CO-04 (Special Election)
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(R) Greg Lopez
(R) Trisha Calvarese
90%
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President (To Win Colorado)
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(D) Joe Biden*
(R) Donald Trump
80%
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CO-01 (Denver)
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(D) Diana DeGette*
90%
CO-02 (Boulder-ish)
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(D) Joe Neguse*
90%
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(D) Adam Frisch
(R) Jeff Hurd
(R) Ron Hanks
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CO-04 (Northeast-ish Colorado)
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(R) Lauren Boebert
(R) Deborah Flora
(R) J. Sonnenberg
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CO-05 (Colorado Springs)
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(R) Dave Williams
(R) Jeff Crank
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CO-06 (Aurora)
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(D) Jason Crow*
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(R) Gabe Evans
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State Senate Majority
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DEMOCRATS
REPUBLICANS
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20%
State House Majority
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DEMOCRATS
REPUBLICANS
95%
5%
February 25, 2010 04:33 AM UTC
49 Comments
Agent Sweetin’s apparent disregard of the guidelines established by his superiors is cause for grave concern. Establishing the guidelines and priorities of the Department of Justice is the jurisdiction of the executive branch of government, not of each individual agent. The DOJ wisely decided to leave this issue to the discretion of the states (as Congress should have done). The exercise of an inappropriate veto by a rogue agent in disagreement with that decision should not be tolerated.
Thank you, Jared.
I love the idea of giving the DEA a swift kick in the pants for their blatant disregard for the wishes of the people of Colorado. But, let’s be honest, it is going to take more than letters to the AG to put a stop to the tactics of the DEA with regard to medical marijuana.
Congress has the power to put some sanity into the Controlled Substances Act–either by amendment or calling for the AG to begin the required steps for reclassification of marijuana.
In this day and age, there is no logical reason why marijuana remains a Schedule I narcotic.
Marijuana has no more potential for abuse than alcohol or caffeine, it certainly does have an “accepted medical use” in Colorado and other States and the idea that there is a “lack of accepted safety” is a fallacy.
The time has come to put an end to the costly (in human, economic and societal terms) and ill-fated War on Pot.
You criticize Republicans for talking about “nullification” when laws are passed at the Federal level that trample states’ rights, and you have no problem with the Democratic alternative of simply asking the Justice Department not to enforce the law?
Just so we’re clear, I think that the Federal government needs to pass legislation that permits states to set their own rules and regulations regarding the use of marijuana. I don’t smoke marijuana and would prefer if nobody else used it either, but I’m all for your right to do so.
I always thought of state nullification as a pre-Civil War artifact. Those who speak of it as a living doctrine must not have noticed that that ship has most definitely sailed. But, as for your specific criticism, that there is something untoward about the DOJ deciding what priorities to pursue, you need to take a closer look at the social institutional framework involved:
1) Our law enforcement systems are laden with layers of discretion at various levels: The police decide whether to investigate and file charges; a prosecutor decides whether to prosecute; a judge decides whether to dismiss as a matter of law; a jury decides whether to employ another form of “nullification.” Generally, those layers of discretion are designed to allow each subordinate layer to be more lenient (under certain circumstances) than the upper limit of severity set by superordinate layers, but not more severe. For instance, states cannot offer weaker civil rights protections than those determined at the federal level, but they can offer stronger ones.
2) Our separation of powers (like our federalism) is not designed to grant each branch perfectly discrete jurisdictions, but rather to give them competing and overlapping jurisdictions, creating a counterbalancing tension among them. When Congress legislates, for instance, it often creates an administrative agency to administer that legislation (or assigns it to an existing one). But that administrative agency belongs to the executive branch, and once authorized, cannot be micromanaged by Congress, though it is Congress’ creature. In other words, Congress writes the laws, and the executive branch executes them, each as they see fit.
3) While the executive branch is required to execute the laws as written, it is not required to do everything always. Agency inaction, even when explicitly instructed by law to do something, is a complex area of administrative law, and generally not subject to judicial review (not being a final agency action). On a more pragmatic level, our regulatory and law enforcement agencies simply lack the resources not to prioritize among the demands placed upon them.
