In the wake of the Obama Administration’s declaration that the federal government would respect state medical marijuana laws, Kirk Johnson in the New York Times reported the following:
For years, since the first medical marijuana laws were passed in the mid-1990s, many local and state governments could be confident, if not complacent, knowing that marijuana would be kept in check because it remained illegal under federal law, and that hard-nosed federal prosecutors were not about to forget it.
But with the Justice Department’s announcement last week that it would not prosecute people who use marijuana for medical purposes in states where it is legal, local and state officials say they will now have to take on the job themselves.
Why? If it’s legal, then what job is there to take on? The article appears to be implying that it’s the job of state and local officials to enforce the federal law over the state one. That’s just not true. Here in Washington, our state law enforcement officials should be following the voter initiative passed in 1998 (and the follow-up legislation from 2007), not the Federal law. Unfortunately, our Attorney General doesn’t seem to agree. Rob McKenna’s office has been trying to undermine Washington State’s medical marijuana law, and thanks to a Public Disclosure Request, we’re finally able to shine some light on what they’ve been doing.
After the PDR was filed, nearly 800 pages of emails and other documents from the Department of Corrections were recently released to the Cannabis Defense Coalition. They’re broken up into eight 100-page PDF files. The documents are not in any order, so I created a chronological index for easy searching of specific events.
The reason that so much attention is focused on the DOC is because a number of qualified medical marijuana patients have been raided by police and arrested (the medical marijuana law does not provide an affirmative defense from arrest), pressured into accepting plea deals that would keep them out of a jail cell but still on probation, and then put under the supervision of the Department of Corrections. The Department of Corrections would then claim the authority to deny those individuals the ability to use medical marijuana through internal rules that they’d made up after consulting with the AG’s office. They would then easily enforce those rules by administering drug tests. In the end, you had individuals who’d been authorized by their doctors to use medical marijuana having law enforcement interfere with that decision and either force them to stop using that medicine or to use a less effective alternative like Marinol.
This end-around of the voter-approved medical marijuana law worked on a number of medical marijuana patients. Pamela Olson was one victim before her husband Bruce fought his own case in Kitsap County court and won (sadly, they lost their home in the process). It’s not clear, even with the released documents, exactly how many people were affected by this (names are redacted throughout), but lawyers who defend authorized patients have been dealing with cases across the state for several years now and are still hoping to bring some kind of legal action against the Attorney General, the DOC, or both.
What we do know from the documents just released is that there was clearly some nervousness within the DOC about how the Attorney General’s office was advising them to deal with those under their supervision who were authorized by a doctor to use medical marijuana. The actual advice from the AG’s office is also redacted throughout the documents (using the same attorney-client privilege argument that the Bush Administration used to initially keep the infamous torture memos under wraps), but emails like this one from a DOC employee make it clear that the Attorney General was advising them to do things that were morally questionable at best and against state law at worst [emphasis in original]:
Karen, Lori, Eldon let me offer a few off the top of my head thoughts and comments. How DOC handles the medicinal use of MJ depends on whether this is the hill we want to die on? The advice from the AGO may* (see below) be correct, as far as it goes, i.e. [<—————-redacted—————–>] But the real question is not whether DOC can violate an offender who proves the prerequisites for the medicinal use of MJ, but can/should DOC recognize it as a defense? From a small “p” political standpoint does DOC want to violate an offender for activity that the state legislature recognizes as lawful? Something they made lawful in recognition of the medical necessities occasioned by the offender’s illness.
Consider if you will the purpose and intent of the enabling statue: “The people of Washington state find that some patients with terminal or debilitating illnesses, under their physician’s care, may benefit from the medical use of marijuana. Some of the illnesses for which marijuana appears to be beneficial include chemotherapy related nausea and vomiting in cancer patients; AIDS wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain. The people find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician’s professional medical judgment and discretion.” So how would this look? Offender XY is HIV positive and has full blown AIDS.
They are in considerable pain and a licensed doctor has agreed that MJ will relieve this offenders suffering. If all of the statutory requirements are met, this person’s possession and use is not against state law. Should DOC still violate this offender for actions that our state legislature recognized was necessary for, “humanitarian compassion”. Do we really want to die on this hill?
That memo was from April 2008. A month later, as a number of the indexed items show, the DOC was forced to apologize to a medical marijuana patient who was improperly arrested and held for six days until her blood pressure shot up to dangerous levels. At around the same time, the DOC finally formalized their policy on dealing with medical marijuana, which was little more than a smokescreen that made it appear as if they were accommodating the law, but in reality was simply denying everyone who had their doctor fill out the DOC’s verification form. On several occasions, they were informed that they were violating state law, but those warnings don’t appear to have made any difference in their policy.
The larger question for the attorneys, doctors, and patients who’ve been fighting the DOC over this policy continues to be focused on what Attorney General Rob McKenna’s office was doing and why. All of the deliberations and discussions at the beginning of this timeline happened during the Bush Administration, when it was still the Federal Government’s policy to expend resources to override state medical marijuana law (which the Obama Administration just reversed). But Rob McKenna doesn’t work for the Federal Government. He’s our state’s top law enforcement officer. There’s no reason for him to be trying to enforce Federal laws over our state laws, especially a state law that was passed by a wide margin in a voter initiative and maintains widespread support. It’s clear from reading through these documents that the AG’s office was giving advice that led to a policy that undermined the law, but until there are enough resources to take them to court over their claims of attorney-client privilege, their communications to the DOC will stay hidden.
For anyone who hasn’t followed the fight over medical marijuana in states where it’s been legalized, Kirk Johnson’s description of the attitude of local law enforcers may seem surreal. At a time when we have prisons that are bursting at the seams and budgets that are running low, you’d think that people who collect a salary on the taxpayer dime would have more sense than to remain so concerned about stopping people with serious ailments from using a medicinal plant. Throw in the fact that the voters of this state have demanded that this be legal, and it’s beyond comprehension that police are still actively trying to stop people from using it. Whatever the rationale is for Rob McKenna to continue to undermine the state’s medical marijuana law, the least we should be able to get from him is more transparency into what his office has been doing.
The Cannabis Defense Coalition, who put in the PDR request, is expecting to get two more document dumps from the DOC. The requests are not free, so if you feel inclined to pitch in, they have a Paypal donation page here.
UPDATE: A Public Disclosure Request was filed, not a FOIA. The post has been updated.