How the Department of Justice Intends Fighting Medical Marijuana

medical marijuana

The US Department of Justice has released a memo indicating how the US attorneys should prosecute defendants in medical marijuana cases, showing it does not regard the 2014 Cromnibus as preventing prosecutions under state laws.

The memo was written in February but just released.

President Obama signed into law the Consolidated and Further Continuing Appropriations Act of 2015. Section 538 states:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, [and every other medical marijuana state], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Section 538 does not change the federal Controlled Substances Act and the Cromnibus itself only controls the federal budget through the end of next month, but many medical marijuana industry advocates and businesses believed Section 538 prohibited the DOJ from using federal funds to prosecute anyone conducting medical marijuana business legally in states that have legalized it.

According to the memo, “Defendants charged with violations of the federal Controlled Substances Act (“CSA”) . . . have begun filing motions challenging their prosecutions on the ground that the government’s expenditure of funds in enforcing the CSA against them violates Section 538.”

The memo says that Section 538 does not provide a legal defense to the DOJ’s enforcement of the CSA and “. . . the [DOJ’s] position is that Section 538 does not bar it from using funds to enforce the CSA’s criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities consistent with the Department’s guidance regarding marijuana enforcement.”

What does the DOJ say regarding the section and how its attorneys should deal with those seeking its protection from prosecution?

These are its suggestions as outlined in the document:

  • Section 538 applies to states, not to individuals.
  • Section 538 prohibits federal spending for civil challenges to states implementing a legal medical marijuana system, but it does not apply to individuals or business entities even if those individuals or entities comply with state law.
  • Section 538 does not prohibit the DOJ from enforcing the federal Controlled Substances Act against individuals and business entities even in states with legalized medical marijuana regimes and if Congress had intended that outcome, it would have explicitly said so somewhere in Section 538.
  • The legislative history of Section 538 is “sparse,” and though a couple of Congressional representatives opined that Section 538 would prevent enforcement of the federal Controlled Substances Act in states with legal medical marijuana, those statements are “not sufficiently authoritative to overcome the best reading of the text.”
  • Section 538 does not explicitly repeal the federal Controlled Substances Act and there is no proof Congress intended such a repeal.
  • Section 538 is an appropriations provision, not a criminal statute, and the Rule of Lenity therefore does not apply.
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