Former US Attorney: Strict Medical Marijuana Law May Be OK

By Beacon Staff

HELENA – Montana’s former U.S. attorney says he believes the federal government would be comfortable with state medical marijuana laws that are tightly written and allow very few people to legally use the drug.

Bill Mercer spoke during a Helena conference sponsored by the Burton K. Wheeler Center, based in Bozeman. Monday evening’s discussion focused on finding a balance between federal laws and states’ rights.

“I think you’ve really got to tighten up those categories,” Mercer said.

Those attending the meeting held wide-ranging opinions on medical marijuana, but nearly everyone agreed that the current system isn’t working.

“It seems like a mess to me,” said panel moderator Lee Banville, assistant professor of journalism at the University of Montana.

Montana voters passed a medical marijuana law in 2004. Five years later, the Obama administration released the Ogden memo, which stated that as long as a person’s marijuana use follows a state’s medical marijuana laws, the government wouldn’t prosecute them.

After that memo, the number of medical marijuana users and caregivers rose — eventually reaching about 30,000 people with medical marijuana cards by June 2011.

“People looked at the federal government and thought they were backing away from their role,” Mercer said.

The 2011 Legislature attempted to change the law to reduce the number of providers and patients, and at about the same time, federal agents raided more than two dozen medical marijuana providers in the state, seizing hundreds of plants at some locations along with vehicles and weapons.

Medical marijuana advocates filed a lawsuit seeking to overturn the new law, and a judge has temporarily overturned some key provisions. Advocates also are gathering signatures to get an initiative on the ballot that would allow voters to decide if they want to keep the new law or revert back to the old one.

In June, the Justice Department issued a statement known as the Cole memo that told the Drug Enforcement Administration and U.S. attorneys to clarify that large-scale medical marijuana dispensaries are in violation of the Controlled Substances Act and will be prosecuted.

Rep. Diane Sands, D-Missoula, said most of the Montanans who were growing medical marijuana thought it was legal and it should be limited to people with certain medical conditions.

The Ogden memo “never said anything about how individuals should acquire the substance legally,” Sands said. “I think they (the federal government) created much of the problem we have here.”

Sands said the federal government needs to establish clear guidelines under which states can implement their medical marijuana laws.

Mercer noted that the medical marijuana caregivers raided this spring are not using the Ogden memo as a defense and instead are pleading guilty to charges that come with a mandatory minimum sentence of five years in federal prison.

“Clearly those people were not operating within the contours of the state law,” Mercer said.

Prosecutors have filed motions to prevent the raided providers from relying on the Ogden memo as a defense.