The Federal Government Recognizes Battle Over Medical Marijuana

Steph Sherer, Huffington Post (Op-ed)

Wednesday marked a milestone in the 18-year battle between state and federal law concerning medical marijuana. But to me, and thousands of other Americans, it marks a day that our country has finally acknowledged that our battle exists. I founded Americans for Safe Access (ASA) in 2002, with the explicit goal of stopping federal raids and prosecutions of medical marijuana (cannabis) patients and their providers. I was compelled to found ASA when I discovered that the Federal Government was trying to imprison people like me and those providing people like me with much-needed medicine despite California law. At the time, there were only a dozen or so medical cannabis distribution centers in the country and only about 40,000 legally qualified patients nationwide.

Over the last 12 years, we have accomplished a lot in changing the medical marijuana landscape. Over two million Americans use medical cannabis legally, 34 states and the District of Columbia have adopted medical cannabis laws, comprehensive regulations have been established for a new industry, and policymakers are creating new medical cannabis programs each year in the U.S. All of this has been done in the midst of an often obscured, but very harmful federal war on medical cannabis.

I don’t love using war metaphors, and try to avoid them when I can. However, there is really no other way to describe the costly and devastating actions of the federal government. During my 12 years at the helm of ASA, I have stood outside state-sanctioned medical cannabis facilities protesting, while federal agents broke down the doors and confiscated all of the medicine inside. I have comforted distraught patients as they wondered where they would now be able to obtain their necessary medicine. I have sat with families in their homes preparing for federal trials. I have consoled individuals who were forced to take plea bargains to avoid 10-year mandatory minimum sentences. I have gone with children to visit their parents in prison. I have sat in courtrooms watching people unable to defend themselves because of a set of federal laws that do not recognize medical use. For these survivors too numerous to count, “war” is the only way to describe our struggle.

After years of lobbying the federal government over two administrations and six Congressional terms, we have finally gotten the recognition we deserve. The effort to interrupt the “war” by restricting Department of Justice (DOJ) enforcement in medical cannabis states failed seven times before being adopted this week by Congress and signed by President Obama. While the adoption of this measure is really a stop-gap solution, it represents a sea change in how the federal government looks at this issue.

The Road to Passing the Medical Marijuana CJS Amendment

Including key language in the Cromnibus Bill was an accomplishment 11 years in the making, building on an amendment first introduced by Reps. Dana Rohrabacher (R-CA) and Maurice Hinchey (D-NY) in 2003. As support grew over the years, more bipartisan sponsors joined the amendment. Now coined the Rohrabacher-Farr amendment, the historic measure was sponsored this year by Reps. Sam Farr (D-CA), Don Young (R-AK), Earl Blumenauer (D-OR), Tom McClintock (R-CA), Steve Cohen (D-TN), Paul Broun (R-GA), Jared Polis (D-CO), Steve Stockman (R-TX), Dina Titus (D-NV), Justin Amash (R-MI) and Barbara Lee (D-CA). When the House vote took place in May, 49 Republicans joined 170 Democrats in favor of the amendment, one of the strongest bipartisan showings on a controversial piece of legislation in recent history.

In the Senate, Barbara Mikulski (D-MD) led the charge for patients during the conference committee negotiations. Inclusion of the Rohrabacher-Farr Amendment would not have been possible without the efforts of patients and parent-activists from Alabama, Kentucky, and Virginia, who called on conference committee members Sen. Shelby (R-AL), Rep. Rogers (R-KY) and Rep. Wolf (R-VA) to do the right thing. These three members were the stiffest opposition to including the amendment, and the efforts of patients and parents who reached out to them really paid off. By engaging with the opposition, these advocates created the political space for Senator Mikulski (D-MD) to get the amendment included in the final bill. 

Coordinated lobby days hosted by ASA at the National Medical Cannabis Unity Conference and Lobby Day in Washington, DC were another reason for the success of the Rohrabacher-Farr Amendment. These lobby days, the largest of their kind, were instrumental in demonstrating to Members of Congress that medical cannabis is an important issue among their constituencies.

The Medical Marijuana CJS Amendment

The plain language of the Rohrabacher-Farr provision to the Cromnibus appropriations bill states that “None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of...[list of 32 states]..., to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” The key word in the provision is “implement,” which is not explicitly defined in the U.S. Code, federal case law, or Black’s Law Dictionary. However, according to Merriam-Webster, the verb “implement” is defined as to “carry out, accomplish; especially : to give practical effect to and ensure of actual fulfillment by concrete measures.”

