You also ask me to advise whether the President of the United States or the United States Attorney General has taken any action to immunize state officials or employees from prosecution. I am unaware of any such action, but must nevertheless respectfully decline to advise you in this regard. The scope of my review in the context of providing an official Attorney General opinion is limited to questions of state law. See Ark. Code Ann. § 25-17-706 (Repl. 2014). You may wish to refer this inquiry to the named federal offices, or the U.S. Attorney for the Eastern or Western District of Arkansas.
See AMMA at § 17(b)(4)(B) (requiring the creation of the “Medical Marijuana Commission Fund.”). The AMMA also calls for the General Assembly’s creation of a “Vocational and Technical Training Special Revenue Fund” to be used for grants to technical institutes and vo-tech schools. Id. at § 17(b)(6).
See id. at §§ 17 and 18.
See id. at § 18(a)(4), (b)(4), and (c)(4).
See note 1, supra.
21 U.S.C. §§ 801-904.
See id. at §§ 841(a), 844(a). See also Gonzalez v. Raich, 545 U.S. 1 (2005).
See, e.g., Unites States v. Rosenthal, 454 F.3d 943 (9th Cir. 2006).
The U.S. Department of Justice (“DOJ”) has issued guidance several times to federal prosecutors in states with medical marijuana laws, most recently in 2013, as far as we are able to determine. Prompted apparently by “an increase in the scope of commercial cultivation, sale, distribution and use of marijuana for purported medical purposes,” a 2011 DOJ memorandum stressed that those in the business of operating or facilitating medical marijuana dispensaries are not shielded from federal prosecution, notwithstanding their compliance with state law, and gave federal prosecutors the discretion to prosecute such persons if such actions are consistent with resource constraints. Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding the Ogden Memo in Jurisdictions Seeking to Authorize Marijuana for Medical Use 1-2 (Oct. 19, 2009) (available at http://www.justice.gov/oip/docs/dag-guidance-2011-formedical-marijuana-use.pdf). Then, in 2013, in response to increased state legislation concerning marijuana, another DOJ memorandum concluded that where states have implemented effective regulatory measures, “enforcement of state law by state and local law enforcement and regulatory bodies should remain the primary means of addressing marijuana-related activity.” Memorandum for U.S. Attorneys from James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013) (available at https://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf). Reviewing both memoranda leads me to conclude that while one cannot definitively exclude potential federal liability, the emerging trend is a focus on large-scale marijuana commercial operations, and possibly those involving “criminal networks.” See Barbara L. Johnson, Marijuana and the Workplace, SY002 ALI-CLE 665 (citing the 2013 DOJ memo and observing that federal law enforcement efforts have been narrowed to “criminal networks engaged in drug trafficking.”).
White County v. Maricopa County, CV 2012-053585 (Ariz. S. Ct., December 20, 2016) (rejecting attempt to invoke federal preemption to invalidate actions required of the State of Arizona and Maricopa County under the Arizona Medical Marijuana Act).
Enforcement policies are of course subject to change with administrations. But according to the 2013 DOJ memorandum, the DOJ is “committed to using its limited investigative and prosecutorial resources to address the most significant threats in the most effective, consistent, and rational way.” Guidance Regarding Marijuana Enforcement Memorandum at 1. The memo also outlines “enforcement priorities” that notably do not include pursuing government personnel who implement state medical-marijuana regulatory systems. Id. at 2.