Pubdate: Tue, 20 Mar 2012
Source: Baltimore Sun (MD)
Copyright: 2012 The Baltimore Sun Company
Author: Eric E. Sterling
Note: Eric E. Sterling, president of the nonprofit Criminal Justice 
Policy Foundation in Silver Spring, lectures to bar associations 
about marijuana laws. He was counsel to the U.S. House Judiciary 
Committee from 1979 to 1989, where he worked on medical marijuana 
legislation, among many issues.


On March 9, Gov. Martin O'Malley said he is likely to veto a medical 
marijuana law if the Maryland General Assembly passes one. His 
spokeswoman said he is concerned about a Feb. 9, 2012 letter from 
Charles Oberly, Delaware's U.S. attorney, to Gov. Jack Markell, 
threatening to prosecute Delaware officials as common drug 
traffickers if they carry out their state's medical marijuana law.

Governor O'Malley should look carefully at this letter. After reading 
the law and analyzing the letter, I believe Mr. Oberly dishonestly 
manipulated Governor Markell by threatening prosecutions he is 
forbidden to bring in order to block a valid state law he doesn't like.

First, the federal drug law explicitly immunizes state officials from 
prosecution for conduct while enforcing any state drug law. Second, 
unlike the federal lawsuit against Arizona over immigration, no U.S. 
attorney, Mr. Oberly included, has ever challenged any state's 
medical marijuana law in court. So there is no judicial or statutory 
authority for these threats. Mr. Oberly's letter does not refer to 
any statute, any court ruling or any constitutional provision 
challenging the Delaware law. Very simply, Mr. Oberly gambled his 
empty threat would scare Mr. Markell, and it worked.

Mr. O'Malley may be under the misimpression that a state can't write 
an effective medical marijuana law. In fact, no provision of the 
federal drug law indicates an intent of Congress to exclude the 
states from passing laws on marijuana or other drugs except if "there 
is a positive conflict between ... [the Controlled Substances Act] 
and that State law so that the two cannot consistently stand 
together." This means the federal drug law acknowledges states have 
the power to write their own marijuana laws, and they can differ from 
federal law. If Mr. Oberly thinks he can persuade a federal court to 
invalidate the Delaware medical marijuana law for being in "positive 
conflict" with federal law, he should do so. But no U.S. attorney has 
ever tried such a case in any of the 16 medical marijuana states.

Mr. O'Malley should be aware that the problem is not that the general 
assemblies of Delaware and Maryland are in danger of exceeding their 
powers or compromising state employees. The problem is that an 
appointed federal official has misused the authority of his powerful 
office to dishonestly manipulate a state into not following its own 
laws. That violates the Constitution. Article IV, Section 4 provides 
that "the United States shall guarantee to every State in the Union a 
Republican Form of Government." Mr. Oberly made legally baseless 
threats in order to undermine Delaware's "republican form of 
government." He violated the Constitution in order to block Delaware 
from protecting medical patients whose doctors recommend marijuana.

The intimidation of Governor Markell, and now possibly Governor 
O'Malley, through a bluff about a prosecution that is actually barred 
by the federal drug law is outrageous misconduct that should be 
investigated by the Office of Professional Responsibility of the 
Department of Justice.

Delaware was the first state to ratify the U.S. Constitution in 1787. 
I hope that Delaware and Maryland resist this unprecedented abuse of 
federal power - an abuse the framers hoped the Constitution would prevent.

The Delaware and Maryland legislatures recognize that their doctors 
want to recommend marijuana to their citizens. In fact, a branch of 
the federal government recognizes doctors' prescriptions of marijuana 
and has been providing hundreds of marijuana cigarettes every month 
to patients since May 16, 1978. Doctors know that marijuana is a 
great adjunct to chemotherapy for cancer. Marijuana helps control the 
terrible symptoms of multiple sclerosis. And many veterans know it 
helps control the anxiety of combat-inducedpost-traumatic stress disorder.

The governors should heed the concerns of their citizens struggling 
with real diseases and real pain, not plainly bogus threats.
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MAP posted-by: Jay Bergstrom