Rhode Island Challenges Federal Ban By Authorizing Cultivation And Sale Of Marijuana
Originally published, July 1, 2009, by University of Pittsburgh Law School publication, The Jurist.
Despite the glamorization on the hit Showtime series ‘Weeds’, flashy documentaries on CNBC delving into the business side of California’s multi-billion dollar annual cannabis industry derived from Californian’s unprecedented 13-year old legal access to medical cannabis products—qualifying patients in the state (and there are hundreds of thousands of them currently) can access high-quality medical cannabis via 24/7 vending machines in cities like Los Angeles—is Rhode Island the little state that is saying ‘yes we cannabis’ the loudest via their legislature?
‘Californication’ Of Cannabis
While California is clearly at the vanguard of implementing major legal and policy changes in seeming conflict with the federal government’s 72-year old cannabis prohibition laws, in fact little ol’ Rhode Island is on the precipice of effectively breaking the federal government’s ban on the cultivation and sale of cannabis by joining New Mexico as the only states favoring medical cannabis laws to have state-sanctioned medical cannabis cultivators and retail outlets for qualifying medical patients.
While there are an estimated 1,800-2,000 medical cannabis dispensaries (or in the new post Mentch parlance, cannabis wellness centers) in California alone, few of them are genuinely, legally sanctioned under state laws to sell cannabis in a retail environment. However, this blooming of cannabis wellness centers in California has happened under the full view of law enforcement, state policy makers and the public health community. Californians have ‘Main Street’ access to cannabis in many parts of the Golden State, which has evolved entirely organically—in other words, the mores and values of most Californians largely accept cannabis use, whether for recreational or medicinal purposes.
A recent Field poll of California voters affirms this with 56% support for outright legalization.
In Rhode Island, there is no highly refined ‘cannabis culture’, or longstanding public cannabis law reform efforts to speak of—unlike Californians that have publicly debated ‘legalizing’ cannabis on numerous statewide ballot initiatives and legislative proposals going back to the early 1970s—yet, Rhode Island’s legislators, from both parties and chambers, in opposition to the Governor and numerous federal government’s anti-drug bureaucracies (i.e., DEA, ONDCP, NIDA, DOJ, FBI, etc…) first passed a ‘self-preservation’ medical cannabis law two years ago [a ‘self-preservation’ medical cannabis model is defined as a qualified patient, for which a severely limited number of medical ailments qualify for cannabis use (i.e., Cancer, AIDS, Glaucoma, Epilepsy and MS), can legally possess or grow a small amount of cannabis; there is no legal retail access to cannabis, seeds or plant cuttings (clones)].
The Little State That Says To Washington: ‘Yes We Cannabis!’
However, Rhode Island legislators, only two years after passage of the original medical cannabis laws, recognized that a self-preservation model is inadequate to serve the needs of sick, dying or sense-threatened patients who need whole-smoked cannabis and edibles. Again, in full opposition to the Governor and federal agencies, overrode their second veto to establish Rhode Island as the first bona fide state to legally sanction and license third parties to cultivate and sell cannabis (in the case of Rhode Island, the recent medical cannabis legislation has provided initial approval to three medical cannabis wellness centers for the entire state).
While New Mexico may have officially been the first state to pass legislation in 2007 that allows for the state-sanctioned distribution of medical cannabis to qualified patients, the medical cannabis program has been very slow to get-off-the-ground, and to date has issued a single permit, and no medical cannabis is expected to be lawfully sold in New Mexico for at least another 6 months to a year. Rhode Island, at its current breakneck speed of passing pro-medical cannabis law reforms, will very likely be the first state out of the gate to effectively end the federal government’s complete prohibition against cannabis distribution by cultivating and harvesting a crop of medical cannabis by early fall.
The Major Legal and Policy Implications Sparked By Rhode Island
If past serves as prologue, under the prior four presidential administrations (Reagan, Bush, Clinton and Bush), their Departments of Justice most certainly would have raced to federal court and sought to have any state law that allowed medical cannabis to be cultivated and distributed found to be in clear violation of the 1970 Controlled Substances Act, The Single Convention Treaty of 1961 (the international treaty that effectively made cannabis illegal throughout the world) and stare decisis.
Even numerous full-throated law reformers would concede the strong position the federal government had attained after eight decades of zealous enforcement of anti-cannabis laws.
However, Rhode Island’s challenge to the federal government’s cannabis prohibition becomes increasingly interesting to political observers and policy wonks in light of President Obama’s decidedly different take on the latitude he is comfortable providing states to craft their own medical cannabis laws.
To wit, 1) Attorney General Holder indicated in February that the DEA is no longer going to target and harass state compliant medical cannabis providers in states that adopt medical cannabis laws, and 2) In May, the executive branch issued a memorandum, interestingly entitled, ‘Preemption’ to all federal agency heads, in effect instructing them to no longer oppose states (or their voters) seeking greater autonomy to pass laws that may possibly be in conflict with federal laws (i.e., medical cannabis laws, etc…), and to only oppose them if there is a positive conflict with federal laws resulting in genuine risks to national security.
While it is hard to swing a dead cat in the Los Angeles-area these days without hitting the cued up patrons of medical cannabis wellness centers, Rhode Island looks to be the very first state to officially end cannabis prohibition, and the feds appear ready to stand down.
Now, if you’re a cannabis consumer or lover of liberty, this is ‘change’ one can believe in! July 3, 2009