A critical appraisal of the Department of Justice's new approach to medical marijuana.

• Author: Mikos, Robert A.

INTRODUCTION

The Obama Administration has embarked upon a much-heralded shift in federal policy toward medical marijuana. Eschewing the hardball tactics favored by earlier administrations, Attorney General Eric Holder announced in October 2009 that the Department of Justice (DO J) would stop enforcing the federal marijuana ban against persons who comply with state medical marijuana laws.

On the surface, the Non-Enforcement Policy (NEP) signals a welcome reprieve for the more than 400,000 people now using marijuana legally under state law and the thousands more who supply them. Under the Clinton and George W. Bush administrations, the DOJ had campaigned vigorously against medical marijuana programs. For example, the Drug Enforcement Administration (DEA) raided hundreds of medical marijuana dispensaries and threatened to derail the careers of physicians who recommended marijuana to their patients. Under the Obama Administration, it would seem, patients, physicians, and dispensaries can breathe a lot easier.

What is more, the NEP appears to cede an important policy domain to the states. Medical marijuana has been one of the most salient and contentious federalism battlegrounds of the past fifteen years. Federal officials have railed against the intransigence of the states; state officials have protested overreaching by the national government; and the Supreme Court has twice weighed in to settle jurisdictional disputes over the drug. The NEP seemingly calls a truce in this war, but its impact could extend more broadly. The states' pioneering efforts regarding medical marijuana have already fueled calls for even more ambitious drug law reforms, including proposals to legalize marijuana outright. The NEP could bolster calls for reform and accelerate the pace of change.

Given the significance of the medical marijuana issue in both criminal law and federalism circles, this Article sets out to provide the first in-depth analysis of the changes wrought by the NEP. In a nutshell, the Article suggests that early enthusiasm for the NEP is misguided; on close inspection, the NEP represents at most a very modest change in federal policy. To begin, the Article suggests that the NEP will not necessarily stop federal law enforcement agents from pursuing criminal prosecutions. In a twist of irony, the non-enforcement policy itself is not enforceable. It does not create any legal rights a court could invoke to dismiss a criminal case. Even the DOJ will have a difficult time ensuring that federal prosecutors comply with the agency's own stated policy.

Even assuming the NEP ends all criminal prosecutions against state-law-abiding dispensaries and users, federal law could still obstruct state medical marijuana programs by imposing--or allowing others to impose--a wide range of civil and private sanctions on medical marijuana users and suppliers. At bottom, the problem is that the NEP does not repeal the federal ban on marijuana--marijuana technically remains illegal under federal law and that ban triggers a host of civil sanctions on top of the criminal sanctions controlled by the DOJ. For example, the Department of Housing and Urban Development (HUD) can deny federal housing subsidies to medical marijuana users, and pharmaceutical companies could potentially bring civil RICO actions against marijuana dispensaries. What is more, the federal ban arguably preempts states from shielding marijuana users and dispensaries from sanctions imposed by private parties. For example, as long as marijuana remains illegal under federal law, employers can likely avoid liability under state law for discriminating against employees who use the drug for medical purposes. Metaphorically, the federal ban is a hydra, only one head of which has been severed by the NEP (and one that could too easily be regrown). The labor of ending federal prohibition is not yet complete.

I do not mean to overstate the threat federal law poses to the medical marijuana movement. As I have argued elsewhere, the federal government lost the war against medical marijuana long before the NEP. (1) It never had enough law enforcement resources to quash medical marijuana on its own, and it could not compel the states' assistance. "Medical marijuana use ... survived and indeed thrived in the shadow of the federal ban." (2) The question now is whether the federal government will allow the states to construct a sensible regulatory regime free of federal interference or whether it will instead wage an ongoing guerilla-style campaign against medical marijuana--one with many casualties, but with no real victory possible.