Because the act of carrying out a medical marijuana law requires ongoing regulation and administration of the program established by such local and state laws, “implementation” is an ongoing process. It is not possible to accomplish the purpose of state medical marijuana laws if the parties utilizing the state program (patients, caregivers, physicians, cultivators, providers, landlords, etc.) are being thwarted from engaging in this conduct due to aggressive federal interference. The legislative intent of the Rohrabacher-Farr amendment supports this position. Below are excerpts from the floor debate that took place in the U.S. House of Representatives on May 29, 2014, in which the cosponsors state the extent and reach of the provision’s language. A review of the opponents statements in the Congressional Record also reveals an acknowledgement of the extent to which the DOJ will be prevented from obstructing or interfering with those engaging in medical marijuana conduct within the enumerated states.

Rep. Sam Farr

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.

Rep. Dina Titus

Mr. Chair, for the District of Columbia and 22 States, including Nevada, with laws in place allowing the legal use of some form of marijuana for medical purposes, this commonsense amendment simply ensures that patients do not have to live in fear when following the laws of their States and the recommendations of their doctors. Physicians in those States will not be prosecuted for prescribing the substance, and local businesses will not be shut down for dispensing the same.

Rep. Barbara Lee

We should allow for the implementation of the will of the voters to comply with State laws rather than undermining our democracy. 
In States with medical marijuana laws, patients face uncertainty regarding their treatment, and small business owners who have invested millions creating jobs and revenue have no assurances for the future. It is past time for the Justice Department to stop its unwarranted persecution of medical marijuana and put its resources where they are needed.

Rep. Dana Rohrabacher

Mr. Chairman, I rise to speak in favor of my amendment, which would prohibit the Department of Justice from using any ofthe funds appropriated in this bill to prevent States from implementing their own medical marijuana laws…
...The State governments have recognized that a doctor has a right to treat his patient any way he sees fit, and so did our Founding Fathers.

Rep. Thomas Massie

We need to remove the roadblocks to these potential medical breakthroughs. This amendment would do that. The Federal Government should not countermand State law.

Rep. Paul Broun

Also, this is a states' rights, states' power issue, because many States across the country--in fact, my own State of Georgia is considering allowing the medical use under the direction of a physician. This is a states' rights, Tenth Amendment issue. We need to reserve the states' powers under the Constitution.

Rep. Earl Blumenauer

The problem is that the Federal Government is getting in the way. The Federal Government makes it harder for doctors and researchers to be able to do what I think my friend from Louisiana wants than it is for parents to self-medicate with buying marijuana for a child with violent epilepsy.

This amendment is important to get the Federal Government out of the way. Let this process work going forward where we can have respect for states' rights and something that makes a huge difference to hundreds of thousands of people around the country now and more in the future.

It is abundantly clear from the legislative intent of the cosponsors and supporters of the Rohrabacher-Farr amendment that it goes much further than simply allowing states to adopt medical cannabis laws without federal obstruction. Rather, full implementation of state medical marijuana laws necessitates that the DOJ be prevented from interfering with state-law abiding patients, caregivers, physicians, providers, and other parties exercising their rights necessary to accomplish the purpose of the state medical marijuana program.

Beyond Symbolism

The DOJ is unequivocally responsible for the Drug War’s oversight and funding on nearly every level, from the Federal Bureau of Investigations (FBI) and the Drug Enforcement Administration (DEA) to U.S. Attorneys Offices nationwide, down the line to the U.S. Marshals Service and the Bureau of Prisons (BOP). The following are five ways this enormous power has been wielded to circumvent state laws.

1. Direct Interference

Over the years, many state legislatures have used the conflict in federal law as an excuse to drag their feet when passing or implementing medical cannabis programs, while other elected officials received direct threats from the Department of Justice. In Washington State, for example, U.S. Attorneys issued a 2011 letter on DOJ letterhead saying state agencies and employees who played an active role in licensing medical cannabis businesses “would not be immune from liability under the CSA.” Three days later, comprehensive legislation to create a legal framework for dispensaries was partially vetoed by then-Governor Christine Gregoire, gutting all provisions that called for state regulation.

Consequently, when other approaches were implemented, the DOJ again weighed in, asserting that commercial cultivation and distribution of medical cannabis is “not tenable” and violates “both state and federal law.” This is a clear-cut example of how the threat of federal enforcement has been used to impede state implementation of medical marijuana laws. Under the new federal spending freeze, this type of meddling by the DOJ would be forbidden. 

2. DEA Raids and Arrests

Since 1997, the DEA has targeted medical cannabis gardens and dispensaries regardless of whether or not they are (or might be) in compliance with state law. More than 500 raids in legal medical cannabis states, including California, Colorado, Montana, and more, have been conducted by the DEA. These are atypical raids involving “dynamic entry,” a euphemism for kicking in doors or using a battering ram. Once inside, DEA agents indiscriminately detain patients and staff, often at gunpoint. Victims are searched and interrogated; sometimes they are arrested. Plants, medicine, money, and records are confiscated, and patients have no legal recourse to recover their property.

In some cases, the DEA has gone so far as to raid the homes of medical cannabis patients and providers. These raids are not only terrifying and dangerous for legal patients and providers caught in the crossfire, but expensive. Under the Obama Administration, the DEA has spent four percent of its budget on medical cannabis enforcement.

