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New Jersey Attorney General seeking guidance on Medical marijuana law

Daily Dose 2011-04-20 0 comments

By Darryl R. Isherwood | Published in PolitickerNJ

NJ Attorney General Paula Dow (Photo credit:

New Jersey Attorney General Paula Dow has requested guidance from the U.S. Attorney General on whether the state’s medical marijuana law presents legal issues for the licensed growers and dispensers of the drug or to state employees who monitor the law.

In a letter to Attorney General Eric Holder Dow asks for clarification of the U.S. Dept. of Justice position on medical marijuana. Dow sent the letter after the state health department asked her for guidance on proceeding with the state’s medical marijuana program.

“As the State’s chief legal adviser to all of the departments in the Executive Branch, many of which are participating in carrying out the medical marijuana legislation, it is critical that I properly advise them as to the potential criminal and civil ramifications of their actions in carrying out their duties,” Dow wrote. “Accordingly, I ask that you provide me with clear guidance as to the enforcement position of the Department of Justice relative to New Jersey’s medical marijuana legislation and the scope of the entities and individuals who may be subject to civil suit or criminal prosecution.”

Dow’s request comes one day after PolitickerNJ reported on a letter sent to the governor of Washington State from two U.S. Attorneys there that threatens prosecution of medical marijuana dispensaries and warns that state employees tasked with administering the medical marijuana law could be subject to prosecution under the federal controlled substances act.

The legality of medical marijuana programs has been an overriding concern among states that have already passed laws and those that are considering instituting their own programs.  In 2009, the U.S. Dept. of Justice issued guidance to U.S. Attorneys stating that prosecution of patients using medical marijuana would not be a good use of resources.

States, including New Jersey, used the so-called Ogden memo as a defense against claims that medical marijuana programs would be illegal under federal law.

But last week, in a letter to the governor of Washington State, two U.S. Attorneys warned that despite state laws that make growing and dispensing marijuana for medical purposes legal, growers and dispensers of the drug would still be in violation of federal law.

“Congress placed marijuana in Schedule 1 of the Controlled Substances Act and, as such growing, possessing and distributing marijuana in any capacity other than as part of a federally authorized research program is a violation of federal law regardless of state laws permitting such activities.”

The letter went on to warn that while federal law enforcement officials would likely not waste valuable resources prosecuting patients who use marijuana, “…we maintain the authority to enforce the CSA vigorously against individuals that participate in unlawful manufacturing and distribution activity involving medical marijuana, even if such activities are permitted under state law.”

In response to a question about potential immunity from prosecution for state employees who administer the law, the U.S Attorneys warned that no such immunity exists.

A spokeswoman for the Department of Justice said Tuesday that the letters are consistent with the intent of the Ogden memo and that U.S. Attorneys are given discretion over what cases to prosecute.  However, asked whether the Dept. of Justice plans to prosecute dispensers of medical marijuana, the spokesman said dispensing of marijuana remains illegal under federal law.

The letter, and a similar one sent by a U.S. Attorney in California to officials in Oakland, set medical marijuana advocates on edge and had opponents of the program claiming the state had jumped the gun by passing the law before vetting the legal ramifications.

After a battle of stringent guidlines put in place by Gov. Chris Christie, New Jersey is set to move forward with the program and earlier this month announced the six licensed dispensaries of the drug.