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Joshua Gillin
By Joshua Gillin December 17, 2013

Pam Bondi says medical marijuana is illegal under federal law, with or without amendment

Almost half the nation has reefer madness these days, with 20 states having passed laws allowing medical marijuana, or outright decriminalizing it.

But the office of Florida Attorney General Pam Bondi suggests making it crystal clear to voters that even if a proposed constitutional amendment legalizing cannabis for medicinal purposes makes it to the November ballot and passes, users will still be breaking the law -- United States law, that is.

"The summary suggests that medical marijuana is permissible under federal law," Bondi’s office said in an initial brief filed Oct. 24, challenging the proposal in Florida Supreme Court. "In reality, whether the Amendment passes or not, the medical use of marijuana is a federal criminal offense."

With so many states allowing marijuana -- medical or otherwise -- to be consumed by the public, this claim seems to often be overlooked, so we figured it was time to clear the air.

Use and abuse

Whether the proposed amendment even makes it is dependent on advocates collecting 700,000 confirmed signatures by Feb. 1. Even if the petition is approved, the Florida Supreme Court has until April 1, 2014, to rule on the attorney general’s challenge.

If voters pass the law, it would allow registered patients with cancer, glaucoma, AIDS, hepatitis C, ALS, Crohn’s disease, Parkinson’s disease, multiple sclerosis or other conditions approved by a doctor to obtain marijuana for medicinal purposes. Bondi’s brief also says the law would "would make Florida one of the most lenient medical-marijuana states, allowing use for limitless ‘other conditions’ specified by any physician," a claim we rated Mostly True.

All marijuana legislation is written to apply only to state laws. Under the federal Controlled Substances Act of 1970, marijuana is classified as a Schedule I drug, which is defined as having a high potential for abuse and no currently accepted medical use. Proponents of decriminalizing marijuana disagree with that definition.

Dan Riffle, director of federal policies for the pro-legislation Marijuana Policy Project, said there are obvious, widely used medical applications (such as pain relief and appetite stimulation). He said no other drug, from Lipitor to Oxycodone, must specify its exact use like medical marijuana laws do.

But even with that in mind, no matter how many states pass marijuana laws, even advocates like Riffle freely admit that the use, possession, manufacturing and distribution of the drug remains a federal no-no.

The Controlled Substances Act imposes strict penalties on marijuana users, growers and sellers. A first misdemeanor offense for possession in any amount can result in a $1,000 fine and a year in prison, climbing for subsequent offenses to as much as $5,000 and three years.

Selling cannabis is considered a felony. Punishments range from a $250,000 fine and 5 years in prison to as much as $10 million and up to life for selling 1,000 kilograms or more. Penalties double if the sale is to a minor or within 1,000 feet of a school, playground or public housing. Cultivating cannabis plants carries similar penalties, contingent on the volume.

Feds let states take the lead

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Even with federal law on the books prohibiting marijuana, there are reasons users and distributors aren’t constantly being busted by the Drug Enforcement Agency. There is a continuing debate over state rights versus federal control, and decriminalizing marijuana is a flashpoint.

"Just because federal law bans something doesn’t mean states have to," George Mason University law professor Ilya Somin said. Whether the U.S. government can enforce policy that contradicts state law is another matter.

The 2005 U.S. Supreme Court case Gonzales vs. Raich established the federal government has the right to use the Commerce Clause of the Constitution to regulate homegrown marijuana, even when it’s for approved medicinal use. DEA officials destroyed Oakland, Calif., resident Angel Raich’s homegrown marijuana plants in 2002, despite the fact Raich’s possession was legal under California’s Proposition 215 medical marijuana law, which was passed in 1996.

Raich sued the federal government and lost, but California’s law was not affected. The ruling showed that the federal government cannot force states to criminalize something (marijuana, in this case), but can enforce its own laws.

Since then, several states have still shrugged at federal guidelines, passing their own medical marijuana laws. Colorado and Washington state last year decriminalized cannabis use outright. This has led to a recent softening of the federal government’s stance on the drug.

