Pubdate: Fri, 30 Aug 2013
Source: Arizona Daily Star (Tucson, AZ)
Copyright: 2013 Arizona Daily Star
Author: Howard Fischer, Capitol Media Services


PHOENIX - A decision Thursday by U.S. Department of Justice not to 
challenge marijuana legalization by two states does not make 
Arizona's medical marijuana law legal or acceptable, key prosecutors said.

Maricopa County Attorney Bill Montgomery said he will not drop his 
bid to have the state's 2010 voter-approved law declared illegal, 
noting possession and sale of marijuana is still a federal crime, 
regardless of U.S. Attorney General Eric Holder's decision to let 
Colorado and Washington legalize the drug.

Attorney General Tom Horne, likewise, opposes legalization.

"They can exercise prosecutorial discretion and not enforce the law," 
he said of the Department of Justice. "But that's not the issue. The 
issue is that a state law cannot make legal what a federal makes illegal."

In a four-page memo Thursday to all federal prosecutors, James Cole, 
the deputy federal attorney general, conceded as much. But Cole, in 
"guidance" to those prosecutors, said they should, in essence, leave 
such questions of the sale and possession of small amounts of 
marijuana to the states.

Cole said that is not a license for states to do anything they want.

He said any decision by federal prosecutors to essentially turn a 
blind eye to state practices is conditional on them having sufficient 
safeguards in their systems, such as preventing the distribution of 
marijuana to minors and ensuring the drug is not diverted to other 
states where possession remains illegal.

Arizona law permits someone who has one of a specific list of medical 
conditions and doctor's recommendation to obtain up to 21/2 ounces of 
the drug every two weeks.

The law also has the state Department of Health Services licensing 
about 100 dispensaries to sell the drug legally to those with 
state-issued cards. And the health department has set up regulations 
to ensure that what is grown for medical use is not diverted for anything else.

More than a dozen states have similar laws.

The Department of Justice never gave approval for any of them but, 
until now, generally took the position it had more pressing issues to 
pursue than medical use of marijuana, though federal agents did raid 
some large distributors in California. But that policy ran smack into 
the decision by voters in Colorado and Washington to let all adults 
use the drug just for the heck of it.

The now-revised policy was foretold in December when President Obama 
was asked about what the two states adopted.

"We've got bigger fish to fry," he said. "It would not make sense for 
us to see a top priority as going after recreational users in states 
that have determined that it's legal."

But Montgomery pointed out the Obama administration has not asked 
Congress to repeal laws which make marijuana possession a felony.

"If you want to do this, there's a process," he said. "But you can't 
simply say 'that's the law but for at least the next three year's 
we're not going to enforce it.' "

He also noted the position taken by the Department of Justice is 
strictly policy, meaning a new administration taking office in 2015 
could reverse it, and the five-year statute of limitations could 
allow future charges for actions occurring now.

In December, Maricopa County Superior Court Judge Michael Gordon 
rejected arguments by Horne and Montgomery to have the 2010 Arizona 
law declared illegal because of federal preemption.

Gordon pointed out that 18 states and the District of Columbia 
already have laws permitting some form of legal marijuana use. And 
the judge said he wasn't about to declare Arizona's own version invalid.

Horne and Montgomery are appealing.
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MAP posted-by: Jay Bergstrom