Department of Justice, Marijuana

Department Of Justice (Again) Stubs Out Progress For Medical Marijuana

If we want the DOJ to stop prosecuting for medical marijuana-related “crimes,” we really need our federally elected officials to start writing unambiguous and effective legislation to limit the DOJ’s power to do so.

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The Department of Justice has yet again graced us with another memo regarding how U.S. attorneys should argue against and prosecute medical marijuana criminal defendants. More specifically, the DOJ is making clear it does not view the 2014 Cromnibus as stopping federal criminal prosecutions for medical marijuana activity legal under state laws.  The DOJ authored this particular memo back in February, but it was just released to the public this month.

As a reminder, the medical marijuana industry rejoiced when President Obama signed into law the Consolidated and Further Continuing Appropriations Act of 2015, whose Section 538 states as follows:

None of the funds made available in this Act to the Department of Justice may be used, with respect to the States of Alabama, Alaska, Arizona, California, [and every other medical marijuana state], to prevent such States from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Section 538 does not change the federal Controlled Substances Act and the Cromnibus itself only controls the federal budget through the end of next month, but many medical marijuana industry advocates and businesses believed Section 538 prohibited the DOJ from using federal funds to prosecute anyone conducting medical marijuana business legally in states that have legalized it. My firm predicted Section 538 would not be so helpful for cannabis businesses and the DOJ’s latest memorandum confirms our apprehensions.

According to the memo, “Defendants charged with violations of the federal Controlled Substances Act (“CSA”) . . . have begun filing motions challenging their prosecutions on the ground that the government’s expenditure of funds in enforcing the CSA against them violates Section 538.” The memo then explains how Section 538 does not provide a legal defense to the DOJ’s enforcement of the CSA and “. . . the [DOJ’s] position is that Section 538 does not bar it from using funds to enforce the CSA’s criminal prohibitions or to take civil enforcement and forfeiture actions against private individuals or entities consistent with the Department’s guidance regarding marijuana enforcement.”

The DOJ memo instructs U.S. Attorneys to use the following arguments to block criminal defendants from using Section 538 in their defense:

  • Section 538 applies to states, not to individuals.

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  • Section 538 prohibits federal spending for civil challenges to states implementing a legal medical marijuana system, but it does not apply to individuals or business entities even if those individuals or entities comply with state law.
  • Section 538 does not prohibit the DOJ from enforcing the federal Controlled Substances Act against individuals and business entities even in states with legalized medical marijuana regimes and if Congress had intended that outcome, it would have explicitly said so somewhere in Section 538.
  • The legislative history of Section 538 is “sparse,” and though a couple of Congressional representatives opined that Section 538 would prevent enforcement of the federal Controlled Substances Act in states with legal medical marijuana, those statements are “not sufficiently authoritative to overcome the best reading of the text.”
  • Section 538 does not explicitly repeal the federal Controlled Substances Act and there is no proof Congress intended such a repeal.
  • Section 538 is an appropriations provision, not a criminal statute, and the Rule of Lenity therefore does not apply.

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If you try to use Section 538 in your defense to criminal marijuana charges, the DOJ will argue that you have failed to meet your “burden of showing that the prosecution will prevent the state from implementing its medical marijuana laws” where the DOJ claims that no defendant will be able to show their criminal prosecution in any way prevents any state from implementing its medical marijuana laws.

Surprisingly, the DOJ memo admits that a defendant’s chance at succeeding with a Section 538 argument is stronger in states with “strong and effective State regulatory system[s]” that comply with the eight enforcement priorities in the 2013 Cole Memo.

Though the DOJ memo seeks to torpedo defendants using Section 538 as a barrier to federal criminal prosecution, it at least recommends U.S. attorneys check in with the Federal Programs Branch before filing suit against a state for its implementation of medical marijuana laws. And though the Congressional sponsors of the amendment that eventually became Section 538 are calling for a formal investigation into DOJ’s alleged violations of that Section, if we want the DOJ to stop prosecuting for medical marijuana-related “crimes,” we really need our federally elected officials to start writing unambiguous and effective legislation to limit the DOJ’s power to do so. Clearly, Section 538 is not going to deliver on that front if the DOJ can help it.

Hilary Bricken is an attorney at Harris Moure, PLLC in Seattle and she chairs the firm’s Canna Law Group. Her practice consists of representing marijuana businesses of all sizes in multiple states on matters relating to licensing, corporate formation and contracts, commercial litigation, and intellectual property. Named one of the 100 most influential people in the cannabis industry in 2014, Hilary is also lead editor of the Canna Law Blog. You can reach her by email at hilary@harrismoure.com.

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