The U.S. Attorney’s Office in Montana is focusing its prosecution of marijuana growers on those in possession of more than 500 plants, according to a memorandum written by Montana U.S. Attorney Michael Cotter in July and recently obtained by the Independent.
The memo, titled “Increased Thresholds for Marijuana Prosecutions,” dated July 21, is the first communication from Montana’s U.S. attorney that provides some clarity on how many marijuana plants the feds will tolerate. The memo says cases involving less than 500 plants or 100 kilograms will be “disfavored for prosecution in federal court.” Cotter wrote that he alone will "approve prosecutions of so-called 'medical marijuana' providers."
Beginning in March 2011, federal agents raided a couple dozen state-licensed medical marijuana facilities around the state. That despite the Obama administration, in October 2009, saying that the feds wouldn’t prosecute medical marijuana providers in “clear and unambiguous compliance” with state laws. Montana’s Medical Marijuana Act was vaguely written, giving the feds considerable leeway in determining who was in compliance.
Evidently there was a lower threshold when the raids occurred, but it’s unclear what the threshold was. Federal agents seized fewer than 500 plants in some instances. The raids resulted in at least 25 indictments on federal drug charges, and about half of those accused have been sentenced. Most received jail time.
It’s unclear how the new threshold will affect open cases.
Assistant U.S. Attorney Jessica T. Fehr confirmed the authenticity of the memo. She declined to comment further.
While the 500-plant threshold appears to acknowledge that Montana’s medical marijuana law allowed providers to grow hundreds or even thousands of plants, that’s currently not the case. On Sept. 11, the Montana Supreme Court reversed a district court’s temporary injunction that blocked enforcement of part of a 2011 state law, Senate Bill 423, that restricted access to medical marijuana. The new law limits to three the number of patients for whom a provider can grow, and those providers can only possess four mature plants for each patient.
Montana Rep. Diane Sands, a Missoula Democrat who advocated for less severe restrictions on the state’s medical marijuana law during the 2011 legislative session, says, “Contrary to clarifying the situation, the Cotter memo appears to me to create more gray area for those who are providers and just invites people to put themselves at jeopardy of exceeding state limits and skirting below federal limits.”
The recent Montana Supreme Court ruling, Sands adds, suggests that “what state law says and what the federal law and policy is are ships passing in the night...Federal law and state law need to be saying the same thing. It hasn’t for the last decade, resulting in much of the chaos we have seen, and the Cotter memo just continues the inconsistency.”
The inconsistency may continue on the state level, too. A referendum of SB 423, known as IR-124, will be on the November ballot. If Montana voters reject SB 423, the state’s original marijuana law, a citizen initiative that voters approved in 2004, will be restored, and there wouldn’t be state limits on how many patients for whom medical marijuana providers could grow.
Here's the full text of the Cotter memo:
Effectively immediately, any marijuana trafficking case involving less than 500 plants or less than 100 kilograms of processed marijuana will be disfavored for prosecution in federal court. Any exception to this policy may only be granted by Deputy Criminal Chief Joe Thaggard under the terms specified for the approval of Category III and IV drug cases pursuant to the July 23, 2009 Memorandum from the United States Attorney’s Office that implemented the drug guidelines now in effect. Additionally, I alone will approve prosecutions of so-called “medical marijuana” providers.
This modification to the drug thresholds will ensure that serious marijuana traffickers are prosecuted in federal court. It will also ensure they receive sentences that will both specifically and generally deter marijuana trafficking crimes. At the same time, the policy will enable my office to devote its resources to the prosecutions of other drug trafficking crimes. Finally, this modification will still allow those marijuana traffickers who commit crimes below the new threshold to be prosecuted in the state courts.