4) There is a similar tension built into our federalism as there is built into our separation of powers. The Bill of Rights originally enumerated the most important individual rights that states could legally protect against federal encroachment. After historical experience demonstrated that we also needed to empower the federal government to protect individual rights against state enroachments, the 14th amendment set into motion the process of “incorporation,” through which most of the content of the first 10 amendments was gradually incorporated into the 14th amendment equal protection clause. In other words, the tension between state and federal government is functional, and designed to protect rather than relinquish individual rights.
When you combine all of these facets of our political system, you find that the only thing that was capricious in the enforcement of the federal law in opposition to our state law was the individual agent’s choice to ignore his agency’s written guidelines, not the drafting of those guidelines, and not the fact that those guidelines exercised the degree of executive discretion available in determining the executive branch’s priorities.
I respect your positions more and more all the time.
state nullification, which may serve either to protect or abrogate individual liberties, tends to dissolve our Union (as it did on every occasion that it was invoked prior to The Civil War), while executive branch discretion in how to implement legislation is part of the structure which preserves both the Union and the liberties guaranteed within it.
You want the Federal government to use its discretion in this case so as to not impede on the wishes of the people of Colorado. You would also throw a hissy fit if a Republican-led Executive branch used its discretion to not force states to participate in the health care reform bill (in Unicorn land where it actually might pass).
between substance and process, and toward which to direct my criticisms. From your description, it is unclear which would be implicated, or whether both would be implicated, since the scenario you are describing could be different in fundamental ways from the one we are discussing (and would certainly be different in the distinction between criminal and regulatory law, which carries with it a variety of implications).
The only only way to curtail cartel violence, and perhaps influence in our elections from the Supreme Court’s ruling in January, is to move towrds an end to prohibition.
Thank you, Rep.Polis for showing courage on this issue.
(since I addressed this issue from a different angle above), I completely agree. It is abundantly and increasingly clear to almost everyone who in any way examines this issue that our “war on drugs” and our long, painful return of prohibition and all that it entails, has been disastrous in every way. Most (though not all) of the social problems associated with drug trafficking are a consequence of their illegality rather than of their effects on users, and those social problems which are attributable to the drugs themselves can better and more effectively be addressed through a public health approach than through a penal system approach.
Drug prohibition is a complete failure just as alcohol prohibition was a complete failure when tried for 13 years (that’s why it was repealed).
Let’s use the process of selecting a US Attorney for Colorado as a forum for determining what the policy is going to be. Senators Bennett and Udall – you have that power – use it.
There is a proposal on the ballot in CA this fall that will end prohibition of the possession of one ounce or less of marijuana by adults and allow one to “grow their own” on privately owned property on a 25 square ft. plot or less. Latest polls show it passing by a 57% majority.
If the voters of the largest state in the Union vote to end the prohibition of the recreational use marijuana, things are going to get very interesting.
“Don’t criticize what you don’t understand, for the times they are a changin'”
There has to be a young lawyer out there willing to take this on.
Are you talking about the state AG? This is a letter to the US AG.
As stated in my above post, we still don’t have a permanent US Attorney for the State of Colorado since Stephanie Villafuerte withdrew her name for nomination in December.
Doing a net search, I couldn’t find much happening with this nomination so I don’t believe President Obama has made a subsequent nomination for consideration by the Senate. Reportedly Pueblo Dist. Attorney Bill Thiebaut Jr. and Denver attorney John Walsh III are still in the running per their inclusion on the recommendations by Udall and Bennett.
It’s very simple. Ask these prospective nominees, if appointed US Attorney for Colorado, do they intend to comply with the DOJ guidelines issued Oct. 19, 2009?
Ask the actual nominee the same question at their confirmation hearing.
And ask Udall and Bennett (Bennett’s running for election, right?) if they would vett a nominee who states they would not comply with the DOJ guidelines of Oct. 19, 2009.
When these politicians start understanding that there’s more than can be done than writing a letter to Attorney General Holder – when they realize we can take away or deny them their jobs by ignoring the will of the people making arrogant statements that they can “arrest everybody”, then I guarantee you there will be change you can truly believe in.
