New Jersey Proceeds With Medical Marijuana Dispensaries While Arizona Hangs Back

Today New Jersey Gov. Chris Christie announced that he will proceed with plans to allow distribution of medical marijuana by six nonprofit organizations, despite federal prosecution threats. Christie, who had been dragging his feet in implementing New Jersey's medical marijuana law (which was signed by his predecessor, Jon Corzine, after the 2009 election), suspended the program entirely when U.S. attorneys started warning that compliance with state law provides no protection against prosecution under the Controlled Substances Act. He said he wanted some assurance that the feds would not go after state-licensed dispensaries or the regulators who oversee them. He never really got that assurance. In fact, a June 29 Justice Department memo confirmed that suppliers are fair game, contrary to an October 2009 memo that indicated they'd be safe as long as they were in "clear and unambiguous compliance" with state law. But Christie, following the lead of Roseanne Scotti, New Jersey director of the Drug Policy Alliance, evidently took some comfort from the new memo's emphasis on large-scale, commercial operations and the lack of any explicit reference to the legal exposure of state employees:

The governor said he doesn't believe federal authorities will expend limited resources to go after people complying with state law.

"I have been struggling, as has my administration, to find a way to accomplish what I've wanted to accomplish, which is to provide compassionate treatment to people who are suffering in a way that wouldn't expose them, the operators of our dispensaries or the employees of the state of New Jersey to criminal liability," Christie said. "That is a lot easier said than done."

In Arizona, meanwhile, a medical marijuana distribution system approved by voters last November is still on hold. Gov. Jan Brewer suspended implementation of the Arizona Medical Marijuana Act (AMMA) in May, like Christie citing concerns about prosecution of state employees. She has filed a complaint (PDF) that asks a federal judge to decide whether the medical marijuana law, which she opposed before the election, "complies with federal law" or is "preempted in whole or in part because of an irreconcilable conflict with federal law." Oddly, Brewer expresses no preference between those two diametrically opposed choices, which reinforces the impression that her suit is a veiled attempt to overturn Arizona's law without antagonizing its supporters. Two weeks ago the American Civil Liberties Union filed a motion seeking dismissal of Brewer's suit. 

Among other things, the ACLU argues that there are no plausible grounds for charging state employees who implement the medical marijuana law with a crime, since regulating dispensaries would not involve growing or distributing marijuana and would not meet the intent and knowledge requirements for convicting someone of conspiracy, aiding and abetting, acting as an accessory, or money laundering. It adds that regulators could not be prosecuted simply for failing to rat out licensees to the feds, since "respecting confidentiality does not constitute an affirmative act," which is required to convict someone of concealing a felony. Because Arizona regulators' function would be limited to determining who qualifies for an exemption from state criminal penalties, the brief argues, it would not conflict with the Controlled Substances Act or prevent the feds from enforcing it.

The only U.S. attorneys who have mentioned the legal risk to state employees, by the way, seem to be Jenny Durkan and Michael Ormsby, who in an April 14 letter to Washington Gov. Christine Gregoire said officials who implemented a proposed distribution system "would not be immune from liability under the CSA." Two weeks later, citing that threat, Gregoire vetoed the bill that would have authorized dispensaries, which she had until then publicly supported. Since she solicited the letter from Durkan and Ormsby, specifically asking about the legal exposure of state employees, she may have been looking for an excuse to block the bill without alienating Washington voters, most of whom approved the state's medical marijuana law in 1998 and, according to polls, continue to support it. Ormsby later claimed the bill would have required state employees to handle marijuana. According to Alison Holcomb, drug policy director at the ACLU of Washington, that's not true: While the state would have tested marijuana under an earlier version of the bill, the final version assigned that task to private labs. In any case, Dennis Burke, the U.S. attorney for Arizona, says he has "no intention" of prosecuting state employees.