalties on $2 million in sales. A three-lawyer team that included Panzer and Wykowski got the bill reduced to less than $5,000. The IRS refused to negotiate-which is highly unusual in tax cases, says Wykowski-and lost in court.The IRS argued that because CHAMP sold marijuana illegally, those sales should count as "an expanding drop of ink in a glass of water" to disqualify deductions, Panzer explains. But because the dispensary also provided social services, including counseling, nursing, housing assistance, and massage; hosted support groups for AIDS patients and others; and put on social events, the judge agreed that 90 percent of its rent was deductible.Paradoxically, the judge also let CHAMP deduct the wholesale cost of the medical pot it sold. This is a principle called "cost of goods" that dates back to Prohibition, Wykowski explains. The issue is complex, but basically, he says, there is legal authority that people cannot be forced to incriminate themselves in order to pay taxes. The '70s Harlem heroin dealer Nicky Barnes used to file tax returns anonymously, and "the right to selectively assert Fifth Amendment privilege has been recognized by the courts."It would be self-incriminatory for a taxpayer to report their occupation as "marijuana grower," Wykowski adds. Disallowing the cost-of-goods deduction "would have made it impossible for any dispensary to remain in business." Still, with the IRS continuing to audit dispensaries under Section 280E, that makes lawyers in the field fear a bad precedent. Other dispensaries may not have as strong a case, keep good records, or have the financial and legal resources to defend themselves."We are concerned that someone who doesn't know what they're doing will take a bad case to court and lose, and jeopardize everyone else in the industry," Wykowski says." The conflicts between federal and state law and between tax and criminal law also create a massive record-keeping dilemma for dispensaries. If they keep accurate and complete records, they can prove that they're acting like a legitimate business, a legitimate medical-services provider-but they're potentially handing the federal government a cut-and-paste indictment."The same records that can help you in state court can screw you over in federal court," says Panzer. If the amount of cannabis a dispensary grows, buys, or distributes is tallied cumulatively over several years, it can be large enough to trigger a five- or ten-year mandatory-minimum sentence.Rescheduling The overriding fact is that the Controlled Substances Act, enacted in 1970, puts marijuana in Schedule I, saying it has "a high potential for abuse, has no currently accepted medical use in treatment in the United States, and has a lack of accepted safety for use under medical supervision." Thus, the law does not recognize "medical use" as a valid defense to charges of possession, sale, or cultivation. As far as federal law is concerned, medical-marijuana users are the equivalent of junkies, no matter how sick they are, and the dispensaries and growers that supply them are little different from crack dealers and meth-lab operators.This rule is tied into a host of other laws intended to prohibit money-laundering and the like. Medical-marijuana users in public housing and landlords who rent to dispensaries run afoul of laws intended to close crackhouses.The obvious solution, at least to those in the medical-marijuana movement, would be for the federal government to move marijuana out of Schedule I and into the realm of legitimate prescription drugs. Even moving it to Schedule II would gain it that status, although under controls as strict as those for OxyContin or medical cocaine. Marinol, the synthetic THC that is the prime legal cannabinoid drug, is in Schedule III, along with codeine.That is not likely to happen soon. The Drug Enforcement Administration has jurisdiction over scheduling. In 2002, a coalition including NORML, ASA, and Virginia cannabis-policy expert Jon Gettman filed a petition to reschedule marijuana for medical use. It "has been languishing without a response from the DEA for nearly nine years," says an angry Dale Gieringer of California NORML. "They're sitting on our petition."The DEA, he says, has also "blocked efforts to establish a legal medical marijuana research garden," which would provide the scientific background needed to obtain Food and Drug Administration approval."If the federal government would stop fighting the rescheduling process, we could have a resolution," says St. Pierre. "They're not choosing to lead."The DEA, headed by Bush holdover Michelle Leonhart, remains resistant. Its official stance, the lead item in "DEA Position on Marijuana," a 54-page booklet issued in July 2010, is that medical marijuana is a "fallacy," that "smoked marijuana is not medicine," and there is "no sound scientific evidence that smoked marijuana can be used safely and effectively as medicine."It blames "organizers of the 'medical' marijuana movement" for failing to ensure that "the product meets the standards of modern medicine?. [There is] no safety regulation, no way to measure its effectiveness (beyond anecdotal stories), and no insurance coverage." It calls the entire idea that marijuana has medical use "false-trickery [sic] used by those promoting wholesale legalization.""I don't think that's happening any time soon," a DEA spokesperson who refused to give his name said of rescheduling. "I don't see any movement on that. The science hasn't borne it out."Steven Wishnia is a New York-based journalist and musician. The author of Exit 25 Utopia and The Cannabis Companion, he has won two New York City Independent Press Association awards for his coverage of housing issues.Note: The previous ten presidents were staunch prohibitionists. Meanwhile, Obama has taken the federal hand off the scale quite a bit. Source: AlterNet (US)Author:   Steven WishniaPublished: May 5, 2011Copyright: 2011 Independent Media InstituteContact: letters Website:  Medical Marijuana Archives
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Comment #11 posted by afterburner on May 14, 2011 at 09:38:58 PT
Running Scared
"a DEA spokesperson who refused to give his name said of rescheduling"Shifting times: that DEA mouthpiece, with the full power of the federal government behind him, is afraid to even give his name? Hmmm!
