Federal Pot Rules Will Not Change Without Legislation

Insiders do not believe the Justice Department’s updated policy will help business.

A medical marijuana patient protests against alleged state government security breaches in Denver. A congressional hearing today will address the state laws legalizing medicinal and medical marijuana use that clash with the federal government's schedule of illicit drugs.

A medical marijuana patient protests against alleged state government security breaches in Denver. A congressional hearing today will address the state laws legalizing medicinal and medical marijuana use that clash with the federal government's schedule of illicit drugs.

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When Deputy Attorney General James Cole issued a memo at the end of August informing U.S. attorneys of the Justice Department's more-lenient marijuana enforcement policies, many saw it as a sign the agency had turned a new leaf.

But Steph Sherer, executive director of Americans for Safe Access, believes that unless Congress can enact legislation that sets the Justice Department's guidance in stone, prosecutors will continue to charge medical marijuana dispensary owners, users and caregivers with federal crimes.

"When it comes to the Department of Justice setting policies, what we found is that U.S. attorneys are going to interpret that however they want to," says Sherer. "So ultimately, what we're going to have to do is change federal law."

A congressional hearing aimed at addressing state laws that legalized medical and recreational marijuana - at odds with the drug's placement on the federal schedule of illicit substances - is scheduled for Tuesday afternoon.

[READ: Congress to Hold Hearing on Country's Clashing Marijuana Laws]

"It's not law. It's guidance. It's nothing that's set in stone," says Vanessa West, general manager of Washington D.C. dispensary Metropolitan Wellness Center.

For West, who worked in San Diego dispensaries for years, the Justice Department's memo is more lip service than a reaffirming nod to medical marijuana.

"The one glaring thing that I notice is that it still says marijuana is illegal federally; that's the underlying fact and that has not changed," she says. "This can still change at any time…I just don't think anyone is taking it seriously."

The general sentiment by the feds is the more marijuana distribution is regulated, the better.

Cole's Aug. 29 memo outlined its top priorities for prosecuting on marijuana, including distribution to minors, revenue funding criminal organizations and the use of violence or firearms.

But this is not the first time the Justice Department has instructed U.S. attorneys to take it easy on states with marijuana laws. In an October 2009 memo, then-Deputy Attorney General David Ogden stated that prosecuting law-abiding individuals using marijuana as part of a physician-recommended treatment regimen for serious illnesses "is unlikely to be an efficient use of limited federal resources."

The memo also featured several similar criteria for prosecution as Cole's August release, including the sale to minors, ties to criminal organizations and the use of violence or firearms. In response to the Justice Department's instructions, states such as California and Colorado saw a "green rush" in marijuana production from individuals looking to start medical marijuana businesses. However, the guidelines did not stop prosecutors from asserting that state employees would be in danger of prosecution if they were to allow medical marijuana distribution.

In April 2011, after Washington state passed legislation allowing state employees to license marijuana growers and sellers, then-Gov. Christine Gregoire wrote a letter to the Justice Department asking for advice on how to implement the new law. The agency's response said prosecuting individuals involved in the trade of any illegal drug remained a "core priority."

"I think that if I was in California right now managing a dispensary and this memo came out, I would not feel any safer," says West.

[READ: Pot Community Still Needs Congress to Build Its Business]

According to a June report from the National Organization for the Reform of Marijuana Laws, more than 335 defendants have been charged with federal crimes related medical marijuana in states where medical marijuana is legal since President Barack Obama's inauguration in January 2009.

Prosecutors are closely catching up to the 163 medical marijuana cases brought forth under President George W. Bush, bringing in 153 since Obama's first term despite the number of states allowing medical marijuana laws having nearly doubled.

"What I'm hoping we'll see…is the Senate oversight committee gets a clear answer from the Department of Justice on whether or not they're going to continue to use resources to stop states from passing these laws," says Sherer.