The Drug War Chronicle reports that Arizona Gov. Jan Brewer, whose federal lawsuit challenging her own state's medical marijuana law was dismissed two weeks ago, says she will not appeal that decision and plans to implement the law. In a statement (PDF) released last Friday, Brewer says:
It is well-known that I did not support passage of Proposition 203, and I remain concerned about potential abuses of the law. But the State's legal challenge was based on my legitimate concern that state employees may find themselves at risk of federal prosecution for their role in administering dispensary licenses under this law. Last week, to my great disappointment, the U.S. District Court of Arizona dismissed the State's lawsuit on procedural grounds and refused to provide clarity on the likely conflict between Proposition 203 and federal drug law.
Remember how we got to this point. The State of Arizona was fully implementing the provisions of Proposition 203 last spring. That's when Arizona was among a host of states that received letters from the U.S. Department of Justice threatening potential legal ramifications for any individual participating in a medical marijuana program, even in states where it had been legally approved. Specifically, the Arizona letter – dated May 2, 2011 – warned that "growing, distributing and possessing marijuana in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws that purport to permit such activities."
Would state employees at the Department of Health Services, charged with administering and licensing marijuana dispensaries, face federal prosecution? This was the basis for calling a "time out" in order for the State to seek a straightforward answer from the court. With our request for clarification rebuffed on procedural grounds by the federal court, I believe the best course of action now is to complete the implementation of Proposition 203 in accordance with the law.
The Justice Department certainly deserves blame for muddying the waters with threatening letters affirming the federal government's authority to continue enforcing marijuana prohibition in states that allow medical use of the drug. To this day, it remains unclear whether Attorney General Eric Holder's repeated assurances that federal prosecutors would not focus their resources on medical marijuana dispensaries that comply with state law amount to anything in practice. At the same time, state employees have never been prosecuted for implementing a medical marijuana law, only one of the U.S. attorney letters mentioned them (and then only because Washington Gov. Christine Gregoire asked about their potential legal exposure), and Arizona's U.S. attorney specifically disclaimed any intent to prosecute dispensary regulators. That sort of action would unnecessarily escalate the conflict between state and federal officials over this issue, with damaging political repercussions for the Obama administration. And as the ACLU has shown, it is not at all clear what the legal grounds for such a prosecution would be. None of this guarantees it will never happen, but the possibility is remote enough that U.S. District Judge Susan Bolton was correct to deem it a phantom menace for now. Other states, including Colorado, New Jersey, Delaware, and Vermont, have proceeded with plans for licensed dispensaries despite the federal threats. The fact that Brewer did not, despite her professed commitment to federalism, suggests she was motivated more by antipathy to her state's law rather than by concern for state employees.