While state medical marijuana laws are legally valid, they may expose state officials to federal criminal liability, says the Congressional Research Service.
In a report (.pdf) dated Nov. 9 posted online by Secrecy News, CRS says that the danger extends to state officials since federal sanctions also apply to those “who conspire, aid and abet, or assist” in the possession, production or distribution of marijuana.
For example, a state law that requires officials return medical marijuana improperly seized from a qualified individual could qualify as a felony under the Controlled Substances Act, says the report.
The concern for state officials is in the ambiguity of the act, “although the CSA contains language that may act to protect state officials, the precise impact of the provision remains unclear,” writes the CRS.
While a provision in the CSA appears to protect those that “lawfully engage in the enforcement of any law” related to controlled substances–the “any” is key –U.S. Attorneys for the Eastern and Western Districts of Washington State have expressly said that officials could be subject to federal prosecution for carrying out aspects of its state medical marijuana program that violate the CSA, says the report.
The Tenth Amendment stops Congress from forcing states to enact specific laws or using state resources to enforce federal laws, but doesn’t necessarily afford protections for actions that violate federal laws.
CRS notes the Obama administration issued an Oct. 19, 2009 memo (.pdf) that formally suggests it will not prosecute individuals that use medical marijuana properly under state laws, which would likely extend to those enforcing such state laws–an important side note is that this was issued before Colorado and Washington legalized recreational use, which could shift enforcement attitudes.
Courts have yet to rule on the matter because plaintiffs have not shown they are subject to a “genuine threat of imminent prosecution,” but this also provides state officials no legal protections, says the CRS.
The report says the existing interplay between federal and state laws and officials is balanced by “the discretionary restraint of the federal government” and this may change as laws, such as those decriminalizing recreational use, expand.