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Comment #10 posted by Mahakal on May 11, 2011 at 01:25:42 PT
Hemp is legal
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Comment #9 posted by Mahakal on May 11, 2011 at 01:07:47 PT
This is a really good article, and CHAMP was the predecessor of Axis of Love, at least the social services aspect which is what we do with no sale of any kind. I wasn't around SF in those days but now we are the one example of an organization in total compliance with the Attorney General's interpretation and being forced to go through a long process to apply for an MCD permit even though we sell NOTHING, EVER.
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Comment #8 posted by museman on May 07, 2011 at 12:55:30 PT
I'm not going to talk about Obama..
Because its obvious, for whatever reasons; personal culpability, the nature of the responsibility, or the true nature of the office (as a puppet for special interest corporate Lords) that he has little power other than what is handed to him as an already-in-progress agenda.The power for real change is right here.Right here in the minds, hearts, and TRUE INTENTIONS of every light worker who levers the global consciousness a little bit more every day in the direction it was always supposed to go -without the gross, perpetual interference and suppression of our governments and their various offshoot institutions.Education begins at home, and regardless of the social experience, such as 'public school' it is the 'at home' experience that actually most profoundly defines the character of the offspring.The fact that parenting has become a state-sponsored institution, and most parents have easily gone along with it (because they believe that the burden which is truly theirs alone is being assisted by the government sponsored institutions...) and because they are preoccupied with buying back their natural inheritance of the earth through the time and labor of their hands (called 'economics' by the masters, and 'slavery' by those who appreciate the truth above the lie) they are hard pressed to give the kind of positive, empowering attention that all humans need to become all that they can be. The spinning of the wheels of their personal time to 'provide' for their children does not allow them -without heroic, special attempts with energy above and beyond the common contemporary, acceptable standards -dictated, and enforced by our government- the time nor energy to pull it off.The ruling classes have ensured their perpetuity by conquering all the free peoples in the world. They did it with force first; first the rulers tried (and succeeded) to fool us all into thinking they were gods, and that the only way to attain 'true life' was to serve them. Genocide in the name of 'god' came later as force was not enough to constrain the Spirit of Man which bursts forth in every generation only to be put down by wars, 'law' and religion.But the one thing that got us and got us good, was their invention of fake value, called 'economics' and the weights and measures of materials, while the most valuable things in our existence have been deliberately obscured by these false idolatries. Yes, the worship of materialism is an 'idolatry.'Every great man remembered,(and many not) -particularly great as in TRUE and REAL was put down by the 'authority' of the time. That authority has been the same set of minds, bloodlines, and spirits, since -as I have said before- Sumeria.It is the people who have allowed, and up til recently, encouraged their sons to go to war, while the ruling class plays them like game pieces -literally- on their chess board of conquests. It is the people who -for whatever reason- were the slaves that built the first cities, and it is they who by their continued acquiescence to the rulers whim and fancy have allowed this to continue for so long.The rulers are but a handful of beings (I hesitate to include them in the human race, as there is significant evidence to suspect that) while the people are a multitude.In the Arab world right now, many people are finally realizing this.Of course, if enough of the people continue to support their masters designs, by being in the military, or being cops, or being anything that aids and abets the ongoing conquest and enslavement of the human race, then the wars will continue, the destruction of our environment will continue, and as likely as not the actual Power and Consciousness of the Earth and her collective life -with or without our consensus- will step in to deal with the ecodestruction, as we are witnessing in the intensifying natural upheavals -affecting, and targeting mans civilization specifically.These are facts that far too few understand, know and believe. Though I am to aware of the form of establishmentarian argument that could be raised, all arguments with the truth are moot - as such shallow, without content and substance argumentation is nothing more than attempts to trick the truth-sayer's humanity in a public manner as to discredit the truth. The power of the government, and the uber-wealthy 'actual' rulers is 100% dependent on the willingness of the masses to swallow what they feed us, and the entire structure of 'law, justice, and governance' is all about keeping the slaves in line. The illusion that the people are somehow participating in their own government is another from their many thousand year old bag of tricks.But there is hope. Now,I perceive, perhaps more than ever before in recorded history.The labor before us can look daunting, but is is not labor of compromise, or further agreement with failed and failing systems left over from of millennia of false leaders and false gods.Yashua ben Yoseph said; "The Truth shall set you free." If you are of Pilate's persuasion, as to "What is the truth?" then I suggest you start there.Shalom ShabbatLEGALIZE FREEDOM
