175 See id. OCBC asked the district court to modify the injunction to allow cannabis to continue to be distributed to patients whose physicians certify that: (1) the patient suffers from a serious medical disorder; (2) the patient will suffer imminent harm if the patient does not have access to marijuana; (3) marijuana is necessary for the treatment of the patient’s medical condition, or marijuana will alleviate the medical conditions or symptoms associated with it; and (4) there is no legal alternative to marijuana for the effective treatment of the patient’s medical condition because the patient has tried other medical alternatives to marijuana and has found them ineffective in treating his or her condition, or has found that such alternatives result in intolerable side-effects. See id.
176 See id. at 1111–12.
177 See Buyers’ Coop., 190 F.3d at 1115.
178 See id. at 1114. The Ninth Circuit noted that by stating that “its equitable powers do not permit it to ignore federal law . . . the district court misapprehended the issue. The court was not being asked to ignore the law. It was being asked to take into account a legally cognizable defense that would likely pertain in the circumstances.” Id. at 1114 (emphasis added).
179 See id.
180 See id. (citing Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1156 (9th Cir. 1988) (holding that courts retain broad equitable discretion when it comes to injunction against violations of federal statutes unless Congress has clearly and explicitly demonstrated that it has balanced equities and mandated injunction)).
181 See id. at 1114.
182 See Buyers’ Coop., 190 F.3d at 1114.
183 See id.
184 See id.
185 See id.
186 See id.
187 See Buyers’ Coop., 190 F.3d at 1114.
188 See Bob Egelko, supra note 158. In an attempt to get the Clinton Administration to drop its opposition to medical marijuana, Attorney General Bill Lockyer wrote a letter to United States Attorney Janet Reno urging the government not to appeal the Ninth Circuit’s ruling. See id.
189 See Justice Department Asks for Rehearing of Medical Marijuana Ruling, Associated Press, Oct. 27, 1999.
190 See Buyers Coop., 190 F.2d 1109 (9th Cir. 1999) (No. 98–16950); see also Robert Raich (counsel to OCBC), Major Victory for Medical Marijuana in California: 9th Circuit Court of Appeals Denies Clinton Administration’s Petition of for Rehearing and Rehearing En Banc, Marijuana news (visited Mar. 29, 2000) <http://18.104.22.168/news.php3?sid=133>.
191 See United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB); United States v. McWilliams, (C.D. Cal. 1999) (No. CR-97–997 (A-GHK)).
192 Under Proposition 215, caregivers are those persons who cultivate medical marijuana for distribution to specific patients.
193 See Rachael Swain, B.E. Smith: Compassionate Caregiver or Common Criminal?, Marijuana News (visited Mar. 29, 2000) <http://www.marijuananews.com/woody_harrelson_ and_defense_lawy.htm>.
194 See Defendant’s Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense; Request for Hearing at 1, United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Defendant’s Memorandum Re Bail].
195 See id. at 2.
196 See Defendant’s Declaration of Counsel in Support of Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense at 2, United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Defendant’s Declaration of Counsel]. Although Smith was not formally diagnosed with PTSD until after his conviction, his family and close friends have been aware of his condition since his return from Vietnam. See id.
197 See Defendant’s Memorandum Re Bail, supra note 195, at Exhibit B (Correspondence from Dr. Jeri Rose, June 6, 1997).
198 See id. at Exhibit C (caregiver designation). Under Proposition 215, patients can also serve as caregivers. See Cal. Health & Safety Code § 11362.5(C)(2)(e) (West 2000).
