Five marijuana growers may
give us definitive precedent on state vs. federal law and the issues of
preemption under the U.S. Constitution.
The Kettle Falls 5 have been
charged by federal prosecutors with drug-trafficking for growing 68 marijuana
plants on their property in eastern Washington state. However, the Kettle Falls 5 are also one of
30 holders of licenses under Washington state law for operating retail pot
shops. Under Washington’s state laws,
which permit marijuana use and which permit the pot shops as of July 1, its
Liquor Control Board can issue licenses for sale and production.
The U.S. Justice Department,
representing the United States, which has laws that make the use, growth, sand
sale of marijuana federal crimes, has taken the position that it will not interfere
with state laws allowing marijuana production and use except in circumstances
where there are additional issues that arise such as when crime syndicates
become involved in sale and production. The DOJ has taken the position that those in
compliance with state laws regulating the production, sale, and use of
marijuana should not be prosecuted.
However, Washington has a
limit of 45 plants per co-op, and the Kettle Falls 5, which consists of a Larry
Harvey, his wife, their son, and two others, went over with 68, with the
federal government alleging that going over the state limit constituted
drug-trafficking. Mr. Harvey maintains that he believes the state limits is 15
plants per person, which would get us to 7 below the legal limit, but, it turns out that it's the lesser of 15 per person or 45. In fact, federal prosecutors became involved
when a sheriff executed an order to cut down the plants of the Kettle Falls 5
that were over the 45-plant limit. The sheriff’s actions made the news and
caught federal prosecutors’ attention.
As one constitutional lawyer
put it, federal prosecutors have discretion and “it hangs over everybody.” The states where marijuana is being sold, in
addition to Washington, are Colorado and California. Jolie Lee, “Case Against
Washington Pot Growers Challenges State Law,” USA Today, May 19, 2014, p. 3A.
What we have here is a
classic confrontation between inconsistent state and federal laws, which gives
us a case of preemption. When state and
federal laws conflict, which law takes priority? That question has been explored a number of
times by the U.S. Supreme Court and requires the examination of the following
the federal regulation is
state and federal regulatory schemes can co-exist
intended to preempt state laws with the federal statutory scheme
or uncertainty would result if the state regulatory scheme were permitted to
Federal laws on marijuana
are clear, but state laws have been chipping away at that clarity for years,
with medical marijuana exceptions, and now wider spread availability and use.
Drug trafficking offenses
carry up to 10 years in prison. However,
it is clear that even if the Kettle Falls 5 are convicted, their sentences will
be delayed as their lawyers seek a clarification on which law applies – state or
laws are in conflict.
Arizona State University
When are state