Despite medical cannabis laws in 40 states, cannabis
is still illegal under federal law. The federal government regulates drugs
through the Controlled Substances Act (CSA) (21 U.S.C. § 811), which does
not recognize the difference between medical and recreational use of
cannabis. These laws are generally applied only against persons who
possess, cultivate, or distribute large quantities of cannabis.
Under federal law, cannabis is treated like every
other controlled substance, such as cocaine and heroin. The federal
government places every controlled substance in a schedule, in principle
according to its relative potential for abuse and medicinal value. Under
the CSA, cannabis is classified as a Schedule I drug, which means that the
federal government views cannabis as highly addictive and having no
medical value. Doctors may not "prescribe" cannabis for medical use under
federal law, though they can "recommend" its use under the First
Amendment.
Federal cannabis laws are very serious, and
punishment for people found guilty is frequently very steep. Federal law
still considers cannabis a dangerous illegal drug with no acceptable
medicinal value. In several federal cases, judges have ruled that medical
issues cannot be used as a defense, though defense attorneys should
attempt to raise the issue whenever possible during trial. Federal law
applies throughout Washington D.C. and the United States, not just on
federal property.
As of 2016, several federal agencies have issued
guidelines and other policy memorandums to manage the conflict between
federal and state laws as they pertain to medical marijuana. On August 29,
2013 the Department of Justice (DOJ) issued a guidance memo to prosecutors
concerning marijuana enforcement under the CSA making it clear that
prosecuting state legal medical marijuana cases is not a priority. The
memo included eight guidelines for prosecutors to use to determine current
federal enforcement priorities. Fortunately, most medical cannabis
program’s regulations require the same guidelines ensuring that any
business with a licenses are meeting these requirements as well. These
guidelines include:
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Preventing distribution of marijuana to minors;
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Preventing revenue from the sale of
marijuana from going to criminal enterprises, gangs or cartels;
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Preventing the diversion of marijuana from states
where it is legal under to state law in some form to other states;
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Preventing state-authorized marijuana activity from
being used as a cover or a pretext to traffic other illegal drugs or
other illegal activity;
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Preventing violence or the use of firearms in
cultivation and distribution of marijuana;
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Preventing drugged driving and the exacerbation of
other adverse public health consequences associated with marijuana use;
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Preventing the growing of marijuana on public lands
and the attendant public safety and environment dangers posed by
marijuana production on public lands;
- Preventing
marijuana possession or use on federal property.
There are two types of federal sentencing laws:
sentencing guidelines, enacted by the United States Sentencing Commission,
and mandatory sentencing laws, enacted by Congress. The Sentencing
Commission was created in 1987 to combat sentencing disparities across
jurisdictions. The current mandatory minimum sentences were enacted in a
1986 drug bill. Federal sentencing guidelines take into account not only
the amount of cannabis involved in the arrest but also the past
convictions of the accused. Not all cannabis convictions require jail time
under federal sentencing guidelines, but all are eligible for
imprisonment.
If convicted and sentenced to jail, a minimum of
85% of that sentence must be served. The higher the amount of cannabis,
the more likely one is to be sentenced to jail time, as opposed to
probation or alternative sentencing. Even for a defendant with multiple
prior convictions, being charged with low-level offenses may lead to
probation for the entire sentence of one to twelve months, with no jail
time required. Possession of over 1 kg of cannabis with no prior
convictions carries a sentence of six to twelve months with a possibility
of probation and alternative sentencing. Over 2.5 kg with no criminal
record carries a sentence of at least six months in jail; with multiple
prior convictions, a sentence might be up to two years to three years in
jail with no chance for probation.
In United States v. Booker (2005), a
Supreme Court decision from January 2005, the court ruled that the federal
sentencing guidelines (as outlined above) are advisory and no longer
mandatory. In addition to the sentencing guidelines, there are statutory
mandatory minimum sentences, which remain in effect after United States
v. Booker and primarily target offenses involving large amounts of
cannabis. There is a five-year mandatory minimum for cultivation of 100
plants or possession of 100kgs, and there is a 10-year mandatory minimum
for these offenses if the defendant has a prior felony drug conviction.
Cultivation or possession of 1000kg or 1000 plants triggers a 10 year
mandatory minimum, with a 20-year mandatory sentence if the defendant has
one prior felony drug conviction, and a life sentence with two prior
felony drug convictions.
Conflict between State and Federal Law
As of this printing, the federal government claims
that marijuana is not medicine and in Gonzales v. Raich (2005), the
United States Supreme Court held that the federal government has the
constitutional authority to prohibit marijuana for all purposes. Thus,
federal law enforcement officials may prosecute medical marijuana
patients, even if they grow their own medicine and even if they reside in
a state where medical marijuana use is protected under state law. The
Court indicated that Congress and the Food and Drug Administration should
work to resolve this issue.
The Raich decision does not say that the
laws of California (or any other medical marijuana state) are
unconstitutional; nor does it invalidate them in any way. Also, it does
not say that federal officials must prosecute patients. Decisions about
prosecution are still left to the discretion of the federal government.
According to a post-Raich statement by
California Attorney General Bill Lockyer, the ruling does not overturn
California law permitting the use of medical marijuana. Lockyer also
underscored the role of local law enforcement in upholding state, not
federal, law. A superior court has rejected the County of San Diego's
claim in a lawsuit filed against the State that California's medical
marijuana laws are preempted by federal law. As of this printing, that
case is pending on appeal.