199 See Defendant’s Declaration of Counsel, supra note 197, at 3.
200 See Defendant’s Memorandum Re Bail, supra note 195, at 9–10; Swain, supra note 194, at 4.
201 See Defendant’s Memorandum Re Bail, supra note 195, at 10; Swain, supra note 194, at 4.
202 See Defendant’s Memorandum Re Bail, supra note 195, at 9–10; Swain, supra note 194, at 4.
203 See Swain, supra note 194, at 5.
204 See Denny Walsh, Actor Harrelson, Judge Clash in Pot Trial, Sacramento Bee, May 21, 1999, at 2.
205 See Swain, supra note 194, at 5.
206 See Defendant’s Memorandum Re Bail, supra note 195, at 1.
207 See id. Smith’s lawyers had sought to introduce four separate defenses to the charges of manufacturing and possession in addition to medical necessity: (1) substantive due process; (2) Section 884(a) “valid prescription” defense; (3) entrapment by estoppel; and (4) reliance on the advice of counsel. See Order at 6–10, United States v. Smith, (E.D. Cal. 1999) (No. CR S-97–558 GEB)[hereinafter District Court’s Order].
In addition to granting the government’s pre-trial motion, Judge Burrell also overturned a discovery motion that had been granted by a U.S. Magistrate regarding Smith’s claim of selective prosecution. See id. The Magistrate had granted a request by the defense to compel the federal government to disclose documentation relating to the decision to prosecute Smith. See id. The government appealed the Magistrate’s decision and Judge Burrell reversed. See id. at 5.
208 See Government’s Opposition to Smith’s Motion for Bail Pending Appeal Following Remand at 4 n.1, United States v. Smith (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Gov’t Opposition].
209 See District Court’s Order, supra note 208, at 2.
210 See id. at 1. The court stated that the decision of whether to grant bail pending appeal is governed by the provisions of the Bail Reform Act, 18 U.S.C. § 3143(b) (2000). See id.
211 See id. at 1–2. A substantial question of law or fact has been interpreted by the Ninth Circuit and other federal circuit courts of appeals to mean “one that is ‘fairly debatable’ or ‘fairly doubtful.’ In short, a ‘substantial question’ is one of more substance than would be necessary to a finding that it was not frivolous.” United States v. Handy, 761 F.3d 1279, 1280 (9th Cir. 1985).
212 18 U.S.C. § 3143(b)(1)(A), (B) (2000) (emphasis added).
213 See District Court’s Order, supra note 208, at 3-4.
214 See id. at 4.
215 See id. at 5–10.
216 See id.
217 See id. at 6.
218 See Swain, supra note 194, at 3.
219 See id. at 7.
220 See id.
221 See Appellant’s Motion for Reconsideration of Application of B.E. Smith for Release Pending Appeal at 3, United States v. Smith (9th Cir. 1999) (No. 99–10477) [hereinafter Appellant’s Motion for Reconsideration].
222 See Buyers’ Coop., 190 F.3d at 1114 (decided Sept. 13, 1999); Appellant’s Motion for Reconsideration, supra note 222, at 3.
223 Order at 1, United States v. Smith (9th Cir. Oct. 13, 1999) (No. 99–10447).
224 See id.
225 See Appellant’s Motion for Reconsideration, supra note 222, at 2. Smith’s attorneys believed that the Panel erred further by refusing to find a “substantial question” likely to result in a reversal or new trial with regards to other decisions by the district court as well. See id. at 2 n.1. Specifically, the defense maintained that the district court wrongfully overturned the U.S. magistrate’s decision regarding selective prosecution and improperly excluded evidence regarding the entrapment by estoppel and advice of counsel defenses. See id. In recognition of the limited circumstances for a motion for reconsideration, however, the defense limited its petition to the district court’s denial of the medical necessity defense. See id.
226 See id. at 1. Ninth Circuit Rule 27–10 authorizes a petitioner to seek clarification, reconsideration or rehearing of an order. Rule 27–10 states:
A party . . . shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.
See id. (stating Ninth Circuit Rule 27–10).
227 See Appellant’s Motion for Reconsideration, supra note 222, at 2–7.
228 See id. at 5 (quoting the requirements set forth by court in Buyers’ Cooperative, as well as its recognition that medical marijuana was “legally cognizable defense”).
