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Advocates say they will consider suing the state if Gov. Chris Christie continues to stand in the way of implementing a law that legalizes marijuana for medical use.
But they're not enthusiastic about that possibility.
"I would hope that would be a last option. A court case can drag on for years and our concern is patients having access now," said Roseanne Scotti, New Jersey director of the Drug Policy Alliance.
Christie has not yet responded to a memo released Thursday by the U.S. Justice Department that says marijuana dispensaries and licensed growers in states with medical marijuana laws could face prosecution for violating federal drug and money-laundering laws.
Christie's spokesman, Michael Drewniak, says the governor is awaiting advice from Attorney General Paula Dow, who is still reviewing the letter. Christie has been especially concerned about whether state employees could be prosecuted for their role in regulating medical marijuana, and the first-term Republican governor recently said he wanted some assurances before moving forward.
"The federal government is saying medical marijuana is against the law. Until I get that assurance, I cannot ask people to do things that they might get prosecuted (for) by federal prosecutors," Christie said in June. "What happens if they get arrested and I ordered them to do it? That's wrong."
But advocates and legal experts say Christie, who spent seven years as the U.S. Attorney for New Jersey, is well aware of the federal law and knows federal authorities would never give a blanket assurance that they won't prosecute a hypothetical case in the future.
"He knows better as a former U.S. Attorney," said Assemblyman Reed Gusciora, who co-sponsored the bill. "He knows they are not going to pick on the strictest law in the country."
In her letter to the Justice Department on behalf of the governor, Dow specifically asked whether state employees could be prosecuted.
The Thursday memo by Deputy Attorney General James Cole reiterated what was in a 2009 memo, in which the Justice Department told prosecutors they should not focus investigative resources on patients and caregivers complying with state medical marijuana laws. The new memo does not give states cover from prosecution, but notes the broad discretion local U.S. Attorneys have in their states.
Paul Fishman, the U.S. Attorney for New Jersey, has not commented on the memos.
But a person familiar with Fishman's thinking said it was extremely unlikely that he would prosecute state employees who are complying with the state's regulatory framework. The person spoke only on condition of anonymity because they were not authorized to talk about the matter.
Sam Kamin, a constitutional law professor at the Sturm College of Law at the University of Denver, notes the latest memo focuses heavily on the size of the operation, going so far as to define a caregiver as "individuals providing care to individuals ... not commercial operations cultivating, selling or distributing" marijuana.
"If you are running a large-scale, for-profit operation — this is a scary memo," Kamin said, adding that the waters are more murky for smaller-scale operations.
Sixteen states and the District of Columbia have legalized the medical use of marijuana, with programs in various phases of development. New Jersey adopted a law to allow medical marijuana in January 2010, just before Christie took office.
While Christie says he supports medical marijuana access for patients who need it, he's expressed problems with the law New Jersey passed, though it's considered the most restrictive among the states that allow medical marijuana.
His administration upset activists because it took months to come up with regulations for the industry — and they're still not finalized. Lawmakers have even threatened to nullify Christie's proposed regulations, saying they violate the intent of the law.
This year, six nonprofit groups were awarded licenses to grow and sell pot to patients with conditions such as terminal cancer, glaucoma and multiple sclerosis. Some patients say the drug eases pain and nausea. But so far, none has been legally sold because the state has not created a registry of patients who can, under state law, use the drug.
Some of the groups licensed to grow buds have said they realize they would be violating federal law and are willing to risk prosecution to launch their businesses. The organizations that are allowed to grow and sell marijuana to patients with certain medical conditions are not-for-profit but the size of the operations is unclear since they haven't been allowed to start dispensing the drug.
State Sen. Nicholas Scutari, another sponsor, said that if he doesn't hear from the governor soon, he'll send Christie an official request asking him to take a position. But beyond that, a lawsuit may be the only remedy.
"All the deadlines have passed," Scutari said, "and the governor sent this letter looking for guidance so he wouldn't have to do anything."