Abstract:  For centuries physicians and patients have extolled the medical benefits of marijuana. The federal government, however, refuses to retreat from its dogged war on drugs, preventing those in serious medical need from realizing marijuana’s therapeutic potential. Numerous states have shown their opposition to the federal government’s position, as well as their compassion for the seriously ill, by placing pro-medical marijuana initiatives on their election ballots or by introducing such legislation in their state legislatures. Furthermore, the United States Court of Appeals for the Ninth Circuit has recently rendered two landmark decisions holding that the common law medical necessity defense is available to medical marijuana defendants who are criminally prosecuted under federal law, despite the federal government’s general marijuana prohibition. Because a change in federal drug policy is unlikely in the near future, one way federal prosecutors can avoid this conflict with the federal judiciary, as well as respect the will of the people in states that have passed pro-medical marijuana laws, is to exercise appropriate prosecutorial discretion, refusing to prosecute medical marijuana patients. This especially should be the case in states where the citizens have clearly expressed their values regarding medical marijuana through the initiative or legislative process.


Countless people suffering from an array of serious illnesses have discovered the medical benefits of marijuana. Harris Taft is one of those people.1 Harris was diagnosed with Hodgkin’s disease. Following an operation in which his spleen and affected lymph glands were removed through an incision that ran from his pelvic bone to his chest, Harris began what would become a decade of aggressive anticancer treatments, primarily chemotherapy. Within ninety minutes of [*PG700]his first chemotherapy session, Harris began to vomit violently and continued vomiting for hours. When he had vacated everything in his stomach, he began to dry heave. Harris would be forced to endure similar reactions after each of his subsequent treatments. Even when his vomiting subsided, usually a day or so later, Harris remained so nauseated that he could not eat—in fact, he could not even stand the site or smell of food. His physician prescribed a number of drugs to temper the vomiting and nausea, but none was effective.

Finally, after seven years of treatment, Harris was unable to tolerate any more of the pain and suffering associated with his treatment. Moments before one of his chemotherapy sessions, Harris fled the hospital. He confided in his wife that he had come to fear the treatment more than the cancer, or even death itself. He went so far as to say that he would choose death over any further chemotherapy.

Following the suggestion of a nurse and the tacit recommendation of his doctor, Harris began smoking marijuana to relieve the nausea and vomiting. Although skeptical at first, Harris found that smoking marijuana led to a profound improvement in his quality of life. Indeed, for the first time in seven years, he was able to sleep through the night peacefully. No vomiting. No nausea. He also regained his appetite and put on much of the weight he had lost. Furthermore, whereas Harris used to require weeks to recover from chemotherapy, he was now ready to go to work after only forty-eight hours. As a result of smoking marijuana, Harris’ mood, manner and overall outlook were transformed for the better. Moreover, in the two years in which Harris used marijuana, he never had an adverse or unfavorable reaction to it.

As noted above, Harris’ experience with marijuana is not an anomaly. Currently, however, it is impossible for someone in Harris’ position to use marijuana for medical purposes legally. Although a number of states permit the medical use of marijuana under state law, those who choose to use marijuana are not immune from prosecution under federal law.2 Federal law reflects the proposition that medical marijuana has no accepted medical use.3 As a result, the federal government claims that those charged with possession of marijuana under federal law are not entitled to assert a well-settled, common law defense otherwise available to those forced by necessity to violate the [*PG701]law—medical necessity or “choice of evils.”4 Fueled largely by ignorance and the “war on drugs,” the federal government is unlikely to change its laws with respect to marijuana or to retreat from vigorous prosecution of those laws, even in cases where the substance is being used for medical purposes. Therefore, for these innocent casualties of the war on drugs, the medical necessity defense represents the only chance to escape criminal sanctions and to continue using marijuana to ease their symptoms. This conflict between the federal government and those states that have chosen to allow the medical use of marijuana is highlighted by cases pending in the federal courts in California, and may eventually be resolved by the United States Supreme Court.5

Part I of this Note briefly examines the rise and fall of marijuana as a legitimate form of medicine.6 Part II examines the current efforts being made at the federal and state level to make medical marijuana available to the seriously ill.7 Part III describes the development of the medical necessity defense and its application to medical marijuana.8 Part IV highlights the growing conflict between federal law and state law pertaining to medical marijuana as evidenced by recent cases in federal court in California.9 Part V discusses the purpose of prosecutorial discretion and outlines the considerations that should be weighed by federal prosecutors in deciding whether to initiate or decline prosecution.10 Finally, Part VI suggests that the federal government must structure its policies so as to uphold the will of the people with respect to medical marijuana, and that the courts must be free to exercise their independent discretion by allowing juries to hear arguments of medical necessity as a valid defense to prosecution.11

I.  History of the Medical Use of Marijuana

Today, marijuana is one of the most widespread and diversified of plants.12 Native to central Asia, the first evidence of the medical use of [*PG702]marijuana was published during the reign of the Chinese Emperor Chen Nung more than five thousand years ago.13 In the West, however, marijuana’s medical properties were not realized until much later.14 By the mid-nineteenth century, physicians in the United States were using marijuana for a wide variety of medical purposes, and between 1840 and 1900, over one-hundred journal articles on the medical use of marijuana were published.15 In the twentieth century, moreover, physicians find marijuana to be an effective treatment for a range of ailments, including: nausea and vomiting associated with chemotherapy; weight loss associated with AIDS; glaucoma; epilepsy; muscle spasms and chronic pain in cases of multiple sclerosis, quadriplegia and other spastic disorders; migraines; severe pruritus; and depression and other mood disorders.16 In addition, physicians find marijuana useful in treating asthma, insomnia, dystonia, scleroderma, Crohn’s Disease and diabetic gastroparesis.17

The zeal of physicians in the United States was tempered greatly by the enactment of the Marijuana Tax Act of 1937 (“the 1937 Act”).18 Under the 1937 Act, persons using marijuana for any purpose were required to register and pay a tax.19 Those who failed to comply with the Act were subject to large fines or time in prison for tax evasion.20 Although the Act was intended to prevent non-medical use, its practical effect was to make marijuana difficult to obtain, and it ultimately led to marijuana’s removal from the United States Pharmacopoeia.21

In 1970, following a rise in the recreational use of marijuana, Congress passed the Comprehensive Drug Abuse and Prevention [*PG703]Control Act, also called the Controlled Substances Act, (“the Act”).22 The Act assigned psychoactive drugs to five categories according to their abuse potential, known effect, harmfulness and level of accepted medical use.23 Marijuana was placed in Schedule I, the most restrictive category, which includes those drugs—such as LSD and heroin—that are said to have a high risk of abuse and no currently accepted medical use.24 Evidence suggests that Congress intended to place marijuana in Schedule I only temporarily, and thus meekly accepted this classification in anticipation of a change after all the facts were in.  The decision to place marijuana in Schedule I was marked by vigorous debate pertaining to who should be responsible for the factual determination of marijuana’s benefit as well as to the underlying social issues implicated by its classification.25 Congress therefore deferred the consideration of marijuana’s medical utility pending the outcome of studies commissioned by the Presidential Commission on Marijuana and Drug Use (“the Commission”).26 The results of the Commission, chaired by Raymond Shafer,27 focused primarily on marijuana’s lack of dangerousness and recommended dramatic reductions in the legal penalties associated with marijuana.28 Because the results were released at a time when both Congress and the Nixon Administration were deeply embroiled in the “Watergate Scandal,” [*PG704]however, neither group took the necessary actions to reschedule marijuana.