On Aug. 29, U.S. Deputy Attorney General James Cole issued a memorandum to federal attorneys that apparently relaxed Washington’s attitudes about marijuana. The memo included new guidelines focusing on cartels or other criminal organizations -- for example, distribution to minors, cultivating plants on public land, committing violence to distribute the drug or using state-regulated operations as a cover for illicit activities. Otherwise, the Justice Department is content to allow state and local agencies "to address marijuana activity through enforcement of their own narcotics laws." Indeed, raids of growing operations are infrequent, and prosecution of individuals in those states is nearly unheard of.

That’s not to say these guidelines can’t or won’t change, Somin said. When Attorney General Eric Holder or President Barack Obama leave office or if they change their minds, the priorities of the Justice Department may shift again. Federal prosecutors could ignore the guidelines and root out medical marijuana users anyway.

United for Care, the group pushing for the Florida initiative, said the lack of enforcement is an integral part of what makes medical marijuana laws possible, and is at the heart of the proposed amendment. "Our aim is not to set up a marijuana business," campaign manager Ben Pollara said. "We want safe access to medical marijuana."

Bondi’s office, meanwhile, doesn’t see it that way. "Currently it is illegal," communications director Jennifer Meale said. "Whether there are other considerations doesn’t change the fact that it is illegal."

Our ruling

There are a lot of talking points about medical marijuana being passed around in Florida, but one immutable fact underlies the pro- and anti-marijuana lobbies: The federal government considers cannabis an illegal drug by law. Whether that’s the way it should be depends on your point of view.

Proponents point to current federal administrative guidelines that deprioritize marijuana prosecution, saying that state preferences equal de facto law. The state attorney general says that even if the U.S. Attorney General’s Office says it’s not focusing on medical marijuana laws, that doesn’t change the Controlled Substances Act. Only Congress could do that.

Even with the caveats implied by the U.S. government’s recent guidance, Bondi’s office declared "whether the Amendment passes or not, the medical use of marijuana is a federal criminal offense." Whether you’re a supporter of states’ rights or not, she’s correct.

We rate this statement True.

Our Sources

Office of Attorney General Pam Bondi, "Advisory opinion to the Attorney General Re: Use of Marijuana for certain medical conditions," accessed Dec. 11, 2013

Constitutional Amendment Petition Form, "Use of Marijuana for Certain Medical Conditions," accessed Dec. 11, 2013

Tampa Bay Times, "Florida Supreme Court to hear medical marijuana case," Dec. 4, 2013

Tampa Bay Times, "Florida Supreme Court justices question marijuana ballot language," Dec. 5, 2013

National Conference of State Legislatures, "State medical marijuana laws," accessed Dec. 11, 2013

Office of National Drug Control Policy, "Marijuana Resource Center: State Laws Related to Marijuana," accessed Dec. 11, 2013

Office of National Drug Control Policy, "Answers to Frequently Asked Questions about Marijuana," accessed Dec. 11, 2013

Vanderbilt Law Review, "On the Limits of Supremacy: Medical Marijuana and the States' Overlooked Power to Legalize Federal Crime," March 9, 2009

U.S. Department of Justice, "Memorandum for all United States Attorneys," Aug. 29, 2013, "20 Legal Medical Marijuana States and DC: Laws, Fees, and Possession Limits," accessed Dec. 12, 2013

Volokh Conspiracy, "Size Still Matters in the Federal Government’s War on Marijuana," Aug. 29, 2013

Marijuana Policy Project, "The Twenty States and One Federal District With Effective Medical Marijuana Laws," accessed Dec. 12, 2013

Cornell Law School Legal Information Institute, "Schedules of controlled substances," accessed Dec. 13, 2013

National Organization for the Reform of Marijuana Laws, "Federal Laws & Penalties," accessed Dec. 13, 2013

Phone and email interview with Robert Mikos, Vanderbilt Law School director of Program in Law and Government, Dec. 12-13, 2013

Phone and email interview with Ilya Somin, George Mason University School of Law professor, Dec. 12, 2013

Phone interview with Jennifer Meale, Office of Attorney General Pam Bondi communications director, Dec. 12, 2013

Phone and email interview with Ben Pollara, United for Care campaign manager, Dec. 12, 2013

Phone and email interview with Dan Riffle, Marijuana Policy Project director of federal policies, Dec. 12 and 16, 2013

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