The warning arrived on federal letterhead. If Washington State approves new rules for medical marijuana—rules that would require state employees to license pot growers and permit dispensaries—the consequences could be severe. According to the US Department of Justice, which sent the April 14 letter, federal prosecutors could slap any state employee who administers medical pot licenses with a "criminal prosecution."
Governor Chris Gregoire responded to the note by announcing: "It is clear that I cannot sign a bill that authorizes our state employees to license marijuana dispensaries when the department would prosecute those involved." Her logic: Federal law says that all pot is illegal, regardless of Washington State's 1998 law that allows the medical use of marijuana, and the bill currently passed by both houses of Washington's legislature would not only permit patients to grow pot—it would actually involve state workers in the industry.
So Gregoire must veto the bill or watch her employees go to jail, right?
Not really, say critics who argue that the governor is being intellectually dishonest. Not only is Gregoire mischaracterizing the letter (which never says the Feds "would" prosecute), she also ginned up this whole controversy herself.
"I want to protect state employees from arrest," says state senator Jeanne Kohl-Welles (D-36), who sponsored the medical marijuana measure. "Who doesn't? But I have a hard time believing that federal agents would go after state employees who are sitting in their offices. It is very bizarre to think they would."
No state employee has ever been prosecuted for activities related to medical marijuana so long as he or she was in compliance with state laws governing its licensing and regulation, said a letter sent by the ACLU of Washington to every member of the state legislature. The organization encouraged lawmakers to resist recent efforts to weaken the bill—Gregoire says lawmakers should gut provisions that would require state workers to regulate a surging medical marijuana market—and instead send it straight to the governor's desk, intact.
Want more evidence that the federal government doesn't intend to prosecute people in Washington? Look to New Mexico, says Kohl-Welles. That state's Department of Health has regulated medical pot growing and distribution since 2008 (state workers can even go collect samples of the marijuana if someone complains), and the Feds have never prosecuted state employees there.
ACLU of Washington drug policy director Alison Holcomb says the April 14 letter to Governor Gregoire doesn't represent any big new changes in federal policy. The letter, Holcomb says, "is simply a restatement of what is possible under federal law. It's obvious that the federal government is not interested in going after state employees."
So why did the Feds send a letter specifically mentioning state employees?
Because Gregoire specifically asked the Obama administration, in a letter sent on April 13, if state employees would be "immune from arrest or liability." Naturally, prosecutors would never provide blanket immunity—and they made that clear.
At issue is the difference between what the federal government can do and what it actually will do. US attorney general Eric Holder issued a memo in 2009 that indicates, in essence, that the Feds won't intervene in medical marijuana cases that are in compliance with state laws. (Of course, Holder said that the Feds reserved the right to prosecute those cases.)
So, this line of thinking goes, when Gregoire asked the Feds if they could—technically, possibly, even though they never have—charge state employees, she got the answer she wanted (and as the former attorney general of Washington State, Gregoire already knew what the answer would be). Now Gregoire is leveraging the letter to bully the legislature into watering down the bill this week—asking them to gut key protections for sick and dying patients and complicating access for their caretakers.
In a sign of the heavy pushback she's getting for this stance, every elected official in Seattle's city hall signed a letter on April 19 telling the legislature not to back down. And Kohl-Welles says her fellow lawmakers may not budge, thereby forcing Gregoire to sign or veto the bill.
Given the flaws that have been pointed out in Gregoire's logic, they shouldn't cede ground. It seems pretty clear that she's running with an alarmist reaction to a controversy she fabricated herself, for reasons that aren't exactly clear.
And even if Gregoire did believe the threat is real, she should sign the bill into law anyway—standing by her legislature, cities that are currently dealing with ambiguous pot laws, and Washington voters who support medical marijuana by 84 percent—and make Obama show his hand.
"How could anybody deny that we need to have a regulated system protecting patients?" Kohl-Welles asks.