229 See id. (quoting Buyers’ Coop., 190 F.3d at 1115).
230 See id. at 6.
231 See Appellant’s Motion for Reconsideration, supra note 222, at 6–7.
232 See id. at 7.
233 See Order at 1–2, United States v. Smith (9th Cir. Feb. 3, 2000) (No. 99–10447) [hereinafter Ninth Circuit Order]; Appellant’s Motion for Reconsideration, supra note 222, at 2–7. Smith also addressed the district court’s ruling that he is a flight risk or a danger to the safety of the community. See Appellant’s Motion for Reconsideration, supra note 222, at 7. Although the Ninth Circuit remanded this issue to the district court, Smith argued that the district court’s conclusion was “inseparably enmeshed with that court’s unsupported and inaccurate belief that he was an unjustified and flagrant violator of federal law who had no right to assert a medical necessity defense.” See id. at 8.
234 Ninth Circuit Order, supra note 234, at 1–2.
235 See id.
236 See id.
237 See id.
238 See id. Smith argues that he and the people to whom he distributed marijuana are in the same position as those described in Buyers’ Club, and thus, he meets the minimum threshold showing that he had a right to present his medical necessity defense at trial. See Defendant’s Memorandum Re Bail, supra note 195, at 11–14. The government argues that Smith cannot avail himself of the defense because he fails to satisfy the requirement of “necessity,” which the government suggests requires a showing of an “emergency” or “absolute and uncontrollable necessity.” See Gov’t Opposition, supra note 209, at 2–7 (citing United States v. Dorrell, 758 F.2d 427, 431). Indeed, the government states that Smith does not allege that he was faced with imminent danger of dying or permanent disability. See id. at 6. Smith argues, in turn, that the government’s definition of the necessity requirement is not supported by case law and contradicts both Aguilar and Buyers’ Club. See Defendant’s Reply Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense at 2–3, United States v. Smith (E.D. Cal. 2000) (No. CR S-97–558 GEB) (arguing that government’s interpretation of United States v. Dorrell is incorrect, but regardless, the case is irrelevant because it preceded Aguilar and Buyers’ Club) [hereinafter Defendant’s Reply Memorandum]. The government also maintains that Smith had other legal alternatives including the use of other drugs, such as Valium, and the pursuit of rescheduling by the federal government. See Gov’t Opposition, supra note 209, at 6–7. Smith urges that both of the government’s arguments concerning legal alternatives are in contradiction of Buyers’ Club and the Ninth Circuit’s directives in his case. See Defendant’s Reply Memorandum, supra, at 4–5 (stating that even assuming some degree of merit in government’s argument concerning medical alternatives, such a question is for jury).
239 See Defendant’s Memorandum Re Bail, supra note 195, at 14–15; Gov’t Opposition, supra note 209, at 7–10.
240 See Gov’t Opposition, supra note 209, at 4. The government stated that it disagreed with the court’s analysis in Buyers’ Club that there was no evidence of Congress’s intention to divest district court’s of their broad equitable discretion. See id. The government maintains that Congress has divested the courts of such discretion by choosing to classify marijuana as Schedule I. See id. at n.1.
241 See id.
242 See Letter from David M. Michael, attorney for B.E. Smith, Feb. 24, 2000 (on file with author).
243 See id. By relying on Buyers’ Cooperative, which held that cannabis clubs such as OCBC may be entitled to continue distributing marijuana to those seriously ill patients that satisfy the elements of the medical necessity defense, the court’s Order in Smith can reasonably be interpreted as extending the Buyers’ Cooperative holding to include someone acting as a patient’s primary caregiver. See Ninth Circuit Order, supra note 234, at 1–2.
244 Compare District Court’s Order, supra note 208, at 1, with Cannabis Cultivators Club, 5 F. Supp. 2d at 1101.
245 Although the cannabis clubs urge that they qualify as caregivers within the meaning of Proposition 215, their case is not as clear as Smith, where the individual patient or caregiver possesses or cultivates medical marijuana. See supra notes 199–200 and accompanying text.
