Recent DOJ Letters May Signal Increased Federal Efforts To Prosecute Medicinal Marijuana Under the CSA

Jun 01, 2011   
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Recent Department of Justice actions may signal an impending crackdown on the medical marijuana industry by federal authorities. The issue of medical marijuana is a textbook example of the interplay between State and Federal governments and highlights issues of federalism, preemption, and the Supremacy Clause of the U.S. Constitution.

Though 15 states currently allow for the use of medical marijuana, marijuana remains prohibited under federal law. Under federal law, marijuana is classified as a Schedule 1 drug under the CSA. Drugs classified as Schedule 1 have been found by Congress to: 1) have a high potential for abuse; 2) have no currently accepted medical use in treatment in the US; and 3) lack accepted safety for use under medical supervision. Additionally, no prescriptions may be written for CSA Schedule 1 drugs. Therefore, though it may be legal under state law to possess, cultivate, and/or distribute marijuana for medicinal purposes, such actions violate federal law.

The conflict between the rights of citizens under state medical marijuana laws and the federal CSA has played out in several landmark decisions in the U.S. Supreme Court over the past decade. In United States v. Oakland Cannabis Buyers Cooperative, 582 U.S. 483 (2001), the Court was faced with a battle between the rights of citizens under California law and the CSA. Under the California Compassionate Use Act, a patient or his primary caregiver could cultivate or possess marijuana on the advice of a physician. Oakland Cannabis Buyers Cooperative was organized to distribute marijuana to qualified patients for medical purposes. The United States sued to enjoin the Cooperative under the CSA arguing that the Cooperatives activities violated the CSAs prohibitions on distributing, manufacturing, and possessing with the intent to distribute or manufacture a controlled substance. In response, the Cooperative argued that a common law medical necessity defense should be written into the CSA and that because California law allowed for medicinal use, the medical necessity defense should apply.

In siding with the government, the Supreme Court held that there is no medical necessity exception to the CSAs prohibitions on manufacturing and distributing marijuana. The Court went on to explain that Congress made a value judgment in placing marijuana in Schedule 1 under the CSA. As such, because the CSA defines Schedule 1 drugs as having no currently accepted medical use, medical necessity could not be used to avoid prosecution.

In Gonzales v. Raich, 545 U.S. 1 (2005), the Supreme Court directly addressed the issue of whether Congress, pursuant to its Commerce Clause authority, could regulate and prohibit the local cultivation of marijuana which complied with California state law. In Raich, the Respondents were California residents who qualified for medicinal marijuana under the states Compassionate Use Act. After federal agents seized and destroyed all six of Monsons cannabis plants, the respondents filed suit seeking injunctive and declaratory relief prohibiting the enforcement of the federal CSA to the extent it prevented them from possessing, obtaining, or manufacturing cannabis for their personal medical use. The respondents claimed that enforcing the CSA would violate the Commerce Clause and other constitutional provisions. In response, the government argued that the Commerce Clause permitted regulation of even entirely intrastate activities so long as those activities are part of an economic “class of activities” that have a substantial effect on interstate commerce.

In holding that the CSAs prohibition of locally grown and used marijuana was permissible, the Court found that Congress had a rational basis for concluding that local marijuana substantially affects interstate commerce. The Court found that Congress can regulate purely intrastate activity that is not itself “commercial,” i.e., not produced for sale, if it concludes that failure to regulate that class of activity would undercut the regulation of the interstate market in that commodity. The Court went on to find that due to the inability to distinguish or prevent locally cultivated marijuana from entering the interstate market, the failure to regulate it would undermine the purposes of the CSA as a whole.

Post-Raich, the position of the DOJ throughout the remainder of the Bush administration was that any use of medicinal marijuana, though legal under state law, could and would be prosecuted under the CSA. However, this position appeared to change under the Obama administration with the publication of the Ogden Memorandum in 2009. On October 19, 2009, the DOJ announced that, while it was committed to the enforcement of the CSA, it was also committed to efficient and rational use of its limited resources. Therefore, the DOJ advised that prosecutors “should not focus federal resources in [their] States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.” A copy of the Ogden Memorandum can be read here.

However, news organizations such as NPR have reported that over the course of the past several months, the U.S. Attorneys Office has issued letters to 8 of the 15 state governments which authorize the use of medicinal marijuana emphasizing DOJs commitment to enforcing the Controlled Substances Act (“CSA”) vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana under federal law, even if such activities are permitted under state law. A copy of NPRs report can be read here.

In the wake of these letters, DOJ spokespersons have emphasized that the Ogden Memorandum neither legalized marijuana possession nor provided a defense to prosecution under federal law and that distribution continues to be a federal offense. As a result, dispensaries, which are legal under some State medical marijuana laws, may face a renewed risk of prosecution.

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