Prosecutors discuss pot law at annual meeting

Posted Oct. 18, 2010, at 10:32 p.m.
Last modified Oct. 19, 2010, at 3:13 p.m.
Evert Fowle
Evert Fowle

BAR HARBOR, Maine — Marijuana-inspired laughter and grins broke out repeatedly at a gathering Monday at a local conference center, but not because anybody was smoking the stuff.

The topic of marijuana, not the drug itself, was on most everybody’s lips at the Maine Prosecutors’ Association annual meeting because of concern among prosecutors about how Maine’s new medical marijuana law will affect Maine residents and the criminal justice system.

Evert Fowle, district attorney for Kennebec and Somerset counties, led a discussion on the topic at the conference. He said that the laughter was not meant to be disrespectful but instead reflects a gallows humor among prosecutors who are genuinely concerned that the law will be difficult if not impossible to enforce and likely will lead to abuses.

“There are some provisions of this law that are problematic,” Fowle said at the end of the Monday morning session at the Atlantic Oceanside Hotel. “There’s no question there’s a huge potential for abuse.”

Among the remarks that elicited laughter were points about the law that, Fowle suggested, would make abuses difficult to catch and prosecute. The medical marijuana program, which is being monitored by the state Department of Health and Human Services, requires DHHS to give a minimum of 24 hours’ notice for any inspection of a licensed caregiver who provides medical marijuana to three to five patients. Such a requirement, he suggested, will make it easy for an unscrupulous marijuana provider to make sure their operation is compliant with state law by the time the inspector shows up.

“I’m not making this up,” Fowle said as laughter rippled through the room.

Such notifications are not required for the execution of criminal search warrants, Fowle added.

Fowle said he does not believe caregivers who grow marijuana for fewer than three licensed patients are subject to DHHS inspections. Caregivers are limited to growing medical marijuana for five or fewer patients, he said, while dispensaries have no such limits.

Fowle also noted that hashish use would be allowed under the new law. He said that the same possession amount limit — 2.5 ounces per patient every 15 days — applies to both marijuana and hashish, even though hashish is considered a more potent drug.

“Two and a half ounces of hashish? Holy smokes!” Fowle said, seeming not to notice the double meaning of his comment.

Perhaps the biggest collective guffaw came when Fowle described what he saw as “the irony of ironies.” The new law, he said, would require medical marijuana dispensary employees to follow pre-existing laws about drug and alcohol use in the workplace.

During his talk, Fowle insisted he was not mocking the intent of the law. It is his job to prosecute laws, whether he agrees with them or not, he said.

“The bottom line is I have to be faithful to the law I was given,” he said.

Fowle said he was legitimately concerned about whether he might be ordered by a judge to return plants that had been seized from someone participating in the medical marijuana system. He said he could not in good conscience order one of his assistants to do anything that might violate federal law, and so said he may turn over seized pot plants to the court instead.

“I don’t want to be fined $1,000,” he said. “That’s a conundrum I hope I never face.”

During an ensuing talk at the conference, Thomas Delahanty, the newly appointed U.S. Attorney for Maine, assured prosecutors that his office would not take any action against anyone who was compliant with the new state law.

Other comments were met with more sober responses. Juveniles would be able to be licensed medical marijuana users; license revocation hearings conducted by DHHS would be confidential and not accessible to law enforcement officials; and “secure and safe” transport for delivery to patients would be permitted. These provisions, he said, could lead to abuses that would be difficult to prosecute.

Fowle also said he was worried about disclosing confidential medical information during a criminal case. If a marijuana possession case was dismissed because the defendant was a licensed medical marijuana user, he was asked, is it OK to disclose such a finding in a public court filing? He said he would have to find out.

Geoff Rushlau, district attorney for Lincoln, Knox, Sagadahoc and Waldo counties, helped lead the discussion. He said Maine’s law enforcement community, including prosecutors, did a “lousy job” of educating voters about the then-proposed law before it was approved in a statewide referendum last November.

Fowle said prosecutors would have to get used to several new realities with the new law. One is learning how to tell the difference between “female” and “male” plants, which are categorized differently under the new law, and learning under what circumstances medical marijuana users will be able to license themselves with the help of a physician and a notary public rather than by DHHS. Such licenses will be required for medical marijuana dispensaries, patients and caregivers as of Jan. 1, 2011.

“It just took me over an hour to describe this law inadequately,” Fowle said. “I sense very few people in this room know what the rules are.”

Much of the new law allows DHHS to determine some of the specific regulations for how the medical marijuana system will be regulated, and there will have to be improved communication between DHHS and prosecutors if prosecutors are going to respond appropriately when criminal violations occur, the district attorney said.

“This law is going to change on us in ways we cannot imagine unless we are hypervigilant,” Fowle told his fellow prosecutors. “It really should be the Department of Public Safety that oversees something like this.”

The prosecutors’ conference is scheduled to run through Wednesday morning. Other planned session topics include federal jurisdiction, immigration issues, changes in technology and criminal forfeiture.

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