Back on January 12, the U.S. attorney in Colorado, John Walsh, sent letters to various medical marijuana dispensaries operating in the Boulder State, threatening them with legal action unless they cease operating within 45 days:
"Federal law prohibits the manufacture, distribution, and possession of marijuana, except as provided under the strict control provisions of the Controlled Substance Act. The dispensary is operating in violation of federal law, and the Department of Justice has the authority to enforce the federal law where appropriate even when such activities may be permitted under state law. Persons and entitities who operate or facilitate the operation of such dispensaries are subject to criminal prosecution and civil enforcement actions under federal law. Moreover, because the dispensary is operating within 1,000 feet of a school, enhanced federal penalties apply."
This action taken by Walsh comes in the wake of similar threats issued to dispensaries in California by their respective U.S. attorneys. Whereas California dispensaries operate in legal limbo, Colorado recently enacted explicit regulations that govern the requirements for licensing.
The point of contention, then, is whether these targeted dispensaries operating within 1,000 feet of schools are in fact complying with state law. Colorado’s regulation also allows for individual localities to adopt their own additional requirements if they so choose.
And as Reason’s Jacob Sullum notes:
"Colorado's law allows local governments to deviate from the 1,000-foot rule, which applies to 'a school, an alcohol or drug treatment facility, or the principal campus of a college, university, or seminary, or a residential child care facility'."
Cities like Boulder and Denver have already made exceptions to this 1,000-foot rule. Boulder decreased the minimum distance to 500 feet, while Denver grandfathered in dispensaries that pre-existed the 1,000-foot rule. To further muddy the waters, Sullum points out that Colorado and the DOJ differentiate in their preferred methods of measuring distance:
"Colorado measures distance from a school by the length of the shortest pedestrian route, while the feds measure it as the crow flies. That means some dispensaries could be complying with state law but still be within 1,000 feet of a school under federal law, which (as Walsh noted in his letters) triggers enhanced criminal penalties. "
Regardless of how the distance is determined, and based on the discretion Colorado’s regulation affords local governments, this seemingly flies in the face of statements made by then-Candidate Obama as well as Attorney General Eric Holder. Both previously vowed not to use federal resources to go after dispensaries operating within the framework of state law.
Putting both the legal dispute and the Obama Administration's reversal aside for a moment, there’s clearly a compelling policy argument to be made that harmful consequences will result from the closing of these dispensaries. As a drug policy measure, Colorado’s medical marijuana law takes the proper steps to assure that patients are insulated from potential external harms. Given the strong demand for medical marijuana, closing these businesses will steer patients to less respectable dispensaries or black market drug dealers. But by legalizing medical marijuana in accordance with a specific regulatory regime, the state is attempting to protect patients from prosecution, violent black markets, and the uncertainty regarding the quality and potency of the medicine itself.
Moreover, Many of these dispensaries are popular and well respected in their particular communities. They create many jobs while helping thousands of patients safely obtain tested, high-quality medicine they desperately need. If the federal government does in fact follow through on its threats, Colorado stands to lose the much needed tax revenue yielded by dispensaries, while a slew of workers will join the ranks of the unemployed.
Also accompanying the dispensaries’ closure is a possible increase in crime. Diverting patients from legitimate businesses and back into the black market will strengthen the previously weak grip of criminal entrepreneurs in Colorado. Black markets will naturally expand, as greater levels of production will be needed. New distribution networks will also sprout up, and without legal channels for conflict resolution, territorial disputes will be settled with violence.
Whether or not these Colorado dispensaries are in complete accord with state law, or the federal government’s idea of compliance with state law, closing them will only perpetuate the aforementioned problems associated with drug prohibition. And we’ll be no closer to ‘winning’ the failed War on Drugs either. Federal intervention in this instance will only increase arrests, perilous SWAT raids, prosecutions, and already out of control prison populations – none of which are necessary or affordable.
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