1 See Lester Grinspoon & James B. Bakalar, Marihuana, The Forbidden Medicine 32–35 (rev. ed. 1997). Lester Grinspoon, M.D. is an associate professor of psychiatry at Harvard Medical School, and James B. Bakalar is a lecturer in law in the department of psychiatry at Harvard Medical School. The following story is derived from an account of Harris Taft’s wife. See id.
2 Compare Cal. Health & Safety Code § 11362.5 (West 1997) (permitting medical marijuana for seriously ill under state law), with 21 U.S.C. § 841 (2000) (detailing prohibited acts regarding narcotics under federal law).
3 See Schedules of Controlled Substances, 21 U.S.C. § 812(b)(1)(B) (2000).
4 See infra notes 156–261 and accompanying text.
5 See id.
6 See infra notes 12–44 and accompanying text.
7 See infra notes 44–98 and accompanying text.
8 See infra notes 99–155 and accompanying text.
9 See infra notes 156–261 and accompanying text.
10 See infra notes 262–96 and accompanying text.
11 See infra notes 297–375 and accompanying text.
12 See Grinspoon & Bakalar, supra note 1, at 1. The fiber is used for cloth and paper and was the most important source for rope before the development of synthetic fibers. The seeds are used as bird feed and human food. The oil contained in the seeds was at one time used for lighting and soap, and is now used in varnish, linoleum and artists’ paint. See id.
13 See id. Marijuana was recommended for malaria, constipation, rheumatic pains, “absentmindedness” and “female disorders.” See id.
14 See id. at 4.
15 See id. (citing Marijuana: Medical Papers, 1839–1972 (T.H. Mikuriya ed., 1973)).
16 See generally Marcia Tiersky, Comment, Medical Marijuana: Putting the Power Where it Belongs, 93 Nw. U. L. Rev. 547, 552–63 (1999).
17 See generally Grinspoon & Bakalar, supra note 1, at 163–222.
18 See Grinspoon & Bakalar, supra note 1, at 7. For a discussion of the details surrounding the enactment of the 1937 Act, see David. R. Ford, Marijuana: Not Guilty as Charged, 61–64 (1997). For an excellent review of marijuana’s criminalization generally, see Richard J. Bonnie & Charles H. Whitebread, II, The Forbidden Fruit of the Tree of Knowledge: An Inquiry Into the Legal History of American Marijuana Prohibition, 56 Va. L. Rev. 971 (1970).
19 See Marijuana Tax Act, H.R. 6385, 76th Cong. (1937).
20 See id.
21 See Lester Grinspoon, Medical Marijuana in a Time of Prohibition, 10 Int’l J. Drug Pol. 145, 147 (1999) [hereinafter Grinspoon, Time of Prohibition].
22 See Controlled Substance Act, 21 U.S.C. §§ 801–41 (2000).
23 See 21 U.S.C. § 812(b)(1).
24 Schedule I placement requires findings that: (A) the drug or other substance has a high potential for abuse; (B) the drug or other substance has no currently accepted medical use in treatment in the United States; (C) there is a lack of accepted safety or use of the drug or other substance under medical supervision. 21 U.S.C. § 812(b)(1)(B).
25 See Richard J. Bonnie & Charles H. Whitebread, II, The Marijuana Conviction 246 (1999).
26 For an excellent treatment of this debate and its social implications, see Bonnie & Whitebread, II, supra note 25, at 223–95.
27 See id. at 247. Indeed, the Committee report on the House bill regarding scheduling recommended “that marijuana be retained in Schedule I at least until the completion of studies now underway . . . . The recommendations of this Commission will be of aid in determining the appropriate disposition of this question in the future.” See 1970 U.S.C.C.A.N. 4573, 4579.
28See Bonnie & Whitebread, II, supra note 25, at 247. Raymond Shafer, a former Republican governor of Pennsylvania, was selected by President Nixon to chair the commission.
29 See id. (citing Commission on Marijuana and Drug Abuse, Marijuana: A Signal for Misunderstanding; First Report of the National Commission on Marijuana and Drug Abuse 145–54 (1972)). [hereinafter Marijuana: A Signal for Misunderstanding]. The report noted that marijuana was demonized because it symbolized the “counterculture,” not because it had any negative physiological effects. See id.
30 See Allison L. Bergstrom, Medical Use of Marijuana: A Look at Federal & State Responses to California’s Compassionate Use Act, 2 DePaul J. Health Care L. 155, 164 (1997) (citing Denial of Marijuana Scheduling Petition, 54 Fed. Reg. 53,767, 53,773 (1989)). Schedule II placement requires findings that: (A) the drug or other substance has a high potential for abuse; (B) the drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions; (C) abuse of the drug or other substance may lead to severe psychological or physical dependence. 21 U.S.C. § 812(b)(2).
31See Bergstrom, supra note 30, at 164.
32 See In re Marijuana Rescheduling Petition, No. 86–22, Opinion, Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of Administrative Law Judge, Washington, D.C.: Drug Enforcement Administration (1988).
33 See Bergstrom, supra note 30, at 164.
34 See Alliance for Cannabis Therapeutics v. Drug Enforcement Agency, 15 F.3d 1131, 1133 (D.C. Cir. 1994).
35 See Grinspoon & Bakalar, supra note 1, at 20.
36 See id. at 20–22.
37 See id. at 21. The application process, alone, took four to eight months.
38 See id. at 22.
39 See id. James O. Madison, Chief of the Public Health Service under President Bush, stated that the program undermined the administration’s anti-drug policy:
If it is perceived that the Public Health Service is going around giving marijuana to folks, there would be a perception that this stuff can’t be so bad. It gives a bad signal. I don’t mind helping people if there is no other way of helping these people . . . . But there is not a shred of evidence that smoking marijuana assists a person with AIDS.
See id.
40 See Grinspoon & Bakalar, supra note 1, at 22.
41 See id. at 17.
42 See id.
43 See id. at 17; see also Grinspoon, Time of Prohibition, supra note 21, at 2.
44 See Grinspoon & Bakalar, supra note 1, at 22.
45 See Medical Use of Marijuana Act, H.R. 912, 106th Cong. § 2(a) (1999).
46 See id. §§ 2–3.
47 H.R. 912 was referred to the subcommittee on March 16, 1999. See Bill Status and Summary for H.R. 912 (visited Mar. 29, 2000) <http://thomas.loc.gov/cgi-bin/bdquery/ z?d106:h.r.00912>. Representative Frank proposed a similar bill in the previous session of Congress, H.R. 1782, but it did not receive the support necessary to pass. See Bill Summary and Status for the 105th Congress (visited Mar. 29, 2000) <http://thomas.loc.gov/ bss/d105query.html>.
48 See Marijuana Policy Project, Government Finally Allows Marijuana-for-AIDS Study (visited Mar. 29, 2000) <http://www.mpp.org/abrams98.html> [hereinafter AIDS Study]. The National Institutes of Health is comprised of twenty-five separate Institutes and Centers and is one of eight health agencies that is part of the U.S. Department of Health and Human Services. See National Institutes of Health (visited Mar. 29, 2000) <http://www.nih. gov/icd>.
49 See id.
50 See id.
51 See Lester Grinspoon & James B. Bakalar, Marijuana, the AIDS Wasting Syndrome, and the U.S. Government, 333 New Eng. J. Med. 670 (1995).
52 See AIDS Study, supra note 48.
53 See National Academy of Sciences Institute of Medicine, Marijuana and Medicine: Assessing the Science Base 1 (1999).
54 See id.
55 See generally id. at 138–80. The report states that for those suffering from the above-stated conditions, “[C]annabinoid drugs might offer broad-spectrum relief not found in any other single medication.” Id. at 170.
56 See id. at 125–26.
57 See id. The report states:
Until a non-smoked, rapid-onset cannabinoids drug delivery system becomes available, we acknowledge that there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana . . . . One possible approach is to treat patients as n-of-1 clinical trials (single-patient trials) . . . .
See id. at 126. The federal government’s “compassionate-use” program is an example of a n-of-1 study. See Marijuana Policy Project, Questions about Medicinal Marijuana Answered by the Institute of Medicine’s Report (1999) (visited Mar. 29, 2000) <http://ww.mpp.org/science. html>.
58 See generally National Academy of Sciences Institute of Medicine, supra note 53, at 83–136. The second question refers to the theory that marijuana is a “gateway drug;” once consumed, marijuana will lead to the use of harder drugs, such as cocaine or heroin. See Nicole Dogwill, Comment, The Burning Question: How Will the United States Deal with the Medical Marijuana Debate?, 1998 Det. C.L. Rev. 247, 286–87. This gateway theory has been one of the cornerstones of the prohibition on less addictive drugs like marijuana. See id.
