Opinion: The Convoluted History of Policing Pot

September 20, 2013

(Article as it appeared in this week’s edition of Connecticut Law Tribune. Visit www.ctlawtribune.com)

In the last four years, the Justice Department has issued multiple seemingly contradictory directives regarding its marijuana enforcement policies. These changing legal guidelines have been issued despite the fact that the possession, use, cultivation and distribution of marijuana continues to be a federal crime under the Controlled Substances Act (CSA). For better or worse, Congress has determined that marijuana is a drug with a high potential for abuse and with no legitimate medical benefit. Despite state efforts to legalize the medical use of marijuana, the United States Supreme Court ruled in Gonzales. V. Raich that individuals who possess, cultivate or consume marijuana, even if in conformance with a state’s medical marijuana law, can still be prosecuted under the CSA. In other words, compliance with a state medical marijuana law is not a defense to federal criminal prosecution.

Initially, state medical marijuana laws simply decriminalized, for the purposes of state law, the possession, cultivation and use of small amounts of marijuana for certain recognized medical conditions. Pursuant to such decriminalization laws, “qualified” medical marijuana users were “immune” from state criminal prosecution, but, as made clear by the Gonzales opinion, offenders could still be subject to federal prosecution. In the face of such laws, the Justice Department issued its first guidance regarding federal prosecutions in states with medical marijuana laws in 2009. The so called “Ogden Memo” indicated that the prosecution of “individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or [their] caregivers” would not be a federal priority. However the memo stated that “prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department.”

Many in the marijuana legalization movement read the Ogden memo as a green light for further reform. At the same time, cash strapped states saw the legalization and regulation of medical marijuana as an opportunity to raise revenue through licensing fees, sales taxes, property taxes and other means. As a result, more sophisticated medical marijuana laws with complex regulations whereby the state would affirmatively license and oversee the production, distribution and sale of marijuana were adopted in a number of states. Under these laws, large scale commercial marijuana production and distribution enterprises were developed with the official authorization of state governments.

Faced with state laws that went far beyond simply decriminalizing the personal possession and use of small amounts of marijuana by seriously ill individuals, the Justice Department issued revised enforcement guidelines in 2011 to make their position very clear. These guidelines stated the federal government would exercise its authority under the CSA to prosecute those who engaged in the large scale production or distribution of marijuana regardless of any state law purporting to authorize such activity:

“[W]ithin the past 12 months, several jurisdictions have considered or enacted legislation to authorize multiple large-scale, privately-operated industrial marijuana cultivation centers. Some of these planned facilities have revenue projections of millions of dollars based on the planned cultivation of tens of thousands of cannabis plants. … The Ogden Memorandum was never intended to shield such activities from federal enforcement action and prosecution, even where those activities purport to comply with state law. Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law. .. Those who engage in transactions involving the proceeds of such activity may also be in violation of federal money laundering statutes and other federal financial laws.”

Following the 2011 DOJ memo, the US Attorneys in at least 10 states, including Connecticut, issued advisory letters warning that state “licensing schemes” that purported to authorize the commercial cultivation and distribution of marijuana were contrary to federal law. These letters emphasized that not only the state licensed growers and distributors themselves, but also any individuals or entities who knowingly facilitated such conduct may be subject to federal prosecution, including property owners, commercial landlords, and financial institutions. A number of the letters even specifically warned that state employees might be subject to prosecution if their actions “facilitate” violations of the CSA.

These warnings were quickly followed by increased enforcement action against state authorized medical marijuana growers and distributors in a number of states. In addition, property owners who leased land or buildings to such businesses were warned that “facilitating” such activity could result in criminal prosecution and civil penalties including the forfeiture of property and assets. Banks and other financial institutions were also advised to avoid loaning money to or processing transactions on behalf of medical marijuana businesses or risk prosecution. As a result, medical marijuana became a cash only business in a number of states making the businesses, neighborhoods and employees targets for crime. This federal crackdown continued even through last month when the DEA warned armored car companies not to engage in business with state licensed medical marijuana providers.

Courts have also struggled with the inevitable legal challenges brought against medical marijuana licensing programs. While courts have easily ruled that states are free to decriminalize certain marijuana use under state law and choose not to prosecute, they have struggled with the idea that a state may affirmatively authorize and profit from an activity that continues to violate federal law. At least two state courts have ruled that such state “authorization” is preempted by federal law. In Emerald Steel Fabricators v. Bureau of Labor and Industries, 348 Or. 159, 230 P.3d 518 (2010), the Supreme Court of Oregon ruled that while the state could decriminalize and choose not to prosecute certain marijuana use, those sections of the state’s medical marijuana act that purported to “authorize” individuals to engage in marijuana use were preempted by the CSA. Similarly, in Pack v. Superior Court, 132 Cal.Rptr.3d 633 (2012), the California Court of Appeals ruled that a licensing program which would authorize certain marijuana collectives to operate, collect substantial licensing fees and involve public employees in significant oversight and regulation was contrary to federal law and preempted by the CSA. The logical extension of the Pack case is that any effort by a state to establish a complex regulatory scheme would result in that law being unconstitutional as a result of preemption.

It was against this back drop of increased federal criminal prosecution and troublesome legal precedent that I cast my vote against the complex and highly regulatory scheme established by the medical marijuana regulations proposed for Connecticut. As an elected representative, I was concerned that the comprehensive state licensing program authorized in the regulations could expose many Connecticut residents, businesses and even state employees to possible federal criminal prosecution. Absent assurance that such prosecution would not occur, I could not support the regulations as drafted.

Little did I know that just two days after the vote, the DOJ would publically sanction the exact “licensing scheme” that U.S Attorneys across the country and here in Connecticut had previously declared contrary to federal law . On August 29, 2013 the DOJ issued yet another revised guidance memorandum regarding marijuana enforcement, which appears to be a total retreat from its previous position. This memo indicates that even large commercial medical marijuana operations will not be the target of federal prosecution if they are “operating in compliance with a strong and effective state regulatory system.” Ostensibly, other individuals and businesses that use the services of such marijuana operations or engage in business with them will also be free from the threat of prosecution.

Had I been in receipt of this revised guidance from the federal government, I may have voted in favor of the regulations. More important than my individual vote, however, I believe this convoluted history highlights the danger of using prosecutorial discretion and administrative fiat to pick and choose which laws will be enforced and against whom. Apparently, individuals and businesses that were arrested, prosecuted, perhaps even jailed, or otherwise legally threatened and intimidated by the federal government over the last few years would not be today. Yet, federal law remains unchanged. Our system of government is founded on the concept of separation of powers. Congress adopts the laws and the executive branch implements and enforces them. I am offended by the notion the executive branch (DOJ) is acting in a legislative capacity in unilaterally determining which laws have the moral support of the public and which do not. If the administration believes that medical marijuana is good policy, the more honest and constitutionally appropriate approach would be for the President to call on Congress, as the elected representatives of the people, to change the law. Our country is based upon the rule of law, and a stable social foundation must be rooted in a legal system which respects that laws must be enforced, unless amended, irrespective of evolving social acceptance.