By: LINDSEY O’NEILL, ESQ.
Is medical marijuana legal now? Well, not exactly. While the legality of marijuana use is still a bit tricky – illegal under federal law, but legal in certain states – the Obama administration has decided NOT to arrest people who use or supply medical marijuana in conformity with their state’s laws.
Remember the song… “I’m just a bill… on Capital Hill…”? In some ways, recalling our first lesson about “separation of powers” is helpful to this conversation. In the U.S., what we think of as “the law” is really a collaboration of sorts – the Legislative Branch (Congress / state legislatures) makes the laws, the Judicial Branch (the courts) interprets the laws, and the Executive Branch (the President, police, etc.) enforce the laws. When it comes to the topic of medical marijuana, each branch of the government has weighed in:
Legislative: Under federal law, any marijuana use is illegal. Under certain state laws, however, the use of marijuana is “legal” for certain medical purposes (see state medical marijuana laws in: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Mexico, Oregon, Rhode Island, Vermont and Washington).
Judicial: The U.S. Supreme Court ruled in Gonzales v. Raich that the federal government could enforce federal laws against marijuana use under the federal Controlled Substances, despite state medical marijuana laws legalizing such uses.
Executive/Law Enforcement: Depends on the President. During the Bush administration, hundreds of raids on medical marijuana use/supply were conducted and thousands were arrested. The Obama administration is doing the opposite…
The penalties for marijuana offenses, like for other substances, depend on the quantity at issues, as shown in the following chart from the U.S. Department of Justice website (see: http://www.usdoj.gov/dea/agency/penalties.htm):
Federal Trafficking Penalties – Marijuana
|
DRUG |
QUANTITY |
1st OFFENSE |
2nd OFFENSE |
| Marijuana | 1,000 kg or more mixture; or 1,000 or more plants |
|
|
| Marijuana | 100 kg to 999 kg mixture; or 100 to 999 plants |
|
|
| Marijuana | more than 10 kgs hashish; 50 to 99 kg mixturemore than 1 kg of hashish oil; 50 to 99 plants |
|
|
| Marijuana | 1 to 49 plants; less than 50 kg mixture |
|
|
In 2008, there were about 1.8 million arrests for drug offenses – and about half of them were for marijuana related offenses (approximately 5.5% of the total arrests were for marijuana sales/trafficking; approximately 44.3% of the total arrests were for marijuana possession). (See: DOJ/FBI Arrest Tables – 2008 Crime in the United States.) Of course, not all of those marijuana arrests were arrests related to the use/supply of medical marijuana, though certainly some of them were.
While law enforcement will continue to investigate, arrest and prosecute people involved in marijuana trafficking, sales to minors, violent and weapons-related marijuana activities, etc., the Obama administration won’t arrest those involved with legitimate medical marijuana activities. Aside from the policy discussion, this shift in law enforcement could mean that more attorneys will be needed to advise clients about licensing and compliance with medical marijuana laws. For more information – and links to state laws legalizing medical marijuana (or permitting some uses), click here.
