Reason for Optimism, But Work Remains After Senate Hearing

Tuesday’s historic hearing in the U.S. Senate Committee on the Judiciary may not have marked the tipping point in ending the federal war on medical cannabis patients, but there were many signs that the upper body of Congress is now ready to take the issue seriously. Like the memorandum issued in August by Deputy Attorney and hearing panelist James Cole, without further action to back up the words, the encouraging rhetoric will not end the malicious prosecutions being currently being carried out against state-approved medical cannabis providers. This is why now more than ever, medical cannabis advocates need to be engaging with their Senators and House Representatives to make sure the federal crackdown on state medical marijuana laws comes to an end. Before discussing next steps for advocates, let’s review the Judiciary hearing.

The hearing was sparsely attended by the senators on the Committee, due in part to the Syrian situation, with only four of the eighteen members in attendance. Chairman Patrick Leahy (D-VT) opened with a broad overview of federal marijuana policy, followed by Senator Sheldon Whitehouse (D-RI), who mentioned the scheduling petition of Governor Chafee, while characterizing the need for the federal crackdown on medical marijuana as “artificial.” Ranking GOP Senator Chuck Grassley (R-IA) maintained that the placement of marijuana in Schedule I was not done on whim, and noted that law enforcement leaders were only given “30 minutes” prior to the release of the latest Cole memo.

The first panel consisted solely of DAG Cole, with his oral testimony essentially amounting to a restatement of the new prosecutorial guidance memo that bears his name, stressing that the Department of Justice (DOJ) was “not going to give anyone immunity, no free pass.” During the questioning of Cole, Sen. Whitehouse went over the timeline of federal enforcement since the 2009 Ogden memo. Whitehouse pointed out the way everyone in the country outside the DOJ interpreted the Ogden memo, stating (see beginning around 41:50).

“A close reading of the paragraph indicates that the term ‘unlawful’ refers to state law… So we come out of the Ogden memorandum with protection from federal prosecution for patients, caregivers, and lawful commercial enterprises…that would presumably include dispensaries.”

He went on to describe the U.S. Attorney threat letters, stating his belief that the letters were a, “Department of Justice product, because all of the U.S. Attorney letters were identically phrased.” Sen. Whitehouse noted that these letters rolled back the protections that were supposedly made available by the Ogden memo, and pointed out that 2011 Cole memo only made the Department’s policy and enforcement more confusing. This analysis was expressed in ASA’s memo to the Judiciary Committee in advance of the hearing,  He went on to say that he believes the new Cole memo clears up the confusion. While initially I felt that Sen. Whitehouse may have been letting Cole off the hook easy, I now think Sen. Whitehouse was telling Cole and DOJ in a kind way that they cannot go back on their new pledges like they did with their post-Odgen crackdown. Cole had little reaction, and generally seemed to demur to Congress to the lead in further reforms to federal marijuana policy.

One thing the was echoed throughout the questions was the absurdity of driving medical marijuana providers into being a cash-only businesses. Chairman Leahy expressed concerns about the public safety of local communities being needlessly put in danger by the federal policy preventing dispensaries from utilizing banking and credit services. He pointed out that the danger is further exasperated by DOJ threatening armored guard services from working with dispensaries, saying that without further assurances that DOJ will allow for banking services, he worried about the possibility of “shootouts” caused by DOJ unwillingness to allow for these services. Senator Blumenthal (D-CT) also expressed concern about the related 280E tax issue facing providers. Cole responded by saying they were “in talks” to resolve the situation, but remained vague and without commitment, which was tantamount to saying it’s up to Congress to fix the problem. Later testimony from Jack Finlaw, Chief Legal Council for Colorado Governor Hickenlooper, added that the federally forced cash-only market is significantly more difficult for the state regulate.

Although not directly on the topic of marijuana but interesting nonetheless, Senator Grassley noted that the DEA itself is not acting in clear and unambiguous compliance with the law, stating, “[t]he DEA is refusing to comply with its legal obligations to provide GAO access to DEA records,” for a report on drug shortages.”

The last person to testify was Kevin Sabet, Co-founder and Director of Project SAM, and general enemy of medical cannabis. Fellow panel, King County Sherrif John Urquhart seemed to characterize Sebat’s testimony as spouting “urban myths.” Check out Dr. Sunil Aggarwal’s response to Sabet’s testimony during ASA’s post-hearing online round table discussion, or for a complete breakdown of Sabet’s work, read Dr. Aggarwal’s piece, “5 Biggest Lies from Anti-Pot Propagandist Kevin Sabet.

As encouraging as the Tuesday’s hearing was, there is still a great deal of work ahead. U.S. Attorney’s in Washington, California, and Montana have all said they see nothing in the new Cole memo that will prevent them from going after medical marijuana providers. Because the new Cole memo is not enough to stop the federal crackdown on state-approved medical marijuana, Congressional action is absolutely necessary. While a bill like Congressman Earl Blumenauer’s H.R. 689 would reschedule marijuana, end the federal war on state-approved medical cannabis, and encourage greater medical research, it seems unlikely that Congress will take such a bold move right away. For a short-term fix to allow these states a period to get their laws in compliance with the new Cole memo, Congress could add an amendment to the DOJ budget bill (“CJS Appropriations,” see ASA’s analysis of the 2012 version) that would prevent the crackdown in these states. ASA’s What’s the Cost? report has estimated that the DEA is still spending $180,000 per day on enforcement. Advocates are encouraged to get involved by joining ASA’s Peace for Patients and 100 Grand campaigns.

Reprinted with permission from Americans for Safe Access‘ Press Room.