This column originally appeared at www.HuffingtonPost.com on March 9, 2010.
Going Rogue: DEA Style
By Jessica P. Corry
It takes a lot to get some of the state’s most conservative lawmakers on board with a Democratic Congressman from the People’s Republic of Boulder. But that’s just what happened this week.
The unifying cause? None other than Colorado’s hot button headline-grabbing medical marijuana debate. In coming together, however, rabble-rousers did so to draw awareness to a much more important cause: telling the federal government to butt out of our legislative process and local communities. On Monday, national media, including the New York Times, started taking note.
A brief history (in case you somehow missed it): in February, the U.S. Drug Enforcement Agency expressed its displeasure with Colorado’s booming medical marijuana industry through two high profile medical marijuana raids. The first targeted Full Spectrum Labs, a testing facility providing caregivers and patients valuable analytics relating to dosage and medicinal quality of specific strains (note: the facility is a client of my husband, Rob Corry, a Denver medical marijuana attorney).
The second raid targeted caregiver Chris Bartkowicz, a Highlands Ranch homeowner who boasted to Denver’s NBC affiliate about a large medical marijuana grow he housed in his basement. Bartkowicz’s bragging landed him in federal court, where he now faces very serious charges for cultivation and where marijuana grown for any reason–even for state-authorized medicinal purposes–can translate into serious prison time.
In the immediate aftermath of the raids, Denver DEA chief Jeff Sweetin told reporters, “The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They’re violating federal law; they’re at risk of arrest and imprisonment.”
The raids had many medical marijuana defenders, myself included, fearing that news reports surrounding Bartkowicz’s arrest would seriously damage the image of an industry already battered by exaggerated headlines overstating medical marijuana’s detrimental impact on local communities (Click here to see an analysis of crime statistics, which I co-authored, conclusively demonstrating that in 2009, a trip to your local dispensary was a safer journey than a visit to your local bank or liquor store, where you were much more likely to be the victim of an armed robbery).
As fate would have it, however, the image of Bartkowicz being dragged into court by federal authorities may have actually helped the larger cause.
First to respond publicly was my husband, who filed a complaint with the U.S. Department of Justice and the DEA, calling on the agencies to investigate and sanction Sweetin for acting as a “rogue agent” who abused his authority in the aftermath of a directive released by U.S. Attorney General Eric Holder last fall.
In an October memorandum, Holder instructed U.S. attorneys and federal authorities to no longer go after patients and caregivers in states were such persons were acting in “clear and unambiguous” compliance with state laws authorizing marijuana for medicinal uses.
“The Department of Justice formal guidelines instruct federal agents to refrain from using federal resources for the investigation and prosecution of individuals who are in compliance with state laws governing the medical use of marijuana,” Rob wrote in his complaint. “The guidelines evidence an appropriate respect for the voters’ will in states that have legalized medical marijuana.”
In a world where complaints roll into the DOJ by the bag-full, the complaint may have fallen on deaf ears if it weren’t for the courage of Congressman Jared Polis, a Democrat representing Boulder. In a hard hitting letter to Holder, which was also sent to President Obama, Polis called for a formal response to Rob’s complaint. Announcing his letter on Square State, Polis wrote, “The DEA must do more to stop their rogue agents from harassing and raiding our medical marijuana dispensaries, which are legal under state law.”
Sweetin’s tone suddenly changed. While immediately following the raids, he slandered medical marijuana growers as terrorist-enabling drug dealers, he begrudgingly backed away from his previous threat of more arrests. Truth be told, while Bartkowicz’s antics were amateur at best, they represented a zoning violation at most, as his total plant count would have provided for just 20 patients.
Despite Sweetin’s shift, the Obama administration continued to remain–at least publicly–silent. Frustrated by this inaction, a coalition of state legislators has now joined the fray.
Leading the charge is state Rep. Tom Massey, a Canyon City Republican, and state Sen. Chris Romer, a Denver Democrat, who also took pen to paper to call on the DEA to stay out of Colorado. It was a surprising move to some given that the duo–who represent one of Colorado’s most ironic and unexpected political alliances–have been behind this year’s two controversial medical marijuana regulation bills.
While their proposals have frequently faced vocal opposition from law enforcement and medical marijuana activists alike, Massey and Romer still realize, just as Polis does, that we’ve got a lot more at stake here than just medical marijuana.
Our constitutionally-protected dignity to self-govern as a state and our state’s rights to enforce its own criminal and zoning laws are on the line here. More practically, with the threat of more DEA raids hovering over the state’s caregivers and patients, we face the risk that valuable players essential to developing a viable regulatory scheme will remain silent during the legislative debate. Notably, the Full Spectrum Labs raid took place during a January bill hearing, when Sweetin and his fellow DEA agents could easily presume its operators would be at the Capitol to testify. Indeed, they were.
In their March 5 letter, which they sent not only to Holder and Obama, but also to Gov. Bill Ritter, state Attorney General John Suthers, and other high ranking state officials, the lawmakers wrote, “These raids discourage dispensary operators, caregivers, growers and patients from providing testimony or recommendations to state lawmakers, hampering our ability to develop a workable and realistic regulatory arrangement for medical marijuana.”
While I have publicly opposed major portions of Massey and Romer’s proposals thus far, I can also say that I have been impressed by their recent willingness to listen and learn from advocates, including myself, who represent patients and caregivers.
Earlier this month, my husband and I had lunch with the duo in the Capitol’s basement cafeteria where they encouraged us to submit drafts for amendments and took notes about our concerns. While we may not get everything we want from final legislation, at least they are willing to listen. At minimum, they’ve responded by removing a handful of several concerning–and possibly unconstitutional–provisions.
Also co-authoring their letter to Holder was state Sen. Nancy Spence, a Republican who represents a conservative Arapahoe County district. While many legislators on both sides of the aisle have responded emotionally to the medical marijuana debate, Spence has taken a much needed pragmatic approach–visiting dispensaries and speaking with patients before lending her support to any one proposal. Finally, a fellow Republican willing to maintain an open mind–a commitment all too absent among my fellow party members these days.
As voter support for a viable, secure, and transparent dispensary model–when tied to regulation and taxation–now stands at over 60 percent, the federal government would be wise to relinquish its control. With nearly 70,000 patients already authorized to use medical marijuana under Colorado’s registry system, and with nearly 1,000 more patients applying every day, the tide is turning. The people deserve to be heard.
Some staunch opponents of a dispensary/commercial grow model, including Suthers, argue that we should dismantle dispensaries altogether in favor of limiting caregivers to providing for just five patients. The logistical nightmares could be endless. A five patient cap, which has already been struck down in court twice, (and rejected as impractical by Ritter) could require up to 20,000 caregivers across the state. The small scale of such operations would lead many to grow in their own homes, outside the sunlight and transparency of a well-lit, well-regulated, tax-generating dispensary model. In 2010, Colorado’s only medical marijuana fatality thus far resulted from a late night transaction occurring inside a caregiver’s home just after midnight.
While Colorado has seen a dramatic and contentious political shift to the left over the last few years, we should be able to all come together on one essential point. The federal government shouldn’t break its promises or threaten our ability to enforce our state’s criminal and zoning laws. Most importantly, it should keep its hands off our state constitution, under which medical marijuana rights are cautiously guarded.
The key question now: Will the Obama administration listen?
Jessica P. Corry (www.JessicaCorry.com) is a Denver land use attorney and policy analyst whose clients including medical marijuana caregivers and patients.