In 1972, the National Organization for the Reform of Marijuana Laws (NORML) petitioned the Bureau of Narcotics and Dangerous Drugs (now the Drug Enforcement Agency) (“DEA”) to reschedule marijuana as a Schedule II drug, which includes those drugs that have a high potential for abuse, but, unlike those in Schedule I, also have a currently accepted medical use.29 On September 6, 1988, after over a decade of litigation, the DEA finally held public hearings on the issue before the DEA’s Chief Administrative Law Judge, Judge Francis L. Young.30 Judge Young issued the following opinion:

Marijuana, in its natural form, is one of the safest therapeutically active substances known. [T]he provisions of the [Controlled Substances] Act permit and require transfer of marijuana from Schedule I to Schedule II. It would be unreasonable, arbitrary and capricious for DEA to continue its stand between those sufferers and the benefits of this substance.31

The DEA subsequently rejected Judge Young’s ruling,32 and on February 18, 1994, the Court of Appeals for the District of Columbia Circuit upheld the DEA’s categorization of marijuana as a Schedule I drug.33

Notwithstanding NORML’s historic—and ultimately unsuccessful—effort to require the DEA to reschedule marijuana as Schedule II, demand for the legalization of medical marijuana on the part of patients and physicians finally forced the Federal Drug Administration (“FDA”) to approve the use of marijuana as a medicine in 1976, [*PG705]by instituting the Individual Treatment Investigational New Drug Program (or Compassionate Use IND program) (“the IND Program”).34 Under the IND Program, physicians could obtain an Investigational New Drug application (“IND”) that would enable a patient to receive marijuana for medical purposes.35 This program was so bureaucratically burdened by federal law, however,36 that in its history, only three dozen patients received marijuana through the IND Program; only eight are currently participating.37 Indeed, in response to a growing number of requests for admittance to the federal IND Program as a result of the AIDS epidemic, it was suspended by the Bush administration in 1992, thereby limiting treatment to those enrolled in the IND Program prior to 1992.38 The IND Program remains suspended today with no additional patients admitted since 1992.39

In the late 1970s and early 1980s, states took matters into their own hands with thirty-four states enacting legislation making marijuana legal for medical use.40 Because marijuana is not recognized as medicine under federal law, states can only dispense it by creating formal research programs and getting FDA approval for an IND application.41 Ultimately, these laws proved too difficult to implement as the paperwork required by federal regulation was more than the physicians and administrators involved could manage.42 The operational costs of these state programs has thus led to their demise.43

[*PG706]II.  Current Status of Medical Marijuana

Efforts are being made at the federal level to facilitate the medical use of marijuana. Representative Barney Frank of Massachusetts has reintroduced a bill that would reschedule marijuana as a Schedule II drug.44 The bill provides that neither the Controlled Substances Act nor the Federal Food, Drug, and Cosmetic Act shall prohibit the prescription, recommendation, use, production or distribution of marijuana by a physician for medical use so long as the patient meets the relevant state standards.45 The bill is currently in the House subcommittee on Health and the Environment.46

Although it is unlikely that Congress will reschedule marijuana as a Schedule II drug in the near future, the federal government has displayed an increased interest in medical marijuana research. The National Institutes of Health (“NIH”), for example, has shown some willingness to explore the medical uses of marijuana.47 On September 18, 1997, the NIH granted Donald Abrams, M.D. funds to study marijuana’s safety as a medicine for people with AIDS.48 This represents the first U.S. clinical trial in fifteen years to compile data on the medical use of marijuana.49 Since 1994, Dr. Abrams had tried to obtain government permission to study the efficacy of medical marijuana, but the NIH would only allow the study to proceed if its focus was changed from efficacy to safety.50 Nonetheless, if the study determines that the safety risks to AIDS sufferers are negligible, it may well lead the way for studies in the future focusing on marijuana’s efficacy.51

[*PG707] Further support for medical marijuana research came in January 1997, when the White House Office of National Drug Control Policy (“ONDCP”) commissioned the Institute of Medicine (“IOM”), an arm of the National Academy of Sciences, to conduct a review of the scientific evidence surrounding the medical use of marijuana.52 The goal of the study was to assess the potential health benefits and risks of marijuana and its constituent cannabinoids in order to assist the federal government in developing its policy on medical marijuana.53 In March 1999, the IOM released its report in a book entitled “Marijuana and Medicine: Assessing the Science Base,” which determined that marijuana’s active components are potentially effective in treating pain, chemotherapy-induced nausea and vomiting, the anorexia of AIDS wasting and other symptoms.54 The report, therefore, urged the federal government to make a commitment to getting new medical marijuana research under way to help identify marijuana’s medically active compounds and to deliver the benefits to patients.55 In the meantime, the IOM recommended that the federal government open a “compassionate-use” program, similar to the one suspended by the Bush administration in 1992, to give seriously ill people immediate legal access to marijuana.56 The report also answered two controversial questions concerning medical marijuana policy: whether legalizing medical marijuana would send the wrong message to children about marijuana use generally and whether marijuana causes people [*PG708]to use more dangerous drugs.57 The report concluded that there is no sufficient evidence to support either claim.58

On May 21, 1999, in response to the IOM’s report and a general need for more openness and clearer guidelines, the Department of Health and Human Services (“DHHS”) released its “Guidelines on Procedures for the Provision of Marijuana for Medical Research,” which took effect December 1, 1999.59 Under the new guidelines, the National Institute on Drug Abuse (“NIDA”),60 is able to sell government marijuana to privately funded scientists whose research proposals have been approved.61 Previously, only scientists with federal grants had access to this marijuana, but under the DHHS guidelines, privately funded researchers now are able to obtain government marijuana for “scientifically valid investigations” reviewed and approved by the NIH.62 Although most medical marijuana advocates believe that the new DHHS guidelines are an improvement over existing policies, they note that the guidelines contain numerous impediments to medical marijuana research and neglect the issue of providing legal [*PG709]access to marijuana for patients in need.63 Indeed, the guidelines explicitly reject the IOM’s recommendation that the federal government open a compassionate-use program, allowing seriously ill patients to apply for permission to use medical marijuana.64

The federal government’s increased interest in medical marijuana research comes in the wake of recent public opinion polls that indicate overwhelming support for the medical use of marijuana.65 Public support is further evidenced by the trend among voters to support ballot initiatives that remove criminal penalties under state law for seriously ill people who grow or possess medical marijuana.66 In 1998, citizens in four states and the District of Columbia (“District of Columbia” or “D.C.”) passed ballot initiatives that—either by statute or constitutional amendment—permit doctors to prescribe marijuana [*PG710]for seriously ill patients who would benefit from such treatment.67 Since the elections, however, only three states have actually passed laws that codify the initiatives.68 Additionally, in 1996, voters in California and Arizona voted in favor of similar initiatives.69

Although the initiatives differ somewhat, they share a number of important elements.70 All of the initiatives include provisions that either give patients and caregivers an affirmative defense in state court if they demonstrate medical need,71 or specifically exempt them from [*PG711]certain state controlled substances laws if they suffer from a condition specified in the initiative.72 All of the initiatives specify which medical conditions may be treated with marijuana, and also provide for the addition of other medical conditions as needed.73 In order to protect patients from being arrested and to give law enforcement a means of verifying whether a person is a legitimate medical marijuana patient, most of the initiatives establish a confidential patient registry and identification card system.74 Those initiatives that do not require the establishment of a patient registry system instead require a doctor’s approval, either written or oral.75 All of the initiatives also attempt to proscribe the amount of marijuana that a patient is allowed to possess.76 Lastly, with the exception of permitting patients to grow their own limited supply, most of the initiatives fail to contain provisions that provide for a supply of medical marijuana.77

As noted above, the District of Columbia included a medical marijuana initiative on its November 1998 ballot.78 The initiative exempts medical marijuana patients with a doctor’s recommendation [*PG712]from being prosecuted under D.C.’s Uniform Controlled Substance law and also establishes cannabis buying clubs.79 Although the exit polling data suggested that the initiative passed by a wide margin, the votes were not immediately counted because of a provision inserted into the D.C. budget bill by Representative Bob Barr of Georgia thirteen days before election day.80 This provision prohibited the city from spending any money on the medical marijuana initiative, leaving no available funds to count the votes.81 In September of 1999, advocates filed a law suit in federal court seeking the release and implementation of the vote.82 On September 20, 1999, pursuant to an order from a federal judge in D.C., the results were released and indicated that the initiative was approved by 69% of the vote.83 Like all D.C. laws, however, the initiative needed approval by Congress.84 Following the announcement of the votes, Representative Barr attached an amendment to the fiscal 2000 D.C. appropriations bill, intended to prevent the enactment of the initiative.85 Two versions of the D.C. appropriations bill were vetoed before a third was signed into law by President Clinton on November 29, 1999.86 The passage of this amendment represents the first time in history that Congress has overturned a ballot initiative passed by a majority of voters in a legal election.87

On November 2, 1999, Maine also addressed the issue of medical marijuana when 61% of voters passed Question 2, a law favorable to the medical use of marijuana.88 Under Question 2, patients will not be prosecuted for the medical use of marijuana so long as they have a doctor’s written approval to use marijuana.89 Despite strong opposi[*PG713]tion, Maine passed Question 2 by an overwhelming margin,90 and became the sixth state since 1996 to enact a law legalizing medical marijuana.91 Most recently, the state legislatures in Maryland and Hawaii have addressed the issue with pro-medical marijuana legislation,92 while the citizens of Arkansas are advocating for a constitutional amendment or ballot initiative permitting medical marijuana use by the seriously ill.93