States have recognized marijuana's medical value
and have either passed laws through their legislatures or adopted them by
initiative. In support of the numerous states that have taken
responsibility for the health and welfare of their people, and have
implemented medical marijuana laws, ASA is fighting for states' ability
and right to pass and enforce their own laws, regardless of federal law.
Protection from 2016 Budget Amendment
In 2014 and 2015, Congress called a ceasefire in the federal war on
medical cannabis. In the first change in federal law affecting patients
since 1970, when it classified cannabis as a dangerous drug with no
medical use, Congress approved a budget amendment that prohibits Justice
Department funds from being used to prevent states from implementing
medical cannabis laws. These restrictions on federal enforcement are part
of the 2016 funding bill for the Commerce-Justice-Science (CJS) budgets
and expire at the end of the fiscal year, September 30, 2016.
Known as the Rohrabacher-Farr or CJS amendment, it
first signed into law on December 16, 2014 and then again on December 18,
2015. 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.
Similar bipartisan amendments to limit federal
enforcement in medical cannabis states have been offered seven times over
the past 12 years without success. Over the past few years, ASA has
promoted citizen lobbying as part of the annual National Medical Cannabis
Unity Conference and Lobby Day in Washington, DC. Hundreds of visits from
patients and advocates have helped demonstrate to Members of Congress that
medical cannabis is an issue important to their constituents.
Courts uphold the CJS Protections: U.S. v Marin
Alliance for Medical Marijuana
On October 19, 2015, Judge Breyer from San Francisco’s federal court ruled
that the prosecutions of medical cannabis defendants must be consistent
with the Rohrabacher-Farr Amendment in a long standing case with Marin
Alliance for Medical Marijuana (MAMM) and its founder Lynette Shaw. Judge
Breyer ruled that the Amendment "forbids the Department of Justice from
enforcing this injunction against MAMM to the extent that MAMM operates in
compliance with state of California law.” In other words, as long as
providers adhere to state law, the Amendment prevents DOJ from shutting
down state-legal providers.
While this is a major victory for medical cannabis
patients and providers, it is important to note that this case is not
binding in other federal jurisdictions, and judges in other jurisdictions
could rule otherwise. In early 2015, a federal judge in Washington State
refused to dismiss the Kettle Falls Five case when presented with a motion
invoking the Amendment. However, the judge in that case had determined
that there was a strong likelihood that the defendants had violated state
law, and there was not a similar determination made in the MAMM case.
Federal Agencies Grappling with State Conflict
Today, several federal agencies have issued guidelines and other policy
memorandums that are legitimate efforts to manage the emerging issues
within medical marijuana. In fact, as of 2016, every federal agency except
the Drug Enforcement Administration (DEA), has stopped ignoring medical
cannabis. Starting with the 2009 Ogden memo and later the 2013 by Deputy
Attorney General James Cole, the Department of Justice has made clear that
state legal medical marijuana is not a priority. In 2010, the VA updated
their policies to no longer deny veterans’ access to medical services due
to their participation in a state-legal medical marijuana program. In
2014, the Treasury Department issued guidelines to facilitate banking in
the marijuana industry.
Information being disseminated to the public from
federal agencies has also improved, including the National Institute of
Drug Abuse (NIDA) DrugFacts: Is Marijuana Medicine?, the Food and Drug
Administration’s FDA and Marijuana: Questions and Answers and the National
Cancer Institute’s Cannabis and Cannabinoids. Research barriers are also
beginning to fall, with the Office of National Drug Control Policy lifting
the Public Health Service (PHS) review, a hurdle only cannabis researchers
had to clear in 2015. Likewise, NIDA now supports letting other research
centers grow research cannabis, ending the NIDA monopoly.
Ending the War: CARERS Act of 2015
The Compassionate Access, Research Expansion, and Respect States Act (CARERS)
of 2015 is the most comprehensive piece of federal medical marijuana
legislation ever introduced in the U.S. Congress. The bipartisan act which
is sponsored in the Senate by Sen. Cory Booker (D-NJ), Sen. Rand Paul
(R-KY), and Sen. Kirsten Gillibrand (D-NY) and, in the House of
Representatives, by Rep. Steve Cohen (D-TN) and Rep. Don Young (R-AK)
combined a handful of medical cannabis bills that had been introduced over
the last decade. This important bill would remedy the state-federal
conflict over medical marijuana law, with far-reaching impacts, including:
- Allowing state programs to continue without
federal interference
- Moving marijuana out of the Schedule I list
- Removing CBD from the scheduling
- Creating access to banking services for legal
marijuana businesses
- Ending the DEA-Imposed NIDA monopoly that
blocks research
- Allowing Veterans Affairs doctors to write
recommendations in states that have a medical marijuana program.
Congress has until December 31, 2016 to pass the
CARERS Act.
This information was furnished by Americans
Safe Access Now whose mission is to ensure safe and legal access to
cannabis (marijuana) for therapeutic uses and research. ASA works with our
grassroots base of over 50,000 members to effect change using public
education and direct advocacy at the local, state, and federal level. To
learn more about American Safe Access Now, go to
www.safeaccessnow.org.
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