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Comment #7 posted by observer on May 07, 2011 at 11:18:09 PT
Got Osama, Will Toss MJ Demographic
What's Up With Obama's Approach To MMJ?The politicos have calculated that their 'positives' from Osama beat their potential 'positives' from the MJ people. So (calculate the so-called Democrats, apparently) the cannabis community is to be tossed out to the prosecutor/police/military demographic as a sop - just as a rabbit might be tossed to a pack of hungry hunting dogs. They no longer need to worry what medical cannabis users think, as their terror-fightin' Osama-killin' numbers have helped them elsewhere.
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Comment #6 posted by Sam Adams on May 06, 2011 at 15:15:42 PT
column on Obama/feds
as usual great write-up by Paul Armentano
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Comment #5 posted by Sam Adams on May 06, 2011 at 14:23:37 PT
the finer points of barbarism
As far as I'm concerned, I'm against anyone that treats me like a slave.  And that's what this is. I'm not into listening to the repugnant equivocating of the political class - it looks like they're competing for world's best liar to me. Lying used to be considered sinful.Keep in mind it was just a few years back that the feds were attacking Vitamin D with the same vigor - raiding and looting small businessmen. Vitamin D prevents cancer as well.We should all recognize the threat to civilized life that this represents - the repudiation of science and reason as the cornerstone of society.I read about a survey this week in which less than 50% of American high school students knew that the Bill of Rights existed. That's government-run schooling for you. They're doing as good a job with schooling as they do "regulating" medicine.
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Comment #4 posted by FoM on May 06, 2011 at 06:16:14 PT
I agree with you it isn't an F.
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Comment #3 posted by FoM on May 06, 2011 at 06:15:20 PT
Obama's Medical Marijuana Campaign Promises 
May 5, 2011Quotes From The Campaign Trail:“My attitude is if the science and the doctors suggest that the best palliative care and the way to relieve pain and suffering is medical marijuana then that’s something I’m open to because there’s no difference between that and morphine when it comes to just giving people relief from pain. But I want to do it under strict guidelines. I want it prescribed in the same way that other painkillers or palliative drugs are prescribed.” — November 24, 2007 town hall meeting in Iowa“I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” — August 21, 2007, event in Nashua, New Hampshire“I don’t think that should be a top priority of us, raiding people who are using ... medical marijuana. With all the things we’ve got to worry about, and our Justice Department should be doing, that probably shouldn’t be a high priority.” — June 2, 2007, town hall meeting in Laconia, New Hampshire“You know, it’s really not a good use of Justice Department resources.” — responding to whether the federal government should stop medical marijuana raids, August 13, 2007, town hall meeting in Nashua, New Hampshire“The Justice Department going after sick individuals using [marijuana] as a palliative instead of going after serious criminals makes no sense.” — July 21, 2007, town hall meeting in Manchester, New HampshireURL:
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Comment #2 posted by The GCW on May 06, 2011 at 06:02:27 PT
I disagree.
"In April, ASA gave Obama an F for his policy on medical marijuana. He's "no better than Bush," says Hermes."I think a D- is more like it.
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Comment #1 posted by FoM on May 05, 2011 at 18:37:05 PT
I Agree With These Quotes
Excerpt: St. Pierre is not shocked by the raids. Many growers push the limits, he explains. "The regrettable thing about the medical-cannabis industry is that it's often acting in violation of state law," he says. "50,000 plants is crossing that Rubicon."Excerpt: Bill Panzer, a veteran Oakland defense lawyer, voices similar sentiments. Twenty-five years ago, he says, his clients were mostly pot smugglers "who knew they were taking a risk. Now, I'm representing people who think everything they're doing is completely legal. They're in for a rude awakening."
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