246 See Ninth Circuit Order, supra note 234, at 1.
247 See (C.D. Cal. 1999) (No. CR-97–997 (A-GHK)).
248 See David Rosenzweig, Activists Plead Guilty to Drug Charges, L.A. Times, Nov. 20, 1999, at B1.
249 See id.
250 See id.
251 See id.
252 See id.
253 See Rosenzweig, supra note 249, at B1.
254 See id.
255 See Lynda Gorov, US Prosecutes Cancer Patient Over Marijuana, Boston Globe, Oct. 23, 1999, at A1. For a discussion of the Schedule II drug, Marinol, and why it is not always as effective as the smoked form of marijuana, see Tiersky, supra note, 16, at 567–68. For example, the recent IOM report concluded that “Marinol’s oral route of administration hampers its effectiveness because of slow absorption . . . .” See National Academy of Sciences Institute of Medicine, supra note 53, at 205–06.
256 The viral load is the measure of active AIDS virus in the body.
257 See Mary Curtius, AIDS Patient Pins Hopes on Pot Ruling, L.A. Times, Sept. 20, 1999, at A3.
258 See id.
259 See Rosenzweig, supra note 249, at B1.
260 See id.
261 See id.
262 See id.
263 See Arnolds & Garland, supra note 99, at 291.
264 See id.
265 See Wayne R. LaFave & Jerald H. Israel, Criminal Procedure § 13.2(a), at 561 (1985); Theodore W. Housel & Guy O. Walser, Defending and Prosecuting Federal Criminal Cases 47 (1946). Because of legislative “overcriminalization” and limitations on enforcement resources, no prosecutors are able to prosecute all of the offenses that come to their attention. See LaFave & Israel, at 562. One scholar has noted, to deny the exercise of discretion under these circumstances is “like directing a general to attack the enemy on all fronts at once.” See id. (quoting T. Arnold, The Symbols of Government 163 (1935)). For a more in-depth treatment of prosecutorial discretion and the role that it should play in the criminal justice system, see, for example, Gerald E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2127 (1998) (describing policy goals that guide prosecutorial discretion); Charles W. Thomas & W. Anthony Fitch, Prosecutorial Decision Making, 13 Am. Crim. L. Rev. 506 (1976) (discussing prosecutor’s role in charging decisions).
266 See Arnolds & Garland, supra note 99, at 298 (quoting generally F. Miller, Prosecution (American Bar Foundation, 1969)). The Supreme Court has stated:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not just that it shall win a case, but that justice is done.
Berger v. United States, 295 U.S. 78, 88 (1935).
267 Robert H. Jackson, The Federal Prosecutor, 31 J. Crim. L., Criminology, & Pol. Sci. 3, 4 (1940).
268 See supra notes 95–97 and accompanying text.
269 See Hollon, supra note 96, at 501, 520–26 (arguing for expansive application of selective prosecution doctrine because of perverse incentive given to federal prosecutors in areas of concurrent jurisdiction to prosecute solely where state constitutional or procedural protections would be advantageous to defendant in state court).
270 See id.
271 United States Attorney Manual, Grounds for Commencing or Declining Prosecution, Tit. 9, Chap. 9–27.220(A) (1997). Two further justifications for declining to prosecute are that the person is subject to effective prosecution in another jurisdiction, or that there exists an adequate non-criminal alternative to prosecution. See id.
272 See id.
273 See United States Attorney Manual, Initiating and Declining Charges—Substantial Federal Interest, Tit. 9, Chap. 9–27.230 (1997) [hereinafter USAM 9–27.230].
274 See id. Although the Manual lists only seven factors, the Comment section of USAM 9–27.230 discusses an additional factor; namely, “the person’s personal circumstances.” See id. § (B)(1).
