Pubdate: Sun, 12 Feb 2012
Source: News Journal, The (Wilmington, DE)
Copyright: 2012 The News Journal
Contact: http://drugsense.org/url/1c6Xgdq3
Website: http://www.delawareonline.com/
Details: http://www.mapinc.org/media/822
Authors: Chad Livengood and Doug Denison, The News Journal

MEDICAL MARIJUANA LAW BUSTED

Feds Say Del.'s Dispensary Plan Could Bring Prosecution

Delaware's legalization of medical marijuana has fizzled in the wake
of legal opinions that growers, distributors and state employees could
be prosecuted under federal drug laws.

Gov. Jack Markell has suspended the regulation-writing and licensing
process for medical marijuana dispensaries -- effectively killing the
program -- and criticized the federal government for sending mixed
signals on law enforcement, The News Journal has learned.

U.S. Attorney Charles M. Oberly III has adopted the hard-line stance
that just came out of President Barack Obama's Department of Justice.
This stance accentuates the inherent conflict between federal
marijuana laws and what is playing out in states that have authorized
limited marijuana use for medicinal purposes.

"[G]rowing, distributing and possessing marijuana, in any capacity,
other than as part of a federally authorized research program, is a
violation of federal law regardless of state laws permitting such
activities," Oberly wrote Thursday to Markell's attorney. "Moreover,
those who engage in financial transactions involving the proceeds of
such activities may also be in violation of federal money laundering
statutes."

Markell's office told The News Journal on Friday that Oberly's stance
prevents the Department of Health and Social Services from issuing
licenses to medical marijuana dispensaries, whose employees and owners
may be subject to federal raids and prosecution.

The governor's office recently sought guidance from Oberly on whether
state employees responsible for regulating and inspecting licensed,
not-for-profit medical marijuana dispensaries could do their jobs
without fear of prosecution.

"State employees who conduct activities mandated by the Delaware
Medical Marijuana Act are not immune from liability under" the
Controlled Substances Act, Oberly wrote.

In a statement Friday, the Democratic governor said he had no choice
but to stop the program.

"To do otherwise would put our state employees in legal jeopardy, and
I will not do that," Markell said. 

With the federal government firmly against large-scale dispensaries, 
state legislators may need to consider amending the law to allow 
doctor-approved patients to grow their own pot at home, said Rep. 
Helene Keeley, D-Wilmington South.

"Maybe we have to tweak the current law to make this happen," Keeley 
said. "We can't give up."

New approach

Oberly's letter is evidence of the U.S. Department of Justice's 
changing attitude toward state medical marijuana laws since Obama took office.

During his campaign for president in 2008, medical marijuana advocates 
were encouraged by Obama's vow to respect state laws. Oberly, a 
Democrat and former attorney general, is an Obama appointee.

"I think it's a great betrayal of what he said when he was running for 
office," said Karen O'Keefe, director of state policies at the 
Marijuana Policy Project, a Washington, D.C.-based lobbying group that 
helped write Delaware's law. "It's been a great disappointment."

In 2009, when the first version of a medical marijuana bill was 
introduced in the Delaware General Assembly, a key impetus for the 
debate was the newly elected Obama's pledge not to send his Department 
of Justice after those involved in state-sanctioned medical marijuana 
operations.

That policy was codified in an October 2009 memo written by 
then-Deputy Attorney General David Ogden that said prosecutions of 
medical marijuana patients and caregivers was "unlikely to be an 
efficient use of limited federal resources."

With the Ogden memo as its backdrop, Delaware's legislative effort 
continued, culminating with the passage of the Medical Marijuana Act last May.

A month later, new Deputy Attorney General James M. Cole issued a memo 
with a different tone in response to inquiries from a group of federal 
prosecutors nationwide.

Drawing a corollary from the Ogden memo, Cole said patients and their 
caregivers were still safe from enforcement action but prosecutors 
were never meant to ignore "large-scale, privately owned industrial 
marijuana cultivation centers" like those authorized in some states.

In the months after the Cole memo, federal law enforcement agencies 
raided growers and dispensaries in California and Montana.

