By Sean Hyde, first-year student at the University of Washington School of Law.
Image used under the Creative Commons Zero License
The barrier standing between state law compliant medical marijuana growers and prison is money, but not because they need a pricey attorney to fight back. The federal budget has been at the top of headlines the past several months as Congress fights to decide what programs get funded for the rest of fiscal year 2018. The resolutions that have kept the spending at the status quo, until the final deal reached on February 7th, upheld a safeguard in the Federal budget under the Rohrabacher amendment. The amendment, or rider, says that the Department of Justice (DOJ) can’t spend any funds to interfere with the medical marijuana laws of the named states (almost all of them). This sounds like very good news, but it isn’t technically as good as you might initially think.
The manufacture, distribution, and use of medical marijuana is still a federal crime, so it’s under the DOJ’s jurisdiction to enforce those laws. The rider has not prevented them from filing new charges against violators, but it has had some efficacy in the 9th Circuit in halting prosecution. A 2016 case compelled an evidentiary hearing to allow the defendant to show they were strictly compliant with state law (US v. McIntosh). Once outside of those laws, even on small technical details, the rider doesn’t apply, and the DOJ can continue to fund the prosecution. But if you are fully compliant with state law, then you’re home free, right?
Unfortunately, the lack of funding doesn’t necessarily require the DOJ to drop the charges against you. There is no indication that they will have to release any seized plants, or to reimburse you for the expense incurred while defending the charges. It could be argued that keeping case files, storage of evidence, and review of case management systems constitutes spending that interferes with the ability of the state to implement laws. But that argument has not come up so far as my research has taken me. And who knows, maybe this rider has kept people from being arrested.
Last week the 9th Circuit Court of Appeals in Seattle heard a post-conviction appeal requesting an evidentiary hearing under the McIntosh rule. The contention was that the lower court had expressly forbidden the use of Washington State law as an affirmative defense against prosecution, so evidence was not provided at trial to support compliance. Presumably, if the evidentiary hearing finds that the defendant was in strict compliance with state laws, then the prosecution was pursued when it should have been prohibited for a lack of funding. It’s not clear what remedy would be available if the evidentiary hearing found that the defendant was in strict compliance with state law. If the court ordered release of the defendant from prison, aren’t they just postponing his incarceration if and until Congress turns the tap on for the DOJ again?
The problem here is a temporal one. In a strictly technical sense, the DOJ shouldn’t have funding to prosecute before there is an evidentiary hearing to determine compliance. Because they have to spend money to find out if they have money to spend, this part of the process is unavoidable. This is why the rider is only a half-measure solution. What if you continue following the state laws and they add those acts to the previous charges, in a way “allowing” you to continue illegal behavior which they will later charge you for? As it is now, there is no answer to that question.
For now, the Rohrabacher amendment is in place until March 23rd. It remains to be seen what Congress will do for the rest of FY18 and beyond.