Kudos to Boulder District Attorney Stan Garnett for boldly going where few elected officials are willing go these days: into the politically thorny issue of marijuana.
Most politicians these days are staying as far away from the subject as possible. This summer, the state health department tried to limit the growth of dispensaries, but that backfired when the department's advisory board voted down the rule changes at a hearing packed with marijuana advocates. Since then, most mucky-mucks have washed their hands of the state's exceedingly vague pot law -- leaving the field wide open for ganjapreneurs with the willingness and know-how to exploit the legal loopholes.
Not so for Garnett, who's stated he's "committed to having the most progressive approach to medical marijuana of any DA's office in the state." In fact, in a recent e-mail to Westword, he notes he's even willing to consider the idea of legalizing marijuana.
But don't pack up your patchouli and hitch a ride to the People's Republic just yet: Garnett isn't necessarily a pot advocate. As he notes in his e-mail (included in its entirely below), he just thinks legalized dope would be a better solution than the weed laws currently on the books. He writes: "...legalizing Marijuana entirely would be the simplest way to resolve the tension between the Constitution and the Criminal statutes and I expect that, eventually, most states will decide to do so."
Until that happens, Garnett says officials like himself need to be asking some hard questions about Colorado's medical marijuana laws, such as whether dispensaries and the large-scale grow operations affiliated with them are actually legal and what role law enforcement should have in enforcing the state's confusing marijuana laws. He described these concerns in a lengthy and thoughtful public statement he recently sent to Boulder County Commissioners, a copy of which is also rovided below. (It includes a nice shout-out to Westword. Woot, woot!)
Of course, Garnett's statements bring up another question: Is Boulder poised to become the Colorado version of Mendocino County?
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Garnett on whether marijuana should be legal:
Colorado, and the US generally, need to decide what our policy regarding Marijuana will be. For decades, Colorado had a comprehensive (though some would say, not very effective) policy making any possession/sale/cultivation or distribution of Marijuana illegal. Amendment 20 changed this by creating a constitutional right to possess, use and cultivate small amounts of marijuana for certain vague medical purposes. But the statutes criminalizing marijuana were not repealed or modified. Certainly, legalizing Marijuana entirely would be the simplest way to resolve the tension between the Constitution and the Criminal statutes and I expect that, eventually, most states will decide to do so. But, that doesn't solve the problems we face now, because the real problems everyone is worrying about (some of which are detailed in my e-mail to the commissioners) are what I call land use, or zoning issues: Where will dispensaries be permitted? How big will they be? Can they serve meals? Can they permit consumption on site? Where can grow operations occur? etc., etc. The questions are endless (and if someone thinks they aren't important, talk to government officials in California, which is several years ahead of us. The San Diego DA shut down dozens of dispensaries recently because they were engaging in ancillary criminal conduct) and the criminal law provides no answers.
As DA, all I can do is decide whether to prosecute someone or not; I can't pass regulations, control zoning or change statutes. But, I can talk about the problems I see in the law and that's what I am doing here.
Let me draw an obvious analogy: to our laws about alcohol. The US spent decades debating the proper role of legal regulation of alcohol, culminating in 1933 with the 21st amendment, which has turned out to be a durable compromise. It legalizes alcohol, but grants states (and their subdivisions: counties and cities) extensive regulatory authority over it, which is why every city and town has a liquor board that reviews and grants (or revokes) liquor licenses that control where and how alcohol is dispensed. Something along these lines will probably have to be worked out for Marijuana, but it could take awhile.
Garnett's statement to the Boulder County Commissioners on medical marijuana:
I was pleased to get a call from Jana Petersen this morning about medical marijuana. I would very much enjoy the opportunity to talk to you at a public meeting or anywhere else about the issues I see with Amendment 20 and how my office is approaching it. Because I will be trying a three-week murder trial beginning October 13, the sooner we can do so the better, and I will move around about any meeting on my schedule to be able to meet at your convenience.
I am committed to having the most progressive approach to medical marijuana of any DA's office in the state.
The press on the issue has actually been pretty accurate and, in particular, the story in the 9/6/09 Camera caught my concerns fairly well. What hasn't been accurate is the spin, from some in the MM community, that I am commencing a "war on MM patients." Nothing could be further from the truth, as many of the responsible voices in the MM community will attest. I have been raising issues that everyone knows must be clarified eventually, and I would just like to see them clarified outside of the context of a criminal prosecution, unlike many of my more conservative elected DA colleagues across the state, who are preparing to approach the issue quite aggressively by prosecuting dispensaries and seizing grow operations, actions I will not undertake. As everyone who has thought about these issues knows, it does no good to put our heads in the sand about how confusing the law is.