A U.S. attorney in northern California sent a letter to local public 
officials, warning them to quell their efforts to regulate and license 
marijuana growers or face criminal charges.

In January, prosecutors in Colorado mailed letters to two dozen 
medical marijuana dispensaries located within 1,000 feet of schools, 
notifying them of enhanced federal penalties for drug offenses 
committed near schools.

Legal worries

Since Delaware's passage of its medical marijuana law, the state 
Division of Public Health has been studying similar laws in other 
states and writing regulations that officials expected to publish this 
spring. Markell's recommended budget for the next fiscal year includes 
$480,000 for the implementation of the program, funded by proceeds 
from licensing dispensaries and patients.

Spurred by the Cole memo and the recent enforcement efforts, Markell's 
legal counsel, Michael A. Barlow, sought Oberly's guidance on the 
state's Medical Marijuana Act in early December.

"It was our goal to exercise some caution before we move forward, to 
make sure we have some dialogue with federal prosecutors in Delaware 
and solicit their input," Barlow said.

Specifically, Barlow said, the administration is concerned that the 
medical marijuana distribution plan outlined in Delaware's law falls 
under the parameters outlined in the Cole memo.

The statute mandates the establishment of one marijuana dispensary -- 
called a Compassionate Care Center -- in each of the three counties, 
with the possibility of more centers in future years.

Operators of the centers are to be nonprofit entities selected via a 
competitive bidding process administered by the state's Division of 
Public Health, and would be responsible for cultivating, preparing and 
distributing the marijuana in cooperation with state regulators and 
under tight state control.

"If you look at the Cole memo, it focuses on this large-scale, 
industrial distribution model, and what we have in Delaware is a 
distribution model that centralizes that into one place," Barlow said. 
"It seems to be something the Cole memo is looking to specifically."

The administration was also worried that Delaware's medical marijuana 
distribution structure could put state employees in danger of federal 
prosecution because of their close work with the dispensaries.

"The governor's concern is that we're not doing things to put state 
employees potentially in the way of the federal government's new 
enforcement," Barlow said.

In his response to Barlow, Oberly reaffirmed the Cole corollary to the 
Ogden memo and said the DOJ will not target patients or caregivers, 
but distribution is to be treated differently.

"Enterprises engaged in the cultivation, manufacture and sale of 
marijuana directly violate federal law," he wrote. "Individuals and 
organizations that participate in the unlawful cultivation and 
distribution of marijuana could be subject to civil and criminal penalties."

Oberly also said state workers are fair game for prosecution, just 
like anyone who is part of a marijuana distribution operation.

Prosecution decisions would made on a case-by-case basis, Oberly said.

The compassion centers were the linchpin of the medical marijuana 
bill's getting bipartisan support in the Delaware General Assembly, 
Keeley said.

"In the absence of such compassion centers, patients may be forced to 
obtain marijuana illicitly, unlawfully grow their own marijuana or 
forgo use of medical marijuana entirely," Barlow wrote Friday in 
response Oberly's Thursday letter. "That appears to be the unfortunate 
consequence of a federal policy that appears to offer mercy to cancer 
patients and others with a serious medical need for marijuana, but 
actually threatens criminal and civil sanctions for those who might 
help them safely obtain that relief."

Boundaries

The Marijuana Policy Project, the group that helped draft Delaware's 
medical marijuana law, said the tightly regulated nature of the 
state's implementation plan should have kept federal prosecutors at bay.

"In those states that have vague laws that allow dispensaries, that's 
where we've seen enforcement," O'Keefe said.

O'Keefe said medical marijuana laws in California and Montana, for 
example, are far more lenient in their allowances for privately owned, 
for-profit growing operations and dispensaries. Delaware's law 
initially restricts medical marijuana distribution to one dispensary 
in each county operated by a not-for-profit organization.

Seventeen states have medical marijuana laws, and federal enforcement 
actions are taking place in only a few jurisdictions, O'Keefe noted.

"New Mexico and Maine have dispensary systems that are up and running 
with no problems," she said.
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MAP posted-by: Richard R Smith Jr.