Although the state actions described above exempt legitimate medical marijuana users from prosecution under state law, those same users are nonetheless subject to prosecution under federal law.94 Indeed, as the result of Congress’ efforts in recent years to expand federal criminal law jurisdiction to include matters traditionally within the purview of the states, the federal government enjoys concurrent jurisdiction with the states in a wide variety of areas.95 One such area is [*PG714]that of drug control and enforcement.96 Thus, unless medical marijuana defendants are entitled to assert a legal defense to prosecution under federal law, they will continue to be convicted, and the will of the people in those states legalizing medical marijuana will be frustrated. The common law defense of necessity offers hope for such defendants and their supporters in states throughout the country.97

III.  History of the Medical Necessity Defense

The concept of necessity as a defense to prosecution has been “anciently woven into the fabric of our culture.”98 At common law, the necessity defense was known as the “choice of two evils” defense because the actor was usually in the position of being imminently threatened by a dangerous force that only could be overcome by violating the law.99 The necessity defense is founded upon the theory that individuals should not be punished when they are not acting out of free will,100 and recognizes that “the law ought to promote the achievement of higher values at the expense of lesser values, and that sometimes the greater good for society will be accomplished by violating the literal language of the criminal law.”101 The necessity defense thus involves assessing individual conduct and comparing it with community values to determine personal culpability.102

The English courts introduced the concept of necessity as early as 1551.103 The necessity defense has since become ingrained in Ameri[*PG715]can jurisprudence, and today over thirty states have codified the defense.104 Although there is no federal statute codifying the common law defense of necessity, the Supreme Court of the United States recognized the applicability of the defense in federal court in 1980, in United States v. Bailey,105 and the necessity defense remains a well-established defense to federal criminal prosecution not involving homicides.106 In addition to the English common law notion of necessity, American jurisprudence has developed and extended the role of necessity in the law.107 The doctrine of “medical necessity” is one such example.108

The first successful articulation of the medical necessity defense in the history of the common law, and indeed, the first case to extend the necessity defense to the crimes of possession or cultivation of marijuana, was United States v. Randall.109 In 1976, in Randall, the D.C. Superior Court accepted the defendant’s medical necessity defense and consequently held that the defendant was “not guilty” of the crime of possession of marijuana.110 The defendant, Robert Randall, suffered from a severe case of glaucoma, which led to an almost total loss of vision.111 Randall began smoking marijuana cigarettes after conventional drugs proved ineffective in treating his failing eyesight, and on August 27, 1975, he was arrested and charged with possession [*PG716]of marijuana.112 In response to Randall’s assertion of the medical necessity defense, the court set forth the requisite elements of the defense: (1) that the defendant did not intentionally bring about the circumstances that precipitated the unlawful act; (2) that the defendant could not accomplish the same objective using a less offensive alternative; and (3) that the evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.113 In applying the medical necessity defense, the court balanced the defendant’s interest in health against the state’s interest in enforcing drug laws that protect the public.114 The court concluded that the defendant’s right to preserve his sight outweighed the state’s interest in outlawing the drug.115 As a result, the court held that the defendant was not guilty of marijuana possession.116

In addition to the elements enunciated in Randall, the common law generally has recognized that the defense of necessity is available only in situations where the legislature has not precluded the defense by a clear and deliberate choice regarding the values at issue.  In other words, the defense is available where the legislature has not itself, in a criminal statute, balanced the competing harms to the state and to the individual and made a determination regarding the values of each.117 If the legislature has done so, its decision governs.118 If, however, the legislature is silent on the matter, the question of the necessity defense is open and courts can properly weigh the merits of the competing interests.119

Since Randall, states have varied greatly in their acceptance of a medical necessity defense in cases involving violations of marijuana [*PG717]law.120 In 1991, in Jenks v. State, the Court of Appeals for the District of Florida held that a state statute classifying marijuana as a Schedule I substance did not preclude the use of the medical necessity defense, and furthermore, that the defendants had established such a defense.121 The appellant, Kenneth Jenks, a hemophiliac, contracted AIDS through a blood transfusion and unknowingly passed it on to his wife Barbara.122 As a result of both the disease and the medication administered, the Jenks experienced severe nausea and suffered significant weight loss.123 The Jenks began using marijuana that they obtained on their own and found that they were able to retain their AIDS medication, eat, gain weight and maintain their health.124 After being unable to procure a prescription for marijuana, the Jenks decided to grow two marijuana plants of their own.125 They were subsequently arrested for cultivation of marijuana and possession of paraphernalia.126 The court denied the State’s claim that the Florida legislature had foreclosed the necessity defense by scheduling marijuana as a substance with no valid medical use, and stated that a statute should not be interpreted as abrogating the common law unless it unequivocally calls for such treatment.127 Finding that the Jenks met their burden of proving the elements of a medical necessity defense as set forth in Randall, the court held that the trial judge erred in rejecting the defense and convicting the Jenks as charged.128

Notwithstanding the decisions of state courts in other jurisdictions that are consistent with the holdings in Randall and Jenks, some state courts have been unwilling to accept the medical necessity defense.129 In 1993, in Commonwealth v. Hutchins, the Massachusetts Su[*PG718]preme Judicial Court rejected the medical necessity defense.130 The defendant, Joseph Hutchins, was a forty-eight year old Navy veteran who suffered from scleroderma and Raynaud’s phenomenon.131 In addition to causing other physical ailments, these diseases had an especially severe effect on Hutchins’ gastrointestinal tract.132 Hutchins found that smoking marijuana alleviated many of his symptoms including: nausea; loss of appetite; difficulty in eating, drinking or swallowing; loss of mobility of the esophagus; spasticity; hypertension; and anxiety.133 Unable to secure a legal supply of marijuana, Hutchins was eventually arrested for cultivating and possessing two pounds of marijuana with the intent to distribute.134 The court determined that a threshold question in such cases is whether the harm that would have resulted from compliance with the law significantly outweighs the harm that reasonably could result from the court’s acceptance of necessity as an excuse.135 Only when the circumstances favor excusing the defendant, will the court then inquire into the elements of the defense.136 The court held that the harm to the defendant did not [*PG719]outweigh the potential harm to the public as a result of the negative impact on drug enforcement efforts, and thus, there was no error in denying the right to present the medical necessity defense.137

In a dissenting opinion, Chief Justice Liacos concluded that Hutchins had, in fact, met his burden of production on the defense of necessity, and thus, the jury should have determined whether his actions were justified.138 Essentially arguing against the majority’s threshold question requirement, Chief Justice Liacos accused the majority of “speculative fact finding.”139 While recognizing the importance to the public of enforcing drug laws, Liacos did not believe that the interest would be harmed significantly by permitting a jury to consider whether the defendant cultivated and used marijuana in order to alleviate painful symptoms of an illness.140 Furthermore, Judge Liacos stated that the majority did not adequately consider the values supporting the common law defense of necessity; namely, “that under very limited circumstances, the value protected by the law is, as a matter of public policy, eclipsed by a superceding value which makes it inappropriate to apply the usual criminal rule.”141

Like Hutchins, other state courts have rejected the medical necessity defense, often based on the belief that the state legislature had already spoken on the appropriateness of the defense.142 State courts generally have found evidence of such legislative intent not by reference to state scheduling laws, which are usually analogous to federal law, but rather by reference to the legislature’s explicit exclusion of the defense in the text of a statute or the legislature’s establishment of a research program providing access to marijuana for certain patients.143

[*PG720] Contrary to state courts’ wide-ranging treatment of the medical necessity defense in connection with the use of marijuana, federal courts’ consideration of the defense in the marijuana context was, until recently, limited to a single case.144 In 1990, in United States v. Burton, the United States Court of Appeals for the Sixth Circuit recognized the medical necessity defense as being applicable in the context of a federal prosecution for the manufacturing and use of marijuana, but held that the defendant failed to establish one element of the defense.145 Defendant, James Burton, suffered from glaucoma and claimed that he grew and used marijuana to relieve the symptoms from his illness.146 He was charged with three counts of unlawfully manufacturing and possessing marijuana and one lesser charge of simple possession.147 The trial court permitted Burton to present a medical necessity defense and the jury found him not guilty on all but the charge of simple possession.148 Burton appealed the jury’s verdict, claiming that it was inconsistent with the evidence, and thus, unreasonable.149 The court, relying on the Supreme Court’s decision in Bailey, acknowledged that the medical necessity defense was available in cases involving the medical use of marijuana by seriously ill individuals.150 Like some of its state court counterparts, however, the Sixth Circuit opined that the IND Program recently established by the federal government mitigated against a finding that Burton had no reasonable, legal alternative to the illegal manufacturing and use of marijuana.151 Thus, in holding that the jury’s verdict was not unreasonable, the court stated that the medical necessity defense was available under federal law but was not established by the defendant in this particular case.152 Eight years passed before a federal appeals court, this time in California, once again had the opportunity to wrangle with the question of whether the medical necessity defense was valid under federal law.153

