Approximately 14 states (mostly in the west) have permissive medical marijuana laws in place, while 17 others have similar legislation pending — legislation that could pave the way for eventual legalization. Small, rural communities will not be immune from the effects of medical marijuana and in fact may be in the best position to slow the growth of this questionable social movement.
Some states have taken the ballot initiative route, allowing voters to decide if marijuana is a legitimate palliative. Other states have left this medical decision to their state politicians. In either case, all have embraced what Dr. Eric Voth — a noted addiction specialist — has called “medicine by popular vote.”
Medical Marijuana Madness
Our present situation began to blossom in the wake of the Department of Justice’s (DOJ) October 19, 2009 memorandum for “selected United States Attorneys.” The memorandum, from Deputy US Attorney General David Ogden, provided “uniform guidance to focus federal investigations and prosecutions” in states that have already sanctioned medical marijuana. As an afterthought, the memorandum reiterated that the DOJ still considers marijuana a dangerous drug that remains the “single largest source of revenue” for the violent Mexican drug cartels.
However, because of “limited investigative and prosecutorial resources,” Mr. Ogden suggested that pursuing individuals who are in a “treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law…is unlikely to be an efficient use of limited federal resources.” The upshot has been a dramatic increase in both medical marijuana patients and caregivers in those states that have permissive legislation.
The official DOJ memorandum came without much official warning. This resulted in a rushed, haphazard effort to develop different state and local protocols — needs that had seemed unnecessary given that federal enforcement and prosecution had served as a natural bulwark against the drug’s “medicinal” use.
Before the memorandum, the Drug Enforcement Agency (DEA), in several high-profile raids (February 2009), shut down at least two California-based medical marijuana businesses. When asked about the raids, newly-minted Attorney General Eric Holder, foreshadowing the memorandum, suggested the DOJ would no longer tolerate such enforcement shenanigans.
Despite the popular but wrongheaded belief that the memorandum gave carte blanche to medical marijuana businesses, the DEA has still enforced federal law, albeit selectively. What attracts DEA attention is when the business is not in compliance with state law or if they have reason to believe the business may be associated with larger drug smuggling or other criminal concerns.
The Bartkowitz Effect
Colorado’s experience — the state now receives approximately 1,000 new medical marijuana applications daily — is probably not unique.
In April 2010 in Highlands Ranch, Colorado, DEA agents busted Chris Bartkowicz. Unfortunately for Bartkowitz, his 15 minutes of fame on local news, where he had bragged about the wild success of his business, drew DEA attention. The fact that he illegally housed his operation one block from a local elementary school was lost on the hapless Bartkowitz. After the raid, the Denver DEA office offered a reality check: “It’s still a violation of federal law. …It’s not medicine. We’re still going to continue to investigate and arrest people.” Despite all the hope for change from marijuana proponents, even the Office of the Attorney General cannot unilaterally change federal law, only enforcement priorities, and even then circumstances can outweigh non-binding intentions.
Almost simultaneously with the Bartkowitz raid, the DEA — and other law enforcement agencies — let slide Aspen, Colorado’s first-ever medical marijuana festival. Approximately 50 Colorado growers, part of the state’s exploding medical marijuana industry, entered over 140 strains of weed in an effort to garner top honors. After the entries were tested for potency (THC level), the winners turned out to be from another resort community, Steamboat Springs. Kevin and Ryan Fisher (not related), owners of Rocky Mountain Remedies, won top honors with their “Kandy Kush.” The Steamboat Pilot and Today placed their photograph, along with images of their grow operation, above the fold and triumphantly announced that local entrepreneurship was alive and well in “da Boat!”
Luckily for local law enforcement, the Bartkowitz Effect flourishes among these Cheeto-munching entrepreneurs. Many, not fully grasping the reality of their precarious legal position, will initially announce their productivity and profitability. Such pronouncements will draw attention from, on the one hand, law enforcement agencies, and on the other, criminal concerns that would love to get in on the profits. This new generation of profiteers — who are more often than not consumers of their own product — will become the fuzzy front men-and-women of a more insidious and mature criminal element bent on exploiting the vulnerabilities of the newly formed enterprises.
The product’s consumers will also remain vulnerable, believing — like many consumers of prescription medication — that because medical marijuana is physician-recommended, it’s acceptable to use anywhere, anytime, including while driving, an attitude that will serve as an investigative bonus to law enforcement intent on getting impaired drivers off the street.
Five Fundamentals for Fighting
So, what should law enforcement agencies do if medical marijuana comes to town?
Frequently, as is the case in Colorado, local communities such as towns and counties will have the opportunity to consider whether to regulate medical marijuana or ban dispensaries entirely. Law enforcement can make its voice heard during the public processes that such decisions require.
1. Gather statistics on the prevalence of drugged and impaired driving in the community
2. Collect information from other communities that already have permissive marijuana laws on the effects that dispensaries have had on affected communities’ health and welfare and quality of life, such as increased instances of crime and gang activity
3. Consult medical experts to advise local decision-makers on the deleterious effects of marijuana on public health
4. Present the evidence and testify at public hearings so that local officials can make informed decisions concerning medical marijuana
5. In conjunction with local school officials and health advocates, develop information demonstrating the increased risk marijuana poses for the community’s youth
Many local elected officials and community leaders will rightly look to law enforcement to take an active role in the debate. Department leaders should be prepared to offer their expert advice sooner rather later in what is likely to become a heated debate on the safety and future of our communities.