URGENT COMPASSION: MEDICAL MARIJUANA, PROSECUTORIAL DISCRETION AND THE MEDICAL NECESSITY DEFENSE

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.

Introduction

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

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

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

Part II