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.

Conclusion

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*

Footnotes

Footnotes II