NM Attorney General Stands Alone in Interpretation of Medical Marijuana Law

New Mexico Attorney General Gary King's office issued a letter dated August 6, 2007, which summarized potential risks for state employees implementing the Lynn and Erin Compassionate Use Act. The letter stated in part, "…;we must caution that the Department and its employees, or representatives acting on behalf of the Department, may be subject to federal prosecution for implementing the Compassionate Use Act."

"This statement stands in grave contrast to statements from the majority of Attorneys General from medical marijuana states over the last few years. All of these offices have concluded that programs similar to what the New Mexico Department of Health has implemented, i.e. application processes and registry identification cards, should be continued and that employees should not fear federal prosecution," said Daniel Abrahamson, Director of Legal Affairs for the Drug Policy Alliance.

In over a decade of medical marijuana laws, no state employee has ever been federally prosecuted for implementing state medical marijuana laws. A letter issued by California Attorney General Bill Lockyer in 2005 concluded that the federal government could not bring criminal charges against state employees who issued ID cards and maintained the patient registry. The letter cited federalism arguments and found that these activities do not satisfy the elements of a federal crime.

"It is disturbing that our Attorney General would put forward the notion that state workers could be violating federal law simply by issuing ID cards. It's a simplistic analysis. He had an opportunity to support the will of the New Mexico people and our lawmakers. Instead he chose to stand alone," said Reena Szczepanski, Director of Drug Policy Alliance New Mexico.

During debate in the Legislature, advocates informed lawmakers that the Act would not protect patients from federal law. Patients must decide for themselves if they are willing to risk federal prosecution to gain relief from serious medical conditions. The federal government has not routinely prosecuted patients in the eleven other medical marijuana states, but it has the authority to do so. The Act does protect patients from state prosecution if they are following the rules of the program. The hallmark of New Mexico's medical marijuana law is its strict controls and safeguards to prevent abuse. It is one of the most tightly regulated programs in the country.

"The Department of Health has been proceeding in a careful and deliberate manner with the Medical Cannabis Program. Its employees deserve support and thorough guidance in return," said Szczepanski.

New Mexico is the twelfth state to endorse the use of medical cannabis and the fourth state legislature to enact such a measure. Gov. Bill Richardson, who signed the bill in April, is the first presidential candidate to have supported medical marijuana by signing it into law.