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Is the DOJ Defying Congress by Pursuing Medical Marijuana Cases?

Despite a rider that was supposed to stop them, the feds target patients in Washington and dispensaries in California.

Office of Dana RohrabacherOffice of Dana RohrabacherLast week a federal judge rejected a defense motion to dismiss the case against five medical marijuana users in Washington state who face drug charges that could send them to prison for 10 years or more. That ruling means the trial of Larry Harvey and the four other defendants, known as the Kettle Falls Five, will proceed as scheduled next Monday.

Defense attorneys argued that the prosecution violates a spending rider barring the Justice Department from trying to stop states like Washington from implementing their medical marijuana laws. U.S. District Judge Thomas Rice disagreed, noting that federal prosecutors claim Harvey et al. were not complying with state law. "The United States has proffered evidence to demonstrate the defendants were operating a for-profit marijuana business," Rice wrote.

That evidence seems to be pretty weak, consisting mainly of the government's argument that Harvey and the others were growing too much marijuana for their own medical use. Defense attorneys say the amount was medically justified, citing the opinion of a physician with expertise in the therapeutic use of marijuana. The number of plants the Kettle Falls Five had was consistent with Washington's presumptive limit of 15 per patient, and they never faced charges under state law. Furthermore, as I explained in a column earlier this month, Harvey et al. are guilty under federal law regardless of their motivation for growing the marijuana, which they will not be allowed to discuss during their trial. Simply growing 100 or more plants, as alleged by the government (based on speculation about past harvests), is enough to trigger a five-year mandatory minimum, and the guns that Harvey and his wife owned add another five years to the minimum.

The rider cited by the defense, sponsored by Reps. Dana Rohrabacher (R-Calif.) and Sam Farr (D-Calif.), has not had any obvious restraining effect on the Justice Department since it was enacted in December. In a speech on Sunday at the International Cannabis Business Conference in San Francisco, Rohrabacher slammed the feds for continuing to target medical marijuana providers. "If any of you is being attacked, that federal prosecutor is breaking the law," he said. "That breaks the letter and the spirit of the law that passed the House with great debate." During that debate, opponents and supporters of the Rohrabacher-Farr amendment agreed that it would stop the Justice Department from prosecuting people who grow or distribute marijuana for medical use in compliance with state law.

Last week Rohrabacher, Farr, and Rep. Barbara Lee (D-Calif.) issued a statement condemning U.S. Attorney Melinda Haag's continuing attempt to shut down and seize Oakland's Harborside Health Center, which they described as "a duly licensed dispensary of medical marijuana in accordance with state and local laws." They said the Justice Department "has overstepped its bounds in the Harborside case" and "is not acting within the spirit or the letter of the law nor in the best interests of the people who depend on Harborside for reliable, safe medical marijuana."

Harborside is licensed by Oakland but not by the state, which does not explicitly allow dispensaries, let alone regulate them. The Justice Department therefore could argue, as in the Kettle Falls Five case, that it is not targeting people who are complying with state law. But the status of dispensaries under California law is a matter of dispute, and the question is who should decide the issue: state and local officials or the feds. Letting the Justice Department decide who is complying with state medical marijuana laws would empower it to interfere with implementation of those laws, something the Rohrabacher-Farr amendment explicitly forbids.

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  • Fist of Etiquette||

    The Executive bucking the Legislative?

  • Scientist||

    Doj isn't just defying congress, they're hurting Cancer patients. I'm a Scientist with a strong interest in Cancer research and the use of Medical Marijuana in Cancer Therapy. I'm outraged at the fact that Americans with Cancer are suffering and dying in pain, being prevented from having safe, legal, and economical access to Medical Marijuana in 27 states because of nobody in Washington has had the moral fiber to remove Marijuana from Schedule 1. Dying of Cancer sucks -- ask anyone doing it. It is immoral to leave Marijuana on Schedule 1 for even one second longer.

  • HeteroPatriarch||

    Do you post this shit verbatim on every MMJ thread?

  • tarran||

    Yes, Scientist, we understand all that. What we are curious about is whether you have had any adventures with pirates lately?

  • Banished Jester||

    The question is what would you authorize Americans to do about it? Despite the legislative action the tyrants who profit most of the illicit drug trade (CIA) do not seem to care. Force is the only political tool they seem to want to use. What shall we do with them?

  • Scientist||

    Dying of Cancer Sucks -- Ask Anyone Doing it. Medical Marijuana is a "Wonder Drug" and a "Gift From God" for Cancer Patients. For Cancer Patients, Medical Marijuana is a matter of life and death. An American dies every minute of Cancer. Please call the White house comment line at (202) 456-1111 and ask that the President take Marijuana off of Schedule 1 TODAY. America's Cancer Patients Can't Wait!