[*PG721]IV.  Recent Medical Necessity Cases in California

In 1996, the people of California approved Proposition 215, also known as the Compassionate Use Act of 1996, which was one of the first state initiatives of its kind.154 Under the law, patients or their primary caregivers who possess or cultivate marijuana for medical treatment recommended by a physician are exempted from criminal prosecution under state law.155 Since the passage of Proposition 215, the U.S. Justice Department has repeatedly stated that marijuana remains banned under federal law, with no medical exemption.156 Thus, pursuant to federal law, the Department has threatened to act against [*PG722]doctors who prescribe the drug and has sued to shut down six Northern California clubs that distribute marijuana to patients.157

In 1998, in United States v. Cannabis Cultivator’s Club, the United States District Court for the Northern District of California held, inter alia, that medical necessity was not a defense to injunctive relief.158 Following the passage of Proposition 215, the United States filed six separate lawsuits against six independent marijuana clubs and individuals associated with the management of the dispensaries, seeking to preliminarily and permanently enjoin the defendants’ conduct.159 The central issue was whether the defendants’ admitted distribution of marijuana for use by seriously ill individuals under a physician’s recommendation violates federal law, and if so, whether the conduct should be enjoined pursuant to the injunctive relief provision of the federal Controlled Substances Act (“the Act”).160 After laying out the preliminary injunction standard,161 the court considered and subsequently rejected the defendants’ arguments that the Act did not apply to their case.162 The court then considered the affirmative defense [*PG723]submitted by the defendants that, even if the law applied to their case, the common law necessity defense justified their conduct.163 Reiterating the standard set forth by the Ninth Circuit in United States v. Aguilar, the court stated that in order to assert the necessity defense, defendants must prove that: (1) they were faced with a choice of evils and chose the lesser evil; (2) they acted to prevent imminent harm; (3) they reasonably anticipated a direct causal relationship between their conduct and the harm to be averted; and (4) there were no legal alternatives.164 The defendants asserted that they met each of the requisite elements.165 In response to the defendants’ claim that they satisfied the fourth element because their members had no reasonable alternative, the government argued that the defendants did have an alternative—they could petition to have marijuana rescheduled from a Schedule I substance to a Schedule II substance.166 The court agreed with the defendants’ contention that rescheduling was not a reasonable alternative because of the delay and bureaucratic burden it imposed on patients.167 Nonetheless, the court denied the necessity defense because the defendants did not offer proof that the defense would apply to every patient to whom the defendants provided marijuana.168 The court went on to caution that it was not ruling that the necessity defense was wholly inapplicable to injunction actions, but rather that sufficient facts were not present for the court to determine whether such a defense was available in this case.169 Therefore, the [*PG724]court held that, given the lack of supporting facts, medical necessity was not an appropriate defense to the issuance of an injunction.170

Oakland Cannabis Buyers’ Cooperative (“OCBC”), one of the defendants in Cannabis Cultivators Club, chose not to appeal the district court’s ruling on the medical necessity defense but instead filed two new motions.171 The district court denied both motions, and OCBC appealed the denial of these motions as well as a subsequent order by the district court finding the defendants in contempt of the preliminary injunction.172 The first motion OCBC filed was a motion to dismiss the plaintiff’s complaint on grounds that an Oakland City ordinance made OCBC immune from liability under federal law.173 The second was a motion to modify the court’s injunction to permit the distribution of marijuana to patients having a doctor’s certificate stating that marijuana is a medical necessity.174

In 1999, in United States v. Oakland Cannabis Buyers’ Cooperative (“Buyers’ Cooperative”), the United States Court of Appeals for the Ninth Circuit stated that it did not have jurisdiction to hear either the appeal of the denial of the defendant’s motion to dismiss or the district court’s contempt order, but could consider the order denying the defendant’s motion for modification.175 On this issue, the court held that the district court erred in accepting the government’s argument that it lacked the discretion to grant OCBC’s request for a modification that would exempt from the injunction distribution to [*PG725]seriously ill individuals for whom marijuana was a medical necessity.176 The court stated that it was within the district court’s equitable jurisdiction to allow the modification,177 especially in light of the many declarations submitted by OCBC of seriously ill patients and their doctors, attesting to the patients’ medical need for marijuana.178 Moreover, the court stated that there was no evidence in this case that Congress had intended to divest the court of its broad equitable discretion.179 Additionally, the court noted that because the government decided to enforce the federal marijuana laws by seeking an injunction—as opposed to the usual process of arresting and prosecuting those that it believed had committed a crime—the court was required to deal with any violations on an anticipatory basis.180 The court reasoned, therefore, that it should consider any available defenses on an anticipatory basis as well.181 Implicit in the court’s statement is the fact that because the defense of medical necessity is available at trial to a patient or cannabis club accused of violating federal marijuana law, it thus should be made available in an action for injunctive relief.182 Lastly, the court concluded that the district court further erred by failing to expressly consider the public interest in denying the injunction on the record.183

According to the court, while OCBC identified a strong public interest in the availability of a doctor-prescribed treatment to help suffering patients, the government identified no interest in blocking distribution, aside from its general interest in enforcing the statute.184 This failure to weigh or consider the public interest, the court stated, was an abuse of the district court’s discretion.185 Finding that the district court erred in refusing to consider OCBC’s motion for mod[*PG726]ification based on a lack of authority, the Ninth Circuit reversed the order denying the motion and remanded the case for reconsideration of OCBC’s motion.186

Despite the urgings of California’s Attorney General to the contrary,187 the Department of Justice requested that the Ninth Circuit reconsider its ruling, maintaining that the medical necessity defense is invalid because of Congress’s declaration that marijuana has no medical benefit.188 On March 2, 2000, however, the Ninth Circuit decided to deny the government’s petition for a rehearing en banc.189 Therefore, assuming the Clinton Administration wishes the Department of Justice to continue its challenge of the propriety of the Ninth Circuit’s decision, the only remaining option is an appeal to the United States Supreme Court.

The Ninth Circuit’s ruling is especially significant in light of two other cases currently pending in federal court in California.190 The first case, United States v. Smith, represents the first federal criminal prosecution of a medical marijuana patient and caregiver191 since the passage of Proposition 215 in 1996.192 On May 21, 1999, B.E. Smith was convicted in the United States District Court for the Eastern District of California of the manufacturing and possession of marijuana in violation of the Controlled Substances Act.193 On August 6, 1999, Smith was sentenced to twenty-seven months in prison—the maximum sentence authorized by law and a term seventeen months longer [*PG727]than that which was recommended by the federal Probation Department in its pre-sentence investigation report.194

Smith, a decorated Vietnam veteran, began suffering from Post-Traumatic Stress Disorder (“PTSD”) shortly after his return from the war.195 Following the passage of Proposition 215, Smith’s doctor recommended marijuana in order to treat the pain and other symptoms associated with his condition.196 Shortly thereafter, Smith established himself as a “caregiver” pursuant to Proposition 215 so that he could grow marijuana for his personal medical use.197 Smith eventually became the caregiver for nine other seriously ill patients suffering from various illnesses including cancer, sickle cell anemia, AIDS and chronic pain due to a severed limb.198 From the time he began growing marijuana plants, Smith meticulously documented his activities and informed local law enforcement officials, such as the sheriff and district attorney, of his intentions.199 None of the law enforcement officials with whom Smith spoke discouraged him from growing marijuana or counseled him on the illegality of such action under federal law.200 In addition, Smith had posted a sign in his front yard reading “Medical Marijuana Garden,” and had attached to it all of the relevant doctor recommendations.201 Nevertheless, on September 24, 1997, federal officers seized upon Smith’s home, searched his property and destroyed his marijuana plants.202 At that time, Smith was growing eighty-seven plants—just enough, he claimed, to accommodate him[*PG728]self and the others for whom he was a caregiver.203 Significantly, Smith’s case represented the first time in Northern California that a person was prosecuted under federal law for the possession of less than one hundred marijuana plants.204

