Pubdate: Thu, 09 Apr 2015
Source: Honolulu Star-Advertiser (HI)
Copyright: 2015 Star Advertiser
Contact: 
http://www.staradvertiser.com/info/Star-Advertiser_Letter_to_the_Editor.html
Website: http://www.staradvertiser.com/
Details: http://www.mapinc.org/media/5154
Author: Erik Eckholm, New York Times

NEW FEDERAL LAW COULD HALT MEDICAL POT CASES

BLOOMFIELD, N.M. - Charles C. Lynch seemed to be doing everything 
right when he opened a medical marijuana dispensary in the tidy 
coastal town of Morro Bay, Calif.

The mayor, the city attorney and leaders of the local Chamber of 
Commerce all came for the ribbon-cutting in 2006. The conditions for 
his business license, including a ban on customers younger than 18 
and compliance with California's medical marijuana laws, were posted 
on the wall.

But two years later, Lynch was convicted of multiple felonies under 
federal law for selling marijuana. He is one of hundreds of 
defendants and prisoners caught up in the stark conflict between 
federal law, which puts marijuana in the same class as heroin with no 
exception for medical sales, and the decisions by many states to 
authorize medical uses.

"I feel so left out of society," said Lynch, 52, who is out on bond 
and appealing his conviction, from a battered trailer behind his 
mother's house here in northwestern New Mexico. He is waiting to see 
if he must go to prison.

Now, though, a legal wild card has been injected into his case and 
those of several other defendants in California and Washington state.

In December, in a little-publicized amendment to the 2015 
appropriations bill that one legal scholar called a "buried land 
mine," Congress barred the Justice Department from spending any money 
to prevent states from "implementing their own state laws that 
authorize the use, distribution, possession, or cultivation of 
medical marijuana."

In the most advanced test of the law yet, Lynch's lawyers have asked 
the 9th U.S. Circuit Court of Appeals, which includes Hawaii, to 
"direct the DOJ to cease spending funds on the case." In a filing 
late last month, they argued that federal officials continuing to 
work on his prosecution "would be committing criminal acts."

But the Justice Department strongly disagrees, asserting that the 
amendment does not undercut its power to enforce federal drug law. It 
says that the amendment only bars federal agencies from interfering 
with state efforts to carry out medical marijuana laws, and that it 
does not preclude criminal prosecutions for violations of the 
Controlled Substances Act.

With the new challenge raised in several cases, federal judges will 
have to weigh in soon, opening a new arena in a legal field already 
rife with contradiction and paradox. At latest count, 23 states plus 
the District of Columbia permit medical marijuana. Four states have 
authorized recreational sales as well.

"If any court, especially the 9th Circuit, declares that the 
provision precludes federal prosecution of state-compliant 
individuals, this will be huge," said Douglas A. Berman, a professor 
at the Moritz College of Law at Ohio State University and editor of 
the Marijuana Law, Policy & Reform blog.

Such a ruling could put federal courts in the odd position of 
determining "when a state actor is complying with state law," said 
Berman, who used the metaphor of a buried land mine.

The California sponsors of the amendment, including Reps. Sam Farr 
and Barbara Lee, both Democrats, and Republican Rep. Dana 
Rohrabacher, said it was clearly intended to curb individual 
prosecutions and have accused the Justice Department of violating its 
spirit and substance.

"If federal prosecutors are engaged in legal action against those 
involved with medical marijuana, in a state that has made it legal, 
then they are the ones who are the lawbreakers," Rohrabacher said.

Farr said, "For the feds to come in and take this hardline approach 
in a state with years of experience in regulating medical marijuana 
is disruptive and disrespectful."

The sponsors said they were planning how to renew the spending 
prohibition next year.

The amendment aside, federal prosecutions of state-approved 
dispensaries have declined sharply in the last two years, 
particularly since the Justice Department issued a nonbinding 
"guidance" to prosecutors in 2013. That guidance recommended against 
pursuing dispensaries, growers and patients who comply with state 
law, have no links to cartels or interstate smuggling, and do not 
sell to minors.

New raids on state-approved dispensaries have largely ended, said 
Steph Sherer, executive director of Americans for Safe Access, a 
private group that lobbied for the December amendment. At the same 
time, she said, federal prosecutors have relentlessly pursued 
pre-existing cases like Lynch's.

After Lynch's arrest and the seizure of his funds, his family 
mustered resources for a bond, but then he spent nine months and 10 
days under house arrest, with an ankle bracelet. Unable to find work, 
he lost his house. For the last year and a half, he has been allowed 
to stay with his family in this rural area of New Mexico, next to the 
Navajo reservation.
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MAP posted-by: Jay Bergstrom