Frosh says Md., other states may have little recourse
Bryan P. Sears//January 4, 2018
Frosh says Md., other states may have little recourse
//January 4, 2018
The Trump administration’s announcement Thursday that it will end a federal policy which essentially allowed states to legalize some level of marijuana use has sown confusion in Maryland. The state’s medical society said it might discourage physicians from prescribing its use, the state’s top law enforcement official said it could lead to growers and processors being arrested and one influential lawmaker said Maryland should simply ignore the move.
U.S. Attorney General Jeff Sessions’ new policy will let federal prosecutors where marijuana is legal decide how aggressively to enforce longstanding federal law prohibiting it.
Maryland Attorney General Brian E. Frosh said the announcement, while vague, signals a change in federal policy that could adversely affect Maryland’s medical cannabis program and result in growers, processors and dispensers being arrested and having their businesses and assets seized.
“If you’re a marijuana grower or processor or dispenser in Maryland, it’s got to make you a lot less comfortable than you were yesterday,” said Frosh, who added that the changes will also take a human toll.
“This is a medicine that is important to people with cancer and AIDS and some neurological disorders and chronic pain,” Frosh said. “It’s inhumane.”
For now, members of the state’s medical cannabis industry say they’ll push ahead.
“We remain laser-focused on getting medical cannabis into the hands of Maryland patients in partnership with the state of Maryland’s medical cannabis program,” Jake Van Wingerden, chairman of the Maryland Wholesale Medical Cannabis Association, said in a statement. “Patients have waited long enough for these important medications in many cases suffering with chronic pain and debilitating illnesses.”
Maryland should ignore Sessions’ directive and move forward with its medical marijuana program, said Sen. Robert A. “Bobby” Zirkin.
Zirkin, D-Baltimore County and the chairman of the Senate Judicial Proceedings Committee, said Sessions’ decision to rescind a federal memo that allowed many states to begin similar programs is “stuck in the 1980s.”
“We are not going to withhold medical marijuana from patients because Jeff Sessions is stuck in a land that time forgot,” Zirkin said.
The Obama policy memo, known as the Cole Memorandum, essentially established a system where federal law enforcement agencies would turn a blind eye under certain circumstances to some marijuana activities in states that either legalized medical programs or recreational use.
In his memo, U.S. Deputy Attorney General James M. Cole wrote that law enforcement should narrowly focus enforcement efforts on eight areas, including preventing the distribution to minors; preventing diversion of marijuana from states where it is legal to states where it is not; and preventing medical or recreational marijuana laws from being used as a pretext for drug trafficking.
Frosh called the Cole memo “common sense” but acknowledged that Maryland and the 28 other states that legalized medical marijuana, and other states that legalized recreational marijuana, built their programs on a base of sand that is now shifting.
While some have complained that Sessions and Republicans are ignoring states’ rights, Frosh said Maryland and other states may be in a legally indefensible position.
In 2005, the Supreme Court ruled that Congress could criminalize homegrown medical marijuana even though California had legalized it for medicinal purposes.
“Federal law is supreme,” Frosh said. “The state can’t stop the federal government from enforcing federal law.”
Sessions’ policy leaves it to U.S. attorneys in those states where pot is legal to decide whether to aggressively enforce federal marijuana law. Sessions’ decision likely will add to confusion about whether it’s OK to grow, buy or use marijuana in states where it’s legal, since long-standing federal law prohibits it.
“This has always been the ridiculousness of how this country has proceeded,” Zirkin said. “The way this issue has grown up has been idiotic on its face, but it’s been necessary because of the idiotic and inadequate policies of the federal government.”
Understanding the risks
In Maryland, a nascent medical marijuana program has just started bringing the first plants to market for distribution to registered patients.
Gene Ransom, chief executive officer of MedChi, the Maryland State Medical Society, said the Trump administration’s policy adds a level of uncertainty that will likely cause registered doctors to not participate in the medical cannabis program and others to decide not to sign up.
“We don’t take a position on medical marijuana. We just want to provide clear advice so physicians can understand the risks they are taking,” Ransom said.
Currently about 400 physicians are registered with the state medical cannabis commission to write recommendations for patients they are treating. The number of physicians has not met expectations as some have decided not to participate because marijuana is still illegal at the federal level.
Some physicians have created companies separate from their medical practices that would be used to treat registered medical marijuana patients, Ransom said.
One registered physician told Ransom he was planning on withdrawing from the program after receiving calls and letters from members of the public when his name was published on a state website.
Ransom said physicians in the program now have to worry about losing their Medicaid reimbursements or their DEA licenses to prescribe controlled substances.
“This is adding another level of risk,” said Ransom.
Sessions’ decision comes days after California began selling recreational marijuana. Sessions has compared marijuana to heroin and blames it for spikes in violence.
“In deciding which marijuana activities to prosecute under these laws with the Department’s finite resources, prosecutors should follow the well-established principles that govern all federal prosecutions,” by considering the seriousness of the crime and its impact on the community, Sessions wrote in a one-page memo to the nation’s federal prosecutors.
It was unclear to what extent Sessions’ move was aimed largely at slowing down the trend of states approving marijuana for recreational use.
Nationally, the announcement has already had some effect on publicly traded cannabis companies, according to New Frontiers Data, a firm that tracks the cannabis industry.
“The immediate impact of Attorney General Session’s decision to rescind the Cole Memo will be felt most acutely in the public markets, where some companies have already lost 30 percent or more of their stock value since the announcement was made this morning. Overall, publicly traded cannabis companies are down about 15 percent since this news broke,” the company said in a statement Thursday.
The Associated Press contributed to this report.