Arizona is rolling out its medical-marijuana system in an unexpected and needless legal haze.
If you run a state-approved dispensary for medical marijuana, federal prosecutors might leave you alone.
Or they might not.
Your investment might be safe from federal forfeiture laws. Or it might not.
The U.S. Justice Department has created a cloud of confusion for the 16 states that have authorized the use of marijuana for certain conditions, including glaucoma and the side effects of cancer treatment.
In 2009, the Obama administration said it would not go after users or providers of medical marijuana in states that had legalized it - so long as they complied with state law. If the "medical" operation was a cover for drug trafficking, the feds would jump in.
The policy seemed unambiguous when Arizona voters approved medical marijuana last November.
Now it's not.
Dennis Burke, U.S. attorney for Arizona, sent a letter on May 2 to the director of the state Department of Health Services, warning that his office would "continue to vigorously prosecute individuals and organizations that participate in unlawful manufacturing, distribution and marketing activity involving marijuana, even if such activities are permitted under state law."
He cautioned that property owners, landlords and financiers could be liable.
Burke's not alone. Federal prosecutors in at least six other states - Colorado, Maine, Montana, Rhode Island, Vermont and Washington - have written letters raising similar warning flags.
They want to make it clear that state law is no safe haven: Drug dealers shouldn't expect to cite "medicinal purposes" as a defense for breaking federal laws that make marijuana a controlled substance.
That, however, is no barrier to returning to the 2009 policy. The administration should reaffirm it: Individuals and entities that use or distribute marijuana in full compliance with state laws should not be targeted by federal law enforcement.
As more and more states approve pot as a treatment for certain conditions, we need to look at clearing up the uncomfortable contradiction with federal drug laws.
And there's a sensible route that's worth careful consideration.
Marijuana is classified as a Schedule 1 drug, illegal for any use. Yet harder drugs such as cocaine are Schedule 2, allowing their medical use.
The Drug Enforcement Agency can change the classification of marijuana after going through a process that includes scientific and medical evaluations, or Congress can do it outright.
Pot would then join the many other drugs that are legal when properly prescribed and illegal when peddled for abuse. Federal prosecutors would still be able to go after the Mexican cartels that deal in marijuana and violence.
And states could concentrate on making the term "medical" legally meaningful.
The Arizona Republic
May. 21, 2011