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Del. Joins Debate on Marijuana RegulationPosted by CN Staff on May 10, 2011 at 06:15:43 PT

By Chad Livengood

Source: Delaware Online

 

medical.gif Dover -- With the state Senate poised to give final passage today to legalizing marijuana possession and distribution for medicinal purposes, Delaware could be headed into a national debate over the federal government's role in regulating the drug.

 

Even though it could soon be legal for ill patients in Delaware with a qualifying disease to obtain marijuana from a state-licensed dispensary, the drug remains a Schedule I controlled substance and illegal under federal law.

 

The architects of Delaware's bill say it has been crafted to comply with a directive from U.S. Department of Justice that urges federal prosecutors to go after only medical-marijuana suppliers that operate outside a state's medical-marijuana law.

 

In October 2009, the Obama administration issued a memo to prosecutors instructing them not to expend resources prosecuting patients or their caregivers who obtain marijuana in one of 15 states that have decriminalized cannabis for medical treatment.

 

U.S. Deputy Attorney General David W. Ogden said at the time that prosecutors should not investigate medical-marijuana distribution that is in "clear and unambiguous compliance" with a state's law.

 

Charles Oberly, the U.S. attorney for Delaware, said he has not read the Delaware bill yet and his study of the issue is limited to the Ogden memo.

 

"They're not looking to prosecute people who are seriously ill," Oberly said Monday.

 

But recent raids on marijuana dispensaries and rhetoric from a federal prosecutor in Washington state have raised questions about how the Obama administration is treating marijuana farms and distribution in states with medical-marijuana laws.

 

Oberly said he does see the potential conflict of having a state law that makes marijuana for medical use legal and a federal law that strictly prohibits cultivation, possession and distribution of the drug.

 

"State law can't preempt federal law," he said.

 

Senate Majority Whip Margaret Rose Henry, D-Wilmington East, sees no problems on the horizon if Gov. Jack Markell decides to sign the bill.

 

"States have had medical-marijuana laws on the books for over 14 years and have administered programs through three different federal administrations without ever being charged or prosecuted for doing so," Henry said in an email. "Nothing in this bill requires the state to violate federal law."

 

Under the bill, the state will not be distributing the marijuana -- the act that remains illegal under federal law -- and the state assumes no liability if someone is harmed by the drug.

 

Ogden's memo said U.S. attorneys should prosecute medical-marijuana distributors who are engaging in other criminal activity, selling to minors or who "unlawfully market and sell marijuana for profit."

 

Delaware's legislation, Senate Bill 17, prohibits people from growing their own marijuana and requires the dispensaries to be not-for-profit organizations and licensed by the state, said Noah Mamber, legislative analyst for the Marijuana Policy Project, a Washington, D.C., group that has helped write the Delaware bill.

 

Some state representatives have noted that the nonprofit status can be exploited by operators just paying themselves hefty salaries or charging high rent to a dispensary.

 

"How do you define a nonprofit? Is that where an executive director makes $45,000 a year or where an executive director makes $450,000 a year?" asked House Minority Leader Greg Lavelle, R-Sharpley.

 

Mamber said recent raids on marijuana dispensaries in Washington state were consistent with the Obama administration's directive because that state's law contains several gray areas.

 

"Delaware's law ... sets up a comprehensive and tightly regulated system to issue licenses to a certain number of compassion centers," Mamber said.

 

Markell has not made a final decision on whether he will sign the bill, but has supported the concept of giving people with cancer, HIV/AIDS, multiple sclerosis and other debilitating diseases access to the drug, spokesman Brian Selander said.

 

Jules Epstein, an associate professor of law at the Widener University School of Law, said the Obama administration should apply limited financial resources to prosecuting Wall Street white-collar criminals, public corruption and violent crime.

 

"All of those certainly merit at least as much attention as medical marijuana," Epstein said. "The Ogden memo certainly implied that there were much greater priorities."

 

There remains a risk that the federal government may not always be so lenient on states with medical-marijuana laws, Epstein said.

 

The Obama administration's liberal view of medical-marijuana distribution could be suddenly upended by the next president, said Rep. Danny Short, R-Seaford.

 

"That's a chance I guess we're going to have to take," said Short, who voted against the bill last week.

 

"States have had medical-marijuana laws on the books for over 14 years and have administered programs through three different federal administrations without ever being charged or prosecuted for doing so," Henry said in an email. "Nothing in this bill requires the state to violate federal law."

 

Under the bill, the state will not be distributing the marijuana -- the act that remains illegal under federal law -- and the state assumes no liability if someone is harmed by the drug.

 

Ogden's memo said U.S. attorneys should prosecute medical-marijuana distributors who are engaging in other criminal activity, selling to minors or who "unlawfully market and sell marijuana for profit."

 

Delaware's legislation, Senate Bill 17, prohibits people from growing their own marijuana and requires the dispensaries to be not-for-profit organizations and licensed by the state, said Noah Mamber, legislative analyst for the Marijuana Policy Project, a Washington, D.C., group that has helped write the Delaware bill.

 

Some state representatives have noted that the nonprofit status can be exploited by operators just paying themselves hefty salaries or charging high rent to a dispensary.

 

"How do you define a nonprofit? Is that where an executive director makes $45,000 a year or where an executive director makes $450,000 a year?" asked House Minority Leader Greg Lavelle, R-Sharpley.

 

Mamber said recent raids on marijuana dispensaries in Washington state were consistent with the Obama administration's directive because that state's law contains several gray areas.

 

"Delaware's law ... sets up a comprehensive and tightly regulated system to issue licenses to a certain number of compassion centers," Mamber said.

 

Markell has not made a final decision on whether he will sign the bill, but has supported the concept of giving people with cancer, HIV/AIDS, multiple sclerosis and other debilitating diseases access to the drug, spokesman Brian Selander said.

 

Jules Epstein, an associate professor of law at the Widener University School of Law, said the Obama administration should apply limited financial resources to prosecuting Wall Street white-collar criminals, public corruption and violent crime.

 

"All of those certainly merit at least as much attention as medical marijuana," Epstein said. "The Ogden memo certainly implied that there were much greater priorities."

 

There remains a risk that the federal government may not always be so lenient on states with medical-marijuana laws, Epstein said.

 

The Obama administration's liberal view of medical-marijuana distribution could be suddenly upended by the next president, said Rep. Danny Short, R-Seaford.

 

"That's a chance I guess we're going to have to take," said Short, who voted against the bill last week.

 

Note: Drug remains illegal under federal law.

 

Source: Delaware Online (DE)

Author: Chad Livengood

Published: May 10, 2011

Copyright: 2011 Delawareonline.com

Website: http://www.delawareonline.com/

URL: http://drugsense.org/url/53LeQLEp

Contact: http://drugsense.org/url/1c6Xgdq3

 

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