State Medical Marijuana Laws, Federal Controlled Substances Act and Criminal Prosecutions, 1214 RIBJ, 63 RI Bar J., No. 3, Pg. 13

• Author: Thomas R. Bender, Esq., Practices law in Providence.

State Medical Marijuana Laws, the Federal Controlled Substances Act and Criminal Prosecutions

Vol. 63 No. 3 Pg. 13

Rhode Island Bar Journal

December, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0November, 2014

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Thomas R. Bender, Esq., Practices law in Providence.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 2013, in its first opportunity to interpret the state’s Medical Marijuana Act, the Rhode Island Supreme Court suggested, or at least questioned, during oral argument and its subsequent decision, that a state law legalizing the medical use of marijuana might indeed be preempted and rendered void, even when raised as an affirmative defense in a state law criminal prosecution. While it may be prudent for state officials to advise an individual, when they provide State authorization to cultivate or use marijuana, that they are not immune from criminal prosecution under federal law by federal authorities, for the following reasons. I do not think a State’s decision to decriminalize marijuana is preempted by federal law, void, or without effect, for the purposes of state criminal law prosecutions by state authorities. The rationale for this conclusion may be stated this way: Under the system of federalism designed by the United States Constitution, Congress does have the constitutional authority to command State legislatures to enact state laws that criminalize, in any respect, the cultivation and possession of marijuana or to command State executive officials to enforce federal criminal laws that do.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Rhode Island Act

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Enacted by the state General Assembly in 2006, the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act was based on a legislative finding that “[s]tate law should make a distinction between the medical and nonmedical use of marijuana.”¹ Thus, the Act’s stated legislative purpose “is to protect patients with debilitating medical conditions, and their physicians and primary caregivers from arrest and prosecution, criminal and other penalties, and property forfeitures” under the Rhode Island Controlled Substances Act.²

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In a 2013 opinion, however, the Rhode Island Supreme Court, looking to federal criminal law and the federal constitution’s Supremacy Clause, questioned the General Assembly’s constitutional authority to decriminalize marijuana for any purpose.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Dicta and its Context

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0State v. DeRobbio,^[3] involved the State’s appeal of a criminal information dismissal under the state’s Controlled Substances Act, charging the defendants with the criminal possession and manufacture of marijuana. The dismissal was based upon the affirmative defense provisions contained in the Medical Marijuana Act, ^[4] and, on appeal, the Attorney General challenged the trial court’s interpretation of the Act.^[5] The Court, however, began its analysis section by volunteering: “At the outset, this Court recognizes that there is a constitutional question as to whether the Act is preempted (either in whole or in part) by federal law, which prohibits the manufacture, distribution, or possession of marijuana, even if it is used for medical purposes. * * * * [But s]ince neither party has questioned whether the Act can survive under the Supremacy Clause of the United States Constitution, either below or on appeal, we decline to do so. * * * [W]e leave for another day the resolution of whether the Act is preempted by federal law and therefore void, either in whole or in part. ”^[6] Thus, the Court placed a significant Supremacy Clause cloud over the general concept of state medical marijuana legislation.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supremacy Clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof:… shall be the Supreme law of the Land; and the Judges in every State shall be bound thereby anything in the Constitution or Laws of any State to the contrary notwithstanding.”⁷ Stated simply and compactly in DeRobbio the Court suggested that because the medical use of marijuana was not exempt from federal criminal law prohibitions, a state legislature is, by operation of the Supremacy Clause, constitutionally prohibited from exempting the medical use of marijuana from state law criminal prohibitions.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Federalism and the Anti-Commandeering Principle

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Of the many innovations the Framers built into the federal Constitution, there are two that fundamentally define the American concept of federalism.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The first was the establishment of a “two-government system,”⁸ of “dual sovereignty.”⁹ This constitutional structure gives Americans “two political capacities, one state and one federal, each protected from incursion by the other[,]” establishing what the Supreme Court has characterized as “a legal system unprecedented in form and design, establishing two orders of government, each with its own privity, its own set of mutual rights and obligations to the people who are governed and sustained by it.”¹⁰ In adopting the Constitution proposed by the Framers, the States surrendered certain enumerated powers to the proposed federal Government, but retained “a residuary and inviolable sovereignty.”¹¹ A sovereignty that is “concurrent with that of the Federal Government.”¹² Thus, this design contemplates that a State government “will represent and remain accountable to its own citizens.”¹³

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Framers’ second fundamental decision was to reject “the concept of a [national] government that would act upon and through the States,” as was the case with the Articles of Confederation, explicitly choosing instead “a Constitution that confers upon Congress the ability to regulate individuals,” rather than States.¹⁴ As a result, “the Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ instructions.”¹⁵ While Congress has the constitutional authority “to pass laws requiring or prohibiting certain acts” by individual persons, “it lacks the power to directly compel the States to require or prohibit those acts.”¹⁶

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Consequently, the Court has struck down federal legislation that commandeers a State’s legislative or executive departments to enact by legislation, or to enforce by executive action, federal policies.¹⁷ Stated another way, the anti-commandeering principle prohibits Congress from requiring a State’s legislature to enact any particular law, or requiring State executive department officials to assist in the enforcement of a federal statute,¹⁸ such as, for instance, the Federal Controlled Substances Act. State legislatures are free to criminalize marijuana for all purposes; for some, but not all purposes; or to not criminalize it at all. The enforcement of the federal Controlled Substances Act is a federal executive branch responsibility.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0While federal law and policy would preempt any conflicting state law and policy in a federal prosecution, it plays no role in dictating or determining what state criminal law will be in state prosecution. And, notwithstanding the Rhode Island Supreme Court’s dicta suggesting the contrary, the specific dictates of the Supremacy Clause and federal preemption jurisprudence do not change that conclusion.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supremacy Clause and Its Federal Preemption Doctrine

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The Supremacy Clause is a structural clause addressing federalism’s dual sovereignty concept, defining in part the “delicate...