59 See National Academy of Sciences Institute of Medicine, supra note 53, at 125–36. As to the question regarding the message sent to children, the report stated: “[T]here is no evidence that the medical marijuana debate has altered adolescent’s perceptions of the risks associated with marijuana use.” Id. at 104. As to the second question, the report stated that “there is no evidence that marijuana serves as a stepping stone on the basis of its particular psychological effect.” Id. at 99. Similarly, the report rejected the claim that there was a causal link between marijuana use and subsequent abuse of other illicit drugs, stating that, “[Marijuana] does not appear to be a gateway drug to the extent that it is the cause or even that it is the most serious predictor of serious drug abuse . . . .” See id. at 101.
60 See National Institutes of Health, Announcement of the Department of Health and Human Services Guidance on Procedures for the Provision of Marijuana for Medical Research (1999) (visited Mar. 29, 2000) <http://grants.nih.gov/grants/guide/notice-files/not99–091.html> [hereinafter NIH, Announcement of Guidelines].
61 The National Institute on Drug Abuse (“NIDA”), a component of the National Institutes of Health, oversees the cultivation of research-grade marijuana on behalf of the United States government. Government marijuana is grown on a small plot of land by the University of Mississippi under contract with NIDA. See Paul Recer, US Moves Toward Marijuana Research, Associated Press, May 22, 1999, at 1.
62 See id.
63 See NIH, Announcement of Guidelines, supra note 60.
64 See Marijuana Policy Project, Suggested Revisions to the HHS Medicinal Marijuana Research Guidelines (visited Mar. 29, 2000) <http://www.mpp.org/hhs-rev.html>. Marijuana Policy Project proposes the following revisions to the HHS guidelines:
(1) the FDA should be the sole federal agency—along with an Institutional Review Board—to determine whether a proposed study is scientifically meritorious; (2) HHS should not place limitations on medicinal marijuana research beyond those that would be placed on the study of new synthetic drugs; (3) HHS should not discourage researchers from conducting studies with the goal of getting natural marijuana approved; and (4) a limited supply of marijuana should not be used as a reason to influence or reject medicinal marijuana study protocols; HHS should insure that NIDA grows a sufficient amount of research-grade marijuana.
See id.
65 See NIH, Announcement of Guidelines, supra note 59 (stating intention to focus on multi-patient clinical studies, thus rejecting IOM’s recommendation in favor of single-patient clinical studies); see also Greg Scott & Barbara Douglass et al., Pain or Prison?, Wash. Post, Jan. 12, 2000, at A19.
66 See National Organization for the Reform of Marijuana Laws (NORML), Medical Marijuana Polls 1995–1999 (visited Mar. 28, 2000) <http://www.norml.org/medical/ polls.shtml>. The NORML Web site lists, for example, Gallop Poll, March 1999 (73% of Americans support making marijuana available to doctors so that they may prescribe it); CNN Interactive Poll, April 1999 (96% of respondents said they support the use of marijuana for medical purposes); Journal of American Medicine Association poll, conducted by Harvard School of Public Health, March 1998 (60% of respondents supported allowing physicians to prescribe medical marijuana); ABC News National Poll, conducted by Chilton Research Company, May 1997 (69% of respondents favored legalizing medical use of marijuana). See id.
66 Since 1996, initiatives allowing for the medical use of marijuana have been placed on ballots in Alaska, Arizona, California, Colorado, Nevada, Oregon, Washington and the District of Columbia. See Drug Policy Foundation, Election ‘98: The Vote for Medical Marijuana and Drug Policy Reform 5 (1998) (offering in-depth description of 1998 ballot initiatives).
67 The states were Alaska, Nevada, Oregon, Washington and the District of Columbia. See id. Colorado had a sufficient number of signatures to place a medical marijuana initiative on its 1998 ballot, but the votes were not counted because a state court subsequently held that a number of the signatures were invalid. See Tiersky, supra note 16, at 583 (citing Medical Marijuana Back on in 2000?, Am. Poli. Network, Dec. 11, 1998).
68 See Alaska Stat. §§ 11.71, 17.37 (Michie 1999); Or. Rev. Stat. §§ 475.300–475.346 (1999); Wash. Rev. Code Ann. § 69.51A (West 2000). Voters approved the Nevada initiative, which amends the Nevada constitution to permit the possession and use of marijuana for medical purposes. See Ballot Question 9 (visited Mar. 29, 2000) <http://sos.state.nv.us/nvelection/1998General>. The Nevada constitution, however, mandates approval by voters in consecutive elections in order for the amendment to take effect. See Nev. Const. Art. 19 § 4. Therefore, Nevada voters will have to vote in favor of the initiative again in the 2000 election before medical marijuana will be legal under state law. Similarly, although voters in D.C. passed their initiative, Congress has prevented the initiative from becoming law. See infra notes 79–88 and accompanying text.
69 See Proposition 215: California Compassionate Use Act (codified at Cal. Health and Safety Code § 11362.5 (West 1997)); Proposition 200: Drug Medicalization, Prevention, and Control Act of 1996 (codified at Ariz. Rev. Stat. § 13–4312.01 (1999)) [hereinafter Prop. 200]. Although Arizona voters approved Prop. 200 in 1996, the Arizona state legislature subsequently enacted H.B. 2518 and S.B. 1373. These bills lessen the impact of Prop. 200 by stating that “the act does not become effective unless the United States Congress authorizes the medical use of marijuana . . . or the DEA reschedules marijuana to a schedule other than Schedule I.” Ariz. Rev. Stat. § 13–4312.01. Proposition 300: Referendum on H.B. 2518 and S.B. 1373 was placed on the 1998 ballot to permit the voters to decide if these bills should become law. A “NO” vote on Prop. 300 would reject the two bills in favor of the original version of Prop. 200, whereas a “YES” vote would accept the legislature’s changes. In the 1998 election, Arizona voters passed Prop. 300, thereby accepting the legislature’s decision to make Prop. 200’s enactment conditional on federal medical marijuana policy. See Lauretta Higgins Wolfson, A Quality of Mercy: The Struggle of the AIDS-Afflicted to Use Marijuana As Medicine, 22 Thomas Jefferson L. Rev. 1, 17–19 (1999).
70 See Drug Policy Foundation, supra note 67, at 6.
71 Oregon’s initiative, for example, provides an affirmative defense to patient’s who have a debilitating medical condition but who have not obtained a registry identification card. See Measure 67: Oregon Medical Marijuana Act § 6 (codified at Or. Rev. Stat. § 475.345). A patient must also have a physician’s recommendation and not be in possession of an amount of marijuana greater than that permitted under the Act. See id. The Oregon initiative is unique, however, because it goes on to state that, notwithstanding the affirmative defense provided for under the Act, a patient is also entitled to present the common law “choice of evils” or medical necessity defense. See id. This is the same defense discussed infra notes 99–155 and accompanying text.
72 See id. The 1998 initiatives were entitled Proposition 8: An Act Relating to the Medical Uses of Marijuana for Persons Suffering from Debilitating Medical Conditions (Alaska); Initiative 19: The Colorado Medical Marijuana Initiative; Initiative 59: Legalization of Marijuana for Medical Treatment Initiative of 1998 (D.C.); Ballot Question 9: A Constitutional Amendment to Make Medicinal Marijuana Available to the Citizens of Nevada; Measure 67: Oregon Medical Marijuana Act; Initiative 692: Washington State Medical Use of Marijuana Act. See id. at 11–34.
73 See id. at 8.
74 See id.
75 See id. The Washington state and D.C. initiatives do not require patient registries. In the absence of patient registries, Washington state requires written approval from a doctor and, furthermore, that patients present such documentation to law enforcement if requested. A doctor’s recommendation is also required in D.C., but it may be written or oral. See id.
76 See Drug Policy Foundation, supra note 67, at 8. Some states are more specific in their terms than others. States such as Alaska, Colorado, Nevada and Oregon, which proscribe very specific possession limits, also provide patients with a legal defense in court if they can prove that the greater amount of marijuana was needed to treat an illness. Washington state’s initiative is more general, allowing patients to possess a “two month supply.” Similarly, patients in D.C. are permitted to posses a “sufficient quantity” to treat an illness. See id.
