Federal Administrative and Court Decisions Paint Uncertain Picture Regarding Enforcement of Marijuana Laws

The legal status of marijuana has become increasingly uncertain, ever since California became the first state to allow marijuana for medical purposes in the 1990s. More than half of all U.S. states have reduced criminal prohibitions on marijuana or decriminalized it altogether. It remains completely illegal under federal law, which creates an obvious and ongoing conflict between state and federal law enforcement. The Drug Enforcement Administration (DEA) recently affirmed marijuana’s status as a Schedule I controlled substance, and the Food and Drug Administration has declined to recognize any medical value. At the same time, Congress has effectively prohibited the Department of Justice (DOJ), which includes the DEA, from interfering with the implementation of state medical marijuana laws. A federal appellate court decision has held that federal prosecutors may not pursue drug charges for conduct permitted by state law.

Federal law describes Schedule I controlled substances as those with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for medical use. 21 U.S.C. § 812(b)(1). “Marihuana” is currently included under Schedule I in both the U.S. Code and DEA regulations. Id. at § 812(c)(I)(c)(10), 21 C.F.R. § 1308.11(d)(23). A new rule issued by the DEA affirms marijuana’s Schedule I designation, rejecting calls to have the drug rescheduled. 81 Fed. Reg. 53846 (Aug. 12, 2016). The agency did, however, slightly loosen the restrictions on the cultivation of marijuana for medical research. Any slight progress in the DEA’s position on marijuana seems to be increasingly at odds with the 28 U.S. states, along with the District of Columbia, Guam, and Puerto Rico, that now allow marijuana use for medical purposes.

About a year before the DEA issued its latest rule, the FDA reportedly advised the DEA to maintain marijuana’s Schedule I status. Many of the documents related to the FDA’s position on this issue were not publicly available until VICE News published over 100 pages it obtained from the agency. While the FDA has called for the rescheduling of certain “constituents” of marijuana used to treat conditions like epilepsy, it has opposed rescheduling marijuana itself. Its report to the DEA includes findings that marijuana can be addictive for monkeys, which apparently contributed to the recommendation that marijuana remain subject to stricter controls than cocaine and heroin.

Outside federal executive agencies, more tolerance for state-level marijuana laws seems evident. The appropriations bill passed by Congress in 2015 bars the DOJ from using funds in 41 states “ to prevent any of them from implementing their own laws that authorize…medical marijuana.” Pub. L. 114-113 § 542, 129 Stat. 2333 (Dec. 18, 2015). The nine states omitted from this section of the bill—Arkansas, Idaho, Indiana, Kansas, Nebraska, North Dakota, Pennsylvania, South Dakota, and West Virginia—are among those that, at the time, had not authorized marijuana use in any form. The Ninth Circuit Court of Appeals held that this provision bars federal prosecutions against “individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.” United States v. McIntosh, No. 15-10117, slip op. at 27 (9th Cir., Aug. 16, 2016).

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For more than 20 years, board-certified drug crime attorney Michael J. Brown has fought for the rights of people facing state and federal charges in West Texas courts. Contact us today online or at (432) 687-5157 to schedule a confidential consultation with an experienced and skilled criminal justice advocate.

More Blog Posts:

Search of Vehicle Violates Fourth Amendment When Based Solely on License Plate from State with Legal Marijuana, Texas Criminal Lawyer Blog, September 7, 2016

Medical Marijuana Laws Cause Shifts in Court Rulings on Marijuana Odor and Probable Cause for Search Warrants, Texas Criminal Lawyer Blog, September 7, 2016

Texas Law that Took Effect Last Year Bans 1,000 Chemicals Potentially Used in Synthetic Marijuana, Texas Criminal Lawyer Blog, April 15, 2016


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