March 14, 2011
Mikos on the DOJ and Medical Marijuana
Robert A. Mikos (Vanderbilt Law School) has posted A Critical Appraisal of the Department of Justice's New Approach to Medical Marijuana (Stanford Law & Policy Review, Vol. 201, p. 101, 2011) on SSRN. Here is the abstract:
The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hard-ball tactics favored by earlier Administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DOJ) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws. Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the DOJ’s new Non Enforcement Policy (NEP). In a nutshell, it suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. First, the NEP won’t necessarily stop federal agents from pursuing criminal prosecutions of marijuana dispensaries. In a twist of irony, the non-enforcement policy itself is not enforceable. It doesn’t create any legal rights a court could invoke to dismiss a criminal case. And the DOJ itself will have a difficult time ensuring that federal prosecutors comply with the agency’s stated policy. Second, even assuming the NEP would block criminal prosecutions, federal law could still obstruct state medical marijuana programs by imposing - or enabling others to impose - a wide range of civil and private sanctions on medical marijuana users and their suppliers. The problem is the NEP doesn’t repeal the federal ban on marijuana. Marijuana technically remains illegal under federal law, and the possession, cultivation, or distribution of the drug trigger a host of civil sanctions not addressed by the NEP. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, employers can likely skirt liability under state law for discriminating against employees who use marijuana for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.
March 14, 2011 | Permalink
Very well written. We The People cannot allow the U.S. Gov't to stand on both sides of the Marijuana issue. On one side the Feds say, "There is no medical use for treatment with Marijuana in the U.S. and that Marijuana is as addictive/destructive as Heroin" On the other side they have been growing and supplying patients (2 of whom live in Iowa) with Low Grade Medical Marijuana for nearly 30 years. What is this? You can't be Pro & Con it is either Pro OR Con. With the facts well known that Cannabis Cures/Kills Cancer Marijuana should not only be legal but there should be someway to introduce the Cannabinoids from the Marijuana plant into our bodies. OH YEAH, you can smoke it, but I recommend the use of a Vaporizer. It removes all the dangers of smoking while delivering ALL of the Cannabinoids on the plant into the body for healing both Physically & Spiritually. The Cannabis Plant is found on planet earth because we are found on earth. The Cannabis Plant and the Human Body are partners for a better life on earth for they were both placed here by the same creator. Why can we use a much more addictive drug found in nature called Opium but the safe & healing Cannabis Plant which has been proven healing and NOT addictive is against the law? We The People must change this split and Repeal the Laws Against Marijuana. For the laws are killing thousands of families across the country needlessly. Total legalization and the re-introduction of Cannabis/Hemp back into society for the greater good is what's needed here.
Posted by: TheDeacon | Mar 15, 2011 8:11:34 AM