The dea, prescribe controlled substances. So in the state medical Marijuana Program the required position to asia prescription for marijuana would be a nonstarter. No positions going to risk the registration with the dea, a medical practice, their livelihood in order to prescribe marijuana. In fact, the states already knew this when california passed proposition 215 back in 1996. I put up your the example of a law that was passed almost two decades prior to californias medical Marijuana Law. This one was passed in virginia in 1979. It is a law, a medical Marijuana Law allows people to possess and use marijuana free of state sanctions so long as they get a physicians prescription to use the drug. Laws like virginias law from 1979 in have any effect. No physician was willing to follow through, issue a prescription so they are still on the books in the states but they didnt have any practical effect. California at least the proposed a proposition 15 found a workaround. What was that . Proposition 215 only required a physician to recommend not to prescribe. That may seem like semantics, like the state was playing word games. That was the deas position but california later convinced the ninth circuit it made a difference. That, in fact, when a doctor simply recommend marijuana, all that entails is having a conversation with the patient were you declared you might benefit from the use of marijuana, the ninth circuit declared that was protected speech under the First Amendment. As a practical matter that meant the dea could punish doctors for issuing the recommendation even though it could punish them for issuing a prescription. So every state following californias adoption of proposition 15 come every other state that adopted medical Marijuana Law has followed california and requires only a recommendation to a color different things, a written certification and so on. They do not require a prescription. I second what the states have worked around federal laws, the states have found ways to defuse the threat of federal crackdowns on marijuana supply. Stayed marijuana reforms would really be hollow if people couldnt actually get marijuana. Its like me tell you my five year old son you can have an alligator as a that. You can buy it the next on the go to pet smart. Hes going to be happy with me, he will be happy ive allowed them to get an alligator as a pet. He will be sorely disappointed and probably bad at pet smart when he discovered that offer would. In the past 20 years the states have tried to provide marijuana in two basic ways, provide two basic ways for people to legally obtain marijuana under state law. Want is to grow it themselves. Personal cultivation. That is normally considered under most states to be a trafficking offense but the state said you can grow it yourself. Another way is a commercial model where states said you can go and buy this drug from Osama Marshall operation, like a big shop that you see in colorado today. Today in fact the states have mixed and matched these two different forms of supply. Their regulations employ one of the other of these two models and we can basically fall into, we can typecast state regulation into one of four different types. What is some states that allow you to get marijuana but only if you want to sell 40 that the caregiver do it. This is becoming increasingly rare pic michigan may be one of the few states that still falls of this is the only way to get it is to go to sell. You cant bite from a store. Theres no commercial operation. Second model states have followed, you would have commercial operations. You cant grow it yourself. You have to buy from some big highly regulated chop. A third model is similar to the one here in colorado. Its a mixed supply model. You can go to so that you want or you can go into one of the hundreds of dispensaries are now in operation across the state. Theres a fourth model employed by a couple states that really is quite similar to the second one. Its where they preferred commercial cultivation. Arizona, massachusetts are two examples. The states to go to a store to buy marijuana. We normally dont want you to grow it but if a store is too far away from the house you can go in and put yourself if theres hardship, in other words. This next graph depicts the popularity of these for regulatory models over time. The red on this particular chart depicts those states that have the personal cultivation only. In other words, if you wanted marijuana you had to grow it yourself. Blue depicts the dates this eu can only get it from a big star. Purple is a combination of those two things. You can choose to get it from a store on to put yourself. And the bluish color under the solid blue, the middle one, or the states preferred commercial cultivation but make some exception for personal cultivation. As you can see from this chart in the early days of reforms, think of 1996 as early days or longer go, personal cultivation was the only game in town. In other words, states were exclusively or almost exclusively red. There were shops and robbery in california and elsewhere those shops were illegal under state law. At least until 2003 when a couple of state started experimenting with this. That was really only until around 2009 that stage really started to embrace that commercial distribution model. In other words, creating or allowing these commercial stores to sell marijuana. Those early states, the early adopters that were in grad turned purple. They allow people to grow it but no starch allow people to buy it from stores and interestingly every state that has passed marijuana reforms since 2009, every single one of the states is a blue state or one of those mixed blue states. That is, they want you to go to a store to buy it rather than to grow it yourself. So why the early reluctance to embrace commercial cultivation . Why the sudden shift to commercial cultivation and other states in 2009 . It goes back to federal enforcement. Those large scale commercial suppliers are much more affordable targets for federal