May 28, 2011 from WRNI
From California to Arizona, Colorado to Maine, states across the country are legalizing the sale of medical marijuana. Recent warnings from U.S. attorneys, however, are making local governments rethink their plans.
Seth Bock stands in what's supposed to be one of Rhode Island's first medical marijuana stores. His group was going to install grow lights and a ventilation system this week, but not anymore.
"We can't really invest any money into the carpentry and the building process until we know that this will go on," he says.
But that could take a while. Rhode Island Gov. Lincoln Chafee has put the program on hold indefinitely. The reason: a letter he received from the U.S. Attorneys' Office that said Rhode Island's so-called compassion centers could face federal raids, fines or criminal prosecution if they open.
"The U.S. attorney was very direct," governor's spokesman Michael Trainor says. "The governor believes that if we proceed on the present course, he'd be putting the compassion centers and people associated with compassion centers at great risk."
Rhode Island's letter is similar to those sent to at least eight other states with medical marijuana programs. Advocates believe the threats are a dramatic change from the Obama administration's original stance on medical marijuana. The Justice Department has refused to clarify its decision, saying only that its policy remains the same. It says the U.S. attorneys assigned to each state have "discretion" about how to enforce that policy.
The Ogden Memo
What the policy is, exactly, depends on how you interpret what's called "the Ogden memo."
"In 2009, the Department of Justice indicated that it would be a low priority to prosecute anyone who was complying with state medical marijuana laws," Jay Rorty of the American Civil Liberties Union explains. He says the 2009 memo from then-Deputy Attorney General David Ogden made advocates think the federal government wouldn't interfere with state medical marijuana stores.
Marijuana buds for sale at the Sunset Junction medical marijuana dispensary in Los Angeles, Calif.
U.S. Attorney Michael Ormsby from Washington state disagrees with that interpretation. "I think the ACLU takes that statement out of context," he says. According to him, the memo means the federal government won't go after patients who are growing their own marijuana — but retail stores were never part of that exception.
"We're talking, in some instances, about thousands of dollars a week being generated by these enterprises," he says.
It's a problem familiar to Colorado's Attorney General John Suthers. He says Colorado's more than 800 dispensaries are probably not what the federal government had in mind when it issued the Ogden memo.
"We've had just a plethora of retail dispensaries develop. We've got grow operations; we're now at 125,000 patients," he says. "And it's a joke."
That's why he asked his U.S. attorney for advice. Suthers guesses that the letters from other U.S. attorneys are an attempt to prevent more states from becoming like Colorado.
Meanwhile, States Have Patients
How each state interprets those letters is different. Some are going ahead with their programs despite the warnings. Others are in the same limbo as Rhode Island, where patients are getting frustrated.
"I don't know about you, but I feel mad. Do you?" Ellen Lenox Smith is a familiar face at the podium in the Rhode Island State House. She testifies in favor of dispensaries at every opportunity, with her wheelchair and service dog nearby. She says marijuana helps lessen the pain of her two incurable diseases. She grows her own plants, for now.
"I have to wonder, as I progress with my two conditions, where am I going to be headed? What happens when I can no longer grow? Where am I supposed to turn?" she says.
For now, the answer to Lenox Smith's question is unclear, as states weigh the new risks of opening dispensaries. Local governments are looking to a lawsuit filed by the governor of Arizona to clarify the federal government's stance on state marijuana programs. Meanwhile, the sale of the drug continues to follow a pattern of fits and starts across the country.
Arizona Sues Justice Department Over Medical Pot
Arizona officials are taking the state's own medical marijuana law to court.
Attorney General Tom Horne late Friday sued the U.S. Justice Department and other defendants on behalf of the state and Gov. Jan Brewer.
The suit asks a federal judge to rule on whether strict compliance with the Arizona law provides protection from federal prosecution or whether the Arizona measure is pre-empted by federal law.
The state law approved by voters in November, like those in other states, decriminalizes distribution, possession and use of marijuana for medical purposes under specified circumstances.
However, the U.S. attorney for Arizona has reminded state officials that marijuana remains illegal under federal law.
Horne said the Arizona suit was intended get a court ruling "that makes it clear what direction we can safely go — either to implement the law or that we cannot."
