The Beginning of the End of Marijuana Prohibition? Not so Fast.
Earlier this month, medical marijuana proponents were elated over the federal appropriations bill. What does the federal appropriations bill have to do with the continuing movement to repeal the prohibition of marijuana? Well, buried in Section 538 of the appropriations bill is the following language:
“None of the funds made available in this Act to the Department of Justice (DOJ) may be used, with respect to the States of Alabama, Alaska, Arizona, California, [every other state that has passed laws permitting medical marijuana], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Many pundits have interpreted this language as mandating an end to DOJ subsidized raids on medical marijuana dispensaries and growing operations. The LA Times reported that under the appropriations bill, “states where medical pot is legal would no longer need to worry about federal drug agents raiding retail operations. Agents would be prohibited from doing so.” Does the bill, dubbed by some the “Cromnibus,” demand a change in federal drug enforcement policy directed at medical marijuana dispensaries and the grow operations that support them?
The answer to this question may not be the definitive “yes” that some are suggesting. Under the plain language of the bill, the DOJ may not use federal funds “to prevent states from implementing their own State laws” authorizing medical marijuana (emphasis added). However, this language may not necessarily prohibit an FBI raid or a U.S. Attorney’s prosecution of a medical marijuana business under the notion that the business is non-compliant with the federal Controlled Substances Act, which criminalizes the possession and sale of marijuana. In other words, the appropriations bill does not clearly prohibit the use of federal funds to investigate and prosecute medical marijuana businesses under federal law. Instead the appropriations bill may merely maintain the status quo, allowing states to implement their own laws permitting the “use, distribution, possession, or cultivation” of medical marijuana without DOJ intervention, but leaving these businesses subject to the threat of DOJ investigation, raid and prosecution under federal law.
In California, medical marijuana cultivators and dispensaries have long suffered this status quo. The Compassionate Use Act of 1996 (CUA) was passed eighteen years ago with the express purpose of ensuring that individuals who have a bona fide medical need for marijuana and those that provide them with medical marijuana “are not subject to criminal prosecution or sanction.” Consequently, the CUA provides that state law criminalizing the “possession” or “cultivation” of marijuana does not apply to those legitimately using medical marijuana or those that provide it to them. Despite these state law exceptions, the DOJ through the FBI and local U.S. Attorney’s offices have continuously raided and prosecuted medical marijuana businesses in California.
Without question, the federal appropriations bill marks a significant event, with Congress for the first time enacting legislation aimed at curtailing federal drug policy related to marijuana. While the intent of Congress may have been to completely prohibit federal investigation and prosecution of state-law compliant marijuana businesses, the language of the bill may not be sufficient to affect the sea-change that marijuana proponents have been heralding. A much more clear end to marijuana prohibition in the U.S. would be achieved by amending the Controlled Substances Act to except or remove marijuana from the list of controlled substances. This would be more certain than an annual federal spending bill that may be repealed or changed with next year’s appropriations. One thing is clear, however. In the ensuing weeks and months, we will see how the DOJ interprets the “Chromnibus” and if this is indeed the beginning of the end of federal marijuana prohibition.