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It is Time for Congress to Act!

By Hon. David Albo.  Member Virginia House of Delegates 1994-2017 (Retired).  Chairman of House Courts of Justice Committee 2008-2017.  Mr. Albo is presently a practicing criminal/traffic law attorney and government affairs representative living in Northern Virginia.

According to a Virginia State Crime Commission presentation in October of 2017, there are currently eight states (Washington, Oregon, California, Colorado, Nevada, Alaska, Maine, Massachusetts) and Washington DC, which have legalized the possession of at least some amount of marijuana.  Seven states (Minnesota, Illinois, Ohio, New York, Connecticut, Vermont and Maryland) have decriminalized marijuana (e.g. it is still illegal, but possession of some designated amount will not result in a criminal charge, but rather a civil violation, which usually comes in the form of a civil fee of some amount.)  Five states (Nebraska, Mississippi, New Hampshire, Rhode Island and Delaware) have a blended civil and criminal penalty for the possession of marijuana, as a skilled criminal attorney Fairfax VA trusts can explain.  Thus, 21 jurisdictions in the U.S. have, in some way, made marijuana either legal or not a crime.  

While in almost 40% of the US, some amount of marijuana is not a crime, the Federal government still makes marijuana illegal!  Federal law classifies marijuana (THC) as a Schedule 1 narcotic in the Federal Drug Control Act.  Schedule 1 is for substances that have “no currently accepted medical use.”  (Note: Despite vast evidence that marijuana has beneficial effects, the FDA as recently as August of 2017 denied a petition to re-classify marijuana as a Schedule 2.)  One example of how confusing this situation becomes, is looking at whether a doctor can prescribe marijuana even in states that have medical marijuana.  Since a Schedule 1 drug has no medical uses, under Federal law, a doctor cannot “prescribe” it.  Heroin is a Schedule 2 because, while having a high potential for abuse, it does have a legitimate medical usage.  The opioids found in heroin can be used as a legitimate pain reliever.  Thus, according to Federal law, a doctor can prescribe very dangerous opioids, but cannot prescribe Marijuana — told you this is confusing!

So, what does it mean for people who, according to the state’s law, legally possess marijuana, while it is still illegal under Federal Law.  In August of 2013, the U.S. Attorney’s office set in place what is essentially a “non-enforcement” policy.  According to USA Today, White House spokesman Josh Earnest stated, “While the prosecution of drug traffickers remains an important priority, the president and the administration believe that targeting individual marijuana users, especially those with serious illnesses and their caregivers, is not the best allocation of federal government resources.”  Note that the White House did not say that marijuana is legal, and it did not say that it will not enforce Federal marijuana laws.  It merely stated that enforcing Federal marijuana laws on people with serious illnesses is not a good allocation of resources.  Also note that this was an Obama Administration policy.  It could be turned on its head at any time by the Trump Administration, so people should not think that this is a permanent policy.

These conflicting laws put people in a very difficult predicament.  If they are abiding by the State’s marijuana rules, can they feel confident that they will not get in trouble with the Federal authorities?  First, Federal law applies on Federal land.  So, for example, if a person is legally in possession marijuana in Colorado, and that person goes into a Federal park still located in Colorado, does that “legal” marijuana now immediately become “illegal.”  I am not a Colorado attorney, but anyone who does this better know the answer.  Secondly, in any situation where there is Federal jurisdiction (for example interstate commerce), what are the rules?  What about a person who transports his marijuana from one state where it is legal to another state where it is legal?  Does the marijuana become illegal when he crosses the border?  And finally, will the Trump Administration reverse the Obama Administration’s “non-enforcement” rule?  Could happen any day.   

In my years serving in the Virginia Legislature, I often noted that laws should be written so that people know what they can and cannot do.  The US Constitution and Supreme Court interpretations make laws that are “vague” Unconstitutional.  That is because it is not fair to have people guess as to what the rules are.  Presently, people who, according to their state’s law legally possess marijuana, have to guess as to whether they are in violation of Federal law.  Thus, there is great need for Congress to Act and pass a laws which let citizens know what the Federal rules on marijuana are in states where possession is not a crime.


Thanks to our friends and contributors from Virginia Crime & Traffic Law Firm for their insight into marijuana and criminal defense.