Colorado Attorney General John Suther says medical marijuana dispensaries "are a violation of federal law, and it's up to the federal government to say whether they want to expend resources to prosecute them."
“Right now, they're saying we shouldn't expend those resources, but that could change," adds Suther. "Someone else could become president, for example, and that person could say, 'We're going to enforce the federal law.'"
President Barack Obama made his support for medical marijuana known during the 2008 election campaign and it has since become official policy.
That may be, but in some ways it makes the confusion even more worrisome.
“You have an attorney general echoing the DEA position that medical marijuana dispensaries are illegal under state law,” says Rob Corry, a Denver lawyer who specializes in representing medical marijuana patients. “So you have hundreds of openly operating storefronts that the attorney general thinks are illegal. That’s scary.”
It’s enough to worry David Nugent, who owns the Herban Wellness dispensary in Denver. “We’re scared of the DEA,” he says. “They have to give us a chance to figure this out—if they want it figured out. We have to have time and leeway and immunity.”
Jack Cary, a partner in the Greenwerkz dispensary in suburban Edgewater, reacted similarly. “How can you not be scared?”
Present controversy and future uncertainty aside, it’s not as if Denver voters haven’t made themselves clear on the issues. Aside from opting to legalize medical marijuana in 2000, voters in 2005 made Denver the first major city in America to legalize up to an ounce of marijuana for personal consumption for those over 21 years old.
In November 2007, Denver passed an initiative to make cannabis the "lowest law enforcement priority." Seattle; Oakland, Calif.; Portland, Ore., Missoula, Mont.; and a number of smaller California cities have passed similar ordinances.
Colorado politicians and law enforcement agencies, however, stressed that both Denver votes still conflict with state law, so police can arrest for possession of cannabis because Colorado state and federal penalties remain in effect.
Arguably, arrests for possession reflected some confusion in the beginning. In 2005, prosecutors handled 2,200 cases in which possession of less than an ounce of marijuana was at least one of the charges. Oddly enough that rose to 2,500 in 2006. By 2007, however, it was down to 1,841. In 2008, there were 1,658 such cases; in 2009, 1,696.
In California—the first of 14 states to legalize medical marijuana and where dispensaries also flourish—voters will consider full legalization this year. Nevertheless, there still were 17,000 felony arrests and 61,000 misdemeanor arrests in 2008.
That’s enough for U.S. Sen. Barbara Boxer, D-Calif., to stay off the legalization bandwagon.
“Senator Boxer does not support this initiative because she shares the concerns of police chiefs, sheriffs and other law enforcement officials that this measure could lead to an increase in crime, vehicle accidents and higher costs for local law enforcement agencies," says campaign manager Rose Kapolczynski. "She supports current law in California, which allows for the use of medicinal marijuana with a doctor's prescription."
America has a schizophrenic approach to marijuana laws, says Phil Cherner, a Denver defense attorney who specializes in felony marijuana trafficking cases, adding the criminal justice system functions very differently than the actual laws.
“The legislatures pass laws to create these drug courts with potentially stiff penalties,” says Cherner, also a member of the city’s 10-member Marijuana Policy Review Panel. “But if you get down on your knees and say you’re sorry, they give you a soft penalty, which is better than going to jail. Half the time the system panders to the drugs-are-horrible crowd. But the day-to-day workings of the system are much more understanding. All of this ought to be decriminalized and treated administratively or medically...Politicians and the police will be the last people on earth to figure out the public doesn’t care about marijuana any more."