Marijuana

Seeking Dismissal of Drug Charges, Medical Marijuana Patients Say Congress Is on Their Side

Will a new spending restriction end the Kettle Falls Five case?

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Americans for Safe Access

Last month, after Congress approved an omnibus spending bill that bars the Justice Department from spending money to "prevent" states from "implementing" medical marijuana laws, I suggested that the fate of the Kettle Falls Five would be an early indicator of the rider's impact. Last week a lawyer for those patients, who were arrested by the Drug Enforcement Administration for growing marijuana in northeastern Washington and are scheduled to be tried next month, cited the rider in asking a federal judge to dismiss the charges against them, which could send them to prison for 10 years or more.

"Prosecuting persons who may be operating in compliance with state medical marijuana laws prevents states from implementing their own laws in at least three ways," writes federal public defender Robert Fischer on behalf of the lead plaintiff, Larry Harvey. Fischer argues that such prosecutions create uncertainty about whether patients will be able to obtain their medicine, "take away Washington's authority to determine for itself whether someone is in compliance with its laws or not," and deny the medical value that Congress acknowledged by approving the spending restriction.

To shore up his argument that the rider prohibits continued prosecution of Harvey and the four other defendants, Fischer cites comments during the debate before the House approved it. Rep. Sam Farr (D-Calif.), who cosponsored the rider along with Rep. Dana Rohrabacher (R-Calif.), explained its aim this way:

This [amendment] is essentially saying, look, if you are following state law, you are a legal resident doing your business under state law, the feds can't come in and bust you and bust the doctors and bust the patient. This doesn't affect one law, just lists the states that have already legalized it only for medical purposes, and says, "Federal government, you can't bust people."

According to Rep. Dina Titus (D-Nev.), the Rohrabacher/Farr amendment "simply ensures that patients do not have to live in fear when following the laws of their states and the recommendations of their doctors. Physicians in those states will not be prosecuted for prescribing the substance [marijuana], and local businesses will not be shut down for dispensing the same." Rep. Paul Broun (R-Ga.), a family physician, said "there are very valid medical reasons to utilize extracts or products from marijuana in medical procedures," adding, "This is a states' rights, 10th Amendment issue. We need to reserve the states' powers under the Constitution." 

Rep. Earl Blumenauer (D-Ore.) agreed. "This amendment is important to get the federal government out of the way," he said. "Let this process work going forward where we can have respect for states' rights and something that makes a huge difference to hundreds of thousands of people around the country now and more in the future." 

Even opponents of the amendment seemed to agree that it would bar prosecution of people complying with state law. Rep. Andy Harris (R-Md.) wondered, "How is the DEA going to enforce anything when, under this amendment, they are prohibited from going into that person's house growing as many plants as they want, because that is legal under the medical marijuana part of the law?" Rep. John Fleming (R-La.) complained that the amendment would "make it difficult, if not impossible, for the DEA and the Department of Justice to enforce the law."

These comments are important because it is not completely clear what it means to "prevent" states from "implementing" their medical marijuana laws. Those laws carve out exceptions to state penalties for marijuana-related activitives, and punishing those activities under federal law does not eliminate those exceptions, although it does undermine the goal of facilitating access to marijuana by patients who can benefit from it.

Another complication in the Kettle Falls Five case is that there is some dispute about whether the defendants were complying with state law. Washington's medical marijuana law gives a patient with a doctor's recommendation an affirmative defense against cultivation charges for growing up to 15 plants. An August 9, 2012, raid on Harvey's property by the Stevens County Sheriff's Department found 74 plants, which is less than the total of 75 that the five patients were allotted. But the sheriff's deputies confiscated 29 of those plants, citing a legal provision that eliminates penalties for "collective gardens" with no more than 45 plants. When DEA agents raided the property a week later, they took the rest of the plants, since any amount of marijuana is contraband under federal law, regardless of the intended use.