At trial, Smith was prohibited from making any mention of his medical condition or the reason that he was growing marijuana.205 This was the result of a decision by the district court to grant the government’s pre-trial motion to exclude any defenses relating to Proposition 215 or the medical use of marijuana, including medical necessity.206 The government reasoned that because federal law fails to recognize that marijuana has any medical value, as evidenced by its scheduling of marijuana as Schedule I, any defenses related to such a claim are barred in a federal case.207

On September 13, 1999, following Smith’s conviction for manufacturing and possession of marijuana, the district court filed an order denying the defense’s request for release on bail pending appeal and remanded Smith into custody until his sentencing on August 6, 2000.208 In denying the request, the district court set forth the standard under federal law for determining whether to grant bail pending appeal.209 Pursuant to that standard, a convicted defendant shall be detained pending appeal unless the judicial officer finds:

[*PG729](A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released . . . ; and (B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact210 likely to result in (1) reversal, (2) an order for a new trial, (3) a sentence that does not include a term of imprisonment, or (4) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.211

According to the court, the defense failed to show by “clear and convincing” evidence that Smith would not pose a “danger to the safety of the community” if released.212 Specifically, the district court found that there was a high likelihood that Smith would continue to traffic marijuana if released.213 The district court’s determination that Smith was a potential danger to the community was sufficient to disqualify him for release pending appeal.214 Nonetheless, the court went on to state that its denial of Smith’s previously asserted defenses relating to Proposition 215 or the medical use of marijuana does not raise “substantial questions of law or fact” likely to result in reversal, a new trial or a greatly reduced sentence.215 Specifically, with respect to the medical necessity defense, the district court ruled that Smith could not utilize the defense—either at trial or in his motion for release pending appeal—because he had not first pursued the rescheduling of marijuana, and therefore, had “bypassed the available administrative procedures established by Congress to effect a change in how marijuana is classified under federal law.”216

The district court’s decision to deny release on bail pending appeal was rather unusual given the magnitude of the charges and the fact that Smith had no prior convictions.217 Furthermore, the decision highlighted the tension that existed between the district court judge, [*PG730]Judge Burrell, and the defense, and served to illuminate some of the Judge’s own views on marijuana.218 Indeed, after denying bail, Judge Burrell stated that marijuana is a gateway to “violence, gangs and the destruction of families and communities.”219

On September 27, 1999, Smith appealed the district court’s decision by motion to the United States Court of Appeals for the Ninth Circuit.220 It is noteworthy that Smith’s appeal came fourteen days after the Ninth Circuit had issued its opinion in Buyers’ Coop., holding that it was within the district court’s discretion to permit the distribution of marijuana to seriously ill individuals who could satisfy the elements of the medical necessity defense.221 Notwithstanding the court’s earlier decision in Buyers’ Cooperative, however, on October 13, 1999, a Ninth Circuit Panel denied Smith’s motion for bail pending appeal, stating that “appellant has not shown that the appeal raises a ‘substantial question’ of law or fact that is likely to result in reversal, [or] an order for a new trial . . . .”222 The Panel did not go on to determine whether Smith was likely to flee or posed a danger to the community if released.223

Maintaining that the Panel erred in failing to recognize the denial of the medical necessity defense as an issue raising a “substantial question” of law that is likely to result in reversal or a new trial,224 Smith filed a motion with the Ninth Circuit on October 29, 1999, seeking reconsideration of the Panel’s Order.225 In support of his mo[*PG731]tion for reconsideration, Smith argued that the Panel overlooked or misunderstood Ninth Circuit precedent and directly contradicted the court’s decision in Buyers’ Cooperative.226 According to Smith, the court in Buyers’ Cooperative not only reaffirmed its earlier decision in Aguliar, which recognized the necessity defense generally, but also expressly applied the medical necessity defense to those citizens using medical marijuana.227 Furthermore, Smith maintained that although Buyers’ Cooperative involved the government’s seeking civil injunctive relief to close the OCBC, that case is not distinguishable from his own case because the court in Buyers’ Cooperative specifically addressed the applicability of the medical necessity defense to criminal defendants when it stated that “[h]ad the government proceeded in the usual way, by arresting those it believed had committed a crime . . . the defendants would have been able to litigate their necessity defense under Aguilar in due course.”228 Consistent with the court’s decision, therefore, Smith urged that he was in exactly the same position as those individuals identified in Buyers’ Cooperative, and thus should have been allowed to litigate his necessity defense at trial.229

Additionally, Smith argued that the Panel erred in refusing to reverse the district court’s conclusion that Smith’s medical necessity defense was properly denied—both at trial and on his motion for release pending bail—because he had not exhausted his legal alternatives by seeking the rescheduling of marijuana with the federal government.230 Smith maintained that the court in Buyers’ Cooperative made clear that this “administrative alternative” was irrelevant to the medical necessity inquiry.231 Thus, in light of the court’s decision in Buyers’ Cooperative, Smith argued that the denial of his medical neces[*PG732]sity defense raised a “substantial question” of law that is likely to result in reversal or a new trial, thus entitling him to bail pending appeal.232

On February 3, 2000, the Ninth Circuit issued an Order granting Smith’s motion for reconsideration of the court’s October 13, 1999 order denying bail and remanded to the district court the issue of whether Smith is entitled to bail pending appeal. Reaffirming its decision in Buyers’ Cooperative, the Ninth Circuit stated:

In light of this court’s decision in United States v. Oakland Cannabis Buyers’ Cooperative, . . . Smith is entitled to bail pending appeal if he can demonstrate: 1) a likelihood that he was entitled to present a medical necessity defense at trial; and 2) his release does not pose a danger that he will distribute marijuana to people not falling within the class of individuals described in OCBC . . . Accordingly, we remand for the limited purpose of allowing the district court to conduct this inquiry in the first instance.233

Thus, the Ninth Circuit recognized that the medical necessity defense is available as a matter of law to criminal defendants who can offer sufficient facts to establish a likelihood that they will be able to satisfy the requisite elements of the defense at trial.234 Pursuant to the court’s order, therefore, the district court must consider the facts in the record and determine whether there is a likelihood that Smith will be able to satisfy the elements of the medical necessity defense—as set forth Buyers’ Cooperative and reaffirmed by the Order—at trial.235 If the district court finds the existence of such facts, Smith is entitled to bail pending his appeal.236

On remand, therefore, the parties are limited to arguing, on the facts of the case, (1) whether Smith and the patients for whom he provided marijuana satisfy the requirements for the medical necessity [*PG733]defense set forth in Buyers’ Cooperative,237 and (2) whether Smith poses a danger that he will distribute marijuana to people not falling within the class of individuals described in Buyers’ Cooperative.238 Furthermore, as the result of the court’s reaffirmation of Buyers’ Cooperative, the government has been forced to abandon its earlier contention that because marijuana is a Schedule I substance, a medical necessity defense is never available in a marijuana case.239 Nonetheless, the government maintains that the defense should not apply to Smith in this case.240

The Ninth Circuit’s Order in Smith is a historic decision insofar as it represents the first time that a circuit court recognized the applicability of the medical necessity defense for medical marijuana in a federal criminal prosecution.241 Furthermore, the court’s Order seems to imply that a criminal defendant, while on bail pending appeal, may lawfully distribute medical marijuana to those people suffering from [*PG734]serious medical conditions for which marijuana provides necessary relief.242 In addition, it is important to note two key differences between the Ninth Circuit’s decisions in Smith and in Buyers’ Coop. First, the federal government’s action in Smith involved the criminal prosecution of an individual, whereas the government’s action against the cannabis clubs in Cannabis Cultivators Club consisted of injunctions, which are a civil remedy.243 Second, the use and cultivation of marijuana by an individual patient or primary caregiver, unlike the distribution of marijuana through cannabis clubs, is explicitly recognized by California’s Proposition 215.244 Therefore, although the Ninth Circuit’s decision in Buyers’ Cooperative was crucial insofar as it recognized the appropriateness of the medical necessity defense in federal court and laid the foundation for the court’s decision in Smith, it is the latter decision that will likely have the greatest impact on subsequent cases involving the criminal prosecution of patients attempting to use and cultivate marijuana for medical purposes.245

One case that will be affected by the Ninth Circuit’s decision in Smith is United States v. McWilliams.246 On November 5, 1999, Judge George H. King of the United States District Court for the Central District of California granted the government’s pre-trial motion prohibiting the defendants from making any reference to the medical benefits of marijuana at trial.247 Specifically, the defendants were barred from referring to California Proposition 215, the federal government’s own experimental medical marijuana programs or any claim that marijuana use is a medical necessity.248 In July 1998, defendants Peter McWilliams and Todd McCormick were arrested following a police raid in Los Angeles that turned up more than four thousand [*PG735]marijuana plants, and were charged with manufacturing and conspiring to grow and sell marijuana in violation of federal law.249 The charges carry with them a minimum sentence of ten years and a maximum sentence of life in prison.250