enforcers that are the little guy, the person who is growing a handful of plants in the basement for the own needs or for the needs of someone. Taking care of. In the early days of the federal government was willing and able to try to shut down those large commercial suppliers but it simply couldnt arrest the little guy. They could go after individual patients and caregivers growing only a small number of plants because there were far too many of them. Hundreds and hundreds and thousands in the states. The states that were early adopters of the new the federal government would crack down on commercial supply, the states embraced personal cultivation. At least in part because it was the only way they can ensure that qualified patients would actually have a supply of marijuana that would not be interrupted by the federal government. But in 2009, of course you see this big shift. Thats when federal enforcement priorities started to change. Federal enforcement practice. That was the first Year Department of justice issued one of its enforcement memoranda. This one was called although it was quite cautious if you are too ready to many people perceived as essentially giving the green light to commercial cultivation as essentially the federal government saying its okay to set up the stores that will sell marijuana to patients. That helped spur this dramatic shift in state law. Thats why state started to legalize commercial cultivation following the issuance of this memoranda. You saw of course state licensed stores proliferating. This is a map of colorado. The green dots represent state licensed stores, stores that are licensed by the state to sell marijuana. Circa 2004 there are even more on the map today. There are hundreds of these state licensed shops in colorado and in other states as well. But even as this commercial supply has caught on, or something the states havent done that seems a little surprising. But again it seems surprising only until you consider federal law. Let me give you my final example. Were on the state run Marijuana Stores . To this day no state has directly owned and operated a Marijuana Store. A commercial Marijuana Store. This is surprising to me. In light of this state experience following the repeal of alcohol prohibition. When the states repealed alcohol prohibition many decided to own and operate a piece of the alcohol distribution market. They thought of this as a way to curb illegal sales of alcohol and also way to curb the Natural Inclination of private for Profit Enterprises to grow their market. That model has lost some popular today but even today about a third of the states continue to directly control some aspects of alcohol distribution. This is i think a state alcohol store in New Hampshire thats depicted up there. Why havent the states done this for marijuana quick snort why are there not any state owned and operated Marijuana Stores. This is an instance where the states havent been able to work around federal law. In particular they havent been able to work around preemption concerns. If the state were to own and operate a marijuana Tissue Fusion center, a Marijuana Store, its arguable so what could come up, file a lawsuit arguing that the state operation was preemptive and get an injunction to block this operation. The same thing could not message will be done with a private licensee because a private licensee of the state isnt necessarily a state actor. As he was earlier that might be suits brought against the state regulations, a license regulations of that private actor but even if you eliminate those regulations it doesnt stop the person from operating the store. They may just do so clear evidence that restrictions. Even if these preemptions in terms are out there, they are much more salient for state owned and operated stores. I think that the reason why the states have not gotten into this particular business. Let me briefly conclude and give my thoughts on whether this is a good thing. I think these three examples show how federal law has influenced the development of state law. In a large way to really distorted the development of state law. I think for the last 20 years the federal government as well as been playing a highrisk strategy. In other words, the federal government was backing that the states would not be willing to repeal the on probation betting if they could get doctors to issue prescriptions and the prescription monitoring programs that they had, that they couldnt go out and create these large tightly regulated commercial operations. And the federal government got it wrong. The states were willing to do that. The result that we have is less than ideal. Both from for perspective of the states and from the federal government. What we end up with is a system that doesnt quite one that any state in isolation but its left to its own devices would necessarily about. Let me give the example come to go back to the example of personal cultivation. Alex hall the idea modeled for the states in the early years, that was hardly to say 70 year old cancer patient you can use marijuana legally cant just go it yourself. Not everyone has that sort of green thumb our access to friends, even in california who know how to grow and distribute marijuana. So from the perspective it didnt serve patients to doctor personal cultivation model. Even from the federal governments perspective this wasnt necessarily a model you would want the states to choose because the states chose it to be paid federal Law Enforcement. They knew the federal government couldnt crack down on his personal cultivation operations. At the same time for the same reason it was tough for the federal government to stop those personal cultivation operations, it was also tough for the states to supervise them. Are typical for the 62 out and monitor the 50,000 or 100,000 patients who may be going up to plants and a basement to make sure theyre not selling album on the side or youre not using it right racially and so on. Ultimately, i think this example of marijuana tries to show how