Trapped in the worst kind of legal limbo

Pierre Werner is not a master criminal.  

Werner, a marijuana activist, pleaded guilty last week in federal court to conspiracy to distribute the drug, the third time he's faced prison time for selling weed.

The fact that he was allegedly doing it in a dispensary dedicated to helping medical marijuana patients didn't impress the police who arrested him, the U.S. attorneys who prosecuted him nor the judge who will in October sentence him.

Yes, Werner knew the consequences of his actions. But ask yourself this: What's the difference between him distributing marijuana and the kindly white-coated pharmacist at Walgreens who hands you the stapled white bag with your bottle of allergy pills?

If your only answer is "one is legal, according to the government, and the other is not," you're starting to see the point.

Nevada voters in 1998 and 2000 amended the state constitution to legalize the use of marijuana by sick people, elevating its use to the status of a constitutional right. They did this after the Legislature failed to act, fearing the consequences of being called pot enablers in the next election.

But even though the initiative said the Legislature "shall provide by law for ... [the] authorization of appropriate methods for supply of the plant to patients authorized to use it," it's still illegal in the state to provide marijuana to anyone for money. Even with a doctor's prescription, you aren't going to get marijuana from that kindly white-coated pharmacist at Walgreens.

So businessmen and activists such as Werner sprang up, offering to fill those prescriptions, thus attracting the attention of Las Vegas police and agents of the federal government, which still maintains marijuana is illegal in all cases, state laws (and the 10th Amendment to the United States Constitution) notwithstanding. True, the Justice Department has opined that the goal of federal narcotics enforcement when it comes to marijuana isn't to attack sick people.

"Prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources," reads an October 2009 member from Deputy Attorney General David Ogden. "On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the [Justice] Department."

The trouble is, in Nevada, cracking down on marijuana dispensaries is the equivalent of cracking down on patients, since there is no other legal way to get it, other than growing it yourself.

There was an effort to correct that problem in Carson City this year. State Sen. Michael Schneider brought Senate Bill 336, which would have shifted the classification of marijuana from Schedule I (the most serious drugs, such as LSD and heroin) to the much more mild Schedule III. Even better, it would have provided a way to grow, process and sell marijuana to patients legally.

"We are coming up against the Drug Enforcement Administration with this bill," Schneider said in SB 336's only hearing. "All the states are doing this, but the federal government is standing in the way. We are attempting to push them out of the way."

The bill bounced between the Commerce, Labor and Energy Committee and the Finance Committee, where it died without a vote.

Meanwhile, Werner is likely headed to prison when he's sentenced in October, raids continue on medical marijuana dispensaries, and patients are caught in the middle of an 11-year-old legal limbo where state constitutional rights and federal law intersect.

Steve Sebelius is a Review-Journal political columnist and author of the blog SlashPolitics.com. Follow him on Twitter at www.Twitter.com/SteveSebelius or reach him at 387-5276 or at SSebelius@reviewjournal.com.