The government has sought to characterize McWilliams and McCormick as commercial dealers, alleging that they were growing marijuana to sell to marijuana clubs.251 McCormick maintains that he smokes marijuana to treat pain from cancer treatments.252 He also claims that he was growing an abundance of plants to determine which strains work best for which types of illnesses. McWilliams claims that he uses marijuana to treat nausea resulting from drugs he uses to treat AIDS.253 McWilliams further asserts that he tried other traditional medication to treat his nausea, including Marinol—a legal drug in pill form containing THC, the active ingredient in marijuana—but only marijuana allowed him to keep his anti-AIDS drugs down.254 Since McWilliams’ access to marijuana was blocked, he has been unable to keep down his pills and his viral load255 has risen to 250,000, a level that greatly reduces the effectiveness of the immune system.256 Despite pleas by McWilliams’ attorney to alter the bail conditions so that McWilliams can continue to smoke marijuana, Judge King has said that “he cannot authorize someone to break the law.”257 In addressing the medical necessity defense, Judge King stated that such a defense is inappropriate because it contradicts an explicit determination by Congress to classify marijuana as a Schedule I drug, a substance with no legitimate medical use.258

On November 19, 1999, following Judge King’s ruling, McCormick and McWilliams pled guilty to reduced drug charges.259 The [*PG736]government agreed to drop the marijuana manufacturing charges, which carry a ten-year minimum sentence, and allowed defendants to plead guilty to the charges of conspiracy to grow and distribute, which are punishable by a maximum sentence of five years.260 The guilty plea allows the lawyers for McCormick and McWilliams to appeal the district court’s medical necessity ruling following the sentencing hearing that occurred on February 28, 2000.261 In addition to the medical necessity defense, which the Ninth Circuit has held applicable in medical marijuana cases, there exists yet another option for avoiding the conflict between federal and state law; namely, the appropriate exercise of prosecutorial discretion.

V.  Role of Prosecutorial Discretion

Despite its long standing position in the common law, the case law dealing with the necessity defense is relatively underdeveloped.262 This can be explained, in large part, by the fact that many of the cases in which a necessity defense would be appropriately asserted are simply not prosecuted.263 The notion that the prosecuting attorney is vested with a broad range of discretion in deciding whether to prosecute is firmly entrenched in American jurisprudence.264 When exercised properly, this discretion can assure that justice will prevail over law.265 In the words of then Attorney General, Justice Robert Jackson: [*PG737]“The prosecutor has more control over life, liberty, and reputation than any other person in America.”266 The role of prosecutorial discretion in the federal sphere has received increased discussion and debate in recent years as Congress sought to “federalize” crimes that are traditionally left exclusively to state control.267 Such concurrent jurisdiction can result in problems when the values of a state, as evidenced by its legislative and constitutional decisions concerning criminal law or procedure, differ from that of the federal government.268 Federal prosecutorial discretion is thus especially relevant in states like California that have passed medical marijuana laws, because it has the potential to correct the imperfection of the federal law’s reflection of state and community values.269

The Department of Justice (“DOJ”) instructs federal prosecutors to commence with prosecution when a federal offense is violated and there is evidence to convict, unless no “substantial federal interest” is served by the prosecution.270 In determining whether to exercise their prosecutorial discretion to decline prosecution in a particular case, therefore, prosecutors must first conclude that declining prosecution would not sacrifice a substantial federal interest.271 A subchapter of the DOJ’s United States Attorney Manual (“the Manual”), entitled “Initiating or Declining Charges—Substantial Federal Interest,” sets forth the considerations that a prosecutor should weigh in determining whether a substantial federal interest is at stake.272 The Manual states that:

[*PG738][I]n determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including: (1) federal law enforcement priorities; (2) the nature and seriousness of the offense; (3) the deterrent effect of prosecution; (4) the person’s culpability in connection with the offense; (5) the person’s history with respect to criminal activity; (6) the person’s willingness to cooperate in the investigation or prosecution of others; and (7) the probable sentence if convicted or other consequences if the person is convicted.273

Addressing the first factor, “federal law enforcement priorities,” the DOJ acknowledges that it must be mindful of the limited enforcement resources available.274 In establishing national prosecutorial priorities, therefore, the DOJ states that it should focus on those matters that are most deserving of federal attention and that are most likely to be handled effectively at the federal level.275 The DOJ also acknowledges, however, that individual United States Attorney offices must be free to establish their own prosecutorial priorities within the national priorities in order to focus most effectively on matters of local concern.276

In referring to its second listed factor, “nature and seriousness of the crime,” the Manual asserts that “of primary importance is the actual or potential impact of the offense on the community and on the victim.”277 Moreover, the Manual states that in assessing the impact of the offense on the community, a prosecutor properly may take into account the gravity of the offense and the community’s attitude towards prosecution under the circumstances of the case.278 The importance of considering the community’s views as a factor in deciding whether to prosecute is emphasized also by scholars who suggest that prosecutors often decline prosecution based on their expectation that, given the community’s attitude towards a particular offense, a judge or jury will choose to acquit, notwithstanding proof of guilt be[*PG739]yond a reasonable doubt.279 Thus, the inability of a prosecutor to obtain a conviction for certain offenses, scholars argue, should influence the decision of whether to prosecute future offenses.280

The Manual also states that federal prosecutors should take cognizance of a “person’s personal circumstances.”281 In so doing, the Manual maintains that: “[s]ome circumstances peculiar to the accused, such as . . . mental or physical impairment, may suggest that prosecution is not the most appropriate response to his/her offense.”282 This factor is thus representative of the DOJ’s recognition that, in the name of justice, prosecutors must tailor their decision of whether to prosecute, not only to the particular type of offense, but to the circumstances surrounding the particular person as well.283 According to the DOJ, then, a federal prosecutor should weigh the potential defendant’s personal circumstances with the other seven considerations listed in the Manual in deciding whether a substantial federal interest exists so as to justify prosecution.284

At least one state’s DOJ office decided to endorse prosecutorial discretion in medical marijuana cases, declining to criminally prose[*PG740]cute medical marijuana patients possessing a sixty-day supply or less of marijuana.285 On December 1, 1999, in a letter that seems consistent with the DOJ’s desire to give individual offices flexibility in defining their priorities, Western Washington’s top federal prosecutor, United States Attorney Kate Plaumer, stated, “[g]iven our limited funding and overwhelming responsibilities to enforce an ever larger number of federal offenses, we simply cannot afford to devote prosecutive resources to cases of this magnitude.”286 Washington is one of five states that permits the possession and use of medical marijuana under state law.287 Plaumer stated that she sent the letter to the Seattle police in order to address the fact that the conflict between state and federal law puts the police in a difficult position as to which law to enforce.288 Plaumer stated that there are policies already in place that preclude her office from charging qualified medical marijuana patients under federal law, and thus, police should not enforce federal drug law against those patients legitimately possessing and using medical marijuana under state law.289 In response to a question of how much marijuana was permitted, Plaumer suggested that an amount fewer than 250 plants would constitute an authorized “sixty-day supply” of marijuana under Washington law.290

Although prosecutorial discretion potentially can bring the law into conformity with the values of the community, like all types of discretion, it has a high potential for abuse.291 Indeed, Justice Jackson, in his earlier quoted statement, went on to say that: “While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”292 This abuse is most glaring where the government prosecutes a defendant for political—as opposed to purely legal—reasons.293 In such cases, contrary to the ideal application of a prosecutor’s discretion, [*PG741]the prosecutor uses the technicalities of the law to harass a person for conduct that the community might not find criminal.294 Scholars suggest several indicia for when the government is prosecuting “political defendants”: (1) where the defendants are “political persons” dissenting from the conventional wisdom; (2) where the defendants are being prosecuted in part for what they say or think; (3) where there is selective prosecution295; and (4) where the trial is not a model of evenhandedness and judicial restraint.296

VI.  Plea for Compassion

The use of prosecutorial discretion as described above, the medical necessity defense and the rescheduling of marijuana as a Schedule II substance, are three routes that the federal government could choose to implement a compassionate policy regarding medical marijuana. Although passage of the congressional legislation supported by Representative Frank297 and/or the rescheduling of marijuana as a Schedule II drug by the DEA would constitute the most resounding support for permitting the use of medical marijuana, they are the least likely to occur in the near future. Conversely, as public opinion continues to support medical marijuana, it is likely that more states will pass initiatives resembling that recently passed in Maine, which exempts patients with a doctor’s recommendation from state criminal prosecution.298 The tension between states and the federal govern[*PG742]ment will continue to increase, therefore, if the federal government refuses to alter its policy regarding marijuana and the states simultaneously continue experimenting with new legislative schemes relating to medical marijuana.

