Legally, the one thing keeping US Attorney General Jeff Sessions from cracking down on New Mexico's marijuana industry is an amendment tacked on to federal spending bills since 2014. But practically, the infrastructure that has developed over the last 10 years here has created a momentum that would be hard for the feds to dismantle, advocates and industry insiders tell SFR.
On Jan. 4, Sessions issued a memo that rescinded "previous nationwide guidance specific to marijuana enforcement." While most national coverage has focused on what it means for the eight states were recreational use is legal, the memo also targets states with medical cannabis programs like New Mexico, where there are currently 46,645 card holders. Temporary measures and stateside resistance prevent the Department of Justice from going after medical cannabis patients and their suppliers, but as of now, they have no permanent legal safeguard.
In a footnote, the memo cancels out two guiding documents from the Obama years. In the first, from 2009, then-Deputy Attorney General David W Ogden advised attorneys that states should not focus federal resources "on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." The second, a 2011 memo, clarified the guidance was never intended to shield "large-scale, privately operated industrial marijuana cultivation centers" from federal prosecution.
Until 2014, there wasn't anything stopping the feds from raiding dispensaries and production facilities that were legal under state law. They never crashed New Mexican facilities like they did elsewhere. Before they could, Congress added a provision, now known as the Rohrabacher-Farr amendment, to its federal spending bill in Dec. 2014. It prohibited the federal government from using funds to prosecute cannabis facilities that were legally sanctioned in a state for medical purposes. The amendment still protects New Mexico and other states from a crackdown.
"So if we want that to continue, they have to re-up that amendment every time the budget is passed," says Emily Kaltenbach, the executive director of the Drug Policy Alliance in New Mexico. US legislators have previously introduced a similar amendment for recreational cannabis markets, but it has yet to pass, Kaltenbach says. The current protection is in place until Jan. 19, by which point Congress will need to pass another spending bill to avoid a government shutdown.
US Rep. Michelle Lujan Grisham, an Albuquerque Democrat who is running for governor, voted in favor of the Rohrabacher-Farr amendment in 2015, the last time Congress visited the provision. In a statement to SFR, the gubernatorial candidate says it's "ridiculous that Attorney General Sessions believes more resources need to be used to interfere in regulated, state-based medical and recreational marijuana systems instead of other priorities."
Lujan Grisham has indicated a tepid interest in recreational cannabis, only a few steps away from current Governor Susana Martinez's outright opposition to the idea. Kenny Vigil, who runs the state's medical cannabis program under Martinez, did not respond to SFR's request for comment on the Sessions memo. Other gubernatorial hopefuls who have expressed strong support for cannabis, including a recreational market, said Sessions' memo likely wouldn't have a big impact on their policy position.
Peter DeBenedittis, who once described himself to SFR as "neutral" on the issue of medical cannabis, now says he wants New Mexico to become a nationwide "mecca" for cannabis banking. He'll do this, he says, by creating a publicly owned state bank exclusively for individual and commercial deposits related to the cannabis industry.
"I fully expect there will be legal challenges [from the federal government], but that will be a good thing," DeBenedittis tells SFR via phone. "These are legal businesses licensed by the state."
Another candidate, Jeff Apodaca, who told SFR last May that his plan for lifting state restrictions on hemp and cannabis could create up to 32,000 jobs, offered a lukewarm defense of his own cannabis plank following the Sessions news.
"If the federal government comes in and starts cracking down on these state policies, it's something we'll have to take a look at," he says. "It's something the country will have to figure out. We can't be changing it with every [presidential] administration."
People working in New Mexico's medical cannabis network aren't worked up about the memo. Kathleen O'Dea, owner of Scepter Labs, the busiest cannabis testing facility in the state, says it will "have very little impact over what we do on a daily basis."
"We're operating in full compliance with state law," she says. "It's unfortunate [the Trump administration] has taken this approach."
Zeke Shortes, owner of the Sacred Garden dispensary in Santa Fe, echoed this sentiment. "I think a lack of resources [to prosecute] makes it incomprehensible to really go backwards," he says. "Why do you want to waste time and resources and money on something that hasn't proven to be a problem?"
Shortes also argues that police in New Mexico "appreciate cannabis," and that the feds wouldn't have a sympathetic police force here. But a four-page preliminary report from the Drug Policy Alliance and the New Mexico ACLU published in July found some police in New Mexico not only continue to arrest people for pot, but do so in a disproportionate way.
Overall, the DPA and ACLU found that Hispanic and black people in Bernalillo County—the place they focused their study—were booked at a much higher rate for drug charges, including marijuana, than white men and women. The short report notes that New Mexico's case tracking system "does not meet current federal guidelines for race and ethnicity data collection," and says that better information gathering is necessary to assess the disparate impact of cannabis prohibition in the state.
Kaltenbach says Sessions' memo may ultimately be aimed at people already most susceptible to arrest and prosecution for cannabis, not the well-capitalized medical weed network. She also warns that New Mexico's US Attorney's office could "go rogue" and pursue pot arrests with greater verve, though feds usually don't arrest for simple possession. The office is currently filled by an interim prosecutor, James Tierney, while Trump nominee John Anderson awaits confirmation by the US Senate.
"I don't believe [possession for any amount of cannabis] should be criminalized," she says. "As we wait for a state-regulated system in New Mexico, we need to stop arresting people for personal use. And that's easy to do; we can stop doing that tomorrow if we can pass something through the legislature and get someone to sign it."