Medical Marijuana in Montana

June 06, 2005

Jennifer McKee, Helena Independent Record (MT)

Montanans who smoke doctor-recommended marijuana can be prosecuted on federal drug charges, the U.S. Supreme Court ruled Monday, although Montana's top law enforcement officer said pot-smoking ill Montanans wouldn't face state charges. The nation's top court ruled 6-3 Monday that state-passed medical marijuana laws, like Montana's, don't protect users from federal prosecution or federal prison time.

Montanans overwhelmingly passed Initiative 148 to legalize medical marijuana last November by a 62-38 percent margin.

Attorney General Mike McGrath said Monday that law is still valid and the 119 Montanans who have since registered with the state to lawfully use medical marijuana will not be prosecuted. McGrath further said that state officers, even if they were funded with federal dollars, would not go after lawful medical pot smokers in the state.

"We still have a valid law and certainly that would be a defense to any state prosecution," McGrath said. "I'm quite sure no county attorney would consider filing a ( marijuana ) case under these circumstances."

McGrath said he didn't think local authorities would investigate medical marijuana cases. Even if they did, he said, "Once they found out the person was following the provisions of I-148, we will advise our drug investigators that that's the end of it."

Still, McGrath said Montanans face a conundrum: While those who are registered with the state to lawfully use marijuana for medical reasons wouldn't face hard time at the state prison in Deer Lodge, they could be prosecuted federally and end up in a federal prison because of the U.S. Supreme Court decision handed down Monday.

"I'm not sure I have any advice," McGrath said for Montanans caught in the bind.

The court's majority opinion held that the federal government has the right to enforce its own drug laws even if they run counter to state law because medical marijuana laws could affect illegal drug trade between states. The court further ruled that Congress could clear up the confusion by creating an exemption in federal drug laws for medical marijuana.

Currently, 10 states, including Montana, have legalized medical marijuana.

Bruce Mirken, director of communications for the national Marijuana Policy Project, called the ruling a "disappointment, but not a setback" in a telephone interview Monday.

"This essentially leaves things as they've been," Mirken said. "State medical marijuana laws, such as Montana's remain in full effect and all protections they provide marijuana patients are in place."

Mirken urged Congress to pass an exception to the nation's Controlled Substances Act that would allow states to make up their own minds on medical marijuana.

U.S. Attorney for Montana Bill Mercer said the decision allows his office to again prosecute people who use medical marijuana. Federal law enforcement in many Western states stopped prosecuting such cases in December of 2003. That's when the 9th U.S. Circuit Court of Appeals, which oversees Montana, ruled federal drug laws unconstitutional when they ensnare people who are lawfully using marijuana grown and used within the borders of a state that has legalized medical marijuana.

Mercer went on to say that while his office now can prosecute such people, medical marijuana is not tops on his priority list.

"Our priorities are ( drug ) production, manufacture and trafficking," he said.

When asked if he would seek the list of 119 Montanans registered with the state to legally use medical marijuana under the state's law, Mercer reiterated his agency's top priorities. He did not say either way if he would seek the list.

Mirken said congressional clarification of the issue could come soon. He expects two representatives next week to propose a change to a pending law that would forbid federal authorities from spending money on chasing people lawfully using medical marijuana.

U.S. Sen. Conrad Burns, R-Mont., said he would give a "hard look" at any legislation that preserves the state's rights to make its own decisions.

"Regardless of my thoughts on medical marijuana, the voters in Montana and these other states have spoken their intent and we should honor that," Burns said in a prepared statement.

U.S. Sen. Max Baucus, D-Mont., didn't take a position on the issue.

"The court has ruled, and in our system of checks and balances, we must respect that decision," Baucus said. "Should this issue come before the U.S. Senate, I will review it closely and act in the best interests of Montana."

Rep. Denny Rehberg, R-Mont., could not be reached for comment.

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