Even before the Rohrabacher/Farr amendment, this case seemed to run afoul of Justice Department policy, which frowns on prosecuting patients who comply with state law. To the extent that there is any ambiguity about whether Harvey et al. were complying with state law, both the amendment and DOJ policy suggest that it should be resolved by officials in Washington, who decided the garden was OK once the "extra" plants had been eliminated. "From the facts in this case," Fischer writes, "the Harveys and co-defendants were in compliance with Washington state law, or earnestly attempting compliance, thus implementing the law of the state."

If that argument prevails, the Rohrabacher/Farr amendment should provide broad protection for patients and their providers (although dispensaries in states that do not explicitly allow them may still be in legal jeopardy). But if the judge decides that implementing a medical marijuana law means nothing more than making exceptions to state criminal penalties, Congress may have to revisit this issue to clarify its intent.

[Thanks to Marc Sandhaus for the tip.]

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  1. Dream on.

    Prosecuting people for violating federal law is not “preventing” states from “implementing” their own laws. The rider is drafted so narrowly that it would only prevent the DOJ from suing a state to prevent the state itself from carrying out its own medpot laws.

    1. Depressing, but very likely true.

    2. Which is ridiculous, because the state would undoubtedly win such a suit anyway, and since both the state & federal gov’ts employ lots of lawyers, and going to court is their job anyway, so it makes no difference to anybody’s life.

  2. This past weekend, over 3000 Americans died of Cancer.

    Today, tomorrow, and every day after that, 1,500 more Americans will die, in pain, of Cancer. Every single minute another American dies of Cancer. Every American Cancer patient deserves the right to have safe, legal, and economical access to Medical Marijuana. Every single one.

    Americans who need Medical Marijuana shouldn’t be used as “Political Footballs” Please call the Whitehouse comment line at (202) 456-1111 and ask that the President take immediate action to remove Marijuana from Schedule 1 so American Physicians in all 50 states can prescribe it.

    Oncologists have know it for more than a quarter of a Century that Marijuana is a “wonder drug” for helping Cancer patients.

    The American Society of Clinical Oncologists wants Marijuana removed from Schedule 1. So does the American Medical Association, the professional society of all Physicians. A strong majority of Americans want Physicians in all 50 states to be able to prescribe Medical Marijuana. So do their Physicians., Cancer patients can’t wait.

    1. Sorry, don’t care about medical pot. Weed should be legal whether taken for recreational or not. Period. Full stop.

      1. So who asked you? I’m sure there are lots of people who do care about medi-pot.

        1. But the stance that pot is a dangerous drug unless you are in great pain from a terminal disease is both ridiculous and harmful to ending the drug war.

          1. Sort of. But nobody really believes that. And Scientist certainly isn’t saying that. And the more open medical pot states, where it functioned as a sort of de facto legalization, has helped move legalization along, I think.

        2. Shouldn’t. Any medication that an adult wants to try should be available over the counter whether they are doing it to treat symptoms or just for the hell of it.

          1. Yes, that is what everyone here thinks about drugs. But that is very unlikely to happen any time soon.
            It’s a drag, but the best we are likely to see is a fairly regulated legal market in cannabis.

          2. It used to be,our Grandparents could buy tincture of Cannabis over the counter,,,,Have we progressed or regressed?

  3. This past weekend, over 3000 Americans died of Cancer.

    Today, tomorrow, and every day after that, 1,500 more Americans will die, in pain, of Cancer. Every single minute another American dies of Cancer. Every American Cancer patient deserves the right to have safe, legal, and economical access to Medical Marijuana. Every single one.

    Americans who need Medical Marijuana shouldn’t be used as “Political Footballs” Please call the Whitehouse comment line at (202) 456-1111 and ask that the President take immediate action to remove Marijuana from Schedule 1 so American Physicians in all 50 states can prescribe it.

    Oncologists have know it for more than a quarter of a Century that Marijuana is a “wonder drug” for helping Cancer patients.

