Although 18 states have legalized the medical use of marijuana, federal law does not recognize or protect medicinal marijuana possession or use; and the federal government can prosecute people who are otherwise protected under state medicinal marijuana laws.
While it is relatively rare to face federal prosecution as an individual patient, or as a member of a small medicinal marijuana growing cooperative, medicinal marijuana growers and dispensaries have recently received increased negative federal attention.
This article explains the conflict between federal and state laws concerning medical marijuana, why individual medical marijuana patients are usually safe from prosecution, and what patients can do to avoid trouble under federal law.
While not covered in this article, it is a crime to drive after using medicinal marijuana, even if you otherwise scrupulously follow your state’s rules. If you have been charged with a marijuana-related DUI, also see Driving Under the Influence of Marijuana for more information about DUI charges and possible penalties.
For information about your state’s laws and penalties for non-medicinal marijuana possession and use, see Marijuana Possession, and click the link to your state in the "Marijuana Laws by State" section.
Under the federal Controlled Substances Act (CSA) of 1970, marijuana is classified as a Schedule I substance. By definition, Schedule I drugs have a high potential for abuse and dependency, with no recognized medical use or value. Any marijuana possession, cultivation, or use is a federal crime, subjecting a defendant to fines, prison time, or both. Large scale cultivation and trafficking (transporting or selling marijuana, often across state lines) incurs harsher penalties, and tends to be the main focus of federal drug enforcement attention.
In spite of this wholesale federal ban, since the mid-1990s 18 states have enacted laws that allow or protect the medicinal use of marijuana. Most of these states have decriminalized medicinal marijuana use (removed the risk of criminal prosecution and penalties) for patients who follow the law with respect to amounts, registration, and so on. State-level penalties still apply to those who break these state laws.
Obviously, there is a conflict between federal classification under the CSA, which criminalizes all marijuana-related activities; and state medical marijuana laws, which recognize and protect medicinal marijuana cultivation, possession, and use. But despite the continued viability of the federal approach, individual medicinal marijuana patients are relatively unlikely to face problems from the federal government. The next section explains why, and what you can do to further protect yourself from potential problems.
Federal enforcement agencies like the Drug Enforcement Administration (DEA) have discretion as to which cases they pursue; and as with other government agencies, they have budget constraints to consider. Accordingly, in 2009, then-Deputy Attorney General David Ogden released a memo that declared personal medicinal marijuana use (in states that allow it), while still illegal under the CSA, to be a low priority for federal enforcement actions. In his memo, Ogden reasoned that there were better uses of the federal government’s limited financial resources than prosecuting individual medicinal marijuana patients. Instead, Ogden instructed federal enforcement agencies to target larger-scale marijuana growers and dispensaries, which were seen as contributing to the illegal marijuana trade by supplying marijuana to non-patients.
More recently, in 2011, Deputy Attorney General James Cole released a new memo, instructing federal enforcement agencies to increase the priority on prosecuting growers and dispensaries.
Many dispensaries (especially in California) have recently been targeted by federal prosecutors. The prosecutors typically begin by sending cease and desist letters that instruct dispensary owners to shut down the operation or risk federal prosecution.
If the dispensary operates in rented space, a second letter often goes to the landlord. The letter warns the property owner that if it allows the dispensary to continue to violate federal law on the premises, the owner risks losing the property through forfeiture to the federal government. This is a very clever move—owners who are fearful of losing their property may terminate dispensaries’ leases, effectively shutting them down at no cost in time or effort to the federal government.
Federal enforcement officials have paid less attention to marijuana cooperatives or collectives (where patients and their caregivers can legally grow limited supplies of marijuana for patients’ personal medical use). Because these operations are usually relatively small, do not make significant profits, and do not usually sell marijuana to nonmembers, they are not considered to be significant contributors to the “black market” in marijuana. By contrast, dispensaries usually are interested in making substantial profits, and generally sell to anyone with a state registry ID card. Their customer base is potentially much larger than that of a collective or co-op, because despite the states’ attempts to limit patient status to people with bona fide medical conditions, it’s often relatively easy to fraudulently obtain a card.
Technically, patients in perfect compliance with their state medicinal marijuana laws can still face federal prosecution. Luckily, unless they are involved with illegal or large-scale marijuana-related activities, individual patients can usually rest assured that their medicinal marijuana use will not land them in front of a federal judge. Avoiding targeted marijuana-related activities, and knowing and staying within the bounds of your state medical marijuana laws, are the two best ways to steer clear of federal (and state) attention and prosecution.
One of the best ways to avoid prosecution is to shun behaviors that are most often targeted by law enforcement. The following guidelines are a good starting point.
Although medical use is not protected under federal law, you have seen that staying within the limits for small-scale personal medical use is one of the best ways to avoid federal attention and prosecution. Of course, in order to do this, you must first know your state medical marijuana laws. To learn more, click the link to your state in the "Medicinal Marijuana Laws, State-by-State" section, below.
Even activities that are legal under state law may get the attention of federal enforcement agencies when they are large-scale in nature. Thus, growing up to the allowable number of marijuana plants in your backyard is far less likely to attract federal attention than owning a farm that cultivates bushels of marijuana to be sold to dispensaries.
Your best bet for avoiding problems from your personal medicinal marijuana use is to stay well within the boundaries of your state laws, and to keep your medical marijuana-related activities at the minimum level that you can for your treatment requirements.
Choose your state from the list below to find information about your states laws regarding marijuana use.
District of Columbia
Federal charges for illegal marijuana-related activities are serious, even if they are at the misdemeanor level. As you now know, it is not a defense that your marijuana-related activity was protected at the state level. If you have been charged with federal marijuana-related offense, you will benefit from the assistance of a good criminal defense attorney.
Be sure the lawyer you choose has experience practicing in federal court. Most state court defense attorneys do not handle federal cases, and they will be at a distinct disadvantage without that background.
You’ll want a local attorney who has handled cases like yours and knows how these cases are treated by the prosecutors and judges who will be involved in your case. Your lawyer can evaluate the strength of the evidence against you, explain your options, assess your chances of winning if you go to trial, give you the straight scoop on the consequences you’re likely to face if you lose, and protect your rights.