Medical Marijuana: There Is No Get Out Of Jail Free Card

Illinois Medical MarijuanaInspired by a recent article authored by renowned anti-drug war columnist, Jacob Sullum, we too want to provide our perspective on whether the Feds are “Defying Congress by [Still] Pursuing Medical Marijuana Cases” despite a spending bill dictating that the Department of Justice take the opposite tack.

Congress passes annual appropriations (spending) bills to fund the federal government, including the activities of all agencies in the executive branch of government. In 2014, buried in Section 538 of the appropriations bill, Congress included this provision:

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, [every other medical marijuana state], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

At first glance, one would think this directs the Drug Enforcement Administration (an arm of the DOJ) and the DOJ as a whole to cease using federal funds to make raids or arrests or even to mount criminal cases involving medical marijuana. Unfortunately, the federal government’s recent actions indicate that the DOJ reads this provision quite differently.

The language of this spending bill addresses only federal interference with states’ implementation of their own marijuana laws. For example, if Texas opts to pass medical marijuana legislation, the spending bill should stop the DOJ from using federal funding to file a lawsuit in federal court seeking to render Texas’s new marijuana laws a nullity. This seems like a no brainer. But the spending bill is silent about avoiding enforcement of federal drug laws against those who abide by state marijuana laws in states with MMJ laws. More importantly, the spending bill does nothing to change the consequences of violating the federal Controlled Substances Act, which Act applies to marijuana.

Cue the Kettle Falls Five case.

In that case, the federal government is seeking convictions and 10-year mandatory prison terms against five members of an Eastern Washington medical marijuana cooperative. The Feds allege that “drug agents seized 75 marijuana plants, guns and business records from a rural property near the town of Kettle Falls in August 2012,” and that the cooperative was actually running as a “for-profit” illegal enterprise in violation of state medical marijuana laws. Last week, defense attorneys for the Five argued for dismissing the case on the grounds that the federal spending bill prevents the DOJ from moving forward with the case because Washington State maintains medical marijuana laws and the Five were in compliance with those laws.

District Court Judge Thomas O. Rice disagreed, ruling that the federal spending bill does not apply in the case. Judge Rice also ruled that the federal government was able to supply the court with enough evidence showing that the Five were out of compliance with even Washington state medical marijuana laws because they possessed more than the requisite 72 ounces allotted to a single collective garden and because they were selling cannabis to non-cooperative members.

Beyond the sad fact that the feds are pursuing a relatively small medical marijuana operation, it is also disappointing to have a federal court essentially give the DOJ continued carte blanche to spend taxpayer dollars pursuing these sorts of cases, spending bill or no spending bill. It seems that the law now is that application of the federal spending bill hinges on whether marijuana criminal defendants are in full technical compliance with their state’s medical marijuana laws. What if the Kettle Falls Five had been paradigms of compliance? Would they then have been able to claim the protections of the spending bill? Would it have made any difference in Judge Rice’s ruling? What if their only transgression had been possessing one ounce more than allowed by the state? Would that have been the determining factor in ruling that the spending bill applies? Could something that insignificant be the deciding factor between acquittal and ten years in the federal penitentiary? We do not know.

Though we can envision a federal judge ruling that enforcement of federal drug laws does not directly “interfere” with a state’s ability to “implement” its own medical marijuana laws, we think such a ruling would be silly. If federal law enforcement is going to pick off and imprison people within a state that are complying with the state’s medical marijuana laws, those medical marijuana laws will be undermined. If a state passes medical marijuana legislation only to have both its good and bad actors prosecuted by the federal government, why bother passing such state laws in the first place? The chilling effect of such federal activity will stymie a state’s ability to enact its existing MMJ laws and will likely discourage other states from even considering the passage of such laws.

Though some members of Congress have said that federal prosecution of state-law abiding marijuana businesses violates the federal spending bill, we are fairly certain that the DOJ has no intention of slowing down. Until marijuana is re-scheduled or decriminalized under federal law, the federal spending bill should hardly be considered a”get out of jail” free card.