Here are some of the problems: Amendment 20, which I voted for, passed in 2000. Amendment 20 authorizes two things: licensees to obtain a MM license from a Physician for a list of ailments, some of which are fairly general and, some would say, somewhat subjective. And, it authorizes a "caregiver" to provide the marijuana. It says nothing about dispensaries and, other than permitting a licensee to presumptively possess a small number of plants or amount of marijuana, it says nothing at all about where the licensee is to obtain the marijuana or whether it is legal to engage in large scale commercial grows. There are respectable arguments that dispensaries are legal under Amendment 20, and there are also respectable arguments that they are not and, until the courts, or a new constitutional amendment clears it up, the debate between lawyers and legal scholars will continue.
Medical marijuana proceeded on a small scale in Colorado, over the last several years, until two things happened this year:
1. The Obama administration announced that it would not prosecute possession and small scale sale of marijuana in states that had a medical marijuana law, even though the federal law continues to prohibit it (a decision I support); and
2. The Department of Health surprised everyone by not adopting regulations at a hearing in July (their previous effort to adopt regulations was found to conflict unconstitutionally with the terms of Amendment 20; this time, they sort of punted, which hasn't cleared anything up).
We are now seeing a proliferation of dispensaries in Boulder County. However, since there are no regulations requiring dispensaries to register, it is hard to know how many. There are at least 2 on University Hill, and we estimate about 14 in the County total. Many are trying very hard to be responsible business owners and at least 3 have had their lawyers meet with me. I have assured them that I will not prosecute dispensaries since I don't want the obvious lack of clarity about their operations to be resolved in a criminal context. The BOCO Drug task force agrees with me.
Here are some of the concerns:
1. Is large scale commercial growing legal? We have received notice of an operator wanting to put a large grow in a warehouse across from a middle school in Longmont. Is this legal? This was the operation that caused me to wonder aloud to the Daily Camera whether a declaratory or injunctive action could help clear things up without putting anyone at risk of a felony conviction, an idea that was well received by a number of MM lawyers (but not by Tim Tipton and some others; this is what caused them to accuse me of a 'war on patients"). The dispensaries argue that if they are entitled to dispense the marijuana legally, they implicitly have the right to get it from somewhere
2. Are dispensaries legal? How large can they be? Who regulates to make sure that they are dispensing the right amounts to the right people? Who regulates their advertisements, etc. (about which I have had many complaints) many of which quite openly offer kickbacks and incentives to potential licensees (particularly CU students) that would be totally illegal for a pharmacy or other business (e.g., the back page of the Boulder Weekly).
3. If dispensary owners are "caregivers" what needs to be done to assure that their employees can handle and dispense marijuana legally? Are the employees caregivers as well? "Many have interpreted "Caregiver" under Amendment 20 as someone providing other services to the patient, not just the supplier of MM.
4. Many dispensary owners are carrying weapons (some legally, because they have obtained CCW permits, others illegally) because of the high cash value of marijuana and the large amount of cash on the premises of some of the dispensaries. We have one robbery out of a dispensary and the Task force is concerned about threats of violence and other crime around the dispensary operations, many of which are in residential areas.
5. Colorado continues to have sweeping anti-marijuana laws on the books, prohibiting the sale, use and possession of marijuana (many of which conflict directly, until the courts, or somebody sorts them out, with the current dispensary and grow operations). If the legislature doesn't step forward, either to legalize marijuana entirely, or to otherwise clear up the confusion, what role is law enforcement to take in enforcing these laws?
These are all interesting issues to me and I would enjoy talking about them with you in person. Since I occasionally am asked about resources, be assured that I have, and will continue, to spend as little as possible on MM cases. Other than the Lauve case, which I inherited from my predecessor, I do not anticipate taking any case to trial involving a MM licensee, regardless of the amount in his possession, until these issues are cleared up. The only resources involved in my discussion of these issues have been whatever it costs to have me and a couple of folks on my staff answer questions from people and brainstorm about how to approach to these issues.
On the other hand, we did just complete our 23rd felony jury trial this year, which includes white collar cases, 3 murders, serious sexual assaults, 2 arsons and several assaults. It is on these cases, serious violent and economic crime, that I will continue to focus the resources of the office.
However, under the constitution, I do believe it is part of my job to raise and publicly discuss areas where the law is unclear, which is why I don't regret raising these issues about MM.
I had the first of my DA's public forums last Friday over lunch, with elected mayors, school board presidents and business people from around the county. We had a very productive discussion about MM, as well as a number of other issues. It is fair to say that local governments, and business owners, want these laws cleared up.
BTW, I wrote this e-mail knowing it is a public document. Don't hesitate to send it to anyone who asks, or to encourage people who are calling you, to call me as well. I will talk to any member of the community who has questions about this issue.
I have some good articles around. I may send those along as well. Last week's Westword had a particularly good one that described the situation pretty well.