In my column on Wednesday, I noted that Arizona Gov. Jan Brewer seems intent on undermining her state's Medical Marijuana Act, which she opposed before voters approved it in November 2010. Last week, speaking at the annual conference of the Arizona Chiefs of Police, Brewer regretted that law enforcement officials had not done more to prevent passage of the medical marijuana initiative, Proposition 203, which won by a margin of just 4,340 votes out of more than 1.7 million ballots:
I believe we all have a duty to speak with a unified voice on irresponsible ballot measures that jeopardize public safety. Proposition 203...is a good example where a unified voice might have prevented passage of this dreadful situation....Everybody should have been down there, looking at this piece of legislation and talking to people and explaining to them what the ramifications were....We didn't realize it was going to get that kind of momentum. There should have been a lot more exposure.
Brewer herself, who became governor because she was Arizona's secretary of state when President Obama picked Janet Napolitano to head the Department of Homeland Security in 2009, was busy trying to keep her job and did not come out against Proposition 203 until two weeks before the election. Now she is trying to defeat the law by inviting a federal judge to declare it invalid and barring the Department of Health Services from accepting license applications for dispensaries. The state has been issuing permits to users, however. So far 7,500 patients are authorized to possess marijuana and, because Brewer has blocked dispensaries from opening, they also may grow up to a dozen plants at a time. As The New York Times noted last week, various unapproved distribution operations have appeared, based on creative interpretations of the law. "In lieu of a regulated industry," one activist told the Times, "we're now creating an environment in which patients are growing their own with limited oversight, and these private clubs of questionable legality are popping up."
Again, the contrast with New Jersey Gov. Chris Christie is telling. Like Brewer, he is a conservative Republican who opposed his state's medical marijuana law (which was enacted under his predecessor). But last week Christie, deeming the risk of federal prosecution minimal, announced that New Jersey will allow dispensaries to distribute medical marijuana:
I made clear during the campaign that this is not a law that I would have signed if I were governor at the time. But I also on January 19th took an oath to enforce and uphold the laws of the state of New Jersey as governor. And so despite all of the hyperbole over time from others [who criticized him for delaying implementation of the law], I have been struggling...to find a way to accomplish what I wanted to accomplish, which is to provide compassionate treatment to people who are suffering in a way that will not expose them, the operators of our dispensaries, or the employees of the state of New Jersey to criminal liability....
As a former United States attorney...I don't believe that the United States Attorney's Office in New Jersey, ...given the narrow and medically based nature of our program, will expend what are significantly lessening federal law enforcement resources...on going after dispensaries in New Jersey, our Department of Health, or other state workers who are helping to implement this program....It is my belief, having held that job for seven years, that there [are] a lot of other things that will be more important as long as the dispensaries operate within the law.
Brewer is not a former prosecutor (or a lawyer). But if she really were concerned about federal prosecution of state employees who license and regulate dispensaries, as she claims to be (despite reassurances from Dennis Burke, the U.S. attorney from Arizona), she could look into the issue. She would find, as the ACLU did, that there do not seem to be any plausible grounds for bringing federal charges against state employees simply for certifying that people are complying with the Arizona Medical Marijuana Act and are therefore exempt from state drug penalties. (If such prosecutions were feasible, they would also apply to issuing patient permits, which Brewer has allowed even though they let people grow marijuana without fear of state prosecution.) And while it's clear the Justice Department legally could prosecute operators of state-licensed dispensaries, so far it has not done so; all of its medical marijuana cases have involved growers or distributors whose actions were not explicitly authorized by state law. The only way to test whether Obama's promises to respect state law amount to anything in practice is to proceed with plans for state-authorized dispensaries, as Christie is doing. The dispensary operators are well aware of the risk and are willing to take it. State law requires Brewer to let them.
[Thanks to Richard Cowan for the tip.]