News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Change in Federal Law Regarding Marijuana Enforcement is Important for Massachusetts

A new federal spending law enshrines in statutory form the policy that federal agents will no longer seek to interfere with medical marijuana retail establishments in states where they are legal.  As Massachusetts law with regard to marijuana possession and use continues to evolve, this change lessens the likelihood that Massachusetts residents will find themselves federally prosecuted for the sale or possession of marijuana for medical use.  However, federal prohibitions on, and penalties for, possession of marijuana remain far broader and harsher than those under Massachusetts law, and the new provision affects only medical marijuana; Massachusetts residents therefore remain vulnerable to federal prosecution for conduct that is not criminal under state law.

Massachusetts law regarding marijuana possession has undergone major changes in the last few years.  First, in 2008, voters passed a ballot question (question 2) decriminalizing (but not legalizing) possession (but not distribution or possession with intent to distribute) of less than an ounce of marijuana.  In 2013, a second ballot question (question 3), legalizing the medical use of marijuana, also passed.  There is currently a campaign seeking to put the question of legalization of marijuana for recreational use before voters in 2016.

While Massachusetts law—and the law of 31 other states, and the District of Columbia, all of which have legalized medical marijuana—has been changing, the law of the United States has not.  Marijuana remains treated as a schedule I drug, meaning that Congress has stated that it “has a high potential for abuse,” “has no currently accepted medical use in treatment in the United States,” and “there is a lack of accepted safety for [its] use” under medical supervision. These conclusions seem very outdated in light of increasing evidence that the drug is medically beneficial and in light of the actions of the many states to legalize its medical use, but federal law continues to treat even simple possession of marijuana as criminal (and a second federal offense carries a mandatory term of incarceration).  Massachusetts residents remain bound by and may be prosecuted under federal as well as state law.

Now, although substantive federal law has not changed, Congress has chosen an unlikely vehicle to alter the government’s enforcement of those laws in states that have legalized medical marijuana.  Section 537 of the new 1.1 trillion federal spending bill passed Saturday bars the Justice Department from using any of its funds to “to prevent [] States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”  The Obama administration previously indicated in guidance to United States Attorneys that pursuing distributors of medical marijuana was a priority for the justice department only where doing so implicated specified federal law enforcement priorities, and that pursuing individual users of medical marijuana or their caregivers was unlikely to ever qualify as such a priority, but this provision offers far broader protection for individuals or businesses seeking to use, distribute or cultivate medical marijuana so long as they comply with relevant state laws.   It is important to note that the bill only bars the Justice Department from seeking to prevent states from implementing their laws legalizing medical marijuana.  It does not apply to state laws legalizing or decriminalizing recreational marijuana, and so in Colorado and states that may legalize marijuana for recreational use in the future, users and sellers of the drug should look carefully at federal law and at the Justice Department’s guidance on enforcement.  In Massachusetts, where possession of less than an ounce of marijuana is no longer criminal under state law, users should understand that possession remains criminal under federal law and that Congress’s action does not change federal enforcement priorities.  As the law in this area is rapidly changing we continue to monitor the federal and state legal landscapes in order to accurately advise and protect our clients.

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