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Feds vs States: The Reefer Madness Continues 

Federal prosecutors continue their war on cannabis. Photo courtesy of Toke of the Town.

Federal prosecutors continue their war on cannabis. Photo courtesy of Toke of the Town.

Many Oregonians were aghast recently when Oregon's chief federal prosecutor announced that he would charge Warm Springs teen Devontre Thomas with a federal crime for allegedly possessing one joint's worth of cannabis. Williams eventually backed down in the wake of the public outrage, led most notably by Oregon's Congressional cannabis policy crusader, Earl Blumenauer.

But federal prosecutions of state-licensed cannabis growers and sellers in states where cannabis is legal are nothing new. In fact, since California became the first state to legalize medical marijuana in 1996, federal prosecutors have charged so many medical marijuana providers with federal cannabis crimes that two members of California's congressional delegation took action. Representatives Sam Far and Dana Rohrabacher, both Democrats, sponsored a spending bill that prohibited federal prosecutors from using federal funds to interfere with state medical marijuana programs. Remarkably, the bill passed and became law for fiscal years 2014 and 2015.

But even taking away their funding did not stop federal prosecutors from going after medical marijuana providers. The prosecutors argued that the rule applied only for using funds against the states themselves, not against private individuals. The defendants in 10 cases brought in California and Washington disagreed, and appealed their convictions. Last week, the Ninth Circuit Court of Appeals agreed that prosecuting people participating in state medical marijuana programs amounts to interfering with the states' implementation of those programs in violation of the law.

Yet, instead of dismissing the charges, the appeals court ruled that the defendants are entitled to an evidentiary hearing to determine whether their actions were in compliance with state laws. If they are found to be in compliance with state law, it would be illegal to use federal funds for the prosecutions, but only from the prohibited fiscal years. The court stopped short of saying that the prosecutions would have to be stopped entirely. The court did make clear, however, that if the defendants are found not to have complied with state law, the prosecutions can move forward.

It's not clear whether the U.S. Department of Justice will decide to appeal this ruling to the Supreme Court. But the spending prohibition, if it ultimately applies at all, applies only to fiscal years 2014 and 2015, so federal prosecutors are free to resume their legal pursuit of medical marijuana providers in the new fiscal year, which starts on Oct. 1, unless Congress acts again.

Virtually all legal observers expect federal attorneys to continue to prosecute medical marijuana providers, despite the fact that the Justice Department has instructed its attorneys to prioritize prosecuting federal cannabis crimes that violate state laws. And when federal attorneys will not follow the instructions of Congress nor their own bosses, not to mention the will of the people in their states, cannabis business owners and medical marijuana patients are left wondering whether the bizarre contradictions of American cannabis law will ever make their (legal) industry a good investment.

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