As I
noted last week, the same end-of-the-year omnibus
spending bill that includes a rider aimed at preventing
marijuana legalization in Washington, D.C., also includes a rider
aimed at preventing the Justice Department from interfering with
laws allowing medical use of cannabis. But as with the
anti-pot rider, it’s not clear that the medical marijuana
provision will achieve what its backers hope. Here is the language
of the latter rider, which was introduced by Rep. Dana Rohrabacher
(R-Calif.) and approved by the House last May:
None of the funds made available in this Act to the Department
of Justice may be used, with respect to the States of Alabama,
Alaska, Arizona, California, Colorado, Connecticut, Delaware,
District of Columbia, Florida, Hawaii, Illinois, Iowa, Kentucky,
Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico,
Oregon, Rhode Island, South Carolina, Tennessee, Utah, Vermont,
Washington, and Wisconsin, to prevent such States from implementing
their own State laws that authorize the use, distribution,
possession, or cultivation of medical marijuana.
The Drug Policy Alliance
describes this provision, versions of which Rohrabacher has
been championing since 2003, as “language prohibiting the U.S.
Justice Department from spending any money to undermine
state medical marijuana laws.” Similarly, the Marijuana
Policy Project
says Rohrabacher’s amendment “prohibit[s] the U.S. Justice
Department—which includes the DEA—from interfering with state-level
medical marijuana laws.” But actions that could be described as
undermining or interfering with medical marijuana laws do not
necessarily “prevent” states from “implementing” those laws, which
is the actual language used in the bill.
Consider the case of the
Kettle Falls Five, medical marijuana users in Washington who
were indicted for
various federal drug crimes even though their garden seemed to
comply with state law. This case already appears to contradict
Justice Department policy, which says prosecution of such
individuals is probably not a good use of DOJ resources unless
their actions implicate federal law enforcement priorities. Perhaps
Michael Ormsby, the U.S. attorney who brought the case, plans to
argue that it does involve one or more of those priorities. He also
may claim that Larry Harvey and the four other defendants were not
really complying with state law. But even if he makes neither of
those claims, threatening the Kettle Falls Five with prison terms
ranging from 10 years to life does not, strictly speaking, prevent
Washington from implementing its medical marijuana law, which
carves out exceptions to the state ban on cannabis.
If Ormsby had tried to force the state to prosecute Harvey et
al., that would clearly run afoul of the Rohrabacher amendment (as
well as the Constitution). But continuing to enforce the federal
ban on marijuana in states that allow medical or recreational use
of the drug, while it may undermine the goals of those laws, does
not not render them ineffectual. No matter what federal prosecutors
or drug agents do, residents of those states no longer face state
penalties for specified marijuana-related activities (which in
practice means their risk of legal trouble has been dramatically
reduced). In that sense these states have not been stopped from
implementing their laws.
The impact of the Rohrabacher amendment is even more doubtful
when it comes to medical marijuana dispensaries in states that do
not explicitly allow them. Those states include California, where
dispensaries operate as patient cooperatives, as well as
Washington, where dispensaries take legal refuge under a provision
allowing patients to establish “collective gardens.” In other
states, dispensaries are run by groups of “caregivers,” each
supplying several patients. Opinions about the legality of such
arrangements vary, so a federal prosecutor can always argue that a
given grower or seller was not in fact complying with state
law.
However the language of the Rohrabacher amendment is
interpreted, the intent of its backers is pretty clear. Here is how
Rep. Sam Farr (D-Calif.), who co-sponsored the amendment with
Rohrabacher, put it in a
floor speech last May:
This is essentially saying, look, if you are following state
law, you are a legal resident doing your business under state law,
the feds just can’t come in and bust you and bust the doctors and
bust the patient. It is more than half the states. So you don’t
have to have any opinion about the value of marijuana. This doesn’t
change any laws. This doesn’t affect one law, just lists the states
that have already legalized it only for medical purposes, only
medical purposes, and says, “Federal government, in those states,
in those places, you can’t bust people.”
The week after the House approved the amendment, I
asked Farr whether the language is as clear as he implied, and
he seemed to acknowledge that it leaves some wiggle room for the
Justice Department. “This isn’t a finely
written policy yet,” he said. “This is a statement of
congressional intent that [the] DEA [should] back off on these
issues. We will have to continue to reconcile federal policy with
state policy.” Still, he said, “this had strong, bipartisan
support,” and “the language, I think, is very simple and very
clear, and that makes it a lot easier to implement. We’ll always
have oversight as to implementation.” Bill Piper, director of
national affairs at the Drug Policy Alliance, added that
“legislative intent matters,” and “I think intent was very clear
from the excellent floor speeches.”
I hope Farr and Piper are right. An early indication may be what
happens with the Kettle Falls Five. The trial, which has been
rescheduled repeatedly, is currently
supposed to start on February 23. The case is even more
anomalous now that recreational growers and retailers are openly
operating in the very city where the trial is to be held, licensed
by the state and tolerated by the feds. If Ormsby drops the case or
(more likely) agrees to a deal that lets the defendants escape
prison, that could be a sign he has heeded congressional concerns
about federal meddling.
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