PHOENIX — A decision Thursday by U.S. Department of Justice not to challenge marijuana legalization by two states does not make Arizona’s medical marijuana law legal or acceptable, key prosecutors said.
Maricopa County Attorney Bill Montgomery said he will not drop his bid to have the state’s 2010 voter-approved law declared illegal, noting possession and sale of marijuana is still a federal crime, regardless of U.S. Attorney General Eric Holder’s decision to let Colorado and Washington legalize the drug.
Attorney General Tom Horne, likewise, opposes legalization.
“They can exercise prosecutorial discretion and not enforce the law,” he said of the Department of Justice. “But that’s not the issue. The issue is that a state law cannot make legal what a federal makes illegal.”
In a four-page memo Thursday to all federal prosecutors, James Cole, the deputy federal attorney general, conceded as much. But Cole, in “guidance” to those prosecutors, said they should, in essence, leave such questions of the sale and possession of small amounts of marijuana to the states.
Cole said that is not a license for states to do anything they want.
He said any decision by federal prosecutors to essentially turn a blind eye to state practices is conditional on them having sufficient safeguards in their systems, such as preventing the distribution of marijuana to minors and ensuring the drug is not diverted to other states where possession remains illegal.
Arizona law permits someone who has one of a specific list of medical conditions and doctor’s recommendation to obtain up to 2½ ounces of the drug every two weeks.
The law also has the state Department of Health Services licensing about 100 dispensaries to sell the drug legally to those with state-issued cards. And the health department has set up regulations to ensure that what is grown for medical use is not diverted for anything else.
More than a dozen states have similar laws.
The Department of Justice never gave approval for any of them but, until now, generally took the position it had more pressing issues to pursue than medical use of marijuana, though federal agents did raid some large distributors in California. But that policy ran smack into the decision by voters in Colorado and Washington to let all adults use the drug just for the heck of it.
The now-revised policy was foretold in December when President Obama was asked about what the two states adopted.
“We’ve got bigger fish to fry,” he said. “It would not make sense for us to see a top priority as going after recreational users in states that have determined that it’s legal.”
But Montgomery pointed out the Obama administration has not asked Congress to repeal laws which make marijuana possession a felony.
“If you want to do this, there’s a process,” he said. “But you can’t simply say ‘that’s the law but for at least the next three year’s we’re not going to enforce it.’ ‘’
He also noted the position taken by the Department of Justice is strictly policy, meaning a new administration taking office in 2015 could reverse it, and the five-year statute of limitations could allow future charges for actions occurring now.
In December, Maricopa County Superior Court Judge Michael Gordon rejected arguments by Horne and Montgomery to have the 2010 Arizona law declared illegal because of federal preemption.
Gordon pointed out that 18 states and the District of Columbia already have laws permitting some form of legal marijuana use. And the judge said he wasn’t about to declare Arizona’s own version invalid.
Horne and Montgomery are appealing.