November 2021—HARVEST ISSUE

Seed Money in Maryland

In my daytime gig as a criminal defense attorney, I am often called upon to explain to my clients the purpose of criminal laws.  Sometimes the law reflects a clear and shared understanding by society of what is legally permissible–murder and theft are two good examples.  But sometimes the law is not so clear, which can lead to a fairness problem when a violation of the law comes with a criminal sanction such as a fine or incarceration.  One important concept essential to our understanding of fairness is procedural due process.  This right for a defendant is enshrined in the Due Process Clause of the Fifth Amendment and the Fourteenth Amendments to the U.S. Constitution.  The constitutional protection against government abuse is based on the idea that there must be a clearly defined law before there can be a crime. But what if a patient or caregiver is unaware that they are breaking the law because the law is so widely unenforced and ignored?  Is it fair to punish someone who didn’t know their conduct was unlawful?

A trial court must presume that every individual who appears before it knows the law and understands it.  In fact, the court system depends upon that unspoken premise.  Otherwise, every litigant could claim ignorance of the law.  Which brings us back to the US Constitution’s protections for defendants.  The Due Process Clause of the Fifth Amendment, made applicable to the states through the Fourteenth Amendment, requires a Court to invalidate a criminal statute if it is “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.”  What happens when the laws pertaining to Cannabis are so highly specialized, contradictory, and confusing that neither the police nor the courts can fairly apply the law?

Let’s use the purchase of Cannabis seeds as an example.  Under Maryland law, you can order Hemp seeds from a seed bank anywhere in the world and lawfully grow one pound of it at your home without question.  However, if you order seeds and grow one pound of Marijuana at your home, you would be committing a felony punishable by up to five years incarceration and/or up to a Fifteen Thousand Dollar fine.

Hemp and Marijuana are not distinguishable by physical appearance or smell.  And both Hemp and Marijuana come from the same plant from the genus Cannabis.  So what is the difference?  How would one know if their Cannabis plant was above or below the .03% threshold distinguishing Hemp from Marijuana?  What if the seed didn’t germinate as advertised?  There is no mechanism in Maryland law for an individual to get their Cannabis plant tested to make certain that it is Hemp.  And medical Cannabis dispensaries dispensaries in Maryland do not sell seeds to patients to grow their own medicine.  So why is the sale of Cannabis Seeds so easy, available, and not prosecuted?

The web sites I checked clearly warned me that it was illegal to grow a Marijuana plant from my seed.  But it assured me that it was perfectly lawful to purchase the seed itself so long as I didn’t germinate it.  I could tell that there were only a few major large-scale seed banks selling Marijuana seeds in three varieties (Regular, Feminized, and Autoflowering).  And they all disclaimed any liability, criminal or otherwise, for filling a seed order.

So I checked again, and Maryland law is clear.  Marijuana seeds are part of the defined term Marijuana, which in Maryland means “all parts of any plant of the genus Cannabis, whether or not the plant is growing;  the seeds of the plant . . . and each compound, manufactured product, salt, derivative, mixture, or preparation of the plant, its seeds, or its resin.”  And of course, Marijuana does not include Hemp as Marijuana.

Similarly, federal law is also clear, and defines the plant similarly.  The term “Marihuana” is defined as “all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; . . . and every compound, manufacture, salt, derivative, mixture, or preparation of such plant, its seeds or resin.”  The term does not include Hemp oil or cake made from the seeds of the plant . . . or the sterilized seed of such plant which is incapable of germination.”  So what then is the point of these largely symbolic laws that are formally in effect in the criminal code, but which are not penalized by a jurisdiction?  Long story short—there is no point other than to serve as a trap for the unwary and provide cover for selective enforcement.

Such legislation appears to be largely the remains of drug wars past.  The Maryland criminal code is filling up with legislation that is increasingly contradictory and symbolic in nature.  No doubt there are real problems with unenforced laws remaining on the books, especially if those leads to arbitrary application of the laws across different groups either by police or the courts.  Does the existence of laws that are no longer enforced create a disrespect for the laws or a diminishment of its deterrence effect?  We still don’t know.  But we do know that the failure of our lawmakers to enact clear legislation governing Cannabis makes us all unsafe.