The suit also named medical marijuana supporters, a group representing would-be dispensary operators and others as defendants in the case. Horne said they accepted invitations to be included in the case to ensure the state law gets a vigorous defense.
Brewer announced the planned lawsuit Tuesday, saying she's concerned that state employees could face federal prosecution for regulating the state program.
The governor and Horne, both Republicans, opposed the medical marijuana law but said they weren't trying to thwart the will of the voters. They said the lawsuit is specifically prompted by a May 2 letter in which U.S. Attorney Dennis Burke noted that marijuana remains illegal under federal law and that criminal prosecutors of traffickers and others are possible.
Burke's letter did not specifically mention state employees, but he said his office intends to prosecute individuals and organizations engaged in illegal manufacturing, distribution and marketing involving marijuana.
Burke did not immediately respond to a request for comment Friday, but he told The Arizona Republic there had been no policy change.
"We have no intention of targeting or going after people who are implementing or who are in compliance with state law," Burke told the newspaper. "But at the same time, they can't be under the impression that they have immunity, amnesty or safe haven."
Horne said Burke's letter and similar letters sent by U.S. attorneys elsewhere raised the prospect of federal prosecutions related to medical marijuana, and he noted that a letter signed by U.S. attorneys in Washington state said state employees administering a medical marijuana program would not be immune from liability under a federal drug law.
Saying she was worried about federal prosecution of state workers, Washington Gov. Chris Gregoire vetoed key parts of a legislative measure to clarify her state's medical marijuana law.
Elsewhere, Rhode Island Gov. Lincoln Chafee has suspended plans to license three medical marijuana dispensaries after a U.S. attorney warned the dispensaries could be prosecuted for violating federal law.
In Montana, two medical marijuana providers sued the Justice Department on May 10 to challenge March 14 raids of their businesses. The lawsuit claimed the raids exceeded the federal government's authority, pre-empted Montana's medical marijuana law and violated the providers' civil rights.
A spokesman for a Washington-based medical marijuana advocacy group said the Arizona lawsuit won't accomplish anything because it won't change federal law or enforcement policies and because individual patients can grow their own marijuana.
"Gov. Jan Brewer is trying to hamstring this program," said Morgan Fox of the Marijuana Policy Project.
Between April 14 and Tuesday, Arizona approved 3,696 applications for patients to have and use medical marijuana, including 2,694 for growing up to 12 plants each. An additional 69 applications have been approved for caregivers, who can provide marijuana for up five patients other than themselves.
An application period for dispensaries is supposed to begin Wednesday, but Brewer is expected to direct the Department of Health Services to not proceed with that part of the program.
M. Ryan Hurley, a Scottsdale lawyer for would-be dispensary operators, said they're troubled because the state is not proceeding with full implementation of the law.
"They've invested a lot of time and effort and money in this process in reliance of the law," he said.
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(cannabis and safety) "On September 6, 1988, the Drug Enforcement Administration's [DEA] Chief Administrative Law Judge, Francis L. Young, ruled, "Placement [of a drug] in Schedule II would mean, essentially, that physicians in the United States would not violate Federal law by prescribing marijuana for their patients for legitimate therapeutic purposes. It is contrary to Federal law for physicians to do this so long as marijuana remains in Schedule I. ...
"Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis, marijuana can be safely used within a supervised routine of medical care. ...
"The administrative law judge recommends that the Administrator [of the DEA] conclude that the marijuana plant considered as a whole has currently accepted medical use in treatment in the United States, that there is no lack of accepted safety for use of it under medical supervision and that it may lawfully be transferred from Schedule I to Schedule II."
Source:US Department of Justice, Drug Enforcement Administration, "In the Matter of Marijuana Rescheduling Petition," [Docket #86-22], (September 6, 1988), pp. 6, 58, 68.
http://www.iowamedicalmarijuana.org/pdfs/young.pdf -
(marijuana and safety) The DEA's Administrative Law Judge, Francis Young concluded: "In strict medical terms marijuana is far safer than many foods we commonly consume. For example, eating 10 raw potatoes can result in a toxic response. By comparison, it is physically impossible to eat enough marijuana to induce death. Marijuana in its natural form is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within the supervised routine of medical care."