  • Florida Man||

    Are you the most advanced spambot or a real person, Mr Scientist?

  • R C Dean||

    So, so, binary in your thinking.

    Why not both? A hybrid? A spamborg, if you will.

  • Florida Man||

    I just got chills down my spine. It's like the Mormons on bikes, plus buzzfeed times 1000.

  • RBS||

    So, I googled "Mormon buzzfeed".

  • perlhaqr||

    An an ex-LDS, that was goddamned hilarious. :D

  • Andrew S.||

    And they'll do what, exactly, about it? Ask Loretta Lynch something other than a softball question at her hearings? Threaten impeachments? Or, more likely, sit with their thumbs up their asses and do nothing?

    The imperial Presidency is all-powerful.

  • R C Dean||

    If Congress wants to stop prosecutors from bringing these cases, it just needs to add a rider to the DOJ spending bill.

    A rider that prohibits the DOJ from paying a salary to any prosecutor who brings one of these cases, and makes the AG personally liable for any amounts spent in violation of the rider.

  • sarcasmic||

    What if the DOJ ignores it? Seriously. What would happen? I'm guessing nothing.

  • R C Dean||

    Good point. Give anyone charged by the feds in violation of this directive a personal cause of action against the AG.

  • R C Dean||

    Or, the law could be self-executing, as in any amounts owed by the AG would be automatically deducted from his/her/its paycheck and/or retirement benefits.

  • tarran||

    Anything less than the boats is too merciful.

  • Swiss Servator... Switzy!||

    Brazen Bull?

  • Swiss Servator... Switzy!||

    Oh and h/t to Heroic Mulatto for that one.

  • sarcasmic||

    Legislatures can pass all the legislation they want that says the executive can't do stuff, but without penalties and means of enforcement it's nothing but toilet paper.

  • Hugh Akston||

    Sorry Sullum, but I distinctly remember Eric Holder saying that the DOJ would no longer pursue marijuana convictions against people who were complying with state laws.

    So I refuse to believe that the feds are trying these cases, because that would stand in blatant contradiction of their stated policy that they aren't going to follow the law when they don't feel like it.

  • tarran||

    +1 King Arnulf of Hy-Brasil

  • Notorious G.K.C.||

    So as the judge interprets the rider, prosecution is only legal because the defendants are accused of having for-profit motives?

    So, presumably, unless they show a profit motive to the jury...the defendants get acquitted?

    I'm guessing the answer is no, but I haven't time to look what particular FYTW explanation they're going to give.

  • Notorious G.K.C.||

    Seriously, does the indictment allege facts which if true would bring the case outside of the rider? Does the indictment even cite the rider?

  • R C Dean||

    does the indictment allege facts which if true would bring the case outside of the rider

    Not that I can tell. The grow was within the state limits. The prosecutor seems to be assuming that any bigger grows must be for profit.

  • buybuydandavis||

    "and the guns that Harvey and his wife owned add another five years to the minimum."

    I love the way exercising your 2nd amendment rights is used as a justification for stiffer criminal penalties.

  • buybuydandavis||

    "noting that federal prosecutors claim Harvey et al. were not complying with state law."

    I love how it's the Feds who are determining when State laws have been broken.

  • Notorious G.K.C.||

    For once, there's a statute *requiring* them to comply.

  • Enough About Palin||

    HEY REASON, I DON'T WANT AN IAMS DOG FOOD AD STARTING UP AUTOMATICALLY WHEN I CLICK YOUR LINKS. I AM AT THE OFFICE AND PROHIBITED FROM INSTALLING CHROME AND AD BLOCK (ASI HAVE AT HOME). KNOCK IT THE FUCK OFF.

    I donate, btw. Every year. Be a shame were that to stop.

  • ||

    Will a jury convict? Get one 2A supporter on the jury and the gun charge shouldn't stick. Get one med MJ supporter on the jury and the MJ charges shouldn't stick. Where is this trial going to take place? Federal court in Washington state? So it's really just to waste everyone's time and money?

  • Alan@.4||

    DOJ not abiding by the will of The Congress, say it isn't so Joe,say it isn't so.

  • Scientist||

    Please call the whitehouse comment line at (202) 456-1111 and ask that the President get Marijuana removed from Schedule 1 immediately.

  • RandyDaniels||

    From what I understand from reading the decision, this case case could not be tried unless the accused violated a state law. However, the defendants cannot present evidence that they were following the state law during their trial.

    Can someone explain to me the legal theory behind not letting the jury hear this evidence, or even giving the issue some kind of pre-trial hearing?

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