The Limits of Pledging Prosecutorial Discretion: The Ogden Memorandum's Failure to Create an Entrapment by Estoppel Defense

Abstract

On October 19, 2009, Deputy Attorney General David Ogden issued a memorandum (the "Ogden Memorandum"), that gave U.S. Attorneys "guidance and clarification" on how to enforce the Controlled Substances Act in states where medical marijuana had been legalized." The path-breaking memorandum said that with the Department of Justice's desire to "mak[e] efficient and rational use of its limited investigative and prosecutorial resources," prosecutors were to "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." The memorandum directed prosecutors to shift resources towards other, higher-priority prosecutions. While the memorandum did not make medical marijuana legal under federal law, it opened up a conversation about the degree to which the Obama administration would refrain from prosecuting cases involving medical marijuana.