Monday, February 17, 2020

New Mexico's Governor is wrong to change medical cannabis residency, We're a Sanctuary State!

John Adams once said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.”

Senate Bill 139, Medical Cannabis “Qualified Patient”, should be Tabled and should Not Pass out of the Legislative Health and Human Services committee, that is Chaired by a very close friend, Biz Partner, and Campaign Treasurer - Rep. Deb Armstrong. 
Also very concerning this bill only gets one committee, it bypasses the House Judiciary but its supporters says it raises a legal matter.

Senate Bill 139 changes the definition of “qualified patient” (i.e. a person who is able to consume medical cannabis) in the Lynn and Erin Compassionate Use Act (LECUA) creating a legal requirement in which requires the person be a resident of New Mexico.

Much of the concerns mentioned for SB-139 are about breaking Federal Policy and in some situations Federal Law.

Examples of breaking Federal Policy and in some situations Federal Law would be Albuquerque’s decision not to follow parts of federal immigration law or the State’s choice not to follow parts of federal immigration law.

For Albuquerque that has resulted in the Federal Government withholding more than 10 million dollars to combat the out of control crime problem.

It’s also very interesting how the Governor and this bill's sponsor have been very outspoken about New Mexico and Albuquerque helping immigrants and doing what we can despite the Federal Government's overly restrictive immigration policies but here in the this matter we have people also coming to New Mexico seeking help with medical treatments, seeing a medical provider, and lawfully being recommended into the medical cannabis program.
Why are we okay to violate federal immigration policy for people from other countries but when people from other states come to New Mexico for the Medical Cannabis Program we decide we want to change state law and prevent that?

Just like the “Certification” proposal enacted by Attorney General William Barr that has limited the ability of migrants to seek asylum in the United States, this proposal backed by Governor Lujan Grisham could hurt those living just outside New Mexico’s border that cannot legally access medical cannabis in their home states.

“This bill reflects one of the weaknesses in this state which is the propensity to pick winners and losers,” that is what Senator Cervantes said about the Cannabis Regulation Act in Senate Judiciary last week. The same is true about Senate Bill 139.

Senator Steinborn said during the Senate Floor debate for SB-139, that New Mexico could be on the “cutting edge” of what he called a humanitarian issue of medical cannabis. Going on to say, “I personally am not convinced we have to take this step in changing the law.”

Sen. Jacob Candelaria, D-Albuquerque, said during the Senate Floor debate for SB-139 that there are no other health care services in the state that are limited to residents only, specifically mentioning pregnant women who come to New Mexico because of laws that are less restrictive for abortion than many other states.

“We allow people from all over the country to come here,” Candelaria said, adding that he is very much in favor of the state’s abortion law.

Senator Ortiz y Pino, has argued that by allowing out-of-state patients, New Mexico is inviting federal scrutiny. Senator Ortiz y Pino is also the sponsor of this year's Recreational Cannabis Legalization bill. If the Senator sincerely believes these 615 plus individuals enrolled in the NM Medical Cannabis Program threatens the program’s existence in the eyes of the Federal government, then why is the Senator sponsoring a recreational cannabis bill?

How does the Senator and our Governor justify pushing for an adult use program with projected $600 million in annual cannabis sales, of which 42% will be from out-of-state visitors.

The unfortunate aspect of Senate Bill 139, Medical Cannabis “Qualified Patient”, is how it exposes the biggest problem for the Cannabis Regulation Act - being depended upon people crossing back and forth over state lines with cannabis.

This proposed law, SB-139, will actually force medical cannabis patients back into the black market. That is a liable situation for a state that has provided access to medical cannabis and then took that access away, after interfering with what a medical professional recommended for these people, which is to be in this state's medical cannabis program.

The Rescinded Cole Memo has come in by the backers of the measure, the Rescinded Cole Memo means absolutely nothing in regards to Federal policy for cannabis.

On August 29, 2013, the Department of Justice published a memorandum authored by Cole which described a new set of priorities for federal prosecutors operating in states which had legalized the medical or other use of cannabis.

The 2013 memorandum represented a significant shift of government priorities away from strict enforcement of federal cannabis prohibition and toward a more hands-off approach in the case of "jurisdictions that have enacted laws legalizing marijuana in some form and that have also implemented strong and effective regulatory and enforcement systems to control the cultivation, distribution, sale and possession of marijuana."

The memorandum was rescinded by a one-page memo signed by Attorney General Jeff Sessions on January 4, 2018.

