To date, the Department of Justice has sent five other states similar guidance letters.  Within the last month, Arizona, Rhode Island, Colorado, Hawaii, and Montana all received clarification of the Department's position on medical marihuana.  More recently, New Jersey sent a letter to the Department asking to clarify its position on state employee liability.  The Department has not responded yet. 

     All five states received the letters in response to either their proposed or adopted plans to license large-scale medical marihuana dispensaries.  With the exception of the Rhode Island letter, the Department of Justice wrote the letters because the states inquired about their rights.  The United States Attorney in Rhode Island wrote the state without request. 

     The federal letters all share similar language.  The letters remind state officials that marihuana is a schedule I substance and that enforcement of the Controlled Substances Act remains a core priority.  The letters distinguish enforcement priority between seriously ill individuals and large-scale commercial marihuana cultivations and distribution operations, emphasis on the latter. 

     The bigger issue is whether state officials or employees who are charged with implementing these licensing regulations are subject to liability under the Controlled Substances Act.  So far, the Washington letter is the only letter that specifically says state employees are not protected.  Other letters use broad language, a liberal interpretation of which could encompass state employees.

     For example, the Colorado letter says that it is well settled that a State cannot authorize violations of federal law and the Department is considering prosecuting those who "set up" marihuana growing facilities and dispensaries.  United States Attorneys from Arizona, Rhode Island, and California are committed to prosecuting those who "knowingly facilitate" the conduct of the dispensary owners.  The Hawaii letter says penalties will be enforced against those who seek to create marihuana distribution centers pursuant to the state licensing bill.  Conduct of the state employees charged with implementing the licensing regulations could be encompassed within the Department's broad definitions of liability.  Therefore, many of the states decided to put licensing on hold.  The Governor of Washington went so far as to veto the state's licensing legislation.  Feel free to view the Arizona, California, Colorado, Hawaii, Montana, Rhode Island, and Washington letters.