PHOENIX — U.S. Attorney General Jeff Sessions may be looking to crack down on marijuana sales in states where they are legal, but Arizona medical-marijuana users likely don’t need to worry.
A provision buried in the federal budget, plus a safety valve in what Arizona voters enacted in 2010, should protect individual medical-marijuana users here unless the Drug Enforcement Administration starts targeting individual users, which is considered extremely unlikely.
Sessions announced last week that he is rescinding a memo that directed the federal prosecutors under his jurisdiction not to target businesses or individuals who are in compliance with state marijuana laws despite the fact the drug remains illegal under federal law.
Instead, Sessions directed the prosecutors to treat questions of whether to pursue charges of marijuana possession, cultivation and transportation the way they would any other federal offense, consistent “with the department’s finite resources.” That directive was “effective immediately.”
For the moment, though, Sessions and his prosecutors can’t do anything about Arizona.
A provision in the federal budget, first adopted in 2014, prevents his agency from using any resources to target patients and providers in states where medical marijuana is legal. That provision has been renewed every year since.
But this protection expires Jan. 19 unless Congress includes it in the new spending bill — or at least adopts another “continuing resolution” to keep the government operating while a budget deal is being negotiated.
“If it is not included, or if there is a government shutdown, the Department of Justice will no longer be prevented from targeting state-legal medical marijuana,” said Morgan Fox, spokesman for the Marijuana Policy Project, which helped craft the 2010 Arizona law allowing medical marijuana.
Even if that happens, there are some protections built into the Arizona law.
The first is designed to protect medical-marijuana users against any state administration that decides to use the illegality of marijuana under federal law to shut down Arizona’s program.
As approved by voters, the 2010 law allows people with certain specified medical conditions to be certified by the state to obtain up to 2ƒ ounces of marijuana every two weeks, buying it through state-licensed dispensaries.
The law also says if the Arizona Department of Health Services fails to issue a medical-marijuana-user identification card within 45 days of getting a valid application or renewal, the card “shall be deemed issued” and a copy of the application qualifies as a valid ID card.
A separate section says if the health department is not accepting applications, people can effectively self-certify by providing the same required information in a notarized statement along with the written certification of a physician that the patient needs the drug.
Such a possibility is not out of the question, even with the voter approval of the 2010 law.
“I’ve always thought we should enforce federal law, just like we should enforce state law,” Gov. Doug Ducey said Friday.
That, then, goes to the question of what happens if federal agents crack down on growers and dispensers and there’s no place for medical-marijuana patients to buy it.
Here, too, the Arizona law has a remedy: Patients can simply grow their own.
The statute contains a provision allowing those who are not within 25 miles of a dispensary to grow up to 12 plants for their own use. If there are no dispensaries, the more than 151,000 people who already have state-issued medical-marijuana cards — and those who would self-certify in the future if the health department balks — all would be at least 25 miles from a state dispensary and all free to grow their own.
There also are several state court rulings that have upheld Arizona’s medical-marijuana law despite its illegality at the federal level.
From Ducey’s perspective, if people want to legalize marijuana they should seek to amend the federal prohibitions.
“If we want to change a law, we should have a discussion about changing a law,” he said Friday. “I’m certainly open-minded to those discussions.”
But the governor has made it clear in the past that he would not support legalization.
“I don’t think that any state became stronger by being stoned,” he said during a 2016 news conference.
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