State officials hiding behind federal law have turned the will of Massachusetts voters into a bureaucratic nightmare.
In 2012, Bay State voters overwhelmingly approved “An Act for the Humanitarian Use of Marijuana,” legalizing cannabis for medical use in the state. But due to persistent opposition and foot-dragging by Massachusetts government officials and law enforcement, implementing the will of the people has gone anything but smoothly.
The voter-approved measure clearly states the intent of the law in the first paragraph.
“The citizens of Massachusetts intend that there should be no punishment under state law for qualifying patients, physicians and health care professionals, personal caregivers for patients, or medical marijuana treatment center agents for the medical use of marijuana, as defined herein.”
But in practice, the Massachusetts medical marijuana program has fallen far short of expectations, primarily due to the Massachusetts Department of Public Health’s (DPH) failure to properly implement the program, along with law enforcement interference.
The licensing of dispensaries provides one example of how badly the DPH has missed the mark. Under the law, by 2014 there were supposed to be 35 operating medical marijuana dispensaries. As of today, only six exist. The DPH made the licensing procedures so onerous few people were willing to jump through the hoops. Massachusetts Patient Advocacy Alliance development director Michael Latulippe said the licensing scheme was designed to fail from the beginning.
“The dispensary application process has been fuddled since the beginning and has had delays due to everything from the DPH not following its own points system in picking applicants to simple spelling errors on applications causing 60-plus day delays.”
The lack of dispensaries has created another problem – budget shortfalls. Fees paid by the 35 dispensaries were supposed to fund the program and make it revenue neutral. With only six facilities operating, the system faces a severe funding gap. As a result, the DPH began charging fees for patients seeking to obtain medical marijuana cards. This was not codified in the original law. Arguably, the DPH has no authority to levy such fees. But in a sneaky move, legislators attempted to codify the fees into law through an amendment to a budget bill that would have waived the fees for veterans. By waiving them, the legislature would have cemented the patient fees into statute.
“We believe that this proposed Senate budget amendment adding a waiver for veteran card fees would in effect codify the unlawful registration card fee into law, and eliminate our ability to fight the fees in the future. While the intent of the amendment may have been positive, its outcome would be detrimental to all patients and change the definition of our law to a large degree by creating alternate revenue sources from those specified by the people in 2012,” Latulippe said.
Fortunately, the Massachusetts Patient Advocacy Alliance became aware of the amendment and mobilized to stop it. After a strong push by activists, the conference committee held the amendment.
“This shows the power of grassroots activism,” Tenth Amendment Center founder and executive director Michael Boldin said. “Politicians like to slink around in the shadows. When activists shine a light on them and put the pressure on, they can effect change.”
The DPH has also dragged its feet in implementing the medical marijuana program through its deference to federal law. While the state has legalized medical marijuana, federal prohibition remains in place. Even though the state has no legal obligation to enforce federal law, or even acknowledge its existence, Latulippe said the DPH constantly uses the feds as an excuse not to do things.
“When we as the coalition that passed the 2012 ballot question to legalize medical marijuana in Massachusetts inquired about specific sections of the Department of Public Health regulations around medical marijuana, such as why they were forcing hospice patients to wait up to 7-10 days before being able to access medical marijuana dispensaries, the reasoning presented behind their language or policies would consistently be marijuana’s illegality at a federal level and its Schedule I status.”
The key question is: what obligation does the state of Massachusetts have to enforce federal marijuana law?
The short-answer is absolutely none.
While state law does not stop federal agents from enforcing federal marijuana law within Massachusetts, the state has no legal obligation to expend state resources, utilize state personnel or take any action whatsoever to facilitate the enforcement of federal law.
The anti-commandeering doctrine establishes that the federal government cannot force states to help implement or enforce federal acts. It primarily rests on four Supreme Court cases dating back to 1842. These include Prigg v. Pennsylvania (1842), New York v. US (1992), Printz v. US (1997) and National Federation of Businesses v. Sebelius (2012).
Based on this well-established legal doctrine, the Massachusetts Department of Public Health, state and local law enforcement, and other state agencies have no obligation to accommodate, assist with, or even consider federal prohibition as they implement the state’s medical marijuana law. The burden of enforcing federal law falls squarely on federal agencies. In short, Massachusetts agencies should proceed as if federal prohibition did not exist.
So, when DPH officials defer to the feds, they either show their ignorance or they lie.
Law enforcement officials have also stood in the way of implementation of the medical marijuana program in Massachusetts. Latulippe said the DPH placed law enforcement needs above those of patients when it drafted its regulations, including rules that require patients to give up all kinds of personal information. But law enforcement still wasn’t satisfied. Latulippe recalled a conversation with Walpole Police Chief John Carmichael, a member of the DPH medical marijuana dispensary selection committee.
“He expressed to us that law enforcement was still not satisfied with the medical marijuana program because they wanted more patient information, including lists of all the medical marijuana patients in their towns,” Latulippe said. “Even with decriminalization of under an ounce a reality in the Commonwealth, the reasoning behind law enforcement wanting all of this sensitive patient data collected and readable by law enforcement is consistently because of federal prohibition and marijuana’s Schedule I status.”
Medical marijuana users also face the specter of police raids. Law enforcement utilizes asset forfeiture to punish patients without having to justify busting people protected by Massachusetts law.
“With few safe access points for patients in Massachusetts, patients have been forced to fend for themselves and cultivate at their homes and purchase cannabis from the black market. We get repeated reports from patients who have had their home gardens, money, and belongings taken from them with no legal charges ever being filed. In those raids, when law enforcement was informed of their medical marijuana patient status, they would tell them that their card was no good in their town without even checking it. Patients rarely fight the system out of fear.” Latulippe said. “The lack of dispensaries in Massachusetts has combined with poorly written home cultivation and caregiver regulations to create a large grey area for law enforcement to use and engage in asset forfeiture and whole host of other activities. They act as if the medical marijuana law doesn’t even exist.”
The situation in Massachusetts demonstrates that legalizing medical marijuana represents just a first step in a difficult process. The people must hold their state representatives and public officials accountable and insist that they implement the law. Unfortunately, state officials often operate under the radar without the general public knowing what they’re doing. Persistent public activism and pressure are necessary to facilitate any substantive changes. Massachusetts Patient Advocacy Alliance’s success in blocking the budget amendment demonstrates the power of local activism, but it can’t get off the ground without people actively engaging in the cause.
If you live in Massachusetts and want to get involved in the fight to implement the state’s medical marijuana programs, contact the Massachusetts Patient Advocacy Alliance at compassionforpatients.com, or just email firstname.lastname@example.org.
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