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States reassess marijuana laws after fed warnings

  1. Terrapinzflyer
    Several states have started reassessing their medical marijuana laws after stern warnings from the federal government that everyone from licensed growers to regulators could be subjected to prosecution.

    The ominous-sounding letters from U.S. attorneys in recent weeks have directly injected the federal government back into a debate that has for years been progressing at the state level. Warnings in Washington state led Gov. Chris Gregoire to veto a proposal that would have created licensed marijuana dispensaries.

    Gregoire, the chair of the National Governors Association, now says she wants to work with other states to push for changes to federal marijuana laws to resolve the legal disputes caused by what she described as prosecutors reinterpreting their own policies.

    "The landscape is changing out there. They are suggesting they are not going to stand down," Gregoire said.

    The Department of Justice said two years ago that it would be an inefficient use of funds to target people who are in clear compliance with state law. But U.S. attorneys have said in their recent memos that they would consider civil or criminal penalties for those who run large-scale operations — even if they are acceptable under state law.

    In a letter to Gregoire, Washington state's two U.S. attorneys warned that even state employees could be subject to prosecution for their role in marijuana regulation. The letter does not specify how that would happen, but the implication is that state workers who are involved in approving and regulating the sale of an illegal drug are committing a crime.

    No state workers have been charged federally for regulating medical marijuana laws, and legal experts say such a move would be extraordinary — if not unprecedented in recent history. Gregoire said she didn't want to take the chance, arguing that it would be irresponsible for her to leave her workers vulnerable.

    Letters with various cautions have also gone to officials in California, Colorado, Montana and Rhode Island. Federal authorities recently conducted a series of raids at grow operations in Montana, helping push lawmakers to put stricter limits on the industry. Federal raids also targeted at least two dispensaries in Spokane on Thursday, a day before Gregoire decided to veto the proposed law.

    More than a dozen states have approved the medical use of marijuana, which is not legal under federal law. About half of those states regulate medical marijuana dispensaries.

    The impact of the U.S. attorneys' letters is growing. New Jersey is in the process of preparing to implement its new medical marijuana law, but Gov. Chris Christie's administration doesn't want to get operations fully up and running until it can get some clarity about the legal warnings issued in other states and how they might affect New Jersey workers and marijuana operators.

    "Those letters raised serious questions about legal jeopardy," said Christie spokesman Michael Drewniak. The state's attorney general has officially asked U.S. Attorney General Eric Holder for guidance.

    Gregoire said she is interested in working with other governors to push for a change in federal law to reclassify medical marijuana as a Schedule 2 substance, putting it on par with addictive but accepted drugs such as morphine or oxycodone.

    Justice Department officials said in 2009 that, as a general rule, prosecutors should not focus federal resources "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." A memo on the subject did leave open the possibility of federal prosecution even when people comply with state law, but Holder indicated that would not be policy.

    "The policy is to go after those people who violate both federal and state law," Holder told reporters at the time.

    The latest memos carry a more direct warning: "We maintain the authority to enforce (federal law) vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law."

    Justice Department spokeswoman Tracy Schmaler said in a statement that prosecutors aren't going to look the other way while significant drug-trafficking organizations try and shield their illegal efforts through the pretense that they are medical dispensaries.

    "We will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," she said.

    The federal comments have angered supporters of medical marijuana, who had believed that the Obama administration was honoring state laws. Ezra Eickmeyer, political director for the Washington Cannabis Association, said it appears prosecutors are operating under a more aggressive policy.

    "Coming in and trying to strong-arm legislatures is way over the top," Eickmeyer said. "We would have expected this sort of thing form the Bush administration, but not Obama."

    Associated Press
    May 03, 2011



  1. Terrapinzflyer
    New Federal Crackdown Confounds States That Allow Medical Marijuana

    Marijuana remains illegal under federal law, but that has not stopped a fuzzy industry of marijuana farms and dispensaries from rising to serve the 15 states that allow the drug to be used for medical purposes. Under President Obama, the federal government had seemed to make a point of paying little attention — until now.

    As some states seek to increase regulation but also further protect and institutionalize medical marijuana, federal prosecutors are suddenly asserting themselves, authorizing raids and sending strongly worded letters that have cast new uncertainty on an issue that has long brimmed with tension between federal and state law.

    How can a drug that federal drug law says is criminal be considered medicine under state law?

    “It’s weird,” said Kevin Griffin, co-founder of West Coast Wellness, a medical marijuana dispensary that opened here in February. “We’re not a pharmacy. We spent a lot of time gathering information, and this is what we came up with as the most responsible, legal way.”

