Medical marijuana state employees won't face fed prosecution: What's it mean for Colorado?

Jan Brewer.

As reported by our Toke of the Town blog, the Department of Justice's response to a lawsuit by Arizona Governor Jan Brewer directly contradicted an assertion by Colorado Attorney General John Suthers that state employees might be prosecuted for enforcing state medical marijuana laws. Attorney Brian Vicente sees that as good news for the MMJ industry and advocates of marijuana reform.

"They've explicitly acknowledged that no prosecutions have happened in this area ever in history," says Vicente, who's also one of the main proponents of the Regulate Marijuana Like Alcohol Act of 2012. "And it's entirely unlikely they will ever happen."

John Suthers.

That's not what the state's AG claimed a few months back. As we reported in April, Suthers asked U.S. Attorney John Walsh for an opinion about some aspects of HB 1043, the so-called medical marijuana clean-up bill. Walsh attacked two provisions of the measure, which were ultimately stripped out prior to its passage. But in a note to legislators included with Walsh's take, Suthers wrote, "U.S. Attorneys do not consider state employees who conduct activities under state medical marijuana laws to be immune from liability under federal law," raising the specter that Department of Revenue officials, or possibly even legislators, could be charged with marijuana crimes.

Suthers wasn't the only official making such assertions. As Toke's Steve Elliott points out, letters from U.S. Attorneys in Washington state said pretty much the same thing.

Brewer used this rationale, among others, to justify a lawsuit intended to prevent medical marijuana from becoming Arizona law, which she sees as conflicting with U.S. drug laws. But in a brief prompted by the suit, the Department of Justice rejected her claims because she failed to provide evidence that state employees would face prosecution from the feds. And since Justice would be the department to initiate such actions, the argument carries a great deal of weight.

Brian Vicente.

Vicente's view? "I think it called the bluff of Jan Brewer," he says. Prosecutions wouldn't happen without "a very significant shift in the Department of Justice's priorities and actions -- and again, there's no precedent for that kind of prosecution. So I think it's given a green light to state governments that they can operate and implement medical marijuana laws without worrying about the Department of Justice targeting their employees."

He acknowledges that "a judge hasn't decided the issue, so this is merely the Department of Justice's opinion. But I think it's pretty likely they'll say these prosecutions are not coming, so let's fulfill what the voters of Arizona want."

Immunity from prosecution doesn't translate to people in the medical marijuana business who are following the laws administered by such staffers. "While I think it provides breathing room for states to implement these programs, patients and provides should be well aware that the Department of Justice is continuing to ponder this process -- and in the meantime, they could continue to face prosecution."

Even so, Vicente thinks DOJ's interpretation is "part of an undeniable wave, where public sentiment is pushing government to take a more reasonable view on medical marijuana. Roughly 80 percent of the American public supports the rights of patients to have access to this medicine, and I think piece by piece, the Department of Justice and other wings of the government are starting to embrace this view. And certainly as more states pass medical marijuana laws, the government will see the writing on the wall.

"Eventually, they'll have to deal with this in the majority of states -- and ultimately all fifty states. And as more states adopt these laws, the federal government will realize they need to adjust their policies to reflect the mainstream support for medical marijuana."

More from our Marijuana archive: "Medical marijuana: HB 1043 co-sponsor Pat Steadman not sure he agrees with entire bill."