Will Colorado Conservatives Flunk This States' Rights Test?

What began as a Coloradocentric news story -- suburban Denver man, Chris Bartkowicz, busted by the DEA for growing medical marijuana in his home -- is quickly shaping up as something more significant, as the Denver Post explained Friday. The case will not only test whether federal drug policies trump partial drug legalization that's been written into a state constitution. Even more interestingly, it will test whether Colorado conservatives, like Attorney General John Suthers, support states' rights in theory only, or whether they'll defend them in practice on an issue as controversial as medical marijuana.

"Bartkowicz, who was arrested Feb. 12 by Drug Enforcement Administration agents after they seized more than 200 marijuana plants that Bartkowicz said were for medicinal use, is the most high-profile person involved in medical marijuana in Colorado to face federal prosecution.

He is also one of the only people nationwide to face federal charges since a Justice Department memo in October said federal agents should respect state medical-marijuana laws.
That convergence of circumstances — federal law, in which all marijuana is illegal, versus Colorado's constitutional protection for medical marijuana — makes the case fertile legal ground . . .

. . . . two elements could add fresh legal intrigue to Bartkowicz's case. The first is that Colorado's legal protection for medical marijuana is written into the state's constitution, whereas other medical-marijuana states have lower protection. Denver medical-marijuana attorney Warren Edson said that could give Bartkowicz a stronger argument that his prosecution violates states' rights. . . .

. . . The other wild card is the Justice Department's October memo, which said the government wouldn't target people in "clear and unambiguous" compliance with state medical-marijuana laws. [One expert] Hermes said it is possible that defense attorneys could use the memo as ammunition in a federal case. Indeed, there is a defense called "entrapment-by-estoppel," where defendants argue the government fooled them into breaking the law by leading them to believe what they were doing was legal."

Self-proclaimed conservatives love to prattle on about freedom and states' rights. But this is a litmus test of whether they truly believe it.

They want government out of our lives, they say, and more freedom, but many conservatives draw back when free citizens choose to treat real or perceived maladies with medical marijuana. Country club conservatives can sip Stellas and cosmos until their heads swim, and dope themselves happy on over-the-counter narcotics and mood-enhancers. But for them, Nancy Reagan offered the last word on the drug question when she just said "no."

These conservatives say they support more autonomy for states, against encroachments by Uncle Sam. But they think Uncle Sam automatically knows best when it comes to enforcing rational drug rules, even when those rules clash with state law. They're content to see Coloradans living under the threat of DEA drug raids and federal prison sentences, for engaging in an activity that has been legal here for a decade. Nancy Reagan has the final say again.

Conservatives also say they support the protections afforded by a written constitution. But that position gets shaky if what is written into the state constitution conflicts with their personal prejudices, or with rules from Washington they selectively approve of.

Liberals generally are content to have states living under Washington's long shadow. The more regulation the better, from their perspective. Those who support partial or full drug legalization may be forced to do some re-thinking as a result of this case, but it doesn't cause the cognitive dissonance it does for folks on the right.

The situation creates much bigger problems, in terms of consistently applying one's ideology, for conservatives. They may rattle the chains over federal seatbelt mandates, or grumble about the absurdities of the Endangered Species Act. They will cheer if states buck Washington on a host of other issues. But they seem content to let a few agents in DEA's Denver office trample all over the Colorado Constitution by hauling Bartkowicz into federal court. They're content to have the DEA scaring the hell out of every medical marijuana patient and distributor in Colorado, though it's been legal here for a decade.

So much for personal freedom. So much for states' rights. So much for defending the state Constitution, which explicitly allows the medicinal use of marijuana, against federal interference. These sorts of Republicans aren't very different from Democrats, really; they're the kind of Republicans who led the party of freedom and limited government so far from its roots. And then they rail about the alleged "hypocrisy" of medical marijuana advocates.

So why did the DEA decide to break the drug war détente in Colorado? The short answer can be summed-up in two words: John Suthers. I believe the DEA was encouraged by the fact that we don't have an attorney general who will raise objections, or stand up for Coloradans or the Colorado Constitution, when the issue is medical marijuana. Quite the opposite, in fact -- we have an attorney general who almost invites such actions, with his derision of medical marijuana participants and his refusal to recognize Amendment 20 as legitimate.

Suthers tried to ignore Amendment 20 for as long as he possibly could. He was happy to let federal drug enforcers dictate the rules in Colorado, by intimidating Coloradans who dared to engage in a legal activity. When the Obama administration adopted a more reasonable stance, pledging less interference in states where legalization had taken place, there was an explosion of pent-up demand and activity in Colorado, causing consternation in law enforcement circles. Lines that were once boldly drawn are now blurred. The reactionaries responded as one might expect. And they've gotten encouragement all along the way from our reactionary attorney general.

Suthers' new tactic is to interpret Amendment 20 so narrowly that it lacks any real meaning; to deride MMJ participants as a bunch of fakers and potheads; to continue fighting a battle he lost back in 2000. No wonder the DEA chose Colorado as the place to pull a drug war bait and switch. It got an engraved invitation from the state's top lawyer.