The issue is definitely Federal, but the number of raids from law enforcement both DEA and local SWAT teams (as out farm was raided for NO REASON) is a finely tuned fear mongering tag team.
AG Suthers is a dangerous person on this issue. I received information from a local MMJ attorney that one of the Denver Metro Sheriff’s Departments, Agent Sweetin, DEA had a meeting last week with all the Metro Drug Task Forces and Sheriff’s Departments and offered FEDERAL GRANT MONEY to their departments for the location of major grow ops.
While I did not get the “Proof” we are looking in to circumstances of this allegation.
The Fear Mongering on part of law enforcement both Feds and State have cut back the number of good doctors that will write recommendations which will now slow the number of patients.
Just for the record there are over 500,000 people in Colorado with prescriptions for pain reliving and addictive opiates. Currently, there are less than 70,000 people with recommendations for MMJ.
A letter?
I heard the State of the Union – the President didn’t specifically endorse this. I read the President’s outline for today’s healthcare summit and he didn’t mention medical marijuana.
So if the President isn’t leading the way, this is clearly just Congressman Polis’s way of grandstanding to pander to his base without actually doing anything.
All you suckers congratulating him for his “leadership” need to wake up- primary that guy now. He has no chance to win in the general.
Was never a huge Polis fan myself but he won the primary. As in 2008, he’s a breathing Dem in CD2. Not to worry about the general.
If he shows leadership by writing a letter, but the RPesident doesn’t get on board, then he’s clearly just grandstanding. I read that right here on CoPols- it must be true.
the grandstanding doesn’t interfere with the breathing…?
because I also read on ColoradoPols that money doesn’t matter, but I know that’s false
Rep. Polis, you wrote in your letter:
While I appreciate the spirit with which this latter was written, Mr. Bartkowicz was clearly in violation of state law, because he had far more than the allowed three plants per patient.
The MMJ people may have decided to use this guy as their martyr, but I think that’s a huge mistake. If people are getting raided who are within the confines of state law, that’s one thing, but Mr. Bartkowicz wasn’t.
I would urge everyone who is an advocate for marijuana law reform as I am, not to get caught up in this, because it’s a losing cause. There are plenty of people who are playing by the rules who deserve Congressmen and MMJ lawyers defending them. Let’s make sure we’re defending the law abiding ones, and not the criminals.
Mr. Bartkowicz was well over the limit. And no doubt he knew or should have known this.
People getting involved in the MMJ business have a responsibility to know and comply with the law as approved by the voters.
That being said, I have a real problem with a federal law enforcement official who states they will “arrest everyone”.
The agent in question obviously has a vendetta of some kind against MMJ, but that doesn’t change the fact that Bartkowicz was over the limit of plants. Mr. Sweetin may not be going about his job with fairness as his primary concern, but he was obviously following the letter of AG Holder’s order.
carefully. But isn’t the “violation” one of state law? Why is a Fed agent leading the charge? And won’t the subsequent charges come from an US Attorney? I belive Rep. Polis is right on this one.
The AG said that the DEA would no longer be raiding people who conform to state law.
I think there’s still a lot to be figured out on this. Canines thoughtful response below tells me that we don’t have all of the information. If it turns out that Mr. Bartkowiscz was under the limit (depending on how many plants were mature at the time) then there’s a definite case to be made that this DEA agent was just trying to bust some heads–which is what his comments lead me to believe, however many plants it turns out this guy had.
I just think it might be premature to be coming to this guy’s defense without knowing all of the facts.
I’ve been supporting the use of marijuana as medicine for a long, long time. I’m glad that Rep. Polis feels strongly about it, as many Coloradans do. What I’m afraid of is people backing up the lawbreakers, rather than the law abiders, because it just makes everyone look bad.
was he over the legal limit of Colorado law, why is this Fed agent leading the charge? And in opposition to his superior’s and the Administration’s stated position on these matters. Now, if they have evidence, which has yet to be revealed, of other violations, I could understand the Fed involvement. But do not understand if it was simply an alleged violation of state law.
