Delaware Suspends Medical Marijuana Program

Delaware Gov. Jack Markell (D) Friday suspended the regulation-writing and licensing process for the state's medical marijuana dispensaries, essentially killing medical marijuana in a state whose law does not allow patients or caregivers to grow their own.

Markell acted after the US Attorney for Delaware, Charles M. Oberly III, responded threateningly to a December request for clarification about his attitude toward the state's law from Markell's legal counsel, Michael Barlow. In line with the Justice Department's most recent iteration of its stance toward medical marijuana, last June's memo from Deputy Attorney General James Cole, Oberly warned that state employees who regulated the medical marijuana industry might not be safe from federal prosecution.

"Growing, distributing and possessing marijuana, in any capacity, other than as part of a federally authorized research program, is a violation of federal law regardless of state laws permitting such activities," Oberly wrote in a letter delivered last Thursday to Barlow. "Moreover, those who engage in financial transactions involving the proceeds of such activities may also be in violation of federal money laundering statutes… "State employees who conduct activities mandated by the Delaware Medical Marijuana Act are not immune from liability under" the Controlled Substances Act, Oberly added.

Markell's office told the Wilmington News Journal [8] Friday that Oberly's stance prevented the Department of Health and Social Services from moving forward on licensing dispensaries, which, under Delaware's law, would be limited to three nonprofit operations.

"To do otherwise would put our state employees in legal jeopardy, and I will not do that," Markell said.

"If you look at the Cole memo, it focuses on this large-scale, industrial distribution model, and what we have in Delaware is a distribution model that centralizes that into one place," Barlow told the News Journal. "It seems to be something the Cole memo is looking to specifically. The governor's concern is that we're not doing things to put state employees potentially in the way of the federal government's new enforcement."

Ironically, some of the impetus for the passage of Delaware's medical marijuana law was the Obama administration's earlier adoption of a hands-off position on medical marijuana, the October 2009 memo from Cole's predecessor, David Ogden. That memo said federal prosecution of medical marijuana patients and providers was "unlikely to be an efficient use of federal resources."

Delaware passed its medical marijuana law last May. A month later, the Cole memo came out, and the new wave of federal medical marijuana threats, raids, and prosecutions began.