Most Pennsylvanians supported the recent legalization of Medical Marijuana. Most law enforcement agencies are opposed to the legalization, in general, of that controlled substance.
In particular, the federal government actively prosecutes cases involving the production and sale of marijuana, which is still classified as a Schedule 1 substance.
Last week, the Pennsylvania Department of Health took the next step toward the implementation of Pennsylvania’s Medical Marijuana Program, by issuing temporary regulations to aspiring growers/processors in the Commonwealth.
Under the guidance of Gov. Tom Wolf, the department is staying true to its promise to move forward with great speed, and care, in getting this program up and running.
However, there is still a clear and significant conflict between what most Pennsylvanians want, and the ever-present shadow of the illegality of marijuana at the federal level.
In a ruling which may have a profound impact on Pennsylvania’s emerging Medical Marijuana Program, a federal appeals court in California barred the Justice Department from prosecuting medical marijuana cases where no state laws were violated.
On Aug. 16, in United States v. McIntosh, a three-judge panel of the 9th U.S. Circuit Court of Appeals ordered the Justice Department to show that individuals under indictment for violating the Controlled Substances Act had actually violated state medical marijuana laws before continuing with the prosecutions.
Given the breadth of the law, and the zeal with which federal prosecutors pursue alleged violations of the Act, this is an extremely important development for local growers and distributors of medical marijuana.
In United States v. McIntosh, the defendants allegedly ran marijuana stores in the Los Angeles area and indoor marijuana grow sites in the San Francisco and Los Angeles areas. They were indicted for conspiracy to manufacture, to possess with intent to distribute, and to distribute more than 1000 marijuana plants in violation of the Controlled Substances Act (“CSA”).
Rejecting the DOJ’s arguments, the 9th Circuit Court of Appeals held that federal legislation prohibits the Department of Justice from spending funds from relevant appropriations acts for the prosecution of individuals who engage in conduct permitted by state medical marijuana laws and who fully complied with such laws.
In laymen’s terms, this means that if a state law permits the production and sale of marijuana, the federal government cannot go after an individual who has complied with those laws even if that violates the Controlled Substances Act.
The DOJ may continue to prosecute those individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana.
However, Judge Diarmuid F. O’Scannlain, writing for the panel, stated “[I]f DOJ wishes to continue these prosecutions, [defendants] are entitled to evidentiary hearings to determine whether their conduct was completely authorized by state law, by which we mean that they strictly complied with all relevant conditions imposed by state law on the use, distribution, possession, and cultivation of medical marijuana.”
Judge O’Scannlain underscored the difficulty those legally working in the medical marijuana industry confront, referring to “the temporal nature of the problem with these prosecutions.”
The judge also noted that previously the government had authority to initiate criminal proceedings, but that subsequent legislation deprived it of the funds to continue those prosecutions.
However, “Congress could reinstate the funds for such prosecutions tomorrow.”
Furthermore, the manufacture, distribution, and possession of marijuana is strictly prohibited under federal law; thus, “anyone in any state who possesses, distributes, or manufactures marijuana for medical or recreational purposes (or attempts or conspires to do so) is committing a federal crime.”
Indeed, the federal government can prosecute such offenses for up to five years after they occur.
Regardless of the uncertainty of federal law and its inherent conflict with ongoing legalization efforts at the state level, McIntosh should come as a boost to the morale of those shaken by the DEA’s recent refusal to reschedule marijuana under the CSA. Schedule 1 covers substances like heroin, LSD and ecstasy which have a high potential for abuse, and no currently accepted medical use, unlike marijuana.
Under the Compassionate Access, Research Expansion and Respect States Act (the “CARERS Act”), Congress is now at work on a bi-partisan effort to remedy the state-federal conflict over medical marijuana laws.
Specifically, in part, the bill would allow state medical marijuana programs to continue without federal inference, create access to banking services for legal marijuana businesses, end the Public Health service review process and the National Institute on Drug Abuse monopoly that blocks research, and allow VA doctors to write recommendations in states that have a medical marijuana program.
As for Pennsylvania, and despite the obstacles at the federal level, McIntosh should provide patients, advocates, and aspiring medical marijuana entrepreneurs encouragement as the Department of Health ramps up its program.
News Moderator: Katelyn Baker
Full Article: Here’s How A Recent Court Case In California Could Impact Pennsylvania’s Medical Marijuana Industry
Author: Ted Flowers and Justin Moriconi
Contact: Central PA Local News
Photo Credit: Daniel Zampogna
Website: Central PA Local News
