Although 37 percent of the U.S. population currently lives in a state where medical marijuana is legal, and there are more than a million Americans legally using medical marijuana, the federal government has continued to prosecute medical marijuana businesses and patients across the country.
On Monday, the medical marijuana advocacy group Americans for Safe Access released a report encouraging the federal government to allow states that have legalized marijuana to enforce their own laws, reasoning that in most states legalization legislation is already in compliance with federal guidelines.
The group also called for the federal government to establish a federal policy ending the prohibition of marijuana, instead of just issuing new guidelines, as well as passing a law that would remove the substance from classification as a Schedule I drug, so that medical use would be recognized nationally.
The ASA said the latest announcement from the Obama administration — which attempts to limit the role of federal prosecutors in states that allow marijuana use — “appears to come closest to fulfilling the President’s promise, but after two previous memos offering seemingly contradictory advice, patients, advocates, municipalities, state representatives, and members of Congress have all been asking, ‘what does this really mean for medical cannabis laws?’”
The federal guidelines referred to in the report are known as the second Cole memo, named after Deputy Attorney General James Cole, who issued the memo this past August, which included eight reasons why a federal law enforcement agency may get involved with a state’s medical marijuana legislation.
Those concerns include: distribution to minors; revenue from marijuana sales going to criminals, gangs or cartels; state-authorized conduct being a pretext to traffic other illegal drugs or other illegal activity; diversion into states that do not have laws authorizing marijuana conduct; violence or the use of firearms in cultivation and distribution; drugged driving and other harm to public health; the growing of marijuana on public lands; marijuana use on federal property.
Talking to Mint Press News, Kris Hermes, media liaison for the ASA, said the group released the report, “Third Time The Charm? State Laws on Medical Cannabis Distribution and Department of Justice Guidance on Enforcement,” because the Justice Department has “acted in bad faith in its policy to defer to local law enforcement.”
He added that since medical marijuana patients prosecuted under federal law are not allowed to use the defense or even mention that they are a medical marijuana patient in court, the Justice Department should defer to local and state law enforcement when it comes to marijuana laws.
“A ‘guideline’ is not enough to protect individuals participating in good faith in these programs,” the report says. “The previous memos did not curb federal enforcement on state-authorized medical cannabis distribution, especially in states that have a history of prosecuting marijuana cases, such as California, Washington, and Michigan.”
According to Hermes, despite campaign promises from Obama in 2008, that as president he would defer to local law enforcement and not go after medical marijuana businesses and patients, the Obama administration spends almost $200,000 every day for federal law enforcement agencies to go after medical marijuana related businesses and patients.
Since the medical marijuana community is skeptical of the Obama administration’s promises when it comes to marijuana, the ASA was one of a few marijuana advocacy groups that has been very skeptical of this most recent memo from the Department of Justice.
Hermes explained that after the Ogden memo was first issued in 2009, medical marijuana businesses and state and local officials took that announcement as a “green light” from the administration to “go ahead and implement laws” legalizing medical marijuana, but he said the opposite was true.
“The Obama administration engaged in ruthless tactics to shut down as many businesses as possible,” Hermes said. “This sort of strategy continued after the second memo was issued in 2011 by James Cole, and these enforcement actions have resulted in so far the most unprecedented attacks against the medical marijuana community since California first passed a legalization law in 1996.
“Of course we don’t trust the promises by the [Obama] administration because the exact opposite has been true,” Hermes said.
Federal government making it harder for state’s to police marijuana laws
According to the ASA’s report, “analysis shows that state laws and regulations governing medical cannabis programs are already in compliance with the DOJ’s latest guidelines,” and “In a few states, regulations would be stronger had threats from federal prosecutors not interfered with state and local regulatory efforts. In all cases, state law reflects the same priorities as the latest guidelines.”
Hermes said what this meant is that in Oct. 2009 when the first Justice Department memo was issued, it appeared that the agency was “genuine in its desire to defer to local law enforcement” so states could pass legislation that would regulate and license the production and distribution of medical marijuana facilities.
However, shortly after the memo was issued, states such as Washington and Montana struggled to carry out marijuana-related laws after the federal government began using “very aggressive tactics” such as SWAT-style raids and U.S. attorneys began issuing threats to producers, distributors and state officials.
“Those threats and aggressive tactics forced these states to abandon their efforts to license and distribute medical marijuana in facilities,” Hermes said. “What we expect to see today is a hands off approach even in states that have yet to fully comply with the guidelines” and for those states that have yet to fully comply, the federal government should be tolerant and patient while those states adopt those new laws.
“Patients won’t sit idly by while the Justice Department enforces federal law in states where it’s legal,” Hermes said.
He added a side effect of state’s uncertainty in how the federal government will respond to marijuana legalization laws has sparked an interesting trend in which state officials pass laws legalizing medicinal use of the substance, but the laws are often proudly touted as “the most restrictive in the country.”
“It seems [lawmakers] want to show the world they are adopting laws that are not going to be scrutinized by the federal government,” Hermes said, adding that in the past four years there has been a number of state medical marijuana laws that are so restrictive in places such as New Jersey and Washington, D.C. that “they undermine the spirit of why the laws were passed in the first place.”
The restrictions range from limiting the type of medical conditions that can use medical marijuana to whether or not a patient can cultivate their own marijuana. Hermes said the federal government has never disputed the right of a patient to individually use and cultivate their own medical marijuana, “so if there is anything that should pass the litmus test for news laws it’s patient cultivation.
Even if a medical marijuana patient or business does not directly have a run-in with a law enforcement agency, Hermes said several federal government agencies have policies that discriminate against medical marijuana patients and producers.
The Department of Veterans Affairs for example, has issued a policy that prevents physicians from recommending medical marijuana to their patients and allows VA doctors to discontinue the treatment of a veteran if the doctor is aware the patient is using medical marijuana.
“So many veterans have been denied pain meds and other pharmaceuticals as a result of this status as a medical marijuana patient,” Hermes said.
Additionally in the last four years, local housing authorities were given the discretion to prohibit the use and cultivation of marijuana in public housing, and the Obama administration has made threats against the banking and financial industry to discourage them from doing business with medical marijuana production and distribution facilities.
Because of these restrictions regarding the use of financial institutions, many medical marijuana-related businesses are not allowed to deposit money in a bank, use credit card services, or even transport money from one location to another with the help of an armored vehicle.
“What this does is create a huge vulnerability point for these businesses,” Hermes said, adding they become attractive to criminal activity such as theft and robbery.
Although it’s impossible to determine how many people in the U.S. choose not to use medical marijuana for fear of being federally prosecuted, Hermes said one area where there is a lot of concern is when it comes to medical professionals. He explained that many doctors fear retaliation from the federal government if they recommend marijuana because the Drug Enforcement Administration is the agency responsible for determining whether a doctor can be licensed to prescribe medicine.
“Whether it’s a misperception or not, which we think it is,” Hermes said, many doctors are reluctant to recommend medical marijuana for fear their license would be in jeopardy. But doctors are legally protected under the First Amendment to recommend — not prescribe — marijuana to patients, so Hermes said technically the DEA can’t revoke a doctor’s license.
Although fear of losing one’s license hasn’t kept all doctors from speaking out in-favor of medical marijuana use, Hermes said that those “pot docs” have been negatively referred to by the federal government in an attempt to discredit these “specialized” doctors.