Jurisprudence

Weed-Whacking at the DOJ

Congress needs to stop Sessions from prosecuting growers in states where marijuana is legal.

A marijuana crop
A person shows off a marijuana plant at an indoor grow house in Humboldt County, California, in 2010.

Alexandria Sage/Reuters

Friday could be a very bad day for marijuana growers. That’s because, tucked into the vast spending bill Congress needs to pass to avoid yet another government shutdown, is the extension of a provision designed to prevent the federal government from prosecuting marijuana growers in states that have legalized cannabis. If it’s removed, it would allow more than a dozen currently stalled federal prosecutions of weed growers up and down the West Coast to go through.

The provision, known as the Rohrabacher-Blumenauer amendment, prevents the U.S. Department of Justice from spending money that could interfere with laws in a number of states concerning “the use, distribution, possession, or cultivation of medical marijuana.” It was designed as a response to the Hobson’s choice marijuana growers faced in states that had legalized the use of medical and/or recreational pot: Though consumption was OK, production existed in a legal gray area in which state and federal laws were at odds. Of course, marijuana is still considered illegal by the federal government—retaining its place next to drugs such as heroin, LSD, and bath salts (really) on Schedule 1 of the Uniform Controlled Substances Act. And while the feds have generally left the prosecution of marijuana smokers to the states (except in cases involving federal land or other obvious federal jurisdiction), they have spent decades aggressively prosecuting those who produce and sell the plant.

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Between 2001 and 2010 alone, more than 8.2 million Americans were arrested for marijuana crimes. Partly in response to this, an increasing number of states have begun to roll back their enforcement and regulation of weed. Medical marijuana is legal in 29 states, the District of Columbia, Guam, and Puerto Rico, while recreational marijuana is legal in eight states. In 2014, after six failed attempts, the federal government finally joined in, albeit in a roundabout and muted way. A provision, originally called the Rohrabacher-Farr amendment, passed the House and made its way into an appropriations bill. Designed to ameliorate the legally nonsensical situation that had been created by the states’ legalization, the amendment aimed to roll back the costly and foolish encroachments of the federal government in favor of a greater respect for state decisions about marijuana production and usage. The amendment was subsequently renewed several times with broad bipartisan support. (Because Farr has retired from Congress, the proposal has since become known as Rohrabacher-Blumenauer after representative Earl Blumenauer.)

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But with Attorney General Jeff Sessions comparing marijuana with heroin, the executive branch has signaled that despite the states’ rights rhetoric generally favored by Republicans, when it comes to weed, the president intends to be anything but deferential.

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It’s strange that in a time when dilapidated greenhouses in Salinas County, California, are selling to marijuana entrepreneurs for millions, and most Americans support legalization for both medical and recreational purposes, there are still people facing life in prison without the possibility of parole for growing cannabis. But that is precisely the situation facing dozens of people, including Jerad Kynaston and his co-defendant, Sam Doyle—both growers from Spokane, Washington, who are set to go to trial on June 5 on federal charges that they possessed hundreds of plants and many pounds of harvested marijuana. 

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Surprisingly, Kynaston and Doyle’s prosecution, like those of many others, has proceeded, albeit slowly, despite the restrictions imposed by the Rohrabacher-Farr amendment. That’s because at first, the Department of Justice simply ignored the amendment by claiming—to howls of protest from Rohrabacher and Farr—that the law was never intended to prevent federal prosecutions of marijuana violations. But when a number of growers appealed last August—in a case that consolidated 10 different prosecutions from California and Washington state—the 9th U.S. Circuit Court of Appeals dealt the Department of Justice a serious setback, ruling that the DOJ cannot spend money on these prosecutions. Quite simply, as Judge Charles Breyer (also Supreme Court Justice Stephen Breyer’s brother) wrote in a similar case: The government’s reading of the law “tortures the plain meaning of the statute.”

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Theoretically, without funds to prosecute, and with state legislatures working hard to bring marijuana cultivation, distribution, and consumption into the daylight, one might think that the Department of Justice might finally dismiss the cases or at least make plea offers designed to induce a resolution. Neither of these things have happened. Instead, in Doyle’s case, Assistant U.S. Attorneys Tim Ohms and Patrick Cashman have shifted tactics, claiming (with some support from the 9th Circuit) that they are only barred from prosecuting cases in which the defendants were in compliance with state laws. And since it is the government’s position that Doyle was not in compliance—an argument that rests on an assertion that Doyle was growing too many plants to be in compliance, despite the fact that Washington law contains no specific numerical cap on the number of allowable plants—the Department of Justice claims it is free to pay Ohms and Cashman to prosecute Doyle until such a time as Doyle can prove he was in compliance. 

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These are the sorts of arguments that make normal people hate lawyers, and for good reason. And while the government’s shifting positions do indeed offer a frightening lesson in how malleable legal rules can be, they also highlight just how complicated and dangerous it can still be to attempt to “legally” harvest marijuana in America. It’s worth noting that Doyle says that in order to show that he was growing too much weed, the government included root balls, immature plants, and even empty pots.

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And what if they do convict him? While he’s facing more than 60 years in prison, actuarially speaking, Doyle is likely to live just shy of 50 more years. Using conservative estimates of federal incarceration costs, it would cost taxpayers more than $1.5 million to imprison him for that time. With dozens of defendants in similar circumstances (including Kynaston, who is facing life without parole), Trump and Sessions appear eager to spend tens of millions of dollars to incarcerate people for possession of marijuana in states where using it is already legal.

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Consider that legal marijuana is a $7 billion-a-year business and is projected to grow to $50 billion by 2026. Estimates are that a mature marijuana industry could generate up to $28 billion in tax revenues for federal, state, and local governments. Given the scale and growth of the industry, attempting to thwart it by prosecuting people like Doyle is like trying to repair a breached levee with small pack of sponges. And while it’s likely that the Rohrabacher-Blumenauer amendment will find its way into this current spending bill, it’s high time that Congress send a strong, clear, and bipartisan message to the Trump administration about the foolish prosecutorial priorities of the Sessions Justice Department. Not only should it renew Rohrabacher-Blumenauer, but it should make the amendment permanent and once and for all specify in a clear and unambiguous bill that not a dime can be spent prosecuting marijuana crimes in states that have legalized its sale and possession. It simply can’t be that the Republican mantra of states’ rights only applies to the rights they like.

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