Regular correspondent B. J. writes an email in response to this post, in which I write that the feds “ought to de-emphasize medical-marijuana prosecutions across-the-board, not just in states that have legalized the practice.” From his letter:
States that have legalized the use of medicinal marijuana haven’t just created an exception to the ordinary prohibition; rather, they’ve created a mechanism (licensing, prescriptions, recordkeeping, etc.) to make sure, affirmatively, that marijuana, if it’s used, is done for medical reasons. (Some have done it better and some worse, but the point is that they’ve done something that the Feds can monitor.)
So there is – if the state is doing its job – a way for its government to “control” the use of medicinal marijuana. That allows the Feds to readily carve out this exception to its enforcement efforts – letting the states govern that piece of the pie, if you will. But if you’re in a state that has no medical marijuana exception, there’s nothing there – there’s no licensing, recordkeeping, etc. That is, all you have is the claim of a defendant that he’s using marijuana for medical purposes, and you don’t get that claim until after you’ve already started your enforcement effort.