77 See id. Only the Nevada and Washington, D.C initiatives provide for a supply of medical marijuana. Nevada requires that the legislature authorize appropriate methods for supply of the plant to patients. See id. The D.C. initiative goes even further by allowing the establishment of non-profit corporations to cultivate and distribute medical marijuana, as well as requiring the eventual supply of safe and affordable marijuana to patients enrolled in Medicare or Ryan White CARE Act-funded programs. See id.
78 See Initiative 59: Legalization of Marijuana for Medical Treatment Initiative of 1998 (visited Mar. 29, 2000) <http://www.actupdc.org/text59pg.htm>; see also Tiersky, supra note 16, at 582.
79 See Drug Policy Foundation, supra note 67, at 23–24.
80 See Tiersky, supra note 16, at 582–83.
81 See id.
82 See Bill Miller, Marijuana Vote to Be Released: Judge Unlocks D.C. Election Tally, Wash. Post, Sept. 18, 1999, at B01.
83 See id.
84 See Tiersky, supra note 16, at 582.
85 See H.R. 3064, 106th Cong. § 167(b) (1999).
86 See H.R. 3194, 106th Cong. (enacted by Pub. Law No. 106–113 (1999)). H.R. 3194, a $385 billion omnibus appropriations bill, was a collection of nine separate bills. See id.
87 See Marijuana Policy Project, Patients Protest Congressman Bob Barr’s Move to Overturn D.C. Medical Marijuana Initiative, Press Release, Sept. 20, 1999 (visited Mar. 29, 2000) <http://www.mpp.org/nr092099.html>.
88 See Maine Medical Marijuana Act of 1998, Initiated Bill No. 2, 1999, Chap. 1 (codified at Me. Rev. Stat. Ann. tit. 22, § 2383 (b)(5) (West 1999)). The initiative also amends Me. Rev. Stat. Ann. tit. 15, § 5821 (West 1999) and Me. Rev. Stat. Ann. tit. 17–A, § 1111 (West 1999).
89 See id.
90 See Support for Maine’s Medical Excuse Marijuana Initiative Stalls, Bus. Wire 08:23:00, Nov. 2, 1999; Meredith Goad, Mainers Strongly Support Marijuana for Medical Reasons, Portland Press Herald, Nov. 3, 1999, at 1A.
91 Maine joins Alaska, Arizona, California, Oregon and Washington state.
92 The Maryland General Assembly introduced a bill prohibiting state and local law enforcement from arresting seriously ill patients if they have doctor’s recommendation. See Marijuana—Exception for Compassionate Use, H.B. 308, 404th Gen. Assem. (Md. 2000); see also Marijuana Policy Project, Support Maryland Medical Marijuana Bill (visited Mar. 29, 2000) <http://www.mpp.org/Maryland/index.html>. The Hawaii Senate and House have both passed bills allowing seriously ill people to possess small amounts of marijuana for personal use. See H.B. 1157, 20th Leg. (Haw. 2000); S.B. 862, 20th Leg. (Haw. 2000); James Sterngold, Hawaii Lawmakers Approve Bill on Medical Use of Marijuana, N.Y. Times, Apr. 21, 2000. Once signed into law by the governor, Hawaii will become the first state to enact a medical marijuana law through its legislature. See Hawaii Lawmakers OK Medical Marijuana, L.A. Times, Apr. 27, 2000, at A29.
93 See Mark Minton, Need Exists to Reform ‘Pot’ Law, Group Says, Arkansas Democratic-Gazette, Feb. 21, 2000, at B1.
94 See 21 U.S.C. § 841. Pursuant to the Supremacy Clause of the United States Constitution, federal laws enjoy legal superiority over any conflicting state law. See U.S. Const. Art. VI. (“This Constitution, and the laws of the United States which shall be made in pursuance thereof . . . shall be the supreme law of the land . . . .”). For discussion of the Supremacy Clause pertaining to conflicts between state laws or constitutions and federal law, see Robert F. Williams, State Constitutional Law 143–164 (3d. ed. 1999); see also, John E. Nowak & Ronald D. Rotunda, Constitutional Law 1–13 (5th ed. 1995).
95 See Greg Hollon, Note, After the Federalism Binge: A Civil Liberties Hangover, 31 Harv. C.R.-C.L. Rev. 449, 449 (1996) (noting that in vastly increasing federal government’s jurisdiction over activities traditionally considered purely state matters, Congress has relied primarily on expansive reading of commerce clause); W. John Moore, The High Price of Good Intentions, Nat’l L.J., May 8, 1993, at 1140 (noting more than three-thousand criminal statutes passed by federal government prior to 1993). For a more in depth discussion of the federalization of criminal law, see Kathleen F. Brinkey, Criminal Mischief: The Federalization of American Criminal Law, 46 Hastings L.J. 1135, 1144–45 (1995); Stephen Chippendale, More Harm than Good: Assessing Federalization of Criminal Law, 79 Minn. L. Rev. 455, 461–65 (1994); Sara Sun Beale, Federal Criminal Jurisdiction, in 2 Encyclopedia of Crime and Justice 775, 775–79 (Sanford H. Kadish et al. eds., 1983).
96 See, e.g., 21 U.S.C § 841–44 (2000) (regulating drug transactions, including simple possession of user amounts of controlled substances).
97 See infra notes 156–261, 297–375 and accompanying text.
98 See Edward B. Arnolds & Norman F. Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J. Crim. L. & Criminology, 289, 291 (1974) (quoting J. Hall, General Principles of the Criminal Law 416 (2d ed. 1960)).
99 See Todd H. Whilton, Commonwealth v. Hutchins: A Defendant is Denied the Right to Present a Medical Necessity Defense, 27 New Engl. L. Rev. 1101, 1101 (1993).
100 See id. (citing 4 William Blackstone, Commentaries on the Laws of England 28).
101 Wayne R. LaFave & Austin W. Scott, Criminal Law 382 (1972).
102 John T. Parry, The Virtue of Necessity: Reshaping Culpability and the Rule of Law, 36 Hous. L. Rev. 397, 439 (1999).
103 See P.R. Glazebrook, The Necessity Plea in English Common Law, 30 Cambridge L.J. 87, 93 (1972) (citing Reninger v. Fagossa, [1551] 1 Plowden, 75 Eng. Rep.) The court in Reninger stated that “A man may break the law, and yet not break the law itself . . . where the words of them are broken to avoid greater inconvenience, or through necessity, or by compulsion.” See id. (emphasis added). In addition to Glazebrook, for a more in-depth treatment of the necessity defense at English common law, see Benjamin Reeve, Necessity: A Recognized Defense, 21 New. Eng. L. Rev. 779, 781 (1985–1986); Celia Wells, Necessity and the Common Law, 5 Oxford J. Legal Stud. 471, 72 (1985).
104 See Reeve, supra note 104, at 786 n.42. Most state statutes that have codified a necessity or choice of evils defense follow the Model Penal Code. See Model Penal Code, § 3.02 (1)(c) (1998).
105 See 444 U.S. 394, 415–16 (1980) (stating that necessity defense exists in prison escape case but defendant failed to establish defense because he failed to show that escape was only available alternative).
106 See e.g., United States v. Newcomb, 6 F.3d 1129, 1134 (6th Cir. 1993) (holding necessity defense available to defendant charged with violations of federal firearm possession statute); see also Wayne R. LaFave & Austin W. Scott, 1 Substantive Criminal Law 631-33 (1986); American Law Institute, Model Penal Code and Commentaries, § 3.02, cmt., n.1 (1985).
107 See Reeve, supra note 104, at 785.
108 See id. The medical necessity defense has been extended to a number of other contexts as well, including abortion, where it would otherwise have been illegal. See id. (citing Thornburg v. American College of Obstetricians, 106 S. Ct. 2169 (1986); Simopoulus v. Virginia, 462 U.S. 506 (1983)).
109 No. 65923–75 (D.C. Super. Ct. Nov. 24, 1976), reprinted in 104 Daily Wash. L. Rep. 2249 (1976); Grinspoon & Bakalar, supra note 1, at 57; Robin Isenberg, Note, Medical Necessity as a Defense to Criminal Liability: United States v. Randall, 46 Geo. Wash. L. Rev. 273, 277 (1978).
110 See Randall, 104 Daily Wash. L. Rep. at 2254.
111 See id. at 2249.
112 See id.
113 See id. at 2252.
114 See id. at 2252–53.
115 See Randall, 104 Daily Wash. L. Rep. at 2253.
116 See id. at 2254. After being arrested and charged for possession of marijuana, Randall petitioned the federal government for access to medical marijuana. See Grinspoon & Bakalar, supra note 1 at 57. The IND Program, discussed supra notes 35–40, was created in response to Randall’s action. See United States v. Burton, 894 F.2d 188, 191 (6th Cir. 1990); Grinspoon & Bakalar, supra note 1, at 57.