AG Barr and the Rescinded Cole Memo:
“I am accepting the Cole Memorandum for now, but I have generally left it up to the U.S. Attorneys in each state to determine what the best approach is in that state,” A.G. Barr further testified during the hearing. "I haven’t heard any complaints from the states that have legalized marijuana." (Attorney General William Barr testified during a Senate Appropriations subcommittee on April 10th 2019.)

AG Barr would have to issue a new version of the “Cole Memo” with his signature for it to be a valid federal advisory.

Secretary Kunkel and Senator Ortiz y Pino have been suggesting that our state is violating the “diversion of cannabis to another state”, part of the Rescinded Cole Memo. They have both misunderstood what “diversion of cannabis” means. (From the DEA: Drug diversion is a medical and legal concept involving the transfer of any legally prescribed controlled substance from the individual for whom it was prescribed to another person for any illicit use.)

The Rescinded Cole Memo was referencing the diversion of cannabis for illicit purposes. And that is not happening here. The 615 plus people are legal medical cannabis patients buying from legal medical cannabis dispensaries.

Senator Candelaria said the state should not be so worried about the U.S. Justice Department as it has not indicated it would crack down on medical cannabis states, during the Senate floor debate.

Senator Cliff Pirtle said during the Senate floor debate, “Keep in mind, there’s 11 states that have recreational cannabis. The Feds have done nothing to them.”

The CJS Budget Amendment Provides The Only Protection And Is The Only Active Federal Policy Passed In Law For Cannabis.

Congress approved a budget amendment that prohibits Justice Department funds from being used to prevent states from implementing medical cannabis laws. Texas is part of this and is consider to have a medical cannabis program like ours in New Mexico by the Federal Government.

Known as the Rohrabacher-Farr or CJS amendment, it first signed into law on December 16, 2014. The Rohrabacher-Farr amendment doesn’t just prevent direct interference with state implementation; it should also end federal medical cannabis raids, arrests, criminal prosecutions, and civil asset forfeiture lawsuits, as well as providing current medical cannabis prisoners with a way to petition for their release.

The Senate sent President Trump Fiscal Year 2020 spending legislation that continues the CJS budget rider protecting state medical cannabis laws from federal interference.

Protection for state medical cannabis laws, are provided in the Rohrabacher–Farr amendment (also known as the CJS Medical Cannabis amendment), in Section 538 of the “omnibus” federal appropriations bill.

Every year, the federal budget in the US Congress (“omnibus” appropriations bill) includes this rider that continues to bar the DOJ from enforcing the federal ban on cannabis due to it’s Schedule 1 status in some circumstances pertaining to states who enact their own medical cannabis laws.

Here is the full text of the budget rider:
“SEC. 538. None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, Guam, or Puerto Rico, to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

Interesting fact, our Governor’s last vote as a member of Congress involving medical cannabis policy was a “No” vote for the March 22nd 2018 omnibus budget containing that very budget rider for protecting our state’s program. A "No" Vote.

So this legislative session our Governor has decided she wants to take away access from 615 plus participants in the medical cannabis program. And our Governor has also decided not to allow Senate Bill 276, Medical Cannabis in Schools, which affects over 250 public school students in the medical cannabis program (also sponsored by Senator Ortiz y Pino) to fix the law being broken by the PED.

Please Vote No or Table Senate Bill 139.


Jason Barker

Medical cannabis qualified patient bill moves to the House

Medical cannabis residency bill approved by Senate  

Governor’s Legalization Group Recommendations Open The Door To Federal Interference 

Federal Marijuana Law 

[ About Jason Barker: He is an advocate for Elevate the Spectrum Inc. and for Safe Access New Mexico, an Affiliate of Americans For Safe Access; a freelance writer for Cannabis News Journal; and a medical cannabis patient in New Mexico.

Of the new health conditions added to the medical cannabis program 2018-2019, 5 of those new ones are from the Petitions submitted to the Dept. of Health for Safe Access New Mexico.
Obstructive Sleep Apnea (Dec. 2018)
Autism Spectrum Disorder (June 2019
Three Degenerative Neurological Disorders: Friedreich’s Ataxia, Lewy Body Disease, and Spinal Muscular Atrophy (June 2019)

Jason lives in Albuquerque with his dog, Tecumseh, who has a very severe case of canine epilepsy. Jason’s work has focused solely on medical cannabis issues, decriminalization of cannabis, hemp policy and does not work on legalization of cannabis for non-medical purposes or other illicit drug issues.

*Mr. Barker is not paid or employed in the medical cannabis industry nor does he have any financial interest in the medical cannabis industry or in a future recreational cannabis industry.]