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Third Time the Charm? New White Paper on Medical Marijuana Shows States in Compliance With DOJ Guidelines

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When the Department of Justice (DOJ) released their latest memo to federal prosecutors on how to handle state-regulated marijuana distribution, it marked a second round of change for federal enforcement policy. No longer will the centralized distribution centers established by states to provide safe access for patients automatically be targets for federal raids and prosecutions. The landlords who rent space to them will no longer be threatened with the seizure of their property. And the elected officials and government employees tasked with licensing them will no longer be threatened with injunctions and criminal indictment for implementing duly enacted laws. As long as everyone satisfies the DOJ's eight guidelines, that is.

That left everyone involved with some questions about what satisfying those new federal guidelines will look like. The memo is a bit more detailed than the Obama Administration's two previous directives, but it still lacks specific metrics, as the senators questioning the memo's author before the Judiciary Committee made clear. At that hearing, Deputy Attorney General James M. Cole, the DOJ's second-ranking official, conceded such metrics would be helpful for evaluating the medical cannabis laws in the 20 states and the District of Columbia with current programs, not to mention the several states with pending legislation. But he couldn't offer any. The best he could do was say the DOJ is working on it, a full year after voters in Washington and Colorado forced the federal government's hand by making marijuana legal for all adults.

So today, Americans for Safe Access (ASA) issued a White Paper doing that much-needed analysis and offering recommendations. That report, "Third Time the Charm?," draws on ASA's decade of experience as the leading national patient advocacy organization to offer insights on what the new DOJ memo means for future enforcement, what states have already accomplished to meet federal concerns, and what elected officials can do to resolve the painful disconnect between outdated federal prohibition and advances in state law.

Looking at the medical cannabis laws that cover more than 116 million Americans, all of them already include regulations that satisfy the intent of the new DOJ guidelines. A few of the states would have more robust policies had legislative proposals not been derailed by threats of federal prosecution leveled at the state and local officials who attempted to pass or implement them in the past couple of years. So we can expect to see these states step up with appropriate patches that ensure patient needs and community concerns are met, just as we should expect federal prosecutors to give them the necessary time to work through the legislative process.

That's because the concerns of federal law enforcement are far from unique. No one wants gangs and cartels to profit from the sick, for children to have access to drugs, for guns and violence to play a part in patients getting medicine, for anyone to drive while impaired, or for public lands to be overrun and the environment damaged.

As a patient advocate, I am excited about what this new policy means for many of the medical marijuana states. But built into the federal system of law enforcement is enormous freedom and discretion for federal prosecutors. U.S. Attorneys may chose to accept the DOJ's guidance, but they may not. Sadly, the history of the Obama Administration makes clear that some prosecutors and federal agents will continue their war on patients, no matter what directives come from the DOJ.

President Obama told the nation in 2008 that he wouldn't use federal resources to interfere with state medical marijuana laws.

But under his administration, that interference escalated to unprecedented levels, with various federal agencies expending more than $300 million to deny medicine to the sick and suffering. That's more taxpayer money spent than all his predecessors combined. And many of the 93 U.S. Attorneys responded to the latest memo by simply saying they would change nothing, that prosecutions of people acting in good faith under state law would continue. And the DOJ cannot say otherwise.

That's why Congress has an obligation to act. It has been more than 40 years since they passed the Controlled Substances Act, the law that is at the heart of this conflict. During that time, we've seen federal reviews and hearings, not to mention hundreds of scientific studies, that concluded the way cannabis is classified is flawed, that it is a safe and effective medicine whose 5,000-year history was merely prelude to the exciting scientific advances that promise cannabis-based treatments for many of the most devastating human ailments.

The State's Medical Marijuana Patient Protection Act (HR 689), introduced by Rep. Earl Blumenauer (D-OR), would modernize federal law and bring it into harmony with state programs, removing the threat of federal prison from people already suffering. The bill is sitting there in Congress, waiting to be passed. Please take a minute to send your senators or Members of Congress ASA's report and urge them to support legislation like HR 689! States and local communities will have to work out the details, as they always do with matters of health care and zoning, but the first step is on Capitol Hill.