Sessions Shot Down in Senate: No Funds to Prosecute Medical Cannabis Patients

When it comes to US cannabis policy, reason does not usually prevail. However, it prevailed on Thursday in a small victory for cannabis reform. The Senate Appropriations Committee (the committee) approved a rider to a budget bill for 2018 that will protect medical marijuana programs from federal interference in states where cannabis has been legalized for medical use. The rider, commonly referred to as the Rohrabacher-Farr amendment (the amendment) after its original sponsors, has been renewed every year since 2014. It prohibits federal funds from being used to prevent a state or jurisdiction from implementing a medical cannabis program. Despite being part of every federal appropriations act since 2014 this year’s committee vote had many concerned that it would face resistance due to a recent letter from Attorney General Jeff Sessions to both chambers of Congress requesting that they not prevent the Department of Justice from using funds to enforce federal cannabis laws. In the letter, Sessions stated:

“I believe it would be unwise for Congress to restrict the discretion of the Department to fund particular prosecutions, particularly in the midst of an historic drug epidemic and potentially long-term uptick in violent crime.” He went on to state that “[t]he Department must be in a position to use all laws available to combat the transnational drug organizations and dangerous drug traffickers who threaten American lives.”

The letter, with its ancient drug war rhetoric linking medical cannabis to the drug epidemic, uptick in violent crime, and transnational drug organizations, could have come right from the Reefer Madness playbook. All of these claims have been thoroughly debunked. Sessions either knows that these claims are false and made them anyway or he doesn’t realize that they’re false. I’m not sure which is worse. Fortunately, the letter was unpersuasive and reasonable minds prevailed. The committee voted verbally, which is usually reserved for votes on non-controversial issues. It passed the amendment with a bi-partisan group of committee members. This clearly shows that medical cannabis is an issue on which both Republicans and Democrats can agree. (How many issues can you say this about?) The amendment is not yet law and will now go to the full Senate as part of the 2018 Appropriations Bill.

The amendment states:

“None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any such State or jurisdiction from implementing a law that authorizes the use, distribution, possession, or cultivation of medical marijuana.”

The amendment does not protect states with adult use (recreational) cannabis laws.

While this is a good thing, and a solid rebuke to Sessions’ outmoded views on cannabis, I don’t want to give the committee too much praise. It’s one thing to vote sensibly on a relatively safe appropriations amendment. It’s another to champion and pass real cannabis law reform. And on this point I quote Senator Richard Shelby (R-AL), who said in opposition to the amendment, “If Congress wants to tell the Department of Justice to stop enforcing the medical marijuana laws, then it should change the authorization within the Judiciary Committee, not through an appropriations provision.” Although I disagree with Senator Shelby’s views that medical cannabis patients should be prosecuted, he does have a point. Governing national policy on an issue that affects millions of people in over half of the states by the use of a funding clause is no way to run a country. If Congress truly believes that medical cannabis patients should have unmolested access to the medicine they need then it should pass laws reforming our policy on cannabis. It can start by changing the Controlled Substances Act to remove, or at least reschedule, cannabis so that law abiding citizens don’t have to worry about federal prosecution (or asset forfeiture, or closed bank accounts, or being raided, or simply losing access to quality medicine, or any number of other things) for their use of a plant.

I am relieved that reason prevailed on this particular vote on this particular day by this particular group of Senators. Let’s hope we see more of this in the coming months.

Rod Kight is a lawyer based in Asheville, NC. He is licensed in North Carolina and Oregon and represents legal cannabis businesses. You can contact him by clicking here.

Posted 7-29-2017.