Hawaii Medical Marijuana Laws Face New Challenge

by Staff on July 2, 2011

Medical marijuana dispensaries are not likely to join Hawaii storefronts any time soon

Department of Justice Issues Warning Regarding Hawaii Medical Marijuana Laws

While several states have loosened laws relating to medical marijuana, the federal government has reasserted its position and authority to prosecute anyone they find in violation of the Controlled Substances Act.  And in case the feds’ position was unclear, the Department of Justice (DOJ) has sent a letter to several states – including Hawaii – to clarify.

In 2000, Hawaii joined Alaska, California, Colorado, Maine, Nevada, Oregon, and Washington in passing laws legalizing medical marijuana.  Since that time, eight additional states – Arizona, Delaware, Michigan, Montana, New Jersey, New Mexico, Rhode Island, and Vermont – plus the District of Columbia have implemented medical marijuana laws that protect patients from being prosecuted for buying, consuming or possessing medical marijuana in amounts designated by each state.

In 2009, a memo from the then-Deputy Attorney General David Ogden to U.S. attorneys seemed to offer further support for medical marijuana patients.  Ogden advised attorneys, “As a general matter,” not to “focus federal resources” on “individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana”.

For patients, the Ogden Memorandum was added protection.  For many, it seemed a beginning to the end of the war on drugs.  And for others, the feds argue, it provided an unintended open door for privately operated, large-scale, industrial marijuana cultivation centers to pass through under the guise of purported medical purposes. This is a door that current Deputy Attorney General James Cole would like to close.

Cole sent out his own memo this week reminding the head of the Drug Enforcement Administration (DEA) and officials in the U.S. Attorneys Office that “Persons who are in the business of cultivating, selling or distributing marijuana, and those who knowingly facilitate such activities, are in violation of the Controlled Substances Act, regardless of state law.”  Cole went on to warn that violators “are subject to federal enforcement action, including potential prosecution”.

In spite of the strong language used, Cole insists that his memo does not change the Ogden Memorandum, but rather, reinforces it.  However, those cultivating medical marijuana, dispensing or planning to build dispensaries are likely to disagree.

Recent raids in Montana resulted in the seizure of thousands of marijuana plants and hundreds of kilograms of bulk marijuana, with three medical marijuana providers being charged with conspiracy, manufacture of marijuana, money laundering, distribution of marijuana and possession with intent to distribute marijuana.  Fearing the same fate, some state officials like Rhode Island’s Governor Lincoln Chafee, have suspended their plans to license new dispensaries.  Others, like State Rep. Diane Russell of Maine reports that Governor Paul LePage “would be hard pressed to cave”, given that the medical marijuana “program is already in place” and they would have to actively shut it down.  Still other states, like Arizona and New Jersey, are seeking further clarification as to who will be held responsible and whether or not state employees will be subject to federal prosecution as creators and enforcers of the state medical marijuana laws.

Hawaii medical marijuana laws allow for medical marijuana patients and their primary caregiver to jointly possess an “adequate supply,” which is defined as not exceeding three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant.

Currently, there are no dispensaries, often called “compassion centers”, in the islands.  And bill SB 1458 – that proposed the introduction of a five year pilot program to create a medical marijuana dispensary system in Hawaii – was snuffed out earlier this year, the warnings found in Cole’s memo and in the U.S. attorney letters may cause a little less concern.  But to medical marijuana patients across the state, some whom have waited over a decade for a dispensary system, the feds’ latest memo is likely to mean an even longer wait for legal access to dispensaries and the relief that the patients seek.

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