Last Tuesday, five states voted to legalize the medical use of marijuana. One day later, Federal Drug Czar Barry McCaffrey pointed out that medical use of marijuana remains illegal. Huh?
Alaska, Arizona, Oregon, Nevada, and Washington changed their state laws, as California did two years ago. But federal law has not changed–it’s still illegal for anyone, including patients, to possess marijuana. So when your state says yes and the United States says no, who wins? An entire branch of legal scholarship is devoted to questions of “Federalism” like this one. Since the Civil War, though, the answer is almost always that the federal government wins. It’s conceivable that a state could forbid medical marijuana if the federal government allowed it, but inconceivable that the states could overrule a federal prohibition.
So why bother changing state law?
Two reasons. First, most small-scale drug prosecutions occur at the state (or local) level. Changing state law puts the state out of the business of investigating and prosecuting people who no longer are violating state law. Federal prosecutors may pursue these cases, but federal law enforcement resources are small by comparison and generally devoted to bigger fish.The practical consequence is that no one is likely to prosecute patients holding small quantities of reefer.
On the other hand, federal officials in California have shut down several “marijuana clubs,” that grow weed and sell it to patients. And it’s possible that federal authorities might deputize state officials, allowing them to prosecute under federal law. But Newsweek reports that federal authorities aren’t interested in prosecuting any but the largest of these “clubs,” which brings us to the second reason the state laws matter.
Medical marijuana referenda can send a message to federal politicians about popular attitudes. With last Tuesday’s vote, one-fifth of America’s citizens live in states which have approved medical marijuana legislation.
Next question?