117 See LaFave & Scott, supra note 107, at 382. The Model Penal Code, which contains the language used by most states that have codified the defense, incorporates this idea. Section 3.02 provides that: “(1) Conduct which the actor believes is necessary to avoid harm or evil to himself or another is justifiable, provided that . . . (c) a legislative purpose to exclude the justification does not otherwise plainly appear.” Model Penal Code, § 3.02 (1)(c).
118 See LaFave & Scott, supra note 107, at 382.
119 See id.
120 See id.
121 Compare e.g., Jenks v. State, 582 So.2d 676, 679 (Fla. Dist. Ct. App. 1991) (holding that medical necessity available as defense to charges of cultivation of marijuana and possession of paraphernalia), with Commonwealth v. Hutchins, 575 N.E.2d 741, 745 (Mass. 1991) (holding that medical necessity not available to defendant charged with cultivation and possession of marijuana).
122 See 582 So.2d at 679–80.
123 See id. at 677.
124 See id. The conventional medication given to the Jenks to treat the nausea was ineffective. See id. Barbara’s weight dropped from 150 to 112 pounds in three weeks. See id.
125 See id.
126 See id.
127 See Jenks, 582 So.2d at 677.
128 See id. at 679.
129 See id. at 679–80.
130 See, e.g., State v. Hastings, 801 P.2d 563, 564–65 (Idaho 1990) (holding that common law necessity defense available to defendant claiming she used marijuana to control pain and muscle spasms associated with rheumatoid arthritis); People v. Trippet, 56 Cal. App. 4th 1532, 1538–39, review denied, 1997 Cal. LEXIS 8225 (1997) (stating that medical necessity defense assumed valid); Sowell v. State, 738 So.2d. 333, 334 (Fla. Dist. Ct. App. 1998) (holding that medical necessity defense available in criminal prosecution of seriously ill patient using marijuana to treat glaucoma and combat nausea); State v. Bachman, 595 P.2d 287, 288 (Haw. 1979) (holding that medical necessity defense available as defense to marijuana charges in proper case); State v. Diana, 604 P.2d 1312, 1316–17 (Wash. App. Ct. 1979) (stating that medical necessity is encompassed in common law defense of necessity and applicable in context of possession of marijuana where defendant used marijuana to ease symptoms of multiple sclerosis). But see, e.g., Hutchins, 575 N.E.2d at 741 (holding that medical necessity not available to defendant suffering from scleroderma as defense to charges of cultivation and possession of marijuana); State v. Hanson, 468 N.W.2d 77 (Minn. App. 1991) (holding that medical necessity not available to defendant suffering from epilepsy as defense to charge of manufacturing marijuana); State v. Tate, 505 A.2d 941 (N.J. 1986) (holding that medical necessity not available to defendants suffering from quadriplegia as defense to charge of possession of marijuana).
131 See Hutchins, 575 N.E.2d at 745.
132 See Whilton, supra note 100, at 1110.
133 See id. at 1110.
134 See id. at 1111.
135 See id. at 1112.
136 See Hutchins, 575 N.E.2d at 744.
137 See id. In addressing the elements of the necessity defense, the court stated:
We have ruled that the application of the defense is limited to the following circumstances: (1) the defendant is faced with a clear and imminent danger, not one which is debatable or speculative; (2) the defendant can reasonably expect that his [or her] action will be effective as the direct cause of abating the danger; (3) there is [no] legal alternative which will be effective in abating the danger; and (4) the Legislature has not acted to preclude the defense by a clear and deliberate choice regarding the values at issue.
See id. (quoting Commonwealth v. Schuchardt, 557 N.E.2d 1380, 1381 (Mass. 1990)).
138 See Hutchins, 575 N.E.2d at 745.
139 See id. at 745 (Liacos, C.J., dissenting).
140 See id. (Liacos, C.J., dissenting).
141 See Hutchins, 575 N.E.2d at 746 n.1 (Liacos, C.J., dissenting).
142 Id. (Liacos, C.J., dissenting) (quoting Commonwealth v. Brugmann, 433 N.E.2d 457, 460 (Mass. App. Ct.1982)).
143 See, e.g., Hanson, 468 N.W.2d at 79; Tate, 505 A.2d at 945–46.
144 See, e.g., Hanson, 468 N.W.2d at 78 (rejecting defendant’s medical necessity defense where defendant claimed that marijuana was necessary to treat epilepsy symptoms, stating that by creating medical research program where only cancer patients could receive drug, legislature had already spoken on medical use of marijuana); Tate, 505 A.2d at 944–45 (holding that legislature had foreclosed medical necessity defense by establishing Dangerous Substance Therapeutic Research Act and allowing for exception in drug offense statute for substances received pursuant to valid prescription); see also Suzanne D. McGuire, Medical Marijuana: State Law Undermines Federal Marijuana Policy—Is the Establishment Going to Pot?, 7 San Joaquin Agric. L. Rev. 73, 81–91 (1999). For an in depth discussion of state therapeutic research programs, see Dogwill, supra note 58, at 255–67.
145 See 894 F.2d 188, 191 (6th Cir. 1990)
146 See id.
147 See id. at 190.
148 See id. at 189.
149 See id. at 190.
150 See Burton, 894 F.2d at 190.
151 See id. at 191.
152 See id.
153 See id.
154 See United States v. Oakland Cannabis Buyers’ Coop., 190 F.3d 1109, 1111 (9th Cir. 1999).
155 Proposition 215 reads as follows:
113.62.5. (a) This section shall be known and may be cited as the Compassionate Use Act of 1996. (b)(1) The people of the State of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: (A) To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where the medical use is deemed appropriate and it has been recommended by a physician who has determined that the person’s health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief. (B) To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. (C) To encourage federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana. (2) Nothing in this act shall be construed to supercede legislation prohibiting persons from engaging in conduct that endangers others, nor to condone the distribution of marijuana for nonmedical purposes. (c) Notwithstanding any other provision of law, no physician in this state shall be punished, or denied any right or privilege for having recommended marijuana to a patient for medical purposes. (d) Section 11357, relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient or any patient’s primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician. (e) For the purposes of this section, “primary caregiver” means the individual designated by the person exempted under this act who has consistently assumed the responsibility for the housing, health, or safety of that person.
Proposition 215: California Compassionate Use Act (codified at Cal. Health & Safety Code § 11362.5 (West 1997)).
156 See id.
157 See, e.g., J. Wells Dixon, Note, Connant v. McCaffery: Physicians, Marijuana, and the First Amendment, U. Colo. L. Rev. 975, 979 (1999); Wolfson, supra note 70, at 22; Bob Egelko, Lockyer Backs “Necessity” Defense, Asks Feds to Drop Opposition, Associated Press, Oct. 14, 1999, at 1.
158 See Dixon, supra note 158, at 979. California has experimented extensively with cannabis clubs since the passage of their medical marijuana initiative, Proposition 215. This experimentation has resulted in two distinct distribution models. One model is based on a conventional, pharmacy-like delivery system: A patient visits a buyers’ club where he or she presents a note from a physician. The proprietor of the club fills the prescription and the patient leaves to use the medicine, presumably at home. Oakland Cannabis Buyers’ Club is one of a number of clubs that follow this model. The second model resembles a social club more than a pharmacy. The club has a menu offering various types and grades of marijuana. Similar to an Amsterdam-style coffee house, most people stay after they obtain their marijuana to smoke and talk. See Grinspoon, Time of Prohibition, supra note 21, at 479.
159 See 5 F. Supp. 2d 1086, 1102 (N.D. Cal. 1998).
160 See id. at 1092.
161 See id. at 1091.
162 See id. at 1098–99. When deciding whether to issue a preliminary injunction, the court stated that it considers: (1) the likelihood of success on the merits; (2) the possibility of irreparable harm to the moving party if the injunction is not granted; (3) the balance of hardships; and (4) in certain cases, whether the public interest will be advanced by granting preliminary relief. The court went on to state that in cases where the federal government seeks to enforce a statute, once the government has met the “possibility of success prong” of the test, the court will presume that the government has met the “possibility of irreparable injury” prong because the passage of the statute itself implies a finding by Congress that a violation will cause a harm to the public. See id. at 1099.
