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Medical Marijuana Patients Need Protection NOT Policy Rhetoric. Will Congress Step Up?

The principles of good faith, fair play and common decency dictate that based on these facts, DOJ owes the state of Washington, and other similarly affected states like California, Montana, and Michigan, a period of time to bring state laws in compliance with the second Cole Memo.
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Last Thursday, Deputy Attorney General James Cole issued a long-awaited memo laying out the U.S. Department of Justice (DOJ) policy on state marijuana laws. At my office at Americans for Safe Access, we were all experiencing a kind of déjà-vu as the emails started flooding in. However, our excitement began to diminish as we read through the details.


As a medical cannabis advocate, I started 2009 with Obama's "Hope" in my veins. The Obama's administration made supportive statements from the beginning, including that the President was "not going to be using Justice Department resources to try to circumvent state laws." And in October 2009, medical cannabis advocates got the policy document we had been waiting for, with a memo issued to U.S. Attorneys by then-Deputy Attorney General David Ogden:

"As a general matter, pursuit of these priorities should 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."

With this legal guidance, advocates, community members, and officials spent thousands of hours drafting compassionate legislation and strict regulations in at least eleven states. But when legislators and other state and local officials came close to passing or implementing these laws, they received threatening letters from U.S. attorneys.

The impact of threats made by U.S. Attorneys against public officials was the suspension or derailment of medical marijuana laws in the States of Arizona, California, Delaware, Hawaii, Montana, Rhode Island, and Washington followed by an intense campaign of raids, threats to landlords, and asset forfeiture lawsuits.

Instead of reigning in his U.S. Attorneys, the Obama Administration instead released the first Cole Memo, issued in 2011 by Deputy Attorney General Cole, laying out an ostensibly new interpretation of the Obama Administration's policy. This launched an attack on the medical cannabis community unprecedented in its scope, undermining state laws and coercing local lawmakers.

Despite the lack of a strong statewide dispensary regulatory system in California, many municipalities took steps to implement strong local regulations. In response to their proactive efforts to protect patients and best serve the community, U.S. Attorneys have gone out of their way to stop regulations from moving forward

On August 15, 2011, the Eureka City Council received a letter from Melinda Haag, the U.S. Attorney for the Northern District of California, threatening that its regulation of medical marijuana dispensaries violated federal law. Specifically, the letter said:

"If the City of Eureka were to proceed, this office would consider injunctive actions, civil fines, criminal prosecution, and the forfeiture of any property used to facilitate a violation of [federal law]."

Because of these threats, the City of Eureka has suspended implementation of its local ordinance.

Not satisfied with intimidating local officials, the U.S. Attorneys from California soon announced a campaign to undermine the state's production and distribution system, using raids, criminal prosecutions and asset forfeiture against state compliant medical marijuana operations. As part of this ongoing campaign, U.S. Attorneys are threatening landlords of medical marijuana businesses with criminal and civil action if they do not evict their tenants. U.S. Attorneys in California have also begun forfeiture proceedings against a handful of property owners.

Fast Forward

Fast forward to Thursday, when the second Cole Memo was issued. Notably, this memo stated that a strong and effective regulatory system could avert the kind of federal interference happening in California.

"As explained above, however, both the existence of a strong and effective state regulatory system and an operation's compliance with such a system may allay the threat that an operation's size poses to federal enforcement interests."

However, what about efforts by the DOJ to derail local dispensary ordinances in California?

Shortly after reading the second Cole Memo, we received word from Washington State on how their U.S. Attorney was interpreting it. Seattle U.S. Attorney for Western Washington Jenny Durkan said in a statement Thursday that the Cole memo changed nothing about her so-far aggressive response to medical marijuana in her state:

"[C]ontinued operation and proliferation of unregulated, for-profit entities outside of the state's regulatory and licensing scheme is not tenable and violates both state and federal law."

At this point, I was fuming. In 2011, U.S. Attorney Durkan and her fellow U.S. Attorney for Eastern Washington, Michael Ormsby, issued the following threat letter to then-Governor Christine Gregoire shortly after the Washington legislature passed a comprehensive medical marijuana dispensary bill:

"The Washington legislative proposals will create a licensing scheme that permits large-scale marijuana cultivation and distribution. This would authorize conduct contrary to federal law and thus, would undermine the federal government's efforts to regulate possession, manufacturing, and trafficking of controlled substances. Accordingly, the Department could consider civil and criminal legal remedies regarding those who set up marijuana growing facilities and dispensaries as they will be doing so in violation of federal law. Others who knowingly facilitate the actions of the licensees, including property owners, landlords, and financiers should also know that their conduct violates federal law. In addition, state employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the [Controlled Substances Act] (my emphasis). Potential actions the Department could consider include injunctive actions to prevent cultivation and distribution of marijuana and other associated violations of the CSA; civil fines' criminal prosecution; and the forfeiture of any property used to facilitate a violation of the CSA."

The actions that the Department of Justice has taken towards the Washington State medical program since 2011 can only be described as cynical and calculating. In summary, Washington legislators took the proactive step in 2011 to pass a comprehensive medical marijuana dispensary program, but threats made by U.S. Attorneys caused the governor to veto the dispensary portions of the law...a law that would have put Washington in compliance with the guidelines set forth in the second Cole Memo. Now, U.S. Attorney Durkan has announced an apparent intention to shut down the Washington medical program. The federal government can't have it both ways

The principles of good faith, fair play and common decency dictate that based on these facts, DOJ owes the state of Washington, and other similarly affected states like California, Montana, and Michigan, a period of time to bring state laws in compliance with the second Cole Memo. The Obama Administration has now spent over $300 million (as detailed in ASA's What's the Cost report) cracking down on state medical marijuana programs as they have tried on a number of occasions to pass and implement laws that would create strongly regulated medical marijuana distribution systems that would be in compliance with the new DOJ guidelines.

Last week we were also reminded of a tragic example of how the DOJ has unfairly applied its enforcement efforts in medical marijuana states. A year ago Friday, Montana medical marijuana patient Richard Flor, who painstakingly complied with both the Ogden and Cole memos, died while serving a federal 5-year mandatory minimum sentence. His wife, Sherry Flor, and partner Chris Williams, who is also serving a 5-year mandatory minimum sentence are both still in federal prison today.

Instead of a crackdown, these states need a ceasefire. This is why Congress must pass an amendment to the DOJ's budget (Commerce, Justice, and Science appropriations bill) that would prohibit them from attacking medical marijuana states that are attempting to bring themselves in compliance with the second Cole Memo. This amendment would give these states a year for their legislatures to adopt strong statewide regulatory schemes for medical marijuana and is the focus of ASA's Peace for Patients Campaign. Considering that threats by DOJ against public officials make developing needed programs like the one in Washington nearly impossible, it is the only fair thing to do for patients whose needs will not be met by being forced into a state's illicit or recreational market.

Next week Senator Leahy will be holding an oversight hearing to address issues concerning the Justice Department. Unfortunately, Holder has a track record of deceiving Congress. If the second Cole Memo is truly aimed at helping patients, Congress must step in and grant states time to bring themselves into compliance without threats and intimidation by rogue U.S. Attorneys.

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