When Congress effectively lifted the federal ban on medical marijuana a year ago, Californians drove the landmark change, which was tucked into a sprawling spending package by a liberal lawmaker from the Monterey peninsula and his conservative colleague from Orange County.
A year later, marijuana legalization advocates are conflicted over how big a victory the congressional vote, which was repeated this month, has turned out to be.
“The number of raids has dropped substantially, though not completely,” across the country, said Mike Liszewski, government affairs director for Americans for Safe Access, a medical marijuana advocacy group. A federal court ruling this fall, if it is upheld, would limit federal agents from targeting all but operations that are clearly flouting state law, he noted.
But in California, in particular, federal prosecutors continue to pursue cases, in large part because of flaws in the existing state medical marijuana law, which all sides agree is long overdue for an overhaul. Gov. Jerry Brown has signed three measures to clarify the state law, but those won’t take effect until 2018.
So for now, the state that was America’s birthplace for legal medical pot remains at the center of legal disputes as federal prosecutors struggle to navigate a murky landscape in which the line between healers and drug dealers is not always clear.
The two members of Congress who championed the new approach say prosecutors are not following Congress’ intent.
“The will of the people is clear: The majority of the states have enacted medical marijuana laws, Congress has voted twice now to protect those patients, and a federal judge has upheld” the measure, Rep. Sam Farr (D-Carmel) wrote in an email. “How many times does the Justice Department need to be told to back off before it finally sinks in?”
Farr and Rep. Dana Rohrabacher (R-Costa Mesa) teamed up last year to write the measure that said anyone legally selling medical pot under a state law cannot be prosecuted.
Officials from the Justice Department declined comment, citing continued litigation.
Congress has put the department in a pickle, however. Federal law still classifies marijuana in the most dangerous category of narcotics, alongside heroin and LSD, substances which the law declares to be lacking any accepted medical use. Congress has declined to change that even as it has approved the Rohrabacher-Farr amendment, as the provision has come to be known.
The city of Oakland is invoking that amendment in demanding federal prosecutors drop their bid to seize marijuana and other assets from Harborside Health Center, the nation’s largest dispensary, which has generated a tax windfall for the cash-strapped city.
Across San Francisco Bay, in Marin County, local officials cheered when a federal judge declared in October that the continued prosecution of a dispensary was an affront to the new law – only to learn on Friday that prosecutors plan to continue the fight through an appeal.
Complicating matters are the several states that now permit the sale of marijuana for recreational use. The Obama administration has opted to allow that experiment to continue unabated. So operations in California, like Harborside, that target patients seeking the drug to treat ailments can still be prosecuted while shops in Denver that unabashedly cater to college students on weekend binges operate freely.
Over the summer, Farr and Rohrabacher accused the Justice Department of illegally misappropriating federal money to continue those prosecutions, calling on its inspector general to launch an investigation. The department has yet to respond.
Federal officials have argued in court that their prosecutions don’t violate the Rohrabacher-Farr amendment because the occasional bust doesn’t impede the state from allowing the use of medical marijuana. After the judge in the Marin County case rejected that argument as “tortured,” prosecutors are left with the argument that the sales in question are not clearly in compliance with California law, which was written very broadly.
“The early medical marijuana laws were Trojan horses designed to allow effective legalization for anyone who could fake an ache,” said Jonathan Caulkins, a professor of public policy at Carnegie Mellon University. “California is in that category.”
Even in the case of Harborside, which state and local officials often hold up as a gold standard for the medical marijuana business, California’s loose rules about who is permitted to buy medical pot have left the operations a natural target for prosecutors, Caulkins said.
“Harborside is gigantic, and the Justice Department thinks it is not providing marijuana just for kids with epilepsy or people with cancer or people with HIV,” Caulkins said.
States that have more recently adopted medical marijuana provisions are not seeing their legitimate medical marijuana businesses targeted because they serve a much narrower group of clients, he said.
But the Justice Department’s continued pursuit of Harborside is riling officials in Oakland. The business pays the city about $1.4 million annually in taxes, or as Oakland put it in one court filing, enough to pay the salaries of a dozen police officers or firefighters.
Advocates are hopeful that it will only be a matter of time before the prosecutions subside. California is among several states poised to decide next year whether to legalize pot for any adult who chooses to purchase it, whether to treat an illness or to just get high. If the state adopts rules to regulate a legalized market that satisfy the Justice Department – as Colorado and Washington state have done – prosecutors will probably move on to other business.
“I’ve seen no evidence the department is going after anybody doing recreational sales in Washington or Colorado,” said Douglas Berman, a law professor at Ohio State University. “Whatever the law is in a given state, prosecutors have decided it is not worth their time or energy to go after folks who are in compliance with it.”
But until California clarifies its law – either through an initiative or the new measures Brown signed this year – prosecutors will be reluctant to look to cities like Oakland for guidance on what pot businesses should and should not be permitted to do.
“They worry that the minute they show deference to some city officials in Oakland, someone will come out of the woodwork in Detroit who says, ‘I have a city councilman who says you should leave me alone,’” Berman said. “The feds are concerned not only with how these rules play out in this case, but the next case and the next case.”