163 See id. at 1099–1100. Among the arguments submitted by the defendants in support of their contention that federal law was inapplicable, the defendants reasoned that federal law applies only to illicit or illegal distribution of marijuana, not medical marijuana, which is legal under state law. See id. In dismissing the defendants’ argument, the court stated that although Proposition 215 does not directly conflict with federal law because it allows persons who obtain and use marijuana for medical purposes to be exempt from state drug laws, and because it does not legalize the distribution of marijuana, such distribution is prohibited by federal law, and thus, the relevant federal law applies to the defendants. See id. at 1099–103.
164 See Cannabis Cultivators’ Club, 5 F. Supp. 2d at 1101–02.
165 See id. at 1101 (quoting United States v. Aguilar, 883 F.2d 662, 693 (9th Cir. 1989)).
166 See id. at 1101. First, the defendants claimed that they were faced with two evils—letting their members die, go blind or suffer severe pain, or risking violation of federal law—and they chose the lesser evil. Defendants claimed that they could meet the second and third requirements because the harm to be averted was imminent and supplying marijuana to their members was necessary to prevent that harm. Lastly, they claimed that they had no legal alternative: legal drugs were not effective in treating the symptoms of many of their members and thus, they had no legal or safe alternative. See id.
167 See id. at 1102.
168 See id.
169 See Cannabis Cultivators Club, 5 F. Supp. 2d at 1102. According to the court’s holding, in order for the defense to be available, defendants would have had to have proven that each and every patient to whom it provided cannabis was in danger of imminent harm; that the cannabis would alleviate the harm for that particular patient; and that the patient had no other alternatives. See id.
170 See id. Judge Breyer stated: “If a preliminary or permanent injunction is granted, and the federal government alleges that defendants have violated the injunction, there will be specific facts and circumstances before the Court to determine if the jury should be given a necessity instruction as a defense . . . .” See id.
171 See id. The court also addressed the defendants’ third and final argument that the injunction should be denied because it would infringe upon the fundamental right to be free from unnecessary pain and to receive palliative treatment for a painful medical condition, to care for oneself and to preserve one’s own life. The court denied defendants’ claim holding that the government was likely to prevail at trial on the issue of whether defendants have a constitutional right to medical marijuana. Again, the court noted that it was not denying that such a right may exist as a matter of law, but only that the defense is inapplicable to the injunction action. See id.
172 See Buyers’ Coop., 190 F.3d at 1111.
173 See id. at 1111.
174 See id.
175 See id. OCBC asked the district court to modify the injunction to allow cannabis to continue to be distributed to patients whose physicians certify that: (1) the patient suffers from a serious medical disorder; (2) the patient will suffer imminent harm if the patient does not have access to marijuana; (3) marijuana is necessary for the treatment of the patient’s medical condition, or marijuana will alleviate the medical conditions or symptoms associated with it; and (4) there is no legal alternative to marijuana for the effective treatment of the patient’s medical condition because the patient has tried other medical alternatives to marijuana and has found them ineffective in treating his or her condition, or has found that such alternatives result in intolerable side-effects. See id.
176 See id. at 1111–12.
177 See Buyers’ Coop., 190 F.3d at 1115.
178 See id. at 1114. The Ninth Circuit noted that by stating that “its equitable powers do not permit it to ignore federal law . . . the district court misapprehended the issue. The court was not being asked to ignore the law. It was being asked to take into account a legally cognizable defense that would likely pertain in the circumstances.” Id. at 1114 (emphasis added).
179 See id.
180 See id. (citing Northern Cheyenne Tribe v. Hodel, 851 F.2d 1152, 1156 (9th Cir. 1988) (holding that courts retain broad equitable discretion when it comes to injunction against violations of federal statutes unless Congress has clearly and explicitly demonstrated that it has balanced equities and mandated injunction)).
181 See id. at 1114.
182 See Buyers’ Coop., 190 F.3d at 1114.
183 See id.
184 See id.
185 See id.
186 See id.
187 See Buyers’ Coop., 190 F.3d at 1114.
188 See Bob Egelko, supra note 158. In an attempt to get the Clinton Administration to drop its opposition to medical marijuana, Attorney General Bill Lockyer wrote a letter to United States Attorney Janet Reno urging the government not to appeal the Ninth Circuit’s ruling. See id.
189 See Justice Department Asks for Rehearing of Medical Marijuana Ruling, Associated Press, Oct. 27, 1999.
190 See Buyers Coop., 190 F.2d 1109 (9th Cir. 1999) (No. 98–16950); see also Robert Raich (counsel to OCBC), Major Victory for Medical Marijuana in California: 9th Circuit Court of Appeals Denies Clinton Administration’s Petition of for Rehearing and Rehearing En Banc, Marijuana news (visited Mar. 29, 2000) <http://216.9.192.67/news.php3?sid=133>.
191 See United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB); United States v. McWilliams, (C.D. Cal. 1999) (No. CR-97–997 (A-GHK)).
192 Under Proposition 215, caregivers are those persons who cultivate medical marijuana for distribution to specific patients.
193 See Rachael Swain, B.E. Smith: Compassionate Caregiver or Common Criminal?, Marijuana News (visited Mar. 29, 2000) <http://www.marijuananews.com/woody_harrelson_ and_defense_lawy.htm>.
194 See Defendant’s Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense; Request for Hearing at 1, United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Defendant’s Memorandum Re Bail].
195 See id. at 2.
196 See Defendant’s Declaration of Counsel in Support of Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense at 2, United States v. Smith, (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Defendant’s Declaration of Counsel]. Although Smith was not formally diagnosed with PTSD until after his conviction, his family and close friends have been aware of his condition since his return from Vietnam. See id.
197 See Defendant’s Memorandum Re Bail, supra note 195, at Exhibit B (Correspondence from Dr. Jeri Rose, June 6, 1997).
198 See id. at Exhibit C (caregiver designation). Under Proposition 215, patients can also serve as caregivers. See Cal. Health & Safety Code § 11362.5(C)(2)(e) (West 2000).
199 See Defendant’s Declaration of Counsel, supra note 197, at 3.
200 See Defendant’s Memorandum Re Bail, supra note 195, at 9–10; Swain, supra note 194, at 4.
201 See Defendant’s Memorandum Re Bail, supra note 195, at 10; Swain, supra note 194, at 4.
202 See Defendant’s Memorandum Re Bail, supra note 195, at 9–10; Swain, supra note 194, at 4.
203 See Swain, supra note 194, at 5.
204 See Denny Walsh, Actor Harrelson, Judge Clash in Pot Trial, Sacramento Bee, May 21, 1999, at 2.
205 See Swain, supra note 194, at 5.
206 See Defendant’s Memorandum Re Bail, supra note 195, at 1.
207 See id. Smith’s lawyers had sought to introduce four separate defenses to the charges of manufacturing and possession in addition to medical necessity: (1) substantive due process; (2) Section 884(a) “valid prescription” defense; (3) entrapment by estoppel; and (4) reliance on the advice of counsel. See Order at 6–10, United States v. Smith, (E.D. Cal. 1999) (No. CR S-97–558 GEB)[hereinafter District Court’s Order].
In addition to granting the government’s pre-trial motion, Judge Burrell also overturned a discovery motion that had been granted by a U.S. Magistrate regarding Smith’s claim of selective prosecution. See id. The Magistrate had granted a request by the defense to compel the federal government to disclose documentation relating to the decision to prosecute Smith. See id. The government appealed the Magistrate’s decision and Judge Burrell reversed. See id. at 5.
208 See Government’s Opposition to Smith’s Motion for Bail Pending Appeal Following Remand at 4 n.1, United States v. Smith (E.D. Cal. 2000) (No. CR S-97–558 GEB) [hereinafter Gov’t Opposition].
209 See District Court’s Order, supra note 208, at 2.
210 See id. at 1. The court stated that the decision of whether to grant bail pending appeal is governed by the provisions of the Bail Reform Act, 18 U.S.C. § 3143(b) (2000). See id.
211 See id. at 1–2. A substantial question of law or fact has been interpreted by the Ninth Circuit and other federal circuit courts of appeals to mean “one that is ‘fairly debatable’ or ‘fairly doubtful.’ In short, a ‘substantial question’ is one of more substance than would be necessary to a finding that it was not frivolous.” United States v. Handy, 761 F.3d 1279, 1280 (9th Cir. 1985).
212 18 U.S.C. § 3143(b)(1)(A), (B) (2000) (emphasis added).
213 See District Court’s Order, supra note 208, at 3-4.
214 See id. at 4.
215 See id. at 5–10.
216 See id.
217 See id. at 6.
218 See Swain, supra note 194, at 3.
219 See id. at 7.
220 See id.
221 See Appellant’s Motion for Reconsideration of Application of B.E. Smith for Release Pending Appeal at 3, United States v. Smith (9th Cir. 1999) (No. 99–10477) [hereinafter Appellant’s Motion for Reconsideration].