This Colorado Independent article was pretty informative: http://coloradoindependent.com…
The separation of powers issues you’re bringing up are at the center of the MMJ issue. I thought that it had been all but settled by Holder’s announcement, but apparently not.
the supremacy clause of the U.S. Constitution means that federal law trumps state law, period. Even federal regs trump state constitutional law (in theory). If the DOJ wanted to prosecute marijuana growers under federal law, then, as a legal matter, Colorado state law is irrelevant.
The more salient issue is DOJ policy. If the DOJ establishes a policy to leave a certain area of state law alone, even though it is technically in conflict with federal law, that is within their discretion to do.
The gray area here results from the possibility that Barkowicz was in violation of state law, which means that, arguably, federal investigation and prosecution isn’t a violation of DOJ policy. Still, it seems more in line with the thrust of DOJ policy to let state authorities determine if he was in violation of state law.
A person can grow six plants (three mature, three immature) for every patient who designates that grower as a “caregiver.” So, if this was a state matter, it would be a matter of Bartkowicz proving that he’s within the legal limits, showing paperwork for each of the patients that he is growing for. Since it’s a federal matter, he will more than likely be convicted without even being able to utter the words “medical marijuana” in front of the judge and jury.
Here’s an opinion piece by Vincent Carroll of the Denver Post highlighting what’s going on in Colorado:
Here’s a person growing marijuana for “dozens” of patients. Let’s say it’s only five dozen. Do that math on that one: multiplying the number of patients by the number of plants allowed, six. And that’s a conservative example.
http://www.denverpost.com/opin…
I’ll be following this story closely, and if it turns out that this guy was within the confines of state law, then I’ll be defending him just as much as Rep. Polis.
What kind of cilivization are we? Can we stand up to the world on how people are treated when we lock up people for growing a plant that NO ONE HAS EVER DIED OF OVER DOSED ON?
Is this what America is about?
Unfortunately, the central issue here is whether or not federal law or state law should take precedence. While the DEA really just seems intent on persecuting potheads rather than prosecuting real drug criminals, federal law protects their ability to do so. The state of Colorado did not do a great job with the infrastructure of medical marijuana distribution and will face consequences. Pot patients and legitimate businesses should be able to function legally in Colorado but not at the expense of clear laws and regulations. Thanks to Polis for bringing this to the attention of law enforcement.
um…your argument as well as the argument for the DEA guy who authorized this raid omits one HUGE factor:
this guy was growing and selling MMJ wholesale to dispensaries who then in turn sold MMJ retail to their patients. The dispensaries held the actual caregiver cards for their patients and depended on this wholesale grower to provide the medicine they in turn sold to their patients.
how is THAT in clear violation of the voter intent of Colorado’s MMJ law? It isn’t and this raid is a clear and obvious abuse of power by the DEA. There is ZERO evidence this wholesale MMJ grower was selling on the street or otherwise outside of the dispensaries and his personal patients he provided for.
—
the Denver Post and all other media outlets failed to mention this in their stories…
hopefully those of you who post your comments here on Pols are smart enough to realize not believe everything you read or see on TV…there’s usually more to the story (finger pointing at RedstateBlues)
authorize wholesalers to supply dispensaries, and to do so by growing up to three plants for every patient that the client dispensaries serve? You mentioned the intent of the law, but not the letter. In the end, and to the extent discernable, the letter of the law is the law.
Without meaning to presume the answer to my above question (which I am curious about), I think that it is essential, when making an argument, to put everything on the table, even if it does not support your case. If the argument can not be won having done so, then it is not the argument that should be won (in other words, it may be the case that RSB is right, and that the Colorado law does not support Mr. Bartkowicz. If that is so, it would be unwise to pin an argument on an easily demonstrated falsehood regarding what the Colorado law says).
Growers have essentially argued that they are providing service as a primary caregiver, or as part of a primary caregiver’s operation. No law defines a primary caregiver right now, and given the scope of the grow operation that is required to support so many patients here in Colorado, I hope that any future law specifically covers growers in an understanding light.
