It was just three years ago when President Obama (then candidate Obama) famously pledged to no longer use federal “Justice Department resources to try to circumvent state laws” regulating the physician authorized use of medical cannabis. And it was in the fall of 2009 that the administration issued the Ogden memorandum to federal prosecutors directing them to not “focus federal resources … on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”
Yet in recent days the administration has seen fit to interject itself in the ongoing legislative debate to establish and regulate medical marijuana dispensaries in Washington state. Last week, on the eve of a final House vote regarding Senate Bill 5073, the U.S. attorney for Eastern Washington issued a statement warning landlords that they could face forfeiture of their properties if they rent to licensed medical marijuana facilities. Undeterred, the House passed SB 5073 (the Senate had previously passed an earlier version of the bill), setting up a potential showdown between lawmakers and Democrat Gov. Chris Gregoire.
In an April 14, 2011 letter to Gov. Gregoire from the U.S. Department of Justice, U.S. Attorneys Jenny Durkan of Seattle and Michael Ormsby of Spokane wrote, “[W]e maintain the authority to enforce the Controlled Substances Act vigorously against individuals and manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.”
The letter continues: “The Washington legislative proposals will create a licensing scheme that permits large-scale marijuana cultivation and distribution. This would authorize conduct contrary to federal law. … Accordingly, the Department [of Justice] could consider civil and criminal legal remedies who set up marijuana growing facilities … or who knowingly facilitate the actions of the licensees. … [S]tate employees who conducted activities mandated by the Washington legislative proposals would not be immune from liability under the Controlled Substances Act.”
Predictably, Gov. Gregoire is now shying away from the proposal. As reported by the Seattle Times, the Governor stated “In light of the Department of Justice’s guidance, it is clear that I cannot sign a bill that authorizes our state employees to license marijuana dispensaries when the department would prosecute those involved.” The Times noted that Gregoire “pledged to work with lawmakers on a new proposal.”
Is the Governor using the Feds’ letter as political cover to denounce a measure that she never intended to sign in the first place? Maybe. But the bigger picture is that the federal officials still seem content to selectively interject in the state lawmaking process as it pertains to the medical access to marijuana.
Will the Feds most recent threats have a potential chilling effect on pending legislation in Delaware, Illinois, and Vermont — additional states where lawmakers recently voted in favor of establishing similar state-licensed medical marijuana dispensaries? And what, if anything, do these threats imply for states like Colorado, Maine, New Mexico, and Rhode Island where such facilities have already been authorized by the state? Time will tell, but at present time it’s not looking good.
‘Change we can believe in?’ Not when it comes to medical marijuana policy.