222 See Buyers’ Coop., 190 F.3d at 1114 (decided Sept. 13, 1999); Appellant’s Motion for Reconsideration, supra note 222, at 3.
223 Order at 1, United States v. Smith (9th Cir. Oct. 13, 1999) (No. 99–10447).
224 See id.
225 See Appellant’s Motion for Reconsideration, supra note 222, at 2. Smith’s attorneys believed that the Panel erred further by refusing to find a “substantial question” likely to result in a reversal or new trial with regards to other decisions by the district court as well. See id. at 2 n.1. Specifically, the defense maintained that the district court wrongfully overturned the U.S. magistrate’s decision regarding selective prosecution and improperly excluded evidence regarding the entrapment by estoppel and advice of counsel defenses. See id. In recognition of the limited circumstances for a motion for reconsideration, however, the defense limited its petition to the district court’s denial of the medical necessity defense. See id.
226 See id. at 1. Ninth Circuit Rule 27–10 authorizes a petitioner to seek clarification, reconsideration or rehearing of an order. Rule 27–10 states:
A party . . . shall state with particularity the points of law or fact which, in the opinion of the movant, the court has overlooked or misunderstood. Changes in legal or factual circumstances which may entitle the movant to relief also shall be stated with particularity.
See id. (stating Ninth Circuit Rule 27–10).
227 See Appellant’s Motion for Reconsideration, supra note 222, at 2–7.
228 See id. at 5 (quoting the requirements set forth by court in Buyers’ Cooperative, as well as its recognition that medical marijuana was “legally cognizable defense”).
229 See id. (quoting Buyers’ Coop., 190 F.3d at 1115).
230 See id. at 6.
231 See Appellant’s Motion for Reconsideration, supra note 222, at 6–7.
232 See id. at 7.
233 See Order at 1–2, United States v. Smith (9th Cir. Feb. 3, 2000) (No. 99–10447) [hereinafter Ninth Circuit Order]; Appellant’s Motion for Reconsideration, supra note 222, at 2–7. Smith also addressed the district court’s ruling that he is a flight risk or a danger to the safety of the community. See Appellant’s Motion for Reconsideration, supra note 222, at 7. Although the Ninth Circuit remanded this issue to the district court, Smith argued that the district court’s conclusion was “inseparably enmeshed with that court’s unsupported and inaccurate belief that he was an unjustified and flagrant violator of federal law who had no right to assert a medical necessity defense.” See id. at 8.
234 Ninth Circuit Order, supra note 234, at 1–2.
235 See id.
236 See id.
237 See id.
238 See id. Smith argues that he and the people to whom he distributed marijuana are in the same position as those described in Buyers’ Club, and thus, he meets the minimum threshold showing that he had a right to present his medical necessity defense at trial. See Defendant’s Memorandum Re Bail, supra note 195, at 11–14. The government argues that Smith cannot avail himself of the defense because he fails to satisfy the requirement of “necessity,” which the government suggests requires a showing of an “emergency” or “absolute and uncontrollable necessity.” See Gov’t Opposition, supra note 209, at 2–7 (citing United States v. Dorrell, 758 F.2d 427, 431). Indeed, the government states that Smith does not allege that he was faced with imminent danger of dying or permanent disability. See id. at 6. Smith argues, in turn, that the government’s definition of the necessity requirement is not supported by case law and contradicts both Aguilar and Buyers’ Club. See Defendant’s Reply Memorandum Re Bail Pending Appeal and Remanded Issue of Medical Necessity Defense at 2–3, United States v. Smith (E.D. Cal. 2000) (No. CR S-97–558 GEB) (arguing that government’s interpretation of United States v. Dorrell is incorrect, but regardless, the case is irrelevant because it preceded Aguilar and Buyers’ Club) [hereinafter Defendant’s Reply Memorandum]. The government also maintains that Smith had other legal alternatives including the use of other drugs, such as Valium, and the pursuit of rescheduling by the federal government. See Gov’t Opposition, supra note 209, at 6–7. Smith urges that both of the government’s arguments concerning legal alternatives are in contradiction of Buyers’ Club and the Ninth Circuit’s directives in his case. See Defendant’s Reply Memorandum, supra, at 4–5 (stating that even assuming some degree of merit in government’s argument concerning medical alternatives, such a question is for jury).
239 See Defendant’s Memorandum Re Bail, supra note 195, at 14–15; Gov’t Opposition, supra note 209, at 7–10.
240 See Gov’t Opposition, supra note 209, at 4. The government stated that it disagreed with the court’s analysis in Buyers’ Club that there was no evidence of Congress’s intention to divest district court’s of their broad equitable discretion. See id. The government maintains that Congress has divested the courts of such discretion by choosing to classify marijuana as Schedule I. See id. at n.1.
241 See id.
242 See Letter from David M. Michael, attorney for B.E. Smith, Feb. 24, 2000 (on file with author).
243 See id. By relying on Buyers’ Cooperative, which held that cannabis clubs such as OCBC may be entitled to continue distributing marijuana to those seriously ill patients that satisfy the elements of the medical necessity defense, the court’s Order in Smith can reasonably be interpreted as extending the Buyers’ Cooperative holding to include someone acting as a patient’s primary caregiver. See Ninth Circuit Order, supra note 234, at 1–2.
244 Compare District Court’s Order, supra note 208, at 1, with Cannabis Cultivators Club, 5 F. Supp. 2d at 1101.
245 Although the cannabis clubs urge that they qualify as caregivers within the meaning of Proposition 215, their case is not as clear as Smith, where the individual patient or caregiver possesses or cultivates medical marijuana. See supra notes 199–200 and accompanying text.
246 See Ninth Circuit Order, supra note 234, at 1.
247 See (C.D. Cal. 1999) (No. CR-97–997 (A-GHK)).
248 See David Rosenzweig, Activists Plead Guilty to Drug Charges, L.A. Times, Nov. 20, 1999, at B1.
249 See id.
250 See id.
251 See id.
252 See id.
253 See Rosenzweig, supra note 249, at B1.
254 See id.
255 See Lynda Gorov, US Prosecutes Cancer Patient Over Marijuana, Boston Globe, Oct. 23, 1999, at A1. For a discussion of the Schedule II drug, Marinol, and why it is not always as effective as the smoked form of marijuana, see Tiersky, supra note, 16, at 567–68. For example, the recent IOM report concluded that “Marinol’s oral route of administration hampers its effectiveness because of slow absorption . . . .” See National Academy of Sciences Institute of Medicine, supra note 53, at 205–06.
256 The viral load is the measure of active AIDS virus in the body.
257 See Mary Curtius, AIDS Patient Pins Hopes on Pot Ruling, L.A. Times, Sept. 20, 1999, at A3.
258 See id.
259 See Rosenzweig, supra note 249, at B1.
260 See id.
261 See id.
262 See id.
263 See Arnolds & Garland, supra note 99, at 291.
264 See id.
265 See Wayne R. LaFave & Jerald H. Israel, Criminal Procedure § 13.2(a), at 561 (1985); Theodore W. Housel & Guy O. Walser, Defending and Prosecuting Federal Criminal Cases 47 (1946). Because of legislative “overcriminalization” and limitations on enforcement resources, no prosecutors are able to prosecute all of the offenses that come to their attention. See LaFave & Israel, at 562. One scholar has noted, to deny the exercise of discretion under these circumstances is “like directing a general to attack the enemy on all fronts at once.” See id. (quoting T. Arnold, The Symbols of Government 163 (1935)). For a more in-depth treatment of prosecutorial discretion and the role that it should play in the criminal justice system, see, for example, Gerald E. Lynch, Our Administrative System of Criminal Justice, 66 Fordham L. Rev. 2117, 2127 (1998) (describing policy goals that guide prosecutorial discretion); Charles W. Thomas & W. Anthony Fitch, Prosecutorial Decision Making, 13 Am. Crim. L. Rev. 506 (1976) (discussing prosecutor’s role in charging decisions).
266 See Arnolds & Garland, supra note 99, at 298 (quoting generally F. Miller, Prosecution (American Bar Foundation, 1969)). The Supreme Court has stated:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not just that it shall win a case, but that justice is done.
Berger v. United States, 295 U.S. 78, 88 (1935).
