Although “Legal” At The State Level, Medical Marijuana Still Faces Some Legal Troubles
While state after state, including New York, moves to decriminalize marijuana, the substance unfortunately remains a Schedule I drug under federal law. While this remains an obvious issue for recreational use, it has been less of an issue when it comes to medical marijuana due to a provision passed by Congress called the Rohrabacher-Farr amendment, which effectively prevents federal prosecution of medical marijuana activities by prohibiting the Department of Justice from using federal funds to prevent states from regulating medical marijuana and is renewed each year in federal funding laws.
Still, the amendment has only halted most raids involving medical marijuana in states that have legalized it, meaning it is still a legal/criminal issue in some cases. For example, in January of this year, one medical marijuana dispensary operator was sentenced to 16 years in federal prison after federal prosecutors cracked down even though the state never found him guilty of a crime.
The Current Administration Has Made It Clear That They Will Prosecute, Depending Upon Disposition of Local U.S. Attorney
There is a significant amount of confusion surrounding how and to what extent the amendment serves as a shield against federal prosecution, as it does not technically legalize medical marijuana at the federal level. In addition, in 2018, the current administration reversed the Cole memorandum put in place by the Obama administration, directing the Justice department to deprioritize prosecuting marijuana businesses. The White House also continues to seek a repeal of Rohrabacher-Farr in its budgets.
As a result, if an individual or business fails to comply with any aspect of state law, they can still be prosecuted by the Justice Department, and discretion largely comes down to the whatever the disposition of the U.S. attorney in a particular district is, and the motivation of the current department appears to involve going after the longest prison sentences as opposed to those who are actually bad actors.
New York’s Medical Marijuana Laws
It is also worth noting that New York’s medical marijuana laws are unusually restrictive: Only 12 conditions qualify for medical marijuana use, there are a limited number of registered dispensaries available, those with medical marijuana cards cannot smoke or vape the product, and you can only participate in the program if you are certified by a registered practitioner. As a result, both businesses and individuals who believe that they are operating within the ‘legal’ parameters of the law must still be very careful.
How to Best Protect Yourself: We Can Help
If you are charged in connection with medical marijuana, working with an attorney to mount a constitutional challenge to the charges is always an option. In addition, in order to protect themselves, marijuana-related businesses should enhance their compliance programs, improve documentation, and closely monitor the actions of local federal prosecutors in order to try and predict their likely enforcement actions. Working with a local criminal defense attorney to do so may be very helpful and could make all the difference.
If you have any questions, contact New York criminal defense attorney Phillip J. Murphy. Our office has extensive experience representing those accused of drug crimes in the region.
Resource:
forbes.com/sites/jacobfrenkel/2018/01/11/three-things-marijuana-businesses-need-to-do-to-prepare-for-a-more-hostile-department-of-justice/#2c007cdf521e
nytimes.com/2018/06/20/nyregion/marijuana-laws-new-york.html
rollcall.com/2020/03/04/states-turn-to-unenforced-federal-law-to-slow-medical-marijuana-legalization/
congress.gov/amendment/114th-congress/house-amendment/332
