Medical Marijuana Raids: A Thing of the Past?

We’ve reminded you again and again that marijuana is still illegal on a federal level — just look at our disclaimer to the right. No matter how legal marijuana may be in your state, its illegality under federal law can cause problems.

Some changes may be underway, however, when it comes to how the federal marijuana prohibition is enforced. Many medical marijuana observers have gotten excited in recent weeks as the Rohrabacher-Farr Amendment looked primed to pass in the U.S. House of Representatives, and then did pass, 219-189. But what, you ask, is the Rohrabacher-Farr Amendment?

Since much of the media seems to have gotten the answer to this question wrong, let’s start by discussing what the Rohrabacher-Farr Amendment is not.

First, the Huffington Post reports that the Amendment would “restrict the Drug Enforcement Administration from using funds to go after medical marijuana operations that are legal under state laws.” In the same article, the amendment is described as “an appropriations amendment … prohibiting the DEA from spending funds to arrest state-licensed medical marijuana patients and providers…” Next, U.S. News claims that the Amendment “seek[s] to ban the Department of Justice — which includes the Drug Enforcement Administration and federal prosecutors — from using funds to go after medical marijuana in places where it’s allowed by state law.” One of the Amendment’s co-sponsors, Congressman Sam Farr, says something similar on his own website, declaring that the Amendment would “…prevent the federal government from prosecuting medical marijuana patients or distributors who are in compliance with the laws of their state…” Drugpolicy.org manages to get it partly correct, asserting that the Amendment would serve to “protect people following their state medical marijuana [laws] [sic] from federal arrest and prosecution by prohibiting the Department of Justice and DEA from spending taxpayer money to block the implementation of state medical marijuana laws.”

Forbes, for one, actually gets it right, querying, “Would the Rohrabacher-Farr Amendment Actually Stop Medical Marijuana Raids?” Forbes’s Jacob Sullum seems to think the answer is no, and we tend to agree.

The Rohrabacher-Farr Amendment reads (in its entirety):

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.

As you can see, the Amendment says nothing about raids, arrests, crackdowns, or any of the myriad other evils so many commentators seem to believe the Amendment would fix. Rather, the Amendment weakly forbids expending federal funds to stop the implementation of state MMJ law. Sullum correctly points out that stopping implementation is a much different thing than stopping arrests or investigations:

…if the Drug Enforcement Administration (DEA) arrests a patient in Colorado for growing marijuana and the U.S. attorney prosecutes him, that does not, strictly speaking, ‘prevent’ that state from ‘implementing’ its law decriminalizing cultivation of cannabis for medical use. The DEA and the U.S. attorney are enforcing the federal ban on marijuana; they are not compelling Colorado to punish behavior its voters have decided to no longer treat as a crime.

Exactly.

As lawyers, we are frequently frustrated by poorly-drafted, ambiguous legislation. Such legislation eventually becomes codified as law, and it is our job to read and interpret it. Would we feel comfortable relying on the Amendment in providing an opinion to our clients that the DOJ or DEA has no funds to come after them if they follow state MMJ law? The answer is no. Members of the House (see the Forbes piece) believe the Amendment says that “if you are following state law … the feds just can’t come in and bust you and the doctors and bust the patient.” Who knows what the DOJ might believe the Amendment says and means.

Bottom line: if the House is truly serious about ending enforcement of the federal marijuana prohibition and in providing better cover for patients and medical cannabis businesses, it should say so, and not leave open questions about intent. The Senate’s version, not yet put to a vote, currently uses the same language as the Rohrabacher-Farr Amendment, but it could still undergo substantial changes in various committees. Fortunately, both bills in the House and Senate received bipartisan support. The Huffington Post reports that, “If both the Senate and House versions of the budget include the amendment, the final language of the budget bill is likely to include the ban when it emerges from a joint conference.”

Will that language be interpreted into understandable law that we can all live with? Or will the DOJ leave us in a state of ambiguity in which endless interpretations attempt to provide a resolution?