267 Robert H. Jackson, The Federal Prosecutor, 31 J. Crim. L., Criminology, & Pol. Sci. 3, 4 (1940).
268 See supra notes 95–97 and accompanying text.
269 See Hollon, supra note 96, at 501, 520–26 (arguing for expansive application of selective prosecution doctrine because of perverse incentive given to federal prosecutors in areas of concurrent jurisdiction to prosecute solely where state constitutional or procedural protections would be advantageous to defendant in state court).
270 See id.
271 United States Attorney Manual, Grounds for Commencing or Declining Prosecution, Tit. 9, Chap. 9–27.220(A) (1997). Two further justifications for declining to prosecute are that the person is subject to effective prosecution in another jurisdiction, or that there exists an adequate non-criminal alternative to prosecution. See id.
272 See id.
273 See United States Attorney Manual, Initiating and Declining Charges—Substantial Federal Interest, Tit. 9, Chap. 9–27.230 (1997) [hereinafter USAM 9–27.230].
274 See id. Although the Manual lists only seven factors, the Comment section of USAM 9–27.230 discusses an additional factor; namely, “the person’s personal circumstances.” See id. § (B)(1).
275 See id.
276 See id.
277 See id.
278 See USAM 9–27.230, supra note 274, § (B)(2).
279 See id.
280 See LaFave & Israel, supra note 266, at 564 (discussing discretion of judge and jury as influence on prosecutor’s decision to prosecute); Aaron T. Oliver, Note, Jury Nullification: Should the Type of Case Matter?, 6 Kan. J.L. & Pub. Pol’y 49, 60–62 (1997) (discussing jury’s willingness to nullify law when community views harm resulting from crime to be de minimus or law to be inappropriate restriction on victimless activity); Harvey Uhlenhopp, The Criminal Trial: Observations from the Bench (speech presented to National District Attorneys Association / Iowa County Attorneys Seminar), in Practicing Law Institute, The Prosecutor’s Sourcebook 24–5 (B. James George, Jr. ed. 1969). A jury may exercise its discretion to acquit the guilty for a variety of reasons, including: (1) sympathy with the defendant; (2) belief that the offense is de minimus; or (3) the fact that the statute violated is an unpopular law. See LaFave & Israel, supra note 266, at 564.
281 See LaFave & Israel, supra note 266, at 564; Oliver, supra note 281, at 60–62. For example, a prosecutor in a county where jurors simply will not convict in driving-while-intoxicated cases absent aggravating circumstances must consider whether it is wise to continue prosecuting similar cases. See Uhlenhopp, supra note 281, at 24–25.
282 See USAM 9–27.230, supra note 274, § (B)(7).
283 See id.
284 See id.
285 See id. §§ (A) & (B). At least one commentator, however, has suggested that it is naïve to believe that a prosecutor’s decisions concerning whether to prosecute are controlled by any rules or guidelines, such as those set forth in the DOJ’s Manual. See Laurie L. Levenson, Working Outside the Rules: The Undefined Responsibilities of Federal Prosecutors, 26 Fordham Urb. L.J. 553, 558–60 (1999). Rather, Levenson argues that charging decisions take place within “a gap in the rules—a gap intentionally left so that prosecutors can tailor justice.” Id. at 558. According to Levenson, prosecutors must seek to fill the gap through a practical sense of what is right and wrong and a moral standard. See id.; see also generally, Bennet L. Gershman, A Moral Standard for the Prosecutor’s Exercise of the Charging Decision, 20 Fordham Urb. L.J. 513 (1993).
286 Carl M. Ostrom, Feds Clarify Medical-Marijuana Guidelines; Reject Busting Patients, Seattle Times, Dec. 2, 1999, at B1.
287 See id.; see also LaFave & Israel, supra note 266, at 565 (stating that established standards are necessary for each prosecutor’s office to guide exercise of prosecutorial discretion, particularizing such standards as circumstances that properly can be considered mitigating or aggravating, or kinds of offenses that should be most vigorously prosecuted in view of community’s needs).
288 See Wash. Rev. Code Ann. § 69.51A (West 2000).
289 See Ostrom, supra note 287, at B1.
290 See id.
291 See id.
292 See Arnolds & Garland, supra note 99, at 298.
293 Jackson, supra note 267, at 3.
294 See Arnolds & Garland, supra note 99, at 298.
295 See id.
296 A defendant can challenge the use of prosecutorial discretion under claims of selective prosecution as a violation of equal protection, see generally United States v. Armstrong, 514 U.S. 546 (1996), or prosecutorial vindictiveness as a violation of due process, see generally United States v. Batchelder, 442 U.S. 114 (1979). Due to the heavy burdens placed on the defendants, however, both claims are extremely difficult to make out successfully. For an exhaustive treatment of the subject, see Joseph F. Lawless, Jr., Prosecutorial Misconduct ch.3 (1985 & Supp. 1990).
297 See Arnolds & Garland, supra note 99 at 298 n.111 (quoting Waltz, Tensions Between Political Defendants and the Courts, Oct. 15, 1971 (unpublished lecture, DePaul College Speakers Program)). Professor Waltz also included in his list of indicia: (5) where the statute that is the source of the charges was enacted for the purpose of combating persons like the defendants who oppose particular administration policies; and (6) where it is necessary to rely on undercover agents and provocateurs. See id.
298 See supra notes 45–47 and accompanying text (discussing H.R. 912).
299 See Maine Medical Marijuana Act of 1998, Initiated Bill No. 2, 1999, Chap. 1 (codified at Me. Rev. Stat. Ann. tit. 22 § 2383 (b)(5) (West 1999)). Several states will consider medical marijuana ballot initiatives in 2000, including Massachusetts, Michigan, Ohio and Florida. See Tiersky, supra note 16, at 584 (citing Trends & Timelines, Medical Marijuana: More Ballot Measures to Come, Am. Poli. Network, Dec. 11, 1998). Additionally, Colorado and Nevada will vote again in 2000 to complete their initiative process. See id.
300 See supra notes 156–261 and accompanying text.
301 See Gov’t Opposition, supra note 209, at 4.
302 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
303 See supra notes 48–65 and accompanying text (discussing government research); supra notes 66–98 and accompanying text (discussing state laws permitting use of medical marijuana).
304 See supra notes 45–65 and accompanying text.
305 See In Re Marijuana Rescheduling Petition, Docket 86–22, Opinion, Recommended Ruling, Findings of Fact, Conclusions of Law, and Decision of Administrative Law Judge, Washington, DC: Drug Enforcement Administration (1988).
306 See supra notes 65–98 and accompanying text.
307 See id. In a development that may foreshadow a more reasonable federal policy in the future, both presidential candidates—Vice President Al Gore and Governor George W. Bush—have indicated that they support medical marijuana, framing the issue as one implicating either patients’ or states’ rights. See Dana Hill, Gore Backs Medical Marijuana, ABCNEWS.com, Dec. 15, 1999 (visited Mar. 29, 2000) <http://abcnews.go.com/ sections/politics/DailyNews/gore991215.html>; Susan Feeney, Bush Backs States’ Rights on Marijuana, Dallas Morning News, Oct. 20, 1999, at 6A.
308 See National Academy of Sciences Institute of Medicine, supra note 53, at 1.
309 See Tiersky, supra note 16, at 595; McGuire, supra note 145, at 96.
310 See National Academy of Sciences Institute of Medicine, supra note 53, at 126.
311 See supra notes 66–98 and accompanying text, discussing state initiatives; Dixon, supra note 158, at 1017.
312 See Arnolds & Garland, supra note 99, at 298.
313 See United States Attorney Manual, Grounds for Commencing or Declining Prosecution, Tit. 9, Chap. 9–27.000 (1997).
314 See Ostrom, supra note 287, at B1.
315 Remarks, Panel Discussion: The Prosecutor’s Role in Light of Expanding Federal Criminal Jurisdiction, 26 Fordham Urb. L.J. 657, 664 (1999) (discussing medical marijuana controversy in California as example of inconsistency between federal and state law enforcement priorities) [hereinafter Panel Discussion].
316 See id.
317 See supra notes 286–91 and accompanying text; see also generally Steven D. Clymen, Unequal Justice: The Federalization of Criminal Law, 70 S. Cal. L. Rev. 643 (1997) (stressing need for local priorities). This decision would also show sensitivity towards important issues of federalism generally. See Panel Discussion, supra note 316, at 665–68. As Congress continues to expand the federal government’s criminal law jurisdiction, a conscious decision must be made by prosecutors in each case over whether it is wise to override decisions that are made by the states. See id.
