New Medical Pot Mystery

President Obama indicated during his campaign that he disfavored the prosecution of medical pot usage and distribution. He also said he would not use his office to "circumvent" state law on the issue. After he became president, however, the DEA raided medical pot dispensaries in California, which led to political protests.

Recently, Attorney General Eric Holder caused a major buzz among medical pot advocates when he announced that Obama's campaign promise had already become policy. According to the L.A. Times, two days after Holder's comment, the United States Attorney for the Central District of California (which includes Los Angeles) directed prosecutors not to pursue any more criminal charges against medical pot dispensaries. A few days later he abruptly ordered prosecutors to resume business as usual:

The U.S. attorney in Los Angeles sent a confidential memo to prosecutors last week ordering them to stop filing charges against medical marijuana dispensaries, then abruptly lifted the ban on Friday, according to sources familiar with the developments.

U.S. Atty. Thomas P. O'Brien declined comment on what prompted him to issue the directive or to later rescind it.

O'Brien's decision to temporarily halt the prosecutions came two days after remarks by Atty. Gen. Eric Holder, who seemed to imply at a Washington, D.C., press conference that medical marijuana prosecutions would not be a priority for the Justice Department under President Obama.

A Justice Department official said Friday that the attorney general did not direct O'Brien or any other U.S. attorney to alter policies regarding the prosecution of such cases.

My Take
I have always assumed that if Obama moved on this matter, he would do so in a subtle fashion. The original memorandum from the United States Attorney, however, was very open and explicit -- even though it was "confidential" (so confidential that the L.A. Times presumably has a copy of it).

A formal policy of nonenforcement will excite proponents of decriminalization. But an explicit policy would also generate vocal criticism from "law and order" types who fear liberalization of drug laws and who do not agree with a president declining to enforce an entire category of federal criminal law.

Furthermore, the threat of prosecution of medical pot users and distributors could serve as tool for enforcing other crimes -- in particular, nonmedical usage of pot. For that reason, many prosecutors probably do not want an explicit policy of nonenforcement, which would constrain their options unless it included exceptions for certain circumstances. I do not know if this analysis explains the mystery behind the conflicting memoranda, but it seems plausible.