275 See id.
276 See id.
277 See id.
278 See USAM 9–27.230, supra note 274, § (B)(2).
279 See id.
280 See LaFave & Israel, supra note 266, at 564 (discussing discretion of judge and jury as influence on prosecutor’s decision to prosecute); Aaron T. Oliver, Note, Jury Nullification: Should the Type of Case Matter?, 6 Kan. J.L. & Pub. Pol’y 49, 60–62 (1997) (discussing jury’s willingness to nullify law when community views harm resulting from crime to be de minimus or law to be inappropriate restriction on victimless activity); Harvey Uhlenhopp, The Criminal Trial: Observations from the Bench (speech presented to National District Attorneys Association / Iowa County Attorneys Seminar), in Practicing Law Institute, The Prosecutor’s Sourcebook 24–5 (B. James George, Jr. ed. 1969). A jury may exercise its discretion to acquit the guilty for a variety of reasons, including: (1) sympathy with the defendant; (2) belief that the offense is de minimus; or (3) the fact that the statute violated is an unpopular law. See LaFave & Israel, supra note 266, at 564.
281 See LaFave & Israel, supra note 266, at 564; Oliver, supra note 281, at 60–62. For example, a prosecutor in a county where jurors simply will not convict in driving-while-intoxicated cases absent aggravating circumstances must consider whether it is wise to continue prosecuting similar cases. See Uhlenhopp, supra note 281, at 24–25.
282 See USAM 9–27.230, supra note 274, § (B)(7).
283 See id.
284 See id.
285 See id. §§ (A) & (B). At least one commentator, however, has suggested that it is naïve to believe that a prosecutor’s decisions concerning whether to prosecute are controlled by any rules or guidelines, such as those set forth in the DOJ’s Manual. See Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 Fordham Urb. L.J. 553, 558–60 (1999). Rather, Levenson argues that charging decisions take place within “a gap in the rules—a gap intentionally left so that prosecutors can tailor justice.” Id. at 558. According to Levenson, prosecutors must seek to fill the gap through a practical sense of what is right and wrong and a moral standard. See id.; see also generally, Bennet L. Gershman, A Moral Standard for the Prosecutor’s Exercise of the Charging Decision, 20 Fordham Urb. L.J. 513 (1993).
286 Carl M. Ostrom, Feds Clarify Medical-Marijuana Guidelines; Reject Busting Patients, Seattle Times, Dec. 2, 1999, at B1.
287 See id.; see also LaFave & Israel, supra note 266, at 565 (stating that established standards are necessary for each prosecutor’s office to guide exercise of prosecutorial discretion, particularizing such standards as circumstances that properly can be considered mitigating or aggravating, or kinds of offenses that should be most vigorously prosecuted in view of community’s needs).
288 See Wash. Rev. Code Ann. § 69.51A (West 2000).
289 See Ostrom, supra note 287, at B1.
290 See id.
291 See id.
292 See Arnolds & Garland, supra note 99, at 298.
293 Jackson, supra note 267, at 3.
294 See Arnolds & Garland, supra note 99, at 298.
295 See id.
296 A defendant can challenge the use of prosecutorial discretion under claims of selective prosecution as a violation of equal protection, see generally United States v. Armstrong, 514 U.S. 546 (1996), or prosecutorial vindictiveness as a violation of due process, see generally United States v. Batchelder, 442 U.S. 114 (1979). Due to the heavy burdens placed on the defendants, however, both claims are extremely difficult to make out successfully. For an exhaustive treatment of the subject, see Joseph F. Lawless, Jr., Prosecutorial Misconduct ch.3 (1985 & Supp. 1990).
297 See Arnolds & Garland, supra note 99 at 298 n.111 (quoting Waltz, Tensions Between Political Defendants and the Courts, Oct. 15, 1971 (unpublished lecture, DePaul College Speakers Program)). Professor Waltz also included in his list of indicia: (5) where the statute that is the source of the charges was enacted for the purpose of combating persons like the defendants who oppose particular administration policies; and (6) where it is necessary to rely on undercover agents and provocateurs. See id.
