Medical marijuana law could put dispensaries, state employees at legal risk, according to USDOJ memo

State employees tasked with monitoring New Jersey’s medical marijuana program, as well as the licensed dispensaries of the drug could face prosecution under federal law, according to a recent letter issued by U.S. Attorneys in Washington State.

The letter, which was written by the U.S. Attorneys after consultation with Attorney General Eric Holder, responds to a request from the Governor of Washington for a blessing of that state’s medical marijuana program.

But instead the U.S. Attorneys lay out in no uncertain terms that the use and distribution of marijuana is a violation of the federal Controlled Substances Act and “as such growing, possessing and distributing marijuana in any capacity other than as part of a federally authorized research program is a violation of federal law regardless of state laws permitting such activities.”

The letter from the two law enforcement officials goes on to say that while the U.S. Department of Justice will not focus resources on prosecuting seriously ill patients who use marijuana as part of a medically prescribed regimen, the agency will continue to “maintain the authority” to “vigorously” enforce the law against any individual or agency that distributes marijuana even if it is legal under state law.

The letter, dated April 13,  will likely set off alarm bells in the halls of Trenton as it also threatens civil and criminal prosecution against any state employee whose job it is to monitor or administer a medical marijuana program.

“…state employees who conducted activities mandated by the Washington Legislative proposals would not be immune from liability under the CSA,” the letter states.

A nearly identical letter was sent in February by the U.S. Attorney in Northern California to the city attorney in Oakland in response to a request for clarification on that city’s medical marijuana program. 

State Sen. Nicholas Scutari, a prime sponsor of the legislation, said that it’s been known for years that medical marijuana programs go against federal law.

“That’s been one of the arguments all the way through,”  Scutari said. “Clearly there are certain aspects of medical marijuana that fly in the face of federal law, but the thing about it is (U.S. Attorney General) Eric Holder sent out a memorandum when he first became A.G. indicating that he would direct U.S. Attorneys offices to respect medical marijuana laws and not prosecute.”

That memo, issued in 2009, indicates the U.S. DOJ will not prosecute users of medical marijuana in states where it is permitted or against caregivers who provide them with the drug.

“As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana,” the memo to U.S. Attorneys around the country states. “For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources.”

A call to the U.S. DOJ to clarify the intent of the two memos was not returned.  The U.S. Attorney’s Office in New Jersey also did not return a call for comment.

But Dave Evans, an attorney who is executive director of the Drug Free Schools Coalition, said the memos from DOJ officials represent new information that could put the state program in jeopardy.  He said states mistakenly relied on the 2009 memo from Holder to justify programs for medical marijuana, however, that memo protects only users.

“I think they all misinterpreted that the feds were going to leave medical marijuana dispensaries alone,” said Evans, who testified in opposition to the New Jersey medical marijuana law.  “Now there is every reason to believe that if these dispensaries get started in New Jersey (federal law enforcement) will go after them.”

“Our legislators are encouraging people to break the law,” Evans said.  “I don’t think the governor will have any choice but to halt the program.”

A spokesman for the governor had no comment on the letters.

New Jersey was the fourteenth state to legalize medical marijuana when it was signed by Gov. Jon Corzine in January 2010. The program provides for six state-licensed dispensaries to provide the drug to patients with state-issued identification cards.

Earlier this year the state set restrictive rules in place for the dispensing of medical marijuana.  Among the standards enacted are a restriction on the diseases that make a patient eligible for the drug and a requirement that a doctor has been treating the individual for at least a year or has seen them at least four times.  The doctor must certify that other treatments have not been effective.

The state-issued identification costs $200.  A patient can receive up to two ounces per month of the drug and its potency is limited to 10 percent THC. 

The rules issued by the state Department of Health cite the 2009 memo from the U.S.  Attorney General as a justification for the program.

See the letters from the U.S. Attorneys in Washngton State and California below.

Click here for the 2009 memo from Deputy Attorney General David W. Ogden. Medical marijuana law could put dispensaries, state employees at legal risk, according to USDOJ memo