I was taught that all laws must be obeyed. If the law was a bad one, you worked to change it. Sometimes that work included an act of civil disobedience that often carried a penalty. And that was the price of change.
Apparently, if you are one of the nation's top law enforcers, you can simply twist a law you don't like until it becomes one you are willing to enforce. At least that appears to be the attitude of the Department of Justice with regard to the congressional ban on spending tax dollars to prosecute individuals for participating in the medical marijuana trade in those states where it is legal.
In 2009, U.S. Attorney General Eric Holder announced formal guidelines for prosecutions of medical marijuana users, caregivers and dispensaries:
"It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal," Holder said. "This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws."
That was six years ago, and the Drug Enforcement Administration continues to prosecute medical marijuana users and providers in clear violation of DOJ guidelines. So Congress decided to become involved. What has happened since is explored below.
Rep Dana Rohrabacher (R-CA) represents the coastal area of Orange County in California. This wealthy enclave of beach towns includes state-legal medical marijuana dispensaries, as does the Central Coast district of Rep Sam Farr (D-CA). The two congressional reps joined together to introduce a bipartisan amendment to the 2015 appropriations bill. The
amendment read:
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.
From the
Congressional Record of May 29, 2014, (page H4984):
Mr. FARR: Mr. Chair, I rise in support of this amendment as a coauthor of it and to point out this is six Democrats and six Republicans that are authoring this. There are 33 States, three of which have just passed laws and the Governors have indicated they will sign them.
This is essentially saying, look, if you are following State law, you are a legal resident doing your business under State law, the Feds just can’t come in and bust you and bust the doctors and bust the patient. It is more than half the States. So you don’t have to have any opinion about the value of marijuana. This doesn’t change any laws. This doesn’t affect one law, just lists the States that have already legalized it only for medical purposes, only medical purposes, and says, Federal Government, in those States, in those places, you can’t bust people. It seems to me a practical, reasonable amendment in this time and age.
Cannabis as illustrated in Köhler's book
of medicinal plants from 1897
The amendment to the Commerce, Justice, Science and Related Agencies Appropriations Act of 2015 passed with 219 "aye" and 189 "no" votes, with 23 members not voting. The Senate also passed the measure and it became Section 258 of the Consolidated and Further Continuing Appropriations Act of 2015, which was signed into law by President Obama on December 16, 2014.
This year the amendment to the 2016 budget appropriation has passed the House with an increased margin, 242 to 186, and was reported out of the Senate committee on a vote of 21-9.
But apparently the Justice Department did not believe that the law meant what it said and continued its prosecution of medical marijuana distributors and patients in states like California and Washington.
In a leaked February 27, 2015, memo to all federal prosecutors, Patty Merkamp Stemler, PMS chief, Appellate Section, writes:
As explained more fully below, the Department’s position is that Section 538 does not bar the use of funds to enforce the CSA’s criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities consistent with the Department’s guidance regarding marijuana enforcement.
...
U.S.Attorney’s Offices should, however, consult with Jody Hunt, Director, Federal Programs Branch, before proceeding with any civil litigation regarding state laws authorizing the medical use of marijuana where the State or State officials are a party, or where the status of State law is challenged.
Talk about straining at gnats and swallowing camels! According to the Justice Department, the new funding restriction only prohibits the agency from going after state officials who administer medical marijuana legislation. Which prompts the question, was the DOJ prosecuting so many state officials that Congress felt called upon to act? I am pretty good at using the Google, but I couldn't find a single case in which an action had been brought against any state official for administering such legislation. Nor was there any mention during the floor debate of the issue of the Justice Department prosecutions of state officials. It doesn't make a lot of sense that Congress would pass a law solving a problem that didn't exist.
From an April 2, 2015, article in the Los Angeles Times:
Patrick Rodenbush, a spokesman for the Justice Department, said in a statement Wednesday that it did not not believe the amendment applies to cases against individuals or organizations.
Rather, he said, it stops the department from “impeding the ability of states to carry out their medical marijuana laws,” contrary to some claims from people being prosecuted that the amendment blocks such prosecutions.
In response to this convoluted interpretation of the law, the two congressmen wrote
a letter to Attorney General Eric Holder on April 8, 2015, requesting that he bring his department into compliance with federal law:
In fact, we can imagine few more efficient and effective ways of "impeding the ability of states to carry out their medical marijuana laws" than prosecuting individuals and organizations acting in accordance with those laws.
That letter does not appear to have had the desired effect, so Representatives Rohrbacher and Farr have now requested the Department of Justice's Office of
Inspector General to investigate the agents who are "illegally using taxpayers' money to prosecute medical marijuana practitioners in states where the practice is legal":
“Mr. Rodenbush’s interpretation clearly is a stretch,” said the congressmen, who wrote the successful legislation’s language. “The implementation of state law is carried out by individuals and businesses as the state authorizes them to do so. For the DOJ to argue otherwise is a tortuous twisting of the text … and common sense and the use of federal funds to prevent these individuals and businesses from acting in accordance with state law is clearly in violation of Rohrabacher-Farr.”
Although the ball is now in the court of the inspector general, most Americans have already made up their minds. A January 2014
CNN/ORC poll showed that a whopping 88 percent of the public supported the use of medical marijuana when prescribed by a physician. Just like marriage equality, the legalization of marijuana for medical use has clearly reached a tipping point. Public support for the legalization of marijuana clocks in between
52 and
61 percent, depending upon the survey.
So why is the Department of Justice resisting it?
Notice the use of the term civil forfeiture in Patty Merkamp Stemler's memo, and knowing how lucrative this action has become for both federal and local law enforcement agencies, one can't help but wonder if there is some concern about losing this income stream, which produces billions of dollars every year.
But perhaps it is simply bureaucratic inertia, a reluctance to change the current trajectory of the agency. After all, Michele Leonhart, former head of the DEA, refused to admit that marijuana was any less dangerous than heroin. And the current head, Chuck Rosenberg, only admitted that "heroin is clearly more dangerous than marijuana," last Wednesday, a week after he had hedged on the answer, saying marijuana was "probably not" as dangerous as heroin.
Neither argument is a very good one, nor can either excuse those who are charged with enforcing the law of breaking it.