298 See supra notes 45–47 and accompanying text (discussing H.R. 912).
299 See Maine Medical Marijuana Act of 1998, Initiated Bill No. 2, 1999, Chap. 1 (codified at Me. Rev. Stat. Ann. tit. 22 § 2383 (b)(5) (West 1999)). Several states will consider medical marijuana ballot initiatives in 2000, including Massachusetts, Michigan, Ohio and Florida. See Tiersky, supra note 16, at 584 (citing Trends & Timelines, Medical Marijuana: More Ballot Measures to Come, Am. Poli. Network, Dec. 11, 1998). Additionally, Colorado and Nevada will vote again in 2000 to complete their initiative process. See id.
300 See supra notes 156–261 and accompanying text.
301 See Gov’t Opposition, supra note 209, at 4.
302 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
303 See supra notes 48–65 and accompanying text (discussing government research); supra notes 66–98 and accompanying text (discussing state laws permitting use of medical marijuana).
304 See supra notes 45–65 and accompanying text.
305 See In Re Marijuana Rescheduling Petition, Docket 86–22, Opinion, Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of Administrative Law Judge, Washington, DC: Drug Enforcement Administration (1988).
306 See supra notes 65–98 and accompanying text.
307 See id. In a development that may foreshadow a more reasonable federal policy in the future, both presidential candidates—Vice President Al Gore and Governor George W. Bush—have indicated that they support medical marijuana, framing the issue as one implicating either patients’ or states’ rights. See Dana Hill, Gore Backs Medical Marijuana, ABCNEWS.com, Dec. 15, 1999 (visited Mar. 29, 2000) <http://abcnews.go.com/ sections/politics/DailyNews/gore991215.html>; Susan Feeney, Bush Backs States’ Rights on Marijuana, Dallas Morning News, Oct. 20, 1999, at 6A.
308 See National Academy of Sciences Institute of Medicine, supra note 53, at 1.
309 See Tiersky, supra note 16, at 595; McGuire, supra note 145, at 96.
310 See National Academy of Sciences Institute of Medicine, supra note 53, at 126.
311 See supra notes 66–98 and accompanying text, discussing state initiatives; Dixon, supra note 158, at 1017.
312 See Arnolds & Garland, supra note 99, at 298.
313 See United States Attorney Manual, Grounds for Commencing or Declining Prosecution, Tit. 9, Chap. 9–27.000 (1997).
314 See Ostrom, supra note 287, at B1.
315 Remarks, Panel Discussion: The Prosecutor’s Role in Light of Expanding Federal Criminal Jurisdiction, 26 Fordham Urb. L.J. 657, 664 (1999) (discussing medical marijuana controversy in California as example of inconsistency between federal and state law enforcement priorities) [hereinafter Panel Discussion].
316 See id.
317 See supra notes 286–91 and accompanying text; see also generally Steven D. Clymen, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L. Rev. 643 (1997) (stressing need for local priorities). This decision would also show sensitivity towards important issues of federalism generally. See Panel Discussion, supra note 316, at 665–68. As Congress continues to expand the federal government’s criminal law jurisdiction, a conscious decision must be made by prosecutors in each case over whether it is wise to override decisions that are made by the states. See id.
318 See supra notes 275–86 and accompanying text.
319 See supra notes 279–82 and accompanying text.
320 See Arnolds & Garland, supra note 99, at 298.
321 See supra note 95 and accompanying text.
322 See USAM 9–27.230, supra note 274, § (B)(5).
323 See id. (listing deterrent effect of prosecution as factor in determining whether to prosecute).
324 See Reeve, supra note 104, at 785–87.
325 See USAM 9–27.230, supra note 274, § (B)(7).
326 See Defendant’s Memorandum Re Bail, supra note 195, at 3.
327 See USAM 9–27.230, supra note 274, § (B)(7).
328 See Elizabeth T. Lear, Criminal Law: Contemplating the Successive Prosecution Phenomenon in the Federal System, 85 J. Crim. & Criminology 625, 634–35 (noting political motivations of U.S. Attorneys in desiring to appear tough on crime as influential in decision to prosecute).
