Montana's Medical Marijuana Muddle

Yesterday the Drug Enforcement Administration raided about 10 medical marijuana operations in Montana, including four dispensaries run by Montana Cannabis and the greenhouse that supplies them. According to Reuters, "The raids marked the first such crackdown in Montana by the federal government since a state ballot measure legalizing cultivation and possession of marijuana for medical purposes was overwhelmingly approved by voters there in 2004." The crackdown came on the same day that a bill aimed at repealing that initiative was blocked by a state Senate committee.

Wait. Didn't Barack Obama repeatedly promise to call off the DEA's medical marijuana raids when he was running for president, and didn't his attorney general instruct federal prosecutors to leave patients and providers alone as long as they are complying with state law? Sort of. Under a policy change announced by the Justice Department in October 2009, U.S. attorneys were told that, "as a general matter," they "should not focus federal resources" on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." In practice, this policy means the feds reserve the right to interpret state law and decide whether patients and providers are following it, as illustrated by continued raids in California, Colorado, and Michigan.

Montana, like California and Michigan, allows "caregivers" as well as patients to grow marijuana. Montana's Medical Marijuana Act (PDF) defines a caregiver as an individual "who has agreed to undertake responsibility for managing the well-being of a person with respect to the medical use of marijuana." A patient with a doctor's recommendation may grow up to six plants and possess up to one ounce of usable marijuana for his own consumption, or he can designate a caregiver, who may grow up to six plants on his behalf. Are patients or caregivers allowed to form "cooperatives," as they do in California, and grow marijuana together? According to the state Department of Public Health & Human Services, which keeps track of registered patients and their caregivers, "the law is silent on this issue." And although the law specifies that "a qualifying patient may have only one caregiver at any one time," it does not seem to address the question of whether a caregiver may grow marijuana for more than one patient.

The upshot is that the DEA can always argue that any individual or group of people with more than six plants (or more than one ounce of usable marijuana) in one place is not "in clear and unambiguous compliance" with Montana law. That would be the case even if state courts explicitly approved grow operations and dispensaries operated by patients or caregivers. Federal raids have continued in California even though the state attorney general (now the governor) said dispensaries are permitted.

Now that the attempt to repeal Montana's Medical Marijuana Act has been stymied, people who believe the current system is too loose are expected to propose regulations that will clarify exactly what is and is not permitted. If such rules are established, the DEA will no longer have an excuse for breaking Obama's promise.

More on the wiggle room left by Obama's supposedly tolerant attitude toward medical marijuana here.

[Thanks to Robert Johnson, Dave Budge, and Richard Cowan for the tip.]