Medical Marijuana

Can a Spending Rider Save a Medical Marijuana Supplier From Prison Seven Years After He Was Convicted?

Two congressmen rebuke the DOJ for breaking the law by continuing to pursue such cases.


Reason TV

Last December, after Congress approved a spending bill that told the Justice Department to refrain from interfering with the implementation of state medical marijuana laws, I wondered whether that provision would actually block federal prosecution of patients and their suppliers. Federal courts are beginning to address that question. In February a federal judge in Spokane, Washington, rejected claims that the amendment, which was sponsored by Reps. Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.), barred continued prosecution of the Kettle Falls Five, patients whom the government potrayed as marijuana merchants (a charge the jury ultimately rejected). Now federal prosecutors in California are seeking a similar ruling from the U.S. Court of Appeals for the 9th Circuit.

The California case involves Charlie Lynch, who operated a medical marijuana dispensary in Morro Bay until the feds raided the place in 2007. Lynch was convicted of five federal felonies in 2008 and received a one-year prison sentence in 2009, based on a sympathetic judge's debatable interpretation of the criteria for the "safety valve" that lets certain drug offenders escape mandatory minimum sentences. Prosecutors want the appeals court to overturn that sentence in favor of a five-year term. Lynch remains free on bail as he appeals his conviction, and the Rohrabacher-Farr amendment gave him a new argument: By persisting in their effort to put him behind bars, federal prosecutors are violating a congressional command barring the Justice Department from spending money to "prevent" states from "implementing" their medical marijuana laws.

"If federal prosecutors are engaged in legal action against those involved with medical marijuana in a state that has made it legal," Rohrabacher tells The New York Times, "then they are the ones who are the lawbreakers." If the 9th Circuit accepts that argument, says Ohio State law professor Douglas Berman, who presides over the the Marijuana Law, Policy & Reform blog, "this will be huge."

The Justice Department argues that enforcing federal law does not prevent states from implementing medical exceptions to their own penalties for marijuana-related activities. Yet the feds do seem to be second-guessing state officials' interpretation of state law, which is a crucial part of implementation. In both the Washington and California cases, the defendants were not allowed to talk about medical use of marijuana in front of the jury, since the plant is banned for all purposes under federal law. Prosecutors, partly in response to a DOJ policy that frowns on targeting people who comply with state marijuana laws, nevertheless have maintained that the defendants failed to do so. Local and state officials apparently did not see it that way, since neither Lynch nor the Kettle Falls Five were charged with crimes under state law. 

Last week a Justice Department spokesman said actions against individuals such as Lynch or organizations such as the Harborside Health Center in Oakland are unaffected by the Rohrabacher-Farr rider, which applies only to steps aimed at "impeding the ability of states to carry out their medical marijuana laws." According to this reading of the amendment, it bars a DOJ lawsuit seeking to overturn a state's medical marijuana law, but it allows raids that shut down every dispensary and tear up every patient's garden.

Judging from the debate that preceded the House vote on the rider, that is not the outcome that legislators envisioned. Here is the gloss that Farr offered:

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."

Other supporters of the measure agreed, and so did opponents. 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." Now the Justice Department is claiming, to the contrary, that the amendment has no effect at all on its ability to enforce the law.

"No reasonable person would agree with the department's interpretation of the amendment," Farr says in a statement issued today. "The DOJ can try to parse its wording, but Congress was perfectly clear: Stop wasting limited funds attacking medical marijuana patients."

Farr and Rohrabacher try to set the record straight in a letter they sent to Attorney General Holder today:

As the authors of the provision in question we write to inform you that this interpretation of our amendment is emphatically wrong. Rest assured, the purpose of our amendment was to prevent the Department from wasting its limited law enforcement resources on prosecutions and asset forfeiture actions against medical marijuana patients and providers, including businesses that operate legally under state law….

We can imagine few more efficient and effective ways of "impeding the ability of states to carry out their medical marijuana laws" than prosecuting individuals and organizations acting in accordance with those laws….

We respectfully insist that you bring your Department back into compliance with federal law by ceasing marijuana prosecutions and forfeiture actions against those acting in accordance with state medical marijuana laws.

Reason TV on the Lynch case:

NEXT: Reason's Austin Happy Hour Is Tomorrow!

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. FYTW

  2. Bad enough that is DOJ’s answer to the people, but FYTW to Congress too? Do they really have a death wish?

    1. This administration has said FYTW to Congress about a zillion times already and completely gotten away with it.

      The hilarious part is that the MSM is still portraying Obama as coming around on marijuana legalization. Yeah, sure he is.

      1. Progressives LIKE prohibition laws, especially ones that are popularly broken. Such laws give them all KINDS of leverage to make people do things. And, of course, such laws don’t apply to Progressives. At least not to IMPORTANT Progressives. And Progressives are all about power. They don’t really think of other people as having rights they are obliged to respect. They’ve always been that way, at heart. The Liberals may have wanted to change some things for the better, and the Radicals were pretty much raising hell for the fun of it, but the Progressives are slavers.

        Funny how the Democrat Party always seems to end up on the pro-slavery side.

        Well, not so much funny as nauseating.

  3. “The DOJ can try to parse its wording, but Congress was perfectly clear: Stop wasting limited funds attacking medical marijuana patients.”

    I’ve got an even better idea. Stop attacking anyone who isn’t violating the life, liberty or property of another citizen.

    1. Dream on, crazy diamond.

    2. I’ve got an idea: FUCK GOVERNMENT.

      1. You can fuck government all day long, but that won’t stop it from fucking you.

        In my heart I’m an anarchist, but I understand that it is inevitable that there will always be men employing organized violence for the purpose of plunder. It’s called taxes, and it’s as unavoidable as death. The only hope is to limit their power, though in practice that doesn’t seem to work very well.

      2. Aw, no, please!?! Do you have any IDEA the kind of STDs that thing carries?

  4. Hate to say it but the DoJ has a point. The spending rider is badly worded. The “intent” might have been something else but Congress should actually pass what it intends to be law.

    If Congress intended for US Attorneys to stop prosecuting people following state medical marijuana laws, it should have, you know, SAID THAT. Not this weird “impeding the ability of states to carry out…” language

    1. Amendment probably wouldn’t have passed if they worded it that way.

      Just like O-care wouldn’t have passed if they called the indie mandate a tax.

  5. The Charlie Lynch case is still going on? Fuck. Obama could have issued a pardon for him or called off the dogs at any time. But right, Obama is scum.

    1. Not that that should be news to anyone who has been paying attention. Since the publication of RADICAL CHIC OR MAU MAUING THE FLAK CATCHERS it has been an open secret that “Community Organizer” is a synonym for “fraudulent scumbag”. The Democrats and their friends in academia pretend otherwise, but then they pretend so many strange and blatantly untrue things?.

  6. The streets are infested with grandparents all hopped up on the marijuana terrorizing innocent citizens.

  7. Sounds like a crazy mess to me dude.

  8. If only the Czar – I mean the President – knew about this!

  9. These DOJ are fulled with zeroes… Nothing about the DOJ is remotely amazing… they are all old sandwiches….

  10. We respectfully insist that you bring your Department back into compliance with federal law by ceasing marijuana prosecutions and forfeiture actions against those acting in accordance with state medical marijuana laws.

    It’d be nice if they stuck something more ominous at the end.

    If you persist in this course of action, we will consider you dangerous, and ill-designing men. If you do not put an immediate end to this treasonous action, we will be forced to put an end to this rebellion and bring the traitors to justice. For those who persist in their treason, their punishment shall be death by hanging.

Please to post comments

Comments are closed.