Still, under the provisions of the law, growers would still be in violation if they didn’t have documentation for a sufficient number of patients. If Mr. Bartkowicz didn’t have an appropriately large client list, then he’s still in violation.
here is Colorado Amendment 20 in all it’s glory, letter for letter, word for word:
When asked in a discovery request for documents, send a flood so that the damning information within them will remain buried.
Look, it’s your call. For my part, I was asking for a specific citation of a specific provision. If I wanted to read the whole amendment, I could have done that without any assistance.
I’ll try not to make any assumptions based on this non-response to the question, but if I were to make any assumptions….
Even though the mouse wheel doesn’t cost me money, don’t ever make me scroll through that many screens again. Even freakin’ Libertad doesn’t do that.
note:
can someone explain to me how this Highlands Ranch guy was not “assisting” in the medical use of MMJ? He was growing for dispensaries AND the small group of patients he personally cared for…
Now my only question is whether it is a matter of bad drafting, or intentional, that the provision you cited, read literally, does not authorize anyone not in personal possession of a registry identification card “to engage or assist in the medical use of marijuana….”
The following definition, which you chose not to cite, suggests that it is intentional:
(g) “Registry identification card” means that document, issued by the state health agency, which identifies a patient authorized to engage in the medical use of marijuana and such patient’s primary care-giver, if any has been designated.
In either case, it appears from the plain language of the amendment that the registry identification card is required by the grower in order to be legally authorized, and is only assigned to patients and primary care givers. If that is the case, then there is no indirect or derivative authorization to those who are supplying marijuana to primary care givers.
Look, if you read my posts prior to RSB’s, you’ll see that I have no disinclination to arrive at your legal conclusion. But you seem to be starting with that legal conclusion, rather than arriving at it.
If anything, you’ve convinced me that RSB is probably right.
has Rep. Polis introduced legislation to get the fed out of conflict with states’ medical marijuana laws?
“Hypocrisy can afford to be magnificent in its promises, for never intending to go beyond promise, it costs nothing”. -Edmund Burke
Over 20 years ago when an old timer detective was printing my house after a break from the alley – again – in in Los Angeles, he made this observation:
“When I was on patrol I would go to non-emergency calls by driving the allies, or when I was just patrolling. Now the guys stick to the main streets; they don’t WANT to find problems in the allies. They would rather look for expired tags on the streets than confront a burglar.”
(Ironically, I later got busted for an expired tag soon while parked in front of my house.)
But ever since then, I’ve watched and observed and agree with him. It seems police would much rather pick on some poor, or young, or really not doing much wrong and come down like a ton of bricks.
Much easier to arrest (Colorado) law abiding citizens than arrest true threats to society.
Thank you for standing up for Colorado citizens and Colorado Constitution. Keep doing what your doing.
hey Ralphie:
instead of getting mad at me for forcing you to be an informed voter who actually reads and understands the laws you chime in and post comments on, maybe you oughtta be mad at the people who actually wrote this 3,388 word state amendment (holy moly!) that still is ambiguous and vague requiring even more poorly written laws (even more thousands of words) from lawmakers like Chris Romer so that law enforcement people can understand it…
— where I come from, if you can’t get your point across in a black & white / crystal clear / bottom line fashion in 3,300 words, you probably shouldn’t bother writing in the first place!
as for this case where the DEA went after a wholesale MMJ grower, well sadly I predict this whole fiasco will have to interpreted by a federal circuit judge 🙁 so much for the voices of the voters of Colorado being honored by the DEA in this matter…JP is right on the money with his letter.
Let’s all think like republicans for a second here, why are we letting the DEA witch hunt a legal Colorado business that is creating wealth and jobs? Last time I checked we could use all the jobs and tax revenue we can get in Colorado, ya know?
The laws of the state of Colorado must be respected by the federal government, but on the same hand we as a state must respect federal laws as well. Regardless if marijuana is legalized in the state for medical use, federal law still views marijuana as illegal. The people who grow plants, run dispenseraies and smoke marijuana must understand that there is the possibility of being prosecuted under federal law if caught with marijuana. If you are going to take the chance you must know and understand the potential ramifications.