we hardball strategy or take the pressure strategies like that pursued by the federal government at least in the early days isnt one that mostly works out well for either party in the into. Thank you so much. And thank you, judge, for the invitation ethics to the organizers. Im thrilled to be here and to talk with all of you about this important issue. Im so going to take over from rob and talk what i call the stalemate over Marijuana Law. Rob is sort of i think very able he given us a sense of how we got to this point and want to talk about where we are now at what the indications are that particularly going into the election 2016 and policymaking in 2017 and beyond. Rob mentioned the 2009 on the memo. This was replaced and 2011 by another more cautionary memo from the department of justice and finally 2013 we had a number were all living under today which most people refer to as the cold memoranda. This state the obvious as rob pointed out, that the State Governments to most of the work of Drug Law Enforcement in this country, double the federal government prohibits marijuana it continues to grip of marijuana, the states by the foot soldier in the war on drugs. Marijuana should be no different from that even as states experiment with alternatives to prohibition. The coal memo in 2013 deference to the states, and willingness to let the states engaged in experiments that brought discredit. So long as theres a federal criteria set forth. The principal one and what im sure our fans to the north and east want something to say about shortly is marijuana from states authorized by state laws to states where it is now. And others is a sale of marijuana to minors the other things such as the involvement of organized crime of the drugs, guns and his vision of marijuana were all prohibited. But the coal amendment says as long as the federal government, as long State Government are doing a good job along these eight metrics, the federal government would defer to the policymaking choice. Other memoranda from the department of treasury, the Financial Crime memo which was reported to encourage banking, a separate memorandum on the capacity of Indian Tribes and nations to produce and sell marijuana and private statements by the president obama and attorney general holder were on the same direction. That is can we see what the states are doing. We see how this is now the view of strong plurality of states moving, giving an account is a majority or supermajority of states and were going to see if that experiment plays out. So its really important to the state and the cole memo stated marijuana is still prohibited by federal law. This is an enforcement prior this being stated in the Cole Memorandum and does not have the force of law. This is not the legalization of marijuana. Its simply a matter of enforcement. This was written into law, this forbearance was written into law albeit in a slightly obscure way through the enactment of the rohrabacherfarr amendment to various federal spending provisions. If you havent heard about these, dont beat yourself up. This was paragraph 542 of a very long spending bill is enacted by congress both in 2014 and 2015. Which stated not of the funds made available in this act, the department of justice babies with the specter and it listed 34 different states, to prevent such states who implement their own state laws that authorize the use, just a vision, possession or just to be sure medical marijuana. That is, we are not, the funds authorized may not be used by justice to prevent such states from implementing their own state law. Thats the language of the statute. It was a number of criminal defendants in california and elsewhere, so this meant the Justice Department was now prohibited from enforcing criminal of Marijuana Laws in those states where that conduct was on the rise by states medical law. So states that this section 542 as a prohibition on prosecution, and just three weeks ago to the ninth Circuit Court of appeals again in california agreed. It said we conclude that section five different the department of justice from spending funds from the appropriation act for the prosecution of individuals who engage in conduct permitted by state medical Marijuana Laws and to fully comply with such laws. This is an amazing. This says that if you are acting in accord with state law giving up to prosecute under federal law. It also creates some odd circumstances where in a federal prosecutor becomes relevant with your compliance with state law. There are some examples of federal courts in that kind of determination but i think this will lead to quite a bit of litigation over who exactly, of who exactly is in accord with state law and what state laws will count, if the state were to say we think all use of marijuana has medical use. Does that mean all people are insulated from federal prosecution . Even if it were to mean that, and its too soon to exactly what that means, what we have is really a truce and not a peace between the state and federal governments. I say that because as the cole amendment made clear and the macintosh decision from the ninth circuit did not disturb, marijuana remains illegal under federal law and help any lawyer who speaks to any client on any legal matter concerning marijuana, those are the first words out of his or her mouth. Marijuana remains illegal under federal law and the reason its so important state that even if the justice but has said it will not be prosecuting and the ninth circuit has said it cant come there are lots of what i call collateral consequences of marijuanas continuing federal illegality. The probably best known of these is the banking problem. That despite the fincen memo no bank will consistently or for long bank the Marijuana Industry. That means in Colorado Marijuana was a 1 billion cash business. That is a. Package a bad idea. Its a bad idea for people in the business to have to pay their employees in cash. It is a bad news for those of us have to go home with the pay checks and cash. But more than that it is b