329 See Lear, supra note 329, at 634–35; Margaret A. Berger, The Deconstitutionalism of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 Minn. L. Rev. 557, 566 (1992).
330 See Arnolds & Garland, supra note 99, at 298.
331 See supra notes 297–98 and accompanying text.
332 See id.
333 See Arnolds & Garland, supra note 99, at 298 n.111).
334 For a more in-depth treatment of the motivations and history behind the war on drugs, see, for example, Paul Finkelman, The Second Casualty of War: Civil Liberties and the War on Drugs, 66 S. Cal. L. Rev. 1389 (1993), and Lisa M. Bianculli, Note, War on Drugs: Fact, Fiction, and Controversy, 21 Seton Hall Legis. J. 169.
335 See Douglas N. Husak, Drugs and Rights 9 (Cambridge Univ. Press 1992) Berger, supra note 330, at 566; Finkelman, supra note 335, at 1392, 1396. This perception was evidenced, for example, in 1988 during George Bush’s acceptance speech: “Zero tolerance isn’t a policy, its [sic] an attitude . . . My administration will be telling the dealers: Whatever we have to do, we’ll do it, but your day is over.” 1988 Republican Nation Convention Bush Text, Stakes are High—Choice is Crucial, L.A. Times, Aug. 19, 1988 (emphasis added). Even if government’s perception were in fact accurate with respect to drugs generally, it is clearly erroneous in the context of medical marijuana, which receives overwhelming public support.
336 See Lester Grinspoon, The War on Drugs—A Peace Proposal, 330 N. Eng. J. Med. 357, 358 (1994) (stating that federal law enforcement policies have strangled medical potential of marijuana) [hereinafter Grinspoon, The War on Drugs].
337 See Dogwill, supra note 58, at 286–87 (stating that war against drugs will be seen by many as futile if marijuana is allowed to be smoked as medicine); see also Finkelman, supra note 335, at 1397; Dixon, supra note 158, at 980. This perception is fueled largely by the government’s belief that marijuana is a “gateway drug” and that legalization of marijuana for medical purposes will send the wrong message to children about drug use in general. See Dogwill, supra note 58, at 287. As discussed above, however, the recent IOM report specifically rejected both of these claims. See supra notes 58–59 and accompanying text.
338 See Raymond J. Walsh, Jr., Note, Populations at Risk for Criminal Liability Under Compassionate Use Acts, 25 New Eng. J. on Crim. & Civ. Confinement 275, 283 (1999): see also Dixon, supra note 158, at 980; Dogwill, supra note 58, at 287. For example, in response to protests by medical marijuana supporters, Representative Barr of Georgia said, “[I]t is truly sad to see marijuana legalization activists using seriously ill patients as props in their campaigns to make dangerous, mind altering drugs legally available.” David Pace, Medical Marijuana Use Advocates Stage Protest at Barr’s House Office, Associated Press, Oct. 21, 1999. Query, however, why those who supported the decision to classify cocaine, methadone and other highly addictive drugs as Schedule II were not similarly seen as advocates for legalization. See Finkelman, supra note 335, at 1397. Clearly, cocaine and methadone are more addictive and harmful than marijuana. Could it be the rather narrow yet enduring view that “marijuana supporters,” medical or otherwise, are associated with the “subversives” or “hippies” that were so despised by the Establishment throughout the 60s? See Bonnie & Whitbread II, supra note 25, at 262–63 (discussing perception of marijuana users as sick, emotionally maladjusted persons).
339 See Finkelman, supra note 335, at 1397.
340 See Richard Cowan, Was the Decision to Prosecute B.E. Smith Made at the White House? The Key Question About the Selective Prosecution of Medical Marijuana Activists, Marijuana News, (visited Mar. 29, 2000) <http://www.marijuananews.com/was_thr_decision_ to_prosecute_b.htm>. The federal government has also sought to silence voices in the press that have spoken out in opposition to the war on drugs. See Finkelman, supra note 335, at 1405 (discussing government’s attack on First Amendment as part of war on drugs).