    Posters featuring Pink Floyd and Tupac Shakur lined the white walls of the office, in the back of a bland building just inside Seattle’s northern boundary. Glass pipes decorated a shelf. And then there was the medicine, available by “donation only,” which included less expensive “medibles” like lollipops and “pot” pies and the traditional smoked dosages at about $280 an ounce. Questions? Just ask the “budtender” — while you still can.

    “I’m worried,” Mr. Griffin said. “We might lose something we put a lot of money into.”

    West Coast Wellness, one of scores of new dispensaries in the state, opened just as Washington appeared ready to approve one of the nation’s most expansive medical marijuana policies, broadening its original 1998 law to include licensing growers and dispensaries. The Legislature passed the measure last month. Yet while Gov. Christine Gregoire had initially expressed support, she instead vetoed most of the bill, specifically citing new concerns about federal opposition.

    “The landscape has changed,” said the governor, a Democrat.

    Letters so far have gone out to governors in Arizona, Colorado, Montana, Rhode Island, Vermont and Washington, prompting some states — including Rhode Island and Montana, in addition to Washington — to revise or back away from plans to make the medical marijuana industry more mainstream.

    In Washington, Ms. Gregoire asked for guidance from the state’s two United States attorneys, Mike Ormsby and Jenny Durkan. In a reply to the governor last month, they said the federal government would prosecute “vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”

    The changes have angered supporters of medical marijuana, who say the federal government is sending mixed signals, even as they argue that it has not technically changed its position.

    “How they’re obviously coming across is saber rattling,” said Alison Holcomb, director of drug policy for the American Civil Liberties Union of Washington. “If there has been a shift, then somebody needs to own up to that. We have a very clear memo from 2009.”

    In October 2009, the Justice Department said in a memorandum drafted by David W. Ogden, then the deputy attorney general, that it would not focus on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

    The memo did not allow farms and dispensaries or the buying and selling of marijuana. In many states that allow medical marijuana, state law does not specify that dispensaries are also legal. The Washington State Department of Health’s Web site specifically says that dispensaries are illegal, as is buying and selling marijuana. It says that people who qualify for medical marijuana are allowed to grow their own.

    Yet with some states and even the federal government appearing to look the other way, farming collectives and dispensaries flourished. And law enforcement officials at various levels took notice. In Spokane, Wash., federal agents recently conducted searches of seven dispensaries, though no one was arrested.

    “There didn’t seem to be a recognition that the use and sale of marijuana is against federal law,” said Mr. Ormsby, the United States attorney for the Eastern District of Washington.

    When the Legislature was drafting the bill it passed in its most recent regular session, Mr. Ormsby said, “No one consulted with me about what I thought of what they were going to do and did I think it ran afoul of federal law.”

    Of the state’s current medical marijuana law, he added, “We believe, of course, under federal law no part of the state law is legal.”

    Mr. Ormsby and other prosecutors say they agree that the federal position has not changed, and they say they have been given no new directive from the Justice Department (Mr. Ormsby’s and Ms. Durkan’s letter to Ms. Gregoire said they had “consulted with the attorney general,” Eric H. Holder Jr.).

    A spokeswoman for the Justice Department, Jessica Smith, said: “This is not a change in policy. It’s a reiteration of the guidance that was handed down in 2009 by the deputy attorney general.”

    Ms. Smith noted that the 2009 memo “says definitively that distribution continues to be a federal offense.”

    Some federal prosecutors say states have simply let medical marijuana get out of hand. Many supporters of medical marijuana agree.

    “Seeing storefront dispensaries advertise with neon pot leaves is inconsistent with the idea most people have of medical marijuana,” said Ms. Holcomb, of the A.C.L.U. “But until you let states regulate these dispensaries, you have no way to control that.”

    Some people on each side say the issue could quickly be solved if the federal government reclassified marijuana from a Schedule 1 drug, a category that includes heroin, to a Schedule 2 drug, which includes medicines that can be prescribed.

    “I think the onus is on the federal government,” said State Senator Jeanne Kohl-Welles, a Democrat from Seattle who sponsored the bill that Ms. Gregoire vetoed. “Whether the Obama administration is signaling that it’s going to be more aggressive or back off from what’s in that Ogden memo, I don’t know.”

    Noting that Ms. Gregoire cited concerns that state employees could face legal action for licensing growers and dispensaries, and that prosecutors had insisted that state employees “would not be immune” from prosecution, Ms. Kohl-Welles said: “I keep trying to visualize federal agents going into a state building, the Department of Health, and hauling people off.”

    She continued, “I can’t conceptualize that.”

    This article has been revised to reflect the following correction:

    Correction: May 8, 2011

    An earlier version of this article erroneously classified cocaine as a Schedule 1 drug.

    Published: May 7, 2011

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