    The American Society of Clinical Oncologists wants Marijuana removed from Schedule 1. So does the American Medical Association, the professional society of all Physicians. A strong majority of Americans want Physicians in all 50 states to be able to prescribe Medical Marijuana. So do their Physicians., Cancer patients can’t wait.

    1. So do their Physicians

      Citaion needed.

      The AMA ain’t quite there yet.

      “The AMA today reiterated the widely held scientific view that marijuana is dangerous and should not be legalized,” said Stuart Gitlow, MD, Chair-Elect of the AMA Council on Science and Health and President of the American Society of Addiction Medicine.

      1. or a citation

      2. The AMA today reiterated the widely held scientific view that _________ is dangerous

        Fill in the blank. And then wonder why the AMA should ever be listened to again.

      3. the widely held scientific view that marijuana is dangerous

        Which is clearly not at all a scientific view as all evidence points in a quite different direction. Maybe it is widely held by scientists, but that doesn’t make it a scientific view.

        1. “Marijuana is dangerous to doctors’ high incomes”, says their labor union, the AMA.

  4. Hey you guys I have found the perfect job as a full time student, it has changed my life around! If you are self motivated and social media savvy then this is ideal for you. The sky is the limit, you get exactly how much work you put into to it. Click on this link to get started and see for yourself,
    ……
    ?????? http://www.Workvalt.Com

    1. Ooooh, social media savvy.

      I have no idea what that means.

      1. It means you read HyR comments.

    1. Do any men watch Nancy Grace? I wonder.

      1. I hear she’s very popular among the 55-75 male catatonics.

      2. Fuck that lying bitch cunt…. What was the question again?

  5. http://www.atr.org/obama-calls…..-new-taxes

    So apparently Obama plans to pay for his community college plan by, get this, eliminating the tax free status of college savings plans.

    He’s paying for community college by taxing peoples’ college savings.

    This man is a goddamn genius.

    1. Hey, if it means I can go to Greendale with Alison Brie, I’m ok with just about anything.

      “This locomotive is powered…by us!”

    2. He’s apparently banking on Republicans being too stupid and disorganized to point out what an absurd plan it is.

      And the sad thing is, that’s not a bad bet.

    3. Fuck the people who save in favor of the people who spend beyond their means.

      What do you think HARP was for?

    4. Did you catch this little tidbit?

      Under the Obama proposal, when you inherit an asset your basis will simply be the decedent’s original basis.

      Example: Dad buys a house for $10,000. He dies and leaves it to you. The fair market value on the date of death is $100,000. You sell it for $120,000. Under current law, you have a capital gain of $20,000 (sales price of $120,000 less step up in basis of $100,000). Under the Obama plan, you have a capital gain of $110,000 (sales price of $120,000 less original basis of $10,000).

      “Golly, Valerie, don’t you think we should, um, give some credit for *inflation*?”

      “And hobble the engine of recovery? This man is a goddamn genius!”

      1. The really humorous part is that this is billed as “increasing taxes on the very rich to benefit the middle class.”

  6. Congress is on Congress’ side.

    1. She a hero for loud and stupid people everywhere.

      1. Did she used to be hot? Did guys tell her she was smart and charming to get in her pants? If not, I don’t know where the hell she got the idea in her head.

        1. She’s the Florence Foster Jenkins of journalism.

          1. She looks like a washed-up overweight former horror movie show host.

        2. The answer to your question is a resounding NO. Nancy Grace has been single for over three decades now. Ever since her boyfriend was murdered back in 1978, she seems to have an axe to grind with the human race and not in the healthy manner of a misanthropic curmudgeon. She takes more of a “there are no innocent men, only guilty people who haven’t been caught, prosecuted, and prison raped” tack.

  7. I found a video of how the Soviet media portrays the US. It is very similar to the way the US media portrays the US.

    https://www.youtube.com/watch?v=2GvDyJobHTM

    https://www.youtube.com/watch?v=ishc15IVZ6o

  8. I kinda like the way taht sounds dude. WOw.

    http://www.BestAnon.tk

  9. If This isn’t 10th amendment material,I don’t know what is.

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