Marijuana: If it’s legal, how can you still get arrested?


WEST PALM BEACH, Fla., October 13, 2012 – This November, residents of Colorado, Washington and Oregon will vote on whether to legalize marijuana for recreational use in their states. Polls in both Colorado and Washington show overwhelming support for the measures, and even prominent Republicans are backing the initiatives.

No state in the U.S. has ever legalized marijuana for recreational use before. Currently 17 states and the District of Columbia allow medical marijuana use.

Under federal law, marijuana use and distribution is illegal. Period.

Take the case of 41-year-old Aaron Sandusky, the president of G3 Holistics, Inc., who was convicted last Friday of conspiracy to manufacture marijuana plants, possession with intent to distribute and other charges. Sandusky ran medical marijuana dispensaries in California, where medical marijuana is legal. He now faces up to ten years in jail.

How can you get arrested – and convicted – for using marijuana in states where it is legal?

States Rights vs. Federal Rights

Medical Marijuana sign in Ventura, Calif.

The answer goes all the way back to the founding of the United States, and tensions between States rights activists (anti-Federalists) and Federal rights activists (Federalists) and arguments over who trumps who.

Because of the current federalist system in the United States, each state has a right to enact its own laws. Unfortunately, however, when those laws conflict with federal laws, the federal government usually wins.

Under the basic rules the forefathers put together when forming the United States, education falls under the purview of the states. But when the federal government decided schools must integrate, states had little say — to the point that the federal government called in the National Guard to force integration. Less dramatically and more recently, President George Bush implemented the No Child Left Behind Act, which gave states no option of opting out.

So what’s the situation with marijuana?

The federal government has made it clear they oppose legalizing marijuana. As Obama drug czar Gil Kerlikowske said, “Legalization isn’t in the president’s vocabulary.” The Administration has also clearly stated in correspondence to state officials that regardless of state policies, the federal government “remains firmly committed to enforcing the (Controlled Substances Act).”

In 2010, Attorney General Eric Holder sent a letter stating his opposition to legalizing marijuana in any state. He also noted that the Department of Justice would continue to prosecute drug use and enforce federal laws. His letter stated, “Regardless of the passage of this or similar legislation, the Department of Justice will remain firmly committed to enforcing the Controlled Substances Act (“CSA”) in all states. Prosecution of those who manufacture, distribute, or possess any illegal drugs–including marijuana–and the disruption of drug trafficking organizations is a core priority of the Department. Accordingly, we will vigorously enforce the CSA against those individuals and organizations that possess, manufacture, or distribute marijuana for recreational use, even if such activities are permitted under state law.”

Marijuana and pipe

DEA Will Enforce Federal Law

Drug Enforcement Agency spokesperson Paul Roach says that even if states legalize marijuana, the DEA will continue to enforce federal drug laws. “We don’t see that changing,” he said.

The views of the federal government are pretty clear: the federal government does not recognize legal use, whether medical or recreational, of marijuana.

Already federal authorities have directly ignored state laws concerning the use of medical marijuana. In California and Montana, the federal government has forced numerous medical marijuana dispensaries to close and has prosecuted growers, users and distributors. In Colorado, the Department of Justice has forced at least 23 medical marijuana dispensaries to close or to move at least 1000 feet away from any educational facility.

Under federal law, possession of even one personal use joint is a misdemeanor punishable by up to a year in prison and a $1000 fine. A second possession conviction carries a mandatory sentence of 15 days. Federal law says that growing even one marijuana plant is a felony, carrying a punishment of up to five years in prison and a fine of up to $250,000.

Some pro-legalization advocates believe that legalizing marijuana in states will force the federal government to relax laws or at least enforcement.

Others argue, however, that feds may feel threatened by state laws that undercut federal laws, leading them to even more aggressive counter-narcotics operations. Losing ground to the states on one issue, they say, could avalanche into other issues and the federal government will not allow that to happen. These observers believe that increased state legalization will force the feds to act and potentially even push a Constitutional amendment, which would invalidate individual state drug laws.

Legal experts see a looming Supreme Court action between state governments and the federal government. If that happens, states beware. The Supreme Court has historically ruled in favor of the federal government on issues of states versus federal government cases.

The final word on legalization of marijuana is this: even if it is legal in an individual state, it is illegal under federal law. Which means that federal authorities can arrest users and growers and distributors of marijuana even if marijuana is legal in the state where they are using, growing or distributing.

So yes. You can get arrested, and prosecuted, even if it’s legal.

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Lisa M. Ruth
Lisa M. Ruth is Editor-in-Chief of CDN. In addition to her editing and leadership duties, she also writes on international events, intelligence, and other topics. She has worked with CDN as a journalist since 2009. Lisa is also President of CTC International Group, Inc., a research and analysis firm in South Florida, providing actionable intelligence to decisionmakers. She started her career at the CIA, where she won several distinguished awards for her service. She holds an MA in international relations from the University of Virginia, and a BA in international relations from George Mason University. She also serves as Chairman of the Board of Horses Healing Hearts, and is involved with several other charitable organizations, including Habitat for Humanity, The Boys and Girls Clubs of America, and AYSO.