Recently, local governments have been seeking further federal clarification on the issue of state-legalized medical marijuana. California did it, Washington did it and now Colorado has received its own clarification from U.S. Attorney John Walsh, in response to a request from state Attorney General John Suthers.
"It is well settled that a State cannot authorize violations of federal law," Walsh wrote in a memo dated April 26. "The United States District Court for the District of Colorado recently reaffirmed this fundamental principle of our federal constitutional system in United States v. Bartkowicz, when it held that Colorado state law on medical marijuana does not and cannot alter federal law's prohibition on the manufacture, distribution or possession of marijuana, or provide a defense to prosecution under federal law for such activities."
In a somewhat frantic letter relaying the memo, sent the same day to Gov. John Hickenlooper and members of the General Assembly, Suthers said he felt "compelled" to advise the state that the DOJ "does maintain its full authority to vigorously enforce federal law against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law." (Emphasis not added.)
So, in a larger context, what does this change? Not much, say Rep. Mark Waller, R-Colorado Springs, Rep. Mark Barker, R-Colorado Springs, and Rep. Tom Massey, R-Poncha Springs.
"I think it’s our responsibility to make sure that we responsibly manage what is embedded in our constitution now," Massey says, adding: "I think that we will try our best to address federal concerns."
Massey is a co-sponsor of House Bill 1043, known colloquially as the MMJ "clean-up" bill, which contains two measures the U.S. Attorney's office took issue with: a scheme to set up an investment fund which MMJ center owners could use for banking — which has since been stripped from the bill, even prior to federal feedback — and a plant limit for infused products manufacturers.
"The banking piece is really significant in the sense that we want this business to come out of the dark, and be able to actually manage from both a regulatory tax collection standpoint and the fact that we get the element that we’re worried about having," Massey says. "By not giving these folks a source for banking, we actually kind of push them in that direction."
Waller says he thinks federal pushback has been pending the whole time, and that we're not through with it yet.
"I’ve said all along that what these dispensaries are engaging in is still criminal activity at the federal level, and at some point, independent of state law, they can still be prosecuted federally," he says. "They all seem to believe that since the administration, you know, made some sort of executive order that said, ‘Look, if you’ve got a law on the books at the state level, we’re not gonna prosecute federally,’ that that makes them immune from prosecution. That’s not true! I mean, if we have a change in the administration, whatever the change is, that administration might say, 'Well, geez, we’re gonna start prosecuting all these cases.'
"And it wouldn’t be prosecuting cases going forward; you know, most of these things have a statute of limitations that are three or four years long. So they can certainly reach back and prosecute anybody that was doing it under the consideration of what the previous administration had decided."
Barker says he doesn't think the memo will compel any change of course from the state's perspective.
"I think, at the moment, the attitude, at least here that I’ve seen, is not to eliminate or remove these businesses — because they’re being regulated, they’re being watched; the industry, for the most part, wants to be legitimate and professionalized," the state representative says. "So I see that as a positive. I haven’t heard anyone wanting to just wholesale repeal everything and put these folks out of business. I do worry for their sake, but they’re going into it with their eyes open, and so they understand there is a risk.
"But from the state’s perspective, what I want to do is provide them with a structure that promotes a professional persona for the businesses. Like, Walgreens sells pharmaceuticals, but they’re not viewed as a drug dealer, and I would like a similar reputation for the legitimate medical marijuana facilities."