318 See supra notes 275–86 and accompanying text.
319 See supra notes 279–82 and accompanying text.
320 See Arnolds & Garland, supra note 99, at 298.
321 See supra note 95 and accompanying text.
322 See USAM 9–27.230, supra note 274, § (B)(5).
323 See id. (listing deterrent effect of prosecution as factor in determining whether to prosecute).
324 See Reeve, supra note 104, at 785–87.
325 See USAM 9–27.230, supra note 274, § (B)(7).
326 See Defendant’s Memorandum Re Bail, supra note 195, at 3.
327 See USAM 9–27.230, supra note 274, § (B)(7).
328 See Elizabeth T. Lear, Criminal Law: Contemplating the Successive Prosecution Phenomenon in the Federal System, 85 J. Crim. & Criminology 625, 634–35 (noting political motivations of U.S. Attorneys in desiring to appear tough on crime as influential in decision to prosecute).
329 See Lear, supra note 329, at 634–35; Margaret A. Berger, The Deconstitutionalism of the Confrontation Clause: A Proposal for a Prosecutorial Restraint Model, 76 Minn. L. Rev. 557, 566 (1992).
330 See Arnolds & Garland, supra note 99, at 298.
331 See supra notes 297–98 and accompanying text.
332 See id.
333 See Arnolds & Garland, supra note 99, at 298 n.111).
334 For a more in-depth treatment of the motivations and history behind the war on drugs, see, for example, Paul Finkelman, The Second Casualty of War: Civil Liberties and the War on Drugs, 66 S. Cal. L. Rev. 1389 (1993), and Lisa M. Bianculli, Note, War on Drugs: Fact, Fiction, and Controversy, 21 Seton Hall Legis. J. 169.
335 See Douglas N. Husak, Drugs and Rights 9 (Cambridge Univ. Press 1992) Berger, supra note 330, at 566; Finkelman, supra note 335, at 1392, 1396. This perception was evidenced, for example, in 1988 during George Bush’s acceptance speech: “Zero tolerance isn’t a policy, its [sic] an attitude . . . My administration will be telling the dealers: Whatever we have to do, we’ll do it, but your day is over.” 1988 Republican Nation Convention Bush Text, Stakes are High—Choice is Crucial, L.A. Times, Aug. 19, 1988 (emphasis added). Even if government’s perception were in fact accurate with respect to drugs generally, it is clearly erroneous in the context of medical marijuana, which receives overwhelming public support.
336 See Lester Grinspoon, The War on Drugs—A Peace Proposal, 330 N. Eng. J. Med. 357, 358 (1994) (stating that federal law enforcement policies have strangled medical potential of marijuana) [hereinafter Grinspoon, The War on Drugs].
337 See Dogwill, supra note 58, at 286–87 (stating that war against drugs will be seen by many as futile if marijuana is allowed to be smoked as medicine); see also Finkelman, supra note 335, at 1397; Dixon, supra note 158, at 980. This perception is fueled largely by the government’s belief that marijuana is a “gateway drug” and that legalization of marijuana for medical purposes will send the wrong message to children about drug use in general. See Dogwill, supra note 58, at 287. As discussed above, however, the recent IOM report specifically rejected both of these claims. See supra notes 58–59 and accompanying text.
338 See Raymond J. Walsh, Jr., Note, Populations at Risk for Criminal Liability Under Compassionate Use Acts, 25 New Eng. J. on Crim. & Civ. Confinement 275, 283 (1999): see also Dixon, supra note 158, at 980; Dogwill, supra note 58, at 287. For example, in response to protests by medical marijuana supporters, Representative Barr of Georgia said, “[I]t is truly sad to see marijuana legalization activists using seriously ill patients as props in their campaigns to make dangerous, mind altering drugs legally available.” David Pace, Medical Marijuana Use Advocates Stage Protest at Barr’s House Office, Associated Press, Oct. 21, 1999. Query, however, why those who supported the decision to classify cocaine, methadone and other highly addictive drugs as Schedule II were not similarly seen as advocates for legalization. See Finkelman, supra note 335, at 1397. Clearly, cocaine and methadone are more addictive and harmful than marijuana. Could it be the rather narrow yet enduring view that “marijuana supporters,” medical or otherwise, are associated with the “subversives” or “hippies” that were so despised by the Establishment throughout the 60s? See Bonnie & Whitbread II, supra note 25, at 262–63 (discussing perception of marijuana users as sick, emotionally maladjusted persons).
339 See Finkelman, supra note 335, at 1397.
340 See Richard Cowan, Was the Decision to Prosecute B.E. Smith Made at the White House? The Key Question About the Selective Prosecution of Medical Marijuana Activists, Marijuana News, (visited Mar. 29, 2000) <http://www.marijuananews.com/was_thr_decision_ to_prosecute_b.htm>. The federal government has also sought to silence voices in the press that have spoken out in opposition to the war on drugs. See Finkelman, supra note 335, at 1405 (discussing government’s attack on First Amendment as part of war on drugs).
341 See id.
342 See Swain, supra note 194, at 4. Peter McWilliams has also written a number of works on individual liberties. See, e.g., Peter McWilliams, Ain’t Nobody’s Business If You Do: The Absurdity of Consensual Crimes in a Free Society (1993).
343 See Swain, supra note 194, at 5.
344 See id.
345 See Cowan, supra note 341, at 3.
346 See id.
347 See Arnolds & Garland, supra note 99, at 298 n.11 (quoting Waltz, Tensions Between Political Defendants and the Courts).
348 See Swain, supra note 194, at 7.
349 See Appellant’s Motion for Reconsideration, supra note 222, at 1.
350 See supra notes 219–20 and accompanying text.
351 See Swain, supra note 194. Even General Barry McCaffery, the White House drug czar, enjoys mocking the pleas of the seriously ill and other supporters of medical marijuana: “Ask a doctor if he really wants a big blunt stuck in a patient’s face as treatment . . . . A lot of this is a crock.” Medical Marijuana Called a Crock, Marijuana News, Mar. 6, 2000 (visited Mar. 29, 2000) <http://216.9.192.67/news.php3?sid=140>.
352 See Armstrong, 514 U.S. 546; Batchelder, 442 U.S. 114; see also Hollon supra note 96, at 507–08.
353 See Arnolds & Garland, supra note 99, at 299.
354 See Oliver, supra note 281, at 61–63 (referring to jury nullification as check on prosecutors). Outright jury nullification—where the jury chooses to acquit even when its factual findings, if applied literally to the law, would have resulted in conviction—is obviously another alternative. See LaFave & Israel, supra note 266, at 830–31. It is generally regarded, however, that a judge should not instruct a jury as to its power to nullify a law because nullification upsets the balance in the courts and erodes citizens’ respect for the law. See id.; Arnolds & Garland, supra note 99, at 299. A legally recognized defense like medical necessity, therefore, is preferable.
355 See LaFave & Israel, supra note 266, at 564; Arnolds & Garland, supra note 97, at 299; Oliver, supra note 281, at 61–63.
356 See Deborah Garner, Up in Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555, 585 (1999) (urging expansion of courts’ power to accept medical necessity defense); Whilton, supra note 99, at 1125–34 (arguing for application of medical necessity defense to medical marijuana cases in Massachusetts).
357 Arnolds & Garland, supra note 99, at 299; see also Oliver, supra note 281, at 61–63.
358 Witherspoon v. Illinois, 391 U.S. 510, 515 (1968) (citing Trop v. Dulles, 356 U.S. 86, 101 (1958)).
359 See supra notes 106–07 and accompanying text.
360 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
361 See id.; see also Defendant’s Memorandum Re Bail, supra note 195, at 6.
362 See supra notes 146–54 and accompanying text.
363 See supra notes 110–30 and accompanying text.
364 See Tate, 505 A.2d at 957 (Garibaldi, J., dissenting).
365 Arnolds & Garland, supra note 99, at 298; see also Oliver, supra note 281, at 61–63.
366 See supra notes 22–27 and accompanying text.
367 See id.
368 See id.
369 See id.
370 See Ninth Circuit Order, supra note 234, at 1; Buyers’ Coop., 190 F.3d at 1115.
371 See Buyers’ Coop., 190 F.3d at 1114.
372 See supra notes 24–29 and accompanying text.
373 See supra notes 271–86, 312 and accompanying text, discussing state courts that have held that defendant had reasonable legal alternative under state law by virtue of a state sponsored research program.
374 See supra note 312 and accompanying text.
375 See Parry, supra note 103, at 440 (stating that necessity verdicts advance net social welfare by reaching result that upholds, advances and renews community values and signals shifts in those values).
376 See Finkelman, supra note 335, at 1397.
* I would like to thank David Michael, Esq. and Professors Charles Baron and Andrew Leipold for their invaluable insight and guidance.