Medical Marijuana and Criminal Prosecution Under Federal Law

By Ashley Adams  

(December 2012) The passage of Proposition 203 has prompted numerous inquiries about whether future license holders and dispensaries can be criminally prosecuted under Federal law. The short answer is yes, they can. The Federal Government regulates drugs through The Controlled Substances Act, 21 U.S.C. § 811 (“CSA”), which does not recognize the difference between medical and recreational use of marijuana. Under Federal law, marijuana is treated like every other controlled substance, such as cocaine and heroin. Marijuana is classified as a “Schedule I” drug, which means the government views it as highly addictive, with little or no medical value. Doctors cannot legally prescribe marijuana under federal law, and could lose their DEA licenses by doing so.

What the feds can prosecute, and what they will prosecute, however, are entirely different matters, however. Because of limited resources, agencies like the DEA, and FBI will likely focus on those enterprises which are really only a sham for an illegal drug operation. The Obama Administration has issued several statements advising that it has no plans to prosecute pot dispensaries that are operating legally under state laws. The Justice Department issued a Memorandum listing factors which may be indicative of illegal drug trafficking activity including: 1) “amounts of marijuana inconsistent with purported compliance with state or local law” and 2) “financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash…” The Memorandum stresses, “[N]othing herein precludes investigation or prosecution where there is a reasonable basis to believe that compliance with state law is being invoked as a pretext for the production or distribution of marijuana for purposes not authorized by state law.” The determination of whether to prosecute marijuana cases will made on a “case by-case basis.”

If you have further questions about medical marijuana prosecutions or similar issues, please contact Ashley D. Adams, PLC 602.524.3801 or via this website. Ashley is a former federal prosecutor.