341 See id.
342 See Swain, supra note 194, at 4. Peter McWilliams has also written a number of works on individual liberties. See, e.g., Peter McWilliams, Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Society (1993).
343 See Swain, supra note 194, at 5.
344 See id.
345 See Cowan, supra note 341, at 3.
346 See id.
347 See Arnolds & Garland, supra note 99, at 298 n.11 (quoting Waltz, Tensions Between Political Defendants and the Courts).
348 See Swain, supra note 194, at 7.
349 See Appellant’s Motion for Reconsideration, supra note 222, at 1.
350 See supra notes 219–20 and accompanying text.
351 See Swain, supra note 194. Even General Barry McCaffery, the White House drug czar, enjoys mocking the pleas of the seriously ill and other supporters of medical marijuana: “Ask a doctor if he really wants a big blunt stuck in a patient’s face as treatment . . . . A lot of this is a crock.” Medical Marijuana Called a Crock, Marijuana News, Mar. 6, 2000 (visited Mar. 29, 2000) <http://22.214.171.124/news.php3?sid=140>.
352 See Armstrong, 514 U.S. 546; Batchelder, 442 U.S. 114; see also Hollon supra note 96, at 507–08.
353 See Arnolds & Garland, supra note 99, at 299.
354 See Oliver, supra note 281, at 61–63 (referring to jury nullification as check on prosecutors). Outright jury nullification—where the jury chooses to acquit even when its factual findings, if applied literally to the law, would have resulted in conviction—is obviously another alternative. See LaFave & Israel, supra note 266, at 830–31. It is generally regarded, however, that a judge should not instruct a jury as to its power to nullify a law because nullification upsets the balance in the courts and erodes citizens’ respect for the law. See id.; Arnolds & Garland, supra note 99, at 299. A legally recognized defense like medical necessity, therefore, is preferable.
355 See LaFave & Israel, supra note 266, at 564; Arnolds & Garland, supra note 97, at 299; Oliver, supra note 281, at 61–63.
356 See Deborah Garner, Up in Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555, 585 (1999) (urging expansion of courts’ power to accept medical necessity defense); Whilton, supra note 99, at 1125–34 (arguing for application of medical necessity defense to medical marijuana cases in Massachusetts).
357 Arnolds & Garland, supra note 99, at 299; see also Oliver, supra note 281, at 61–63.
358 Witherspoon v. Illinois, 391 U.S. 510, 515 (1968) (citing Trop v. Dulles, 356 U.S. 86, 101 (1958)).
359 See supra notes 106–07 and accompanying text.
360 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
361 See id.; see also Defendant’s Memorandum Re Bail, supra note 195, at 6.
362 See supra notes 146–54 and accompanying text.
363 See supra notes 110–30 and accompanying text.
364 See Tate, 505 A.2d at 957 (Garibaldi, J., dissenting).
365 Arnolds & Garland, supra note 99, at 298; see also Oliver, supra note 281, at 61–63.
366 See supra notes 22–27 and accompanying text.
367 See id.
368 See id.
369 See id.
370 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
371 See Buyers’ Coop., 190 F.3d at 1114.
372 See supra notes 24–29 and accompanying text.
373 See supra notes 271–86, 312 and accompanying text, discussing state courts that have held that defendant had reasonable legal alternative under state law by virtue of a state sponsored research program.
374 See supra note 312 and accompanying text.
375 See Parry, supra note 103, at 440 (stating that necessity verdicts advance net social welfare by reaching result that upholds, advances and renews community values and signals shifts in those values).
376 See Finkelman, supra note 335, at 1397.
* I would like to thank David Michael, Esq. and Professors Charles Baron and Andrew Leipold for their invaluable insight and guidance.