This policy has stymied implementation of state and local medical cannabis laws. Lawmakers are reluctant to adopt regulations for medical cannabis if the threat of DEA raids looms. The raids have also slowed the development of professional safety and operational standards for patients.

Under the new budget, paramilitary style raids will cease. Ending federal raids at gardens and dispensaries will allow sensible regulations to be adopted and implemented, and it will permit the continued advancement of the medical cannabis industry that serves more than 2 million patients.

3. Criminal Prosecutions

Pending and future prosecution of patients and providers must also be halted under the new budget. This will make a world of difference to federal defendants like the Kettle Falls Five, particularly Larry Harvey, a 70-year-old retiree. Together with four other authorized patients, Larry grew less than 75 plants on his property north of Spokane, Washington. Although Larry was recently diagnosed with pancreatic cancer, the terms of his Pre-Trial Supervision denies him the right to use medical cannabis, despite living in a state where marijuana is legal for recreational and medical use.

To date, more than a million dollars has been spent on enforcement against the Kettle Falls Five. Unfortunately, as recently reported, their case is hardly isolated. Several more Washington patients are being prosecuted, along with others in California, Michigan and elsewhere. Without any funding to spend on prosecutions, U.S. Attorneys will be forced to withdraw these indisputably medical cannabis cases. 

4. Asset Seizure and Forfeiture

In addition to criminal prosecution, the DOJ has increasingly used civil asset forfeiture as a tool to interfere in the implementation of state and local law. Over the past few years, the DOJ sent hundreds of letters to landlords in California, threatening seizure of their property if they continue to lease to medical cannabis businesses. This stark interference resulted in the closure of more than 600 lawful dispensaries across the state.

In addition, the DOJ has filed costly civil forfeiture lawsuits against dispensaries like Berkeley Patients Group (BPG) and Oakland’s Harborside Health Center. Self-described as the “world’s largest medical marijuana dispensary,” Harborside has managed to fight off forfeiture actions thus far, thanks in large part to support from the City of Oakland, but such legal actions are still pending. Like Oakland, officials in Berkeley have intervened on behalf of BPG, the City’s largest dispensary.  Once the new law takes effect, these costly court battles that have tied up resources for years will finally come to an end.

5. Imprisonment

The plight of severely ill Michigan patient Jerry Duval is another example of misguided and unwarranted DOJ interference. The cost to imprison Jerry alone is expected to top one million dollars, due in large part to the significant health challenges that he faces. Jerry’s son, Jeremy, and daughter, Ashley, grew medical cannabis on farmland owned by their father, roughly an hour south of Detroit. Jeremy and Ashley were both registered caregivers as required under Michigan law, while Jerry was a qualified patient. Jeremy and Jerry were federally prosecuted and, because they were (and others like them are routinely) denied a defense at trial, a jury found them guilty of conspiracy to manufacture and distribute marijuana. When it was all said and done, Jeremy and Jerry were sentenced to five and 10-year mandatory minimum prison terms, respectively, and the federal government seized the family farm that had been passed down for three generations, eventually auctioning it off to the highest bidder. Complicating matters is the fact that Jerry is diabetic and the recipient of a dual organ transplant. Despite being placed in a Federal Medical Prison, the BOP has neglected to provide critical care that Jerry needs to survive. According to the BOP website, Jerry will not be released until 2022.

Likewise, former dispensary operator Aaron Sandusky was convicted at trial and is doomed to prison until 2021, despite being a registered caregiver in full compliance with California law. After his initial arrest, a judge was forced to release Aaron from jail when he was rushed to the emergency room due to being denied medication for a potentially fatal heart condition. Sadly, Aaron is now being housed at a federal lockup in Texas and by the time he is released from BOP custody, the DOJ will have spent at least half-a-million dollars to prosecute and imprison him. Under the terms of the new spending restrictions, the DOJ will be forced to consider releasing these prisoners and many, many others.

What’s next:

For these and other reasons, the Rohrabacher-Farr amendment will dramatically impact DOJ enforcement, including ending federal medical marijuana raids, arrests, criminal prosecutions, and civil asset forfeiture lawsuits, as well as providing prisoners with a way to petition for their release.

However, this amendment is only a temporary “ceasefire” in the conflict between state medical programs and federal law, which expires in September 2015. While the Rohrabacher-Farr amendment is an important step in the process of harmonizing federal law with local and state medical cannabis programs, Congress still needs to pass comprehensive federal legislation, like the bipartisan "States' Medical Marijuana Patient Protection Act" (HR 689).   

ASA is calling on everyone who believes safe access is a human right to get off the sidelines and help us finish this “war” once and for all. One way to do this is to join us in Washington, DC next year at our 2015 Congressional Lobby Day on March 31, 2015 to build on our momentum in Congress to establish real change.