86 62 UCLA L. REV. 74 (2015)
provisions.
38
President Obama’s election would prove a turning point in the
movement for marijuana law reform. During the campaign he hinted that he
might relax the nation’s marijuana laws if elected
39
and, once President Obama
took office, his Attorney General, Eric Holder, stated that his boss’s views
would now be federal policy.
40
A more detailed statement of federal policy
came that fall in the now infamous Ogden memorandum. In that memorandum,
Deputy Attorney General David Ogden wrote to U.S. Attorneys around the
country, providing them with enforcement priority guidance in light of
changing law in the states: “As a general matter, pursuit of [federal] 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 medical use of marijuana.”
41
Although
the Ogden memorandum was loaded with cautionary
language,
42
many took it, perhaps too optimistically, as the announcement of
38. See Marijuana Law Reform Timeline, supra note 16 (showing that the following states passed
medical marijuana laws: California (1996), Alaska (1998), Oregon (1998), Washington
(1998), Maine (1999), Nevada (2000), Colorado (2000), Hawaii (2000), Montana (2004),
Vermont (2004), Rhode Island (2006), New Mexico (2007), and Michigan (2008)).
39. See, e.g., Bob Egelko, Next President Might Be Gentler on Pot Clubs, SFGATE.COM (May 12, 2008,
4:00 AM), http://www.sfgate.com/health/article/Next-president-might-be-gentler-on-pot-clubs-
3284500.php;
John Tierney, Obama to Stop Raids on Marijuana Clinics, N.Y. TIMES (May 14, 2008,
12:14 PM), http://tierneylab.blogs.nytimes.com/2008/05/14/obama-to-stop-raids-on-marijuana-
clinics.
40. See, e.g., David Johnston & Neil A. Lewis, Obama Administration to Stop Raids on Medical Marijuana
Dispensers, N.Y. TIMES, Mar. 18, 2009, at A20, available at http://www.nytimes.com/2009/
03/19/us/19holder.html
(“Attorney General Eric H. Holder Jr. on Wednesday outlined a shift in the
enforcement of federal drug laws, saying the administration would effectively end the Bush
administration’s frequent raids on distributors of medical marijuana.”); see also Stu Woo & Justin
Scheck, California Marijuana Dispensaries Cheer U.S. Shift on Raids, WALL ST. J., Mar. 9, 2009, at
A6, available at http://online.wsj.com/news/articles/SB123656023550966719 (“The attorney
general signaled recently that states will be able to set their own medical-marijuana laws, which
President Barack Obama said during his campaign that he supported. What Mr. Obama said
then ‘is now American policy,’ Mr. Holder said.”).
41. U.S. DEP’T OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, MEMORANDUM
FOR SELECTED UNITED STATES ATTORNEYS: INVESTIGATIONS AND PROSECUTIONS IN
STATES AUTHORIZING THE MEDICAL USE OF MARIJUANA 1–2 (2009) [hereinafter
Ogden Memo].
42. Id. at 2 (“Of course, no State can authorize violations of federal law, and the list of factors
above is not intended to describe exhaustively when a federal prosecution may be warranted.
Accordingly, in prosecutions under the Controlled Substances Act, federal prosecutors are
not expected to charge, prove, or otherwise establish any state law violations. Indeed, this
memorandum does not alter in any way the Department’s authority to enforce federal law, including
laws prohibiting the manufacture, production, distribution, possession, or use of marijuana
on federal property. This guidance regarding resource allocation does not “legalize”
marijuana or provide a legal defense to a violation of federal law, nor is it intended to create
any privileges, benefits, or rights, substantive or procedural, enforceable by any individual,
party or witness in any administrative, civil, or criminal matter. Nor does clear and unambiguous