Prosecutorial Indiscretions in Medical Marijuana

• Publication year: 2014
• Author: By Allison B. Margolin and James R. Lawrence

PROSECUTORIAL INDISCRETIONS IN MEDICAL MARIJUANA

By Allison B. Margolin and James R. Lawrence

In 1996, California became the first state in the county to pass a law allowing medical use and cultivation of marijuana. And in 2004, the State passed additional legislation (Senate Bill 420, codified at Health and Safety Code sections 11362.7-11362.81, and commonly known as the Medical Marijuana Program Act) allowing medical marijuana collectives, through which patients without the resources or skills to grow their own marijuana could obtain their medication by joining a dispensary or informal group cultivation project. These statutes immunized sale and possession for sale of medical marijuana by patients in certain circumstances.

The preamble to Senate Bill 420 explains that these statutes were passed due to shortcomings of the original medical marijuana law from 1996, noting that "reports from across the state have revealed problems and uncertainties in the [1996] act that have impeded the ability of law enforcement officers to enforce its provisions as the voters intended, and, therefore, have prevented qualified patients and designated primary caregivers from obtaining the protections afforded by the act."

The preamble goes on to state that the Legislature's intent in passing SB420 was to

1. clarify the scope of the application of the Act and facilitate the prompt identification of qualified patients and their designated primary caregivers in order to avoid unnecessary arrest and prosecution of these individuals and provide needed guidance to law enforcement officers.
2. Promote uniform and consistent application of the Act among the counties within the state.
3. Enhance the access of patients and caregivers to medical marijuana through collective, cooperative cultivation projects.

Since the law allowing medical marijuana collectives passed, marijuana dispensaries have seemingly sprouted up everywhere, some local governments have tried to establish systems for regulating and licensing these dispensaries, and violent crime rates have been on a steady downward trajectory. At the same time, District Attorney's Offices throughout California have remained steadfast in their mission to aggressively prosecute and imprison medical marijuana patients who attempt to rely in good faith on the State's vague collective laws.

As the case law continues to confirm that not only collective marijuana grows but also storefront businesses are allowable under California law, District Attorneys throughout the state continue to pretend that the law does not allow for sales of marijuana, apparently to advance a political agenda of eradicating all marijuana dispensaries. They have continued to push this position as one published case after another has come down from the California Court of Appeal making clear that marijuana sales are allowed between patients. This denial and deliberate misrepresentation of clearly established law leads to more...