People frequently refer to “legal” medical marijuana in the dozens of states that have approved at least some medicinal use of the drug but as the Drug Enforcement Agency recently made quite clear, the federal government still considers marijuana a Schedule I controlled substance with no proven legitimate medical applications. However, yesterday a federal appeals court reminded the Department of Justice that the law currently limits the government’s ability to prosecute medical marijuana cases in states where it’s allowed.
The Consolidated Appropriations Act of 2016 includes — much like the previous Appropriations Act did — a condition that the DOJ can not use any of the funding it receives from Congress to prevent 40 states (along with Washington, D.C., Guam, and Puerto Rico) from “implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Now the question is whether there is a difference between allowing a state toimplement medical marijuana laws and not prosecuting cases involving medical marijuana.
The Ninth Circuit Court of Appeals recently consolidated 10 different appeals from district courts in two states, all seeking to have their cases dismissed on the grounds that the Appropriations Act does indeed effectively bar the DOJ from prosecuting medical marijuana cases in the affected states.
None of the appellants in these cases have yet been convicted. Instead, each of them had asked their respective district courts to grant injunctions barring the DOJ from prosecuting while the Appropriations Act was still in effect.
After the district courts denied these injunction requests, the Ninth Circuit was put in the unusual position of reviewing appeals in criminal cases that had not yet been decided.
To determine the intended meaning of the marijuana-related spending prohibition in the Appropriations Act, the appeals court broke out the dictionary to suss out the “ordinary, contemporary, common meaning” of the word “implement.”
After consulting a trio of dictionaries, the panel concluded that the law currently “prohibits DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
The court did not agree with the DOJ’s argument that bringing criminal cases against medical marijuana stores and distributors was not the same as impeding these states’ implementation of their local laws.
“By officially permitting certain conduct [the growth and distribution of medical marijuana], state law provides for non-prosecution of individuals who engage in such conduct,” explains the ruling. “If the federal government prosecutes such individuals, it has prevented the state from giving practical effect to its law providing for non-prosecution of individuals who engage in the permitted conduct.”
Thus, according to the appeals panel, the Appropriations Act prohibits DOJ from appropriated fund “for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.”
What about people who fail to comply fully with the state laws? Are they therefore eligible for federal prosecution?
Some of the appellants in the Ninth Circuit case argued that if the federal government is allowed to prosecute these individuals just because they aren’t operating in strict compliance with state laws, the DOJ would effectively be preventing the states from implementing the entirety of their laws by preventing them from utilizing all the state-level penalties and enforcement mechanisms.
However, the appeals court determined that the DOJ is not interfering in the implementation of states’ medical marijuana rules when it prosecutes those operating outside the state rules.
“Individuals who do not strictly comply with all state-law conditions regarding the use, distribution, possession, and cultivation of medical marijuana have engaged in conduct that is unauthorized,” explains the ruling, adding that prosecuting these individuals does not violate the Appropriations Act. “Congress could easily have drafted [the act] to prohibit interference with laws that address medical marijuana or those that regulate medical marijuana, but it did not. Instead, it chose to proscribe preventing states from implementing laws that authorize the use, distribution, possession, and cultivation of medical marijuana.”
While this is a legal victory for proponents of medical marijuana, the court makes it clear in a footnote to the ruling that this prohibition against prosecutions could all be very temporary.
The Appropriations Act “does not provide immunity from prosecution for federal marijuana offenses,” warns the panel, noting that it is still a federal crime under the Controlled Substances Act (CSA) to produce, distribute, or possess marijuana — even for medical purposes. All the Appropriations Act does iscurrently bar the DOJ from spending any resources on prosecuting medical marijuana cases in most states. Likewise, the government has five years after an offense occurs to prosecute it, so if a future Appropriations Act does not include this prohibition, some currently un-prosecutable cases could head to court.
“Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding,” cautions the court. “Moreover, a new president will be elected soon, and a new administration could shift enforcement priorities to place greater emphasis on prosecuting marijuana offenses.”