In a forum hosted by NEO A&M College as part of Constitution Day activities, District Attorney Kenny Wright spoke with the students about the status of legislation, enforcement, and prosecution regarding medical marijuana legalization.
MIAMI – Ottawa County's top legal authority, 13th Judicial District Attorney Kenny Wright, gave the frequent answer of, “I don't know,” to questions from NEO students and others regarding how the state's new legalized medical marijuana laws will affect Oklahomans.
In a forum hosted by NEO A&M College as part of Constitution Day activities, Wright told the students that much of the legislation, enforcement, and prosecution regarding medical marijuana legalization is still pending further decisions and clarification from Oklahoma legislators and the Oklahoma Medical Marijuana Authority tasked with oversight of the state's medical marijuana program.
“This is a pretty interesting issue and it's complicated, and right now there's not a question of who rules this issue, whether it's the Feds or the states,” Wright said.
Wright began the presentation with a history lesson on government and the progression of marijuana legislation beginning in the early 1900s to the present day and spoke of the need for a balance in governmental functions regulating the issue. Wright said racism, immigration, and economic issues and interests had historical influence on marijuana laws enacted by lawmakers in the U.S.
“If you look at it historically, one of the things that they really focused on was the use of marijuana by African Americans, and they scared people by saying, 'Hey, this product used by African Americans makes them violent, and dangerous,’” Wright said. “You see any parallels to the society we live in today?”
Marijuana was first classified by the Federal government as a Schedule One Controlled Dangerous Substance in the 1970s under the Controlled Substance Act passed by Congress.
Wright referred to a more recent example of changes in marijuana legislation and legal history, such as the Cole Memorandum, a U.S. Department of Justice memorandum issued in 2013 during former President Barack Obama's administration, which governed federal prosecution of marijuana offenses in states with marijuana legalization.
The memorandum came in response to limited Department of Justice resources stating the department would not enforce federal marijuana prohibition in states that "legalized marijuana in some form and ... implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale, and possession of marijuana," except where a lack of federal enforcement would undermine federal priorities.
“That was the controlling federal position until Jeff Sessions, in January of this year, said, 'No, we're going to rescind that.' That made everybody really, really nervous, and then we get to basically where we are today,” Wright said.
Wright also cited a 2005 Supreme Court ruling in Gonzales v. Raich as another major change influencing laws governing marijuana.
“What the Supreme Court was addressing there was, does the federal government have the power to regulate marijuana in states that legalize it,” he said.
The Supreme Court did find in a 6 to 3 decision that under the Commerce Clause of the U.S. Constitution, Congress may criminalize the production of homegrown cannabis for medicinal purposes in states with legalization.
Numerous states have enacted medical and recreational legalization laws allowed through governmental Federalism.
“We have seen this experiment started and tried in a number of different states, in a number of different ways, and that is the great experiment. What are we as a state doing today? We’re trying to form that legal framework for medicinal marijuana. How are we doing that? We’re looking at these other states and what they did and what they did that worked well, and what didn’t work well,” Wright said. “…We’re dealing with an entire country that’s filled with people using marijuana, legally and illegally. We know there’s a huge illegal black market that surrounds marijuana, and you’ve got these little pockets of legal and regulated state activities.”
The illegal Mexican cartel “commercial marijuana” is still prevalent throughout the U. S., according to Wright, and remains an issue in Oklahoma, but since Colorado’s and other state’s legalization, the influx and confiscation of medical commercial-grade marijuana have increased.
Oklahoma’s former Attorney General Scott Pruitt and Nebraska’s AG filed a lawsuit in 2014 against Colorado with the Supreme Court claiming legalization in that state spilled over state borders and adversely affecting Oklahoma ‘ which was later rejected.
Wright said it is true marijuana legalization in bordering states has had negative effects on Oklahoma burdening the state with greater law enforcement and other costs. Wright said the broadly interpreted Commerce Clause does provide a good argument for Federal regulation for this and other reasoning.
“Again this is super complicated and there’s no easy answer at all,” Wright said.
Asked on his stance on marijuana legalization, Wright answered, “In my professional position I prefer regulated legalization, whether that’s medical or recreational…Our criminal laws are so minor in relation to marijuana I don’t have much of a stick, hell, I don’t have much of a stick in relation to methamphetamine anymore after 780 and 781. So, I’d rather those people not be clogging up my jails and court system.”
Oklahoma State Question 780 passed by Oklahoma voters in 2016 diminished certain non-violent drug and theft-related crimes from felonies to misdemeanors, simultaneously changing their maximum penalty to one year in prison and a fine of $1,000. Question 781 was designed to redistribute the money saved by the reduced prison costs to counties to fund rehabilitation of criminals.
Wright said there are very few people now in prison for marijuana crimes, and most who are incarcerated are there because of charges for drug dealing and involvement with meth and opioid crimes.
“There’s pros and cons to legalization and decriminalization,” he said. “ States who have seen some form of regulated legalization or decriminalization have seen a marked decrease in opioid use and addiction. That’s fantastic.”
Under the current Oklahoma medical legalization license process, Wright says there is little to no ability to stop recreational users from legally obtaining marijuana because the standards are loose.
“Anybody who wants to get it can get it. So, we are going to see an increase of driving under the influence of marijuana,” he said.
Wright said prosecution of marijuana crimes is much more difficult than other substances such as alcohol, because of testing limitations and lengthy detection of up to 30 days after use of marijuana. Officer observation is key to DUI prosecution in these cases, according to Wright.
Other issues are added dangers to children with more accessibility of edibles of other forms of marijuana, and a continued subsequent black market of products to avoid taxation and other challenges that come with marijuana legalization.
“So, there are dangers and there are law enforcement and criminal justice challenges that are going to come because of this,” Wright said. “What we’re going to have to rely on is state legislators to fine-tune this system, and create a set of regulations that recognizes the intent of the voters when the State Question 788 was passed while at the same time keeping in mind public safety, the regulation of commerce…it’s going to tough, its going to be hard. There have to be some restrictions, it can’t be a free for all.”
Wright’s answer was repeatedly, “I don’t know,” to questions on issues of legality on college campuses, the possible increased risk and ramifications of money laundering because of the federal issue of FDIC banks may not be used for marijuana sales and proceeds, and what will happen when these laws are challenged. These and other issues are still pending decisions by state legislators, he said.
Local governments can enact regulations as well, to regulate marijuana, according to Wright.
“You’re going to have tribes, cities, and counties passing ordinances and resolutions trying to limit the marijuana business,” Wright said. “
Local sales taxes for counties and municipalities will see economic growth once cultivation operations, manufacturing plants, and dispensaries are established, but it is still unclear if the state revenues will add additional funding or simply cover the costs of regulating the state’s medical marijuana program, according to Wright.
At present to receive a medical marijuana use license all users need is a letter of recommendation from a participating physician and based on that letter a license is issued from the Oklahoma Medical Marijuana Authority. There is no regulation or guidance built in the legislation of dosage or THC levels.
“One of the curious things about 788 is a doctor’s recommendation is not challengeable in any way shape or form,” Wright said. “This system has created a recreational system under the guise of a medical use system,”
Wright said. Oklahoma Medical Marijuana Authority website is probably the best source for what’s happening in the state and to keep up with the legislative progress.
The Oklahoma Medical Marijuana Authority website is http://omma.ok.gov/.
Melinda Stotts is the associate editor of the Miami News-Record. She can be emailed at email@example.com or followed on Twitter @MelindaStotts1.