The Article proceeds as follows. Part I provides some background on medical marijuana laws, state and federal. It also details the NEP and the apparent shift in federal enforcement policy. Part II explains why the NEP does not necessarily preclude federal criminal prosecutions, even when defendants faithfully comply with state law. Part III then discusses other civil sanctions that could still be levied against medical marijuana dispensaries and users. It also examines the possibility that certain state laws that purport to shield marijuana users and suppliers from private sanctions could be successfully challenged as preempted.

1. BACKGROUND

   This Part provides a brief introduction to federal and state medical marijuana laws and enforcement practices. (3) Subpart A discusses the substance of federal and state law. Subpart B details the federal law enforcement response to state medical marijuana programs under the Clinton and George W. Bush administrations. Subpart C then discusses the details of the Obama Administration's apparent change in course, embodied in the NEP.

   A. Marijuana Law

   Since the Controlled Substances Act (CSA) was passed in 1970, the federal government has banned the possession, cultivation, and distribution of marijuana. (4) Violations of the ban can trigger harsh criminal and civil sanctions, especially for trafficking offenses. (5)

   Federal law does not distinguish between medicinal and recreational uses of marijuana: both are forbidden. Lawmakers have repeatedly rebuffed campaigns to reschedule marijuana under the CSA, a step that would permit marijuana to be used for some medical purposes. (6) Likewise, courts have refused to carve out exceptions to the CSA, even for individuals who claim a dire need for the drug. (7)

   Despite the federal government's steadfast opposition to recognizing marijuana as medicine, a large and growing number of states have reformed their own laws regarding medical marijuana. Starting with California in 1996, fifteen states have now legalized medical marijuana under state law. (8)

   The particulars of these state laws vary, but as a general matter, all of them permit a resident to possess, consume, and grow marijuana by obtaining a qualifying diagnosis and recommendation from a board-licensed physician. Most states have also adopted regulations to help curb abuses of the laws. For example, states require physicians to conduct a bona fide medical examination before recommending marijuana to a patient. (9) Every state except California requires that recommendation to be in writing (10)--in California, an oral recommendation will do. (11) In twelve states, an agency must review the diagnosis and recommendation before a patient may begin treatment. (12) And every state except--you guessed it, California--limits the quantity of marijuana that qualified patients may legally possess at one time. (13)

   A handful of states also permit third-party vendors to supply marijuana to qualified patients. (14) Regulations on the operation of such dispensaries vary widely across states and even within individual states. For example, some states restrict the compensation that dispensaries may receive for providing marijuana. (15) Some states also limit the number of patients that each dispensary may serve. (16) California requires patients to form cooperatives and permits these cooperative dispensaries to supply only cooperative members. (17) Few states have yet adopted comprehensive regulations of dispensaries, but local governments have increasingly sought to fill in the regulatory gaps. Many local communities have imposed zoning and licensing requirements on marijuana dispensaries. (18) A few have even sought to banish dispensaries from their jurisdictions. (19)

   States also purport to shield patients, physicians, and dispensaries from sanctions that could otherwise be imposed by private actors. For example, every state bars licensing boards, hospitals, and other health-care entities from sanctioning physicians for recommending marijuana to their patients. (20) A few states also shield tenants from being evicted for possessing, using, or cultivating marijuana on rental property. (21) And a few states are now seeking to bar employers from discriminating against employees who use marijuana legally tinder state law. (22)

   B. The Early Federal Response to State Medical Marijuana Laws

   The federal government responded swiftly to the passage of the first state medical marijuana law in California in 1996. (23) In February 1997, the Clinton Administration's drug czar, former General Barry McCaffrey, issued a harsh statement outlining the steps the federal government would take to thwart the nascent medical marijuana movement. (24) Among other things, McCaffrey threatened to vigorously prosecute persons who supplied medical marijuana, revoke the prescription writing authority of physicians who recommended marijuana to patients, and deny various federal benefits (including licenses) to anyone who used marijuana pursuant to California law. (25)

   The campaign against medical marijuana continued throughout the George W. Bush Administration. U.S. Attorneys prosecuted several high-profile medical marijuana suppliers. (26) The DEA employed an arsenal of weapons against medical marijuana dispensaries, which had begun to proliferate in California...