The cases in California, moreover, highlight another growing conflict—this one involving a dispute over federal law between the executive and judiciary branches.299 The DOJ insists that marijuana has no legitimate medical use—as evidenced by Congress’s classifying marijuana as a Schedule I drug—and that federal drug law therefore applies absolutely with no medical necessity exception.300 The Ninth Circuit, on the other hand, with its holdings in Buyers’ Coop. and Smith, stated that a medical necessity defense is appropriate in certain cases where patients are criminally prosecuted under federal law, despite Congressional scheduling.301 This question of the appropriateness of the medical necessity defense in medical marijuana cases is likely to increase in importance as the medical benefits of marijuana become more well documented as a result of increased numbers of persons using marijuana for medical purposes under state law and government sponsored studies pertaining to medical marijuana.302 Additionally, the medical necessity defense likely will continue to represent the only available option for those patients hoping to escape federal prosecution, save Congressional legislation or rescheduling. Ultimately, this issue only can be resolved by a decision from the United States Supreme Court. An antecedent question to that of the appropriateness of the medical necessity defense, moreover, is what role, if any, prosecutorial discretion should play as a means of respecting the values of those states that support the medical use of marijuana.

A.  Rescheduling Marijuana as a Schedule II Substance

As noted above, the most effective and efficient means for seriously ill patients to legally obtain marijuana is to reschedule marijuana as a Schedule II substance, thereby allowing doctors to prescribe it to their patients.303 Twelve years ago, the DEA’s Administrative Law Judge, Judge Young, held that it would be “arbitrary and capricious” for the [*PG743]DEA to refuse to transfer marijuana to Schedule II.304 Since that time, the federal government has ignored the pleas of patients, doctors and medical organizations to make marijuana available for those in serious need. The people of this country clearly favor a more compassionate policy from the federal government regarding medical marijuana.305 Indeed, citizens in states throughout the country have spoken on the issue through the initiative process, and public opinion polls show similar support for medical marijuana in other states as well.306 Just this year, the IOM’s report, which was commissioned by the federal government, documented marijuana’s therapeutic potential and urged the federal government to implement some policy whereby patients in serious need can receive marijuana immediately.307

Given the overwhelming support for medical marijuana in the United States, it is time that Congress and the DEA respect the will of the people and reschedule marijuana as Schedule II substance.308 It is the contention of this Note, moreover, that if the government insists on conducting further studies, they at least should follow the recommendation of the IOM and reopen, or create something comparable to, the Compassionate Use IND program, which was suspended in 1992.309

B.  Federal Prosecutorial Discretion as a Solution to Federal-State Conflict

Although the ultimate goal for medical marijuana advocates should be rescheduling, the immediate objective ought to be preventing those suffering from serious illnesses from being criminally prosecuted under federal law. In those states that have passed medical marijuana initiatives, federal prosecutors should avoid the conflict be[*PG744]tween federal and state law by declining to prosecute and thus respecting the values of the citizens vis-a-vis medical marijuana.310 Indeed, when exercised appropriately, prosecutorial discretion serves to make the law consistent with the values and notions of justice held by a particular community.311 Given the apparent willingness of the people in some states to tolerate a violation of federal marijuana law when there is a serious medical need, it seems clear under the DOJ’s prosecution guidelines that a local federal prosecutor is justified in declining to prosecute such violations.312

In the first place, as the letter sent from Washington’s U.S. Attorneys office to the Seattle police made explicit, the criminal prosecution of those legitimately possessing or using medical marijuana under state law should not and must not be a top priority of federal prosecutors.313 Those states that have passed laws like California’s Proposition 215 authorizing the use of medical marijuana have spoken on what they see as the proper priorities for law enforcement.314 That is, implicit in the passage of such laws is the statement that precious law enforcement resources should be used to prevent violent crimes that endanger the safety of its citizens, not to pursue seriously ill individuals using marijuana for medical purposes.315 Therefore, consistent with the flexibility granted to individual U.S. Attorneys offices in the Manual, offices in every state with laws permitting medical marijuana should make formal announcements similar to that made in Washington, declining to prosecute legitimate medical marijuana patients.316

[*PG745] Other DOJ factors point towards declining to prosecute as well.317 When considering the “nature and seriousness” of a seriously ill person violating federal marijuana law, prosecutors must consider the fact that the violation does not have a significantly negative impact on the community.318 In passing laws that permit medical marijuana, citizens codified their values with respect to the seriously ill and medical marijuana.319 In exempting medical marijuana patients from criminal prosecution under state law, the citizens of these states engaged in their own balancing test and concluded that any impact that the violation of state law may have on the community is minimal when compared with the potential harm to seriously ill people who are denied effective medicine. Unfortunately, due to federal constitutional constraints, the citizens of the individual states cannot exempt medical marijuana patients from prosecution under federal law.320 It must be the case, however, that were such restraints not applicable, the views of these same citizens towards a violation of federal marijuana law under the same circumstances, would be identical.

Furthermore, in many of the cases involving medical marijuana, the defendants are facing criminal charges for the first time in their lives. As the DOJ’s Manual points out, the absence of any prior criminal activity should weigh against prosecution.321 Similarly, prosecutors must be aware of the fact that criminally prosecuting seriously ill people under federal marijuana laws, especially those with no prior criminal history, will fail to achieve one of the primary goals of criminal law—the deterrence of criminal activity.322 Indeed, implicit in cases involving a “choice of evils” or necessity is the fact that a far greater harm will come to the person who chooses to obey a particular law.323 So long as those seriously ill patients for whom marijuana is their only hope of relief conclude that violating federal law is a lesser evil than enduring the pain and suffering associated with being unable to receive the necessary treatment, the mere threat of prosecution is unlikely to serve as much of a deterrent.

[*PG746] Lastly, prosecutors must consider the personal circumstances of the potential defendant in each case.324 To criminally prosecute and incarcerate seriously ill individuals, including those who are suffering tragically from conditions such as cancer or AIDS, is contrary to our notions of justice and common decency as well as the great spirit of human compassion that, itself, defines our laws.325 Indeed, these unfortunate individuals should be spending their most difficult and painful days with loved ones, not left to deteriorate in a federal courtroom or an overcrowded prison where they are treated like criminals. It is quite likely, moreover, that the DOJ was focusing on precisely such seriously ill individuals when drafting its guidelines specifically to include a place for the consideration of a potential defendant’s “personal circumstances.”326

Despite the many sound reasons reflected in the DOJ’s Manual for declining to federally prosecute seriously ill people who legitimately cultivate or possess marijuana under state law, it is unlikely, due to political pressures, that many states will follow Washington’s lead.327 Indeed, the federal government’s unwillingness to forgo prosecution of those violating federal drug laws, even the seriously ill, is the result of the fact that many medical marijuana defendants are charged for “political” reasons.328 Such political trials commonly involve an abuse of prosecutorial discretion.329 Medical marijuana cases are no exception.

As discussed above, there are several indicators of when the government is prosecuting a defendant for political reasons.330 One such indicator is that the defendant is dissenting from the conventional wisdom.331 Those that represent views contrary to the current dogma are seen as a threat and, as such, are prosecuted vigorously regardless of any other extenuating circumstances.332 In the context of medical [*PG747]marijuana, the “war on drugs” represents the current dogma or conventional wisdom, at least among politicians and law enforcement officials.333 The war on drugs, which was declared in the 1960s and reinvigorated in the 1980s, is motivated by the government’s perception that the public desires a zero-tolerance, “tough on crime” approach to drugs.334 This approach has had disastrous effects on health and health care throughout the United States.335 Indeed, the federal government’s vigorous prosecution of the seriously ill reflects the government’s perception that anything less signifies an unacceptable retreat in the war on drugs.336 Unfortunately for those in serious medical need, moreover, many incorrectly believe that medical marijuana advocates are simply using the medical context as a hook for larger-scale legalization.337 Those suffering from cancer, AIDS and [*PG748]other horrific diseases or conditions thus have become the innocent casualties of the war on drugs.338

Furthermore, as asserted by the lawyers of B.E. Smith, Todd McCormick and Peter McWilliams, medical marijuana defendants are often selectively prosecuted, largely because of their outspoken views in support of medical marijuana.339 All three of the above-named defendants were ardent and vocal supporters of Proposition 215 and medical marijuana.340 Smith, for example, is well-known for his writings on constitutional rights and individual liberties.341 The federal government’s decision to prosecute in the case of Smith is even more suspect due to the fact that he was charged with cultivating and possessing only eighty-seven plants—an amount well below the 250 maximum that the U.S. Attorney for the Western District of Washington state has suggested.342 Also, as noted above, Smith’s case was the first federal case in Northern California where an individual was prosecuted for cultivating or possessing under 100 plants.343 The McWilliams case contains several disturbing oddities as well, regarding the issue of why they, and not other offenders, were selected for prosecution. The key witnesses in the government’s case were large-scale buyers, sellers and growers of medical marijuana, many of whom were worse offenders than the defendants.344 Moreover, the government does not allege any sales by the defendants, only that they “intended” to sell to the government’s witnesses, who, in the meantime, are still on the street buying, selling and growing marijuana.345 Surely, [*PG749]there must be a uniquely political reason why the federal government chose to target McCormick and McWilliams.

