Marijuana and the Law

[A] drug which takes away grief and passion and brings a forgetfulness of all ills.

Homer, The Iliad

Two events took place in June that suggested a primer on how medical marijuana laws are working in Colorado might be appropriate. The first was an appellate court decision that the state Supreme Court declined to review. The holding was that if an employer has a zero-tolerance drug policy and an employee who uses medical marijuana tests positive and is discharged, the employee is not entitled to unemployment benefits even though the use of medical marijuana is not proscribed by state law.

The second event of note was a newspaper announcement that the Sunday night CBS news program "60 Minutes" had interviewed Stan Garnett, Boulder, Colorado's District Attorney, with respect to medical marijuana dispensaries operating in Colorado. Since the interview will not be broadcast until fall, an update might help those who wonder what is happening in the world of medical marijuana in Colorado. Although only applicable to Colorado, readers elsewhere can see how the Obama administration has lived up to promises made during the 2008 campaign.

During the 2008 campaign Mr. Obama said, with respect to medical marijuana laws, that if elected: "What I'm not going to be doing is using Justice Department resources to try to circumvent state laws on this issue simply because I want folks to be investigating violent crimes and potential terrorism. " In February 2009 Attorney General Eric Holder said what the president said during the campaign "is now American policy" and in a subsequent press conference said the policy is to "go after those people who violate both federal and state law. . . ." The administration did not rely on those statements to let people know what official policy was. David Ogden, then the Deputy Attorney General of the United States, put it in writing so everyone would understand.

October 19, 2009, Mr. Ogden sent a memorandum to the U.S. attorneys in states that authorized the sale and use of medical marijuana. Its stated purpose was to provide "clarification and guidance to federal prosecutors." Mr. Ogden began by saying: "Congress has determined that marijuana is a dangerous drug, and the illegal distribution and sale of marijuana is a serious crime. . . ." However, he went on to say that "selected U.S. attorneys" to whom he sent his memorandum 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." Mr. Ogden and Colorado's U.S. Attorney, John Walsh, would have been well served had Mr. Ogden stopped there since it was clear what he meant. He didn't. After explaining the meaning of "clear and unambiguous" as used in his memorandum he went on to say that "no State can authorize violations of federal law" which is, of course, exactly what medical marijuana legislation does. If a U.S. attorney decides to prosecute someone, Mr. Ogden continued, it is not necessary to prove that a state law was violated. The memorandum, he said, does not "'legalize' marijuana or provide a legal defense to a violation of federal law. . . . Nor does clear and unambiguous compliance with state law . . . provide a legal defense to a violation of the Controlled Substances Act." He repeats that in the penultimate paragraph of his memorandum saying the memorandum is not intended to preclude investigation "in particular circumstances where investigation or prosecution otherwise serves important federal interests." The foregoing, as all but the dullest reader can immediately see, is a crystal clear roadmap for U.S. Attorneys who wonder whom to prosecute. And that brings the curious to Colorado and to the even curiouser John Walsh.

Colorado citizens amended their state constitution in 2000 to permit the medical use of marijuana effective June 1, 2001. In 2010 a law was enacted that regulates medical marijuana dispensaries. John Walsh, apparently confused by the Ogden memo, has concluded that he can prosecute those who are in "clear and unambiguous compliance" with Colorado law as stated in the Ogden memorandum. In January, March and May, he sent waves of letters to dispensaries within 1000 feet of schools telling them they must close and describing in great detail the draconian penalties that may be imposed if they do not. Mr. Walsh was not concerned about whether local governments were content to have dispensaries closer than 1000 feet to schools as Colorado law permits .

Mr. Garnett wrote Mr. Walsh in March expressing his opinion that the U.S. Attorney's office could, instead of going after dispensaries, better use its efforts dealing with "terrorism, serious economic crime, organized crime and serious drug dealing. . . ." In response, Mr. Walsh said in effect, that his views about how far dispensaries should be from schools overrode local governments' views. He did not say how his actions comported with Mr. Ogden's memorandum.

What the Colorado court ruled does not run afoul of what Mr. Obama promised during the 2008 campaign. What Mr. Walsh has done, does. That is more than a pity. It is a travesty.