Cannabis is legal in Washington State, right? Many who call in to our office ask this question after being criminally charged in federal court. The answer would seem to be a simple “yes” but that is not quite the case. Washington State voter’s did pass I-502 with a margin of approximately 56% to 44% but don’t light up just yet. Washington State decriminalized the possession of up to one ounce of cannabis, by persons over 21 years of age for recreational purposes. It is argued that this directly conflicts with the state and federal Controlled Substances Act, which lists cannabis as a schedule 1 substance, meaning it has a high potential of abuse and no accepted medical use, along with drugs such as MDMA (Ecstasy), LSD (Acid), and Heroin. Although the state has deemed it legal to possess cannabis, the federal government has taken a different approach.
Despite Washington State’s own laws, when it comes to marijuana, nearly one-third of the state is federal land and is subject to federal laws. Federal land includes Mount Rainer National Forest, Olympic National Park, and Snoqualmie National Forest to name just a few. All of these forests and other federal land in Washington are under federal law. This can include freeways, roads and federal buildings. Possession of any amount of cannabis is a federal misdemeanor and park rangers are enforcing these laws regardless of Washington’s new changes in the law. There have been many people who have been charged with possession of cannabis and paraphernalia within these parks before and after the passage of I-502. These park rangers hold the line that the park is federal property and they intend to enforce federal law within the park. Many of these people charged are simple backpackers who enjoy using cannabis recreationally or campers who use cannabis medically under state law. The issue that they run into is ignorance of conflicting laws and even ignorance of the national forest boundaries. These are not criminals; in fact, they believe what they are doing is legal. As the saying goes: “ignorance is no excuse for the law” but most citizens are universally confused when forced to appear in federal court for a pipe of cannabis they believe they are lawfully using. An article, by Eugene Johnson, follows some of the issues surrounding Federal land and marijuana and the people caught up in the uncertainty.
Recently, the federal government has made key statements in regards to drug enforcement. Attorney General Eric Holder made the first statement on August 12th, 2013 at the American Bar Association in San Francisco, He instructed that federal prosecutors were going to review the policy of charging nonviolent drug defendants with offenses that carry mandatory minimum sentences. Although a first offense of marijuana possession, on the federal level, carries no mandatory minimum, those who are dealing with their second possession charge face a 15 day mandatory minimum sentence, for a third conviction the penalty is a mandatory minimum of 90 days in federal detention. It remains to be seen whether US Attorney’s will apply this statement to these non-violent cannabis possession cases.
The next statement was made on August 29th, 2013 when Attorney General Eric Holder informed the governors of Washington and Colorado that the Department of Justice would allow the states to move forward with the legalization of marijuana for adults. By making this statement he stated he would allow the possession, sale, and use of recreational cannabis by those over 21 years of age. However, in the same statement he set forth that a priority for Federal enforcement was to keep cannabis off Federal land. So, in fairness, the continued prosecution of individuals for simple possession charges in federal court here in Washington, specifically in national parks is consistent with the memo.
However, before the most recent Holder memo, most individuals relied on the Ogden memo and the Federal memos that followed. In those statements, the Federal Government consistently set forth that it is not an efficient use of resources to focus enforcement on individuals that use marijuana medicinally, pursuant to state law and as recommended by their doctor. Nevertheless, the Federal Government, through Park Rangers, arrests thousands of people every year, many of them lawful medical cannabis patients. So we do have both sides of our mouth to talk through.
These statements are conflicting at best and keep people confused as to what is legal in our state and what is not. In the end, this is a cautionary tale. Before you decide to light up on the trails, consider the consequences, make sure you know the land you are on, and be respectful of your surroundings.