Finally, the government’s political motivations are clear when one considers the statements and actions of judges, which are often anything but models of evenhandedness and judicial restraint.346 The judge in Smith’s case serves as one example. Judge Burrell’s decision to deny bail to Smith, considering Smith’s lack of a criminal record and relatively minor violation, suggests that the judge was being less than evenhanded.347 Furthermore, the sentence imposed in that case—the maximum term authorized by law and longer than that requested by the government prosecutors—can be dubbed restraint only jokingly.348 Judge Burrell’s predilections on the issue of medical marijuana were evidenced further by his comments on the “evils” of marijuana.349 Actions and statements such as these clearly indicate that Judge Burrell does not take seriously the medical marijuana claims of gravely ill individuals, and, on the contrary, harbors a negative predisposition towards medical marijuana defendants such as Smith.350

Although the evidence that medical marijuana defendants are prosecuted for political reasons is likely not sufficient to make out a claim of selective or vindictive prosecution—because of the high-threshold showing required by the Supreme Court351—it nonetheless serves two important purposes. First, such evidence should act to enlighten federal prosecutors that their prosecution of seriously ill individuals represents an inappropriate exercise of their prosecutorial discretion.352 More importantly, however, revealing the government’s political motivations in prosecuting medical marijuana defendants will inform judges and juries, so that they, through defenses like [*PG750]medical necessity, can act as a check on the government’s abuse of its prosecutorial discretion.353

C.  Viability of the Medical Necessity Defense

Because federal prosecutors in most states are not exercising their prosecutorial discretion appropriately, the courts must retain a means by which they can exercise their own discretion when the law and justice do not coincide.354 In the context of criminal prosecutions involving medical marijuana, the medical necessity defense provides such a means.355 Affirming the role of the courts and juries in these cases, one commentator notes that: “The necessity defense is a ‘safety valve,’ fully within our legal tradition, whereby juries may be informed of their discretionary function as the conscience of the community.”356 Similarly, the Supreme Court has stated that: “[O]ne of the most important functions any jury can perform . . . is to maintain a link between contemporary community values and the penal system.”357

It is without question that the medical necessity defense is a valid defense to prosecution under federal statutory law.358 The only remaining question, therefore, is whether the medical necessity defense can be applied in the medical marijuana context. The Ninth Circuit has resoundingly answered in the affirmative.359 Indeed, with its decision in Buyers’ Cooperative and its Panel Order in Smith, the Ninth Circuit correctly cut through the government’s misguided belief that, because marijuana is a Schedule I substance, the medical necessity [*PG751]defense is not available as a defense to federal prosecution for manufacturing or possessing marijuana.360 In addition to the Ninth Circuit, other federal circuits have similarly rejected the government’s position.361 Furthermore, the basis for the government’s argument regarding the scheduling law also has been rejected by numerous state courts that have allowed the medical necessity defense in medical marijuana cases despite state scheduling laws that are analogous to the federal government’s scheduling law.362

The federal circuit and state courts that have faced the issues of medical marijuana and the medical necessity defense have rightly concluded, implicitly or otherwise, that the attempt to link two unrelated concepts—scheduling and medical necessity—is wholly without merit. Indeed, the government’s interest in prohibiting the use of marijuana generally is not furthered by prohibiting the use of marijuana in certain exceptional circumstances where it could offer relief to, for example, a cancer victim suffering from excruciating pain or a multiple sclerosis victim suffering from continuous spastic contractions.363 As discussed above, the doctrine of necessity has been developed and judicially required throughout the years specifically to counterbalance legislative pronouncements and leave to courts—through judges and juries—the discretion to craft a just outcome in a particular case.364 To think or reason otherwise, moreover, blatantly ignores the history of the necessity defense and the separation of powers doctrine upon which this country was founded.

Notwithstanding the government’s misguided efforts to reconcile federal scheduling law with its rejection of the medical necessity defense, it is apparent that the Controlled Substances Act was not intended to prohibit the medical use of marijuana forever.365 The legislative history surrounding the law’s enactment suggests that Congress did not even consider the medical utility of marijuana in placing marijuana in Schedule I, let alone the question of whether it should be illegal to use a Schedule I substance in a medical emergency.366 On the contrary, Congress intended to place marijuana in Schedule I [*PG752]only temporarily, pending the outcome of the Commission’s report.367 For political reasons, however, this report, which concluded that marijuana lacked any harmful physiological effects, was never employed properly to reschedule marijuana.368

Federal courts that correctly allow the medical necessity defense in medical marijuana cases in the future will still face questions regarding its application, specifically, how to apply the element requiring that “no other legal and reasonable alternatives” be present. With regard to this question, the Ninth Circuit’s recent holdings wisely lead the way towards a rational and compassionate rule.369 In Buyers’ Cooperative, the Ninth Circuit correctly determined that the concept of other legal and reasonable alternatives referred to other medications, not to legislative or executive branch remedies.370 Thus, the administrative opportunity for rescheduling cannot be used to deny a criminal defendant the occasion to present a medical necessity defense at trial. As discussed in Buyers’ Club, the rescheduling odyssey experienced by NORML, beginning in 1972 and finally concluding in 1994,371 makes it clear that rescheduling is not a “reasonable” alternative, especially for a seriously ill individual in need of instant relief. Therefore, unless the federal government follows the IOM’s recommendation and reinstates its IND Program, the government cannot argue—as some state courts have in denying the defense—that seriously ill individuals for whom marijuana is the only effective treatment have any other legal and reasonable alternative.372 Thus, a defendant only should be denied the opportunity to present a medical necessity defense to the judge or jury in cases where the defendant failed to produce facts, such as a doctor’s recommendation, that marijuana was necessary to prevent a medical harm.

The success of the medical necessity defense in federal court is especially crucial for citizens in states without medical marijuana laws. In these states, the argument urging prosecutorial discretion applies with less force because there is not a clear indication of the community’s disposition regarding medical marijuana.373 Nonetheless, the [*PG753]medical necessity defense is of great importance in all states as it can serve as both an important check on local and federal prosecutors and as a conduit for proclaiming community values.374 Indeed, if the medical necessity defense is allowed in medical marijuana cases and juries overwhelmingly accepts the defense, a strong message will be sent to prosecutors. Over time, prosecutors hopefully will accept the will of the people and decline to prosecute such cases in which they cannot obtain a conviction.


America’s relationship with marijuana has been extremely tumultuous and political. In this century, marijuana, a substance that has enjoyed a rich medical history dating back thousands of years, has been relegated to merely another target in the war on drugs. This war on drugs has been responsible for thousands of innocent casualties—seriously ill individuals, suffering from illnesses such as cancer and AIDS, who cannot receive legally a form of treatment that can relieve their pain.375 Consequently, many otherwise law-abiding citizens have been forced to violate federal law. In many cases, these same individuals face criminal prosecution and possible incarceration. The recent burgeoning of medical marijuana laws in states throughout the country indicates that Americans will no longer tolerate this inhumane treatment of the seriously ill.

The federal government should follow the lead of these states and respect the will of the people by rescheduling marijuana or by exercising their prosecutorial discretion in a way that formally ends the prosecution of medical marijuana patients. Additionally, federal courts throughout the country should follow the Ninth Circuit’s lead in Buyers’ Cooperative and Smith to ensure that the medical necessity defense is available to all of those defendants having a sufficient medical need for marijuana. Such a showing of compassion on the part of the federal government would be consistent with this nation’s notions of fundamental fairness, liberty and justice.

Andrew J. LeVay*

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