Medical Cannabis and the Law

Cannabis is illegal at the federal level. The federal government regulates drugs and medicines through the Controlled Substances Act (CSA) (21 U.S.C. § 811) placing substances deemed potentially addictive or harmful in a schedule, according to its relative potential for abuse and medicinal value. Under the CSA, cannabis is classified as a Schedule I drug, which means that the federal government views cannabis as highly addictive and having no currently accepted medical use.

Advocates and members of Congress have attempted to change that federal designation through citizen rescheduling petitions and legislation introduced in every Congress – all without success.

In 1996, patient advocates successfully brought their case to the voters in California and Arizona, passing medical cannabis laws in defiance of federal law. From the start, the federal government attempted to undermine state medical cannabis laws with tactics of interference and intimidation. This included threats to doctors and prosecution of patients and those providing medical cannabis to patients. Between 1996 and 2014 the US government spent nearly a billion dollars on raiding, arresting, persecuting and jailing medical cannabis patients and their providers. (See ASA’s What is the Cost Report for more details) 

In 2014, Congress called a ceasefire in the federal war on medical cannabis. In the first change in federal law affecting patients since 1970, when it classified cannabis as a dangerous drug with no acceptable medical use, Congress approved a budget amendment that prohibits Justice Department funds from being used to prevent states from implementing medical cannabis laws. This restriction on federal enforcement continues to be a part of the funding bill for the Commerce-Justice-Science (CJS) budgets and expires at the end of each fiscal year, without additional action by Congress. 

In 2018 the U.S. House of Representatives and Senate passed legislation to regulate industrial hemp production. The Agricultural Improvement Act of 2018, also known as the Farm Bill, defined as cannabis varieties with less than 0.3% THC by dry weight. Under the law, state departments of agriculture submit plans for hemp cultivation to the U.S. Department of Agriculture (USDA) for approval, then cultivators can obtain USDA licenses. If a state does not submit a plan, individual farmers may apply to the USDA directly. As of 2022, USDA-licensed hemp is being cultivated in all 50 states; 44 states have approved hemp programs and the other 6 states have directly licensed farmers. The law allows for interstate commerce in hemp products and extracts such as CBD, though the FDA has yet to release rules for hemp-derived CBD products.

In October 2022, Biden issued a statement announcing that he is pardoning individuals with federal cannabis possession convictions, calling on Governors to do the same, and called on HHS to look into the scheduling of cannabis. This action did not change the legal status of cannabis but is another example of asking agencies to work around the illegal status of cannabis.

To date, several federal agencies have issued guidelines and policy memorandums to manage the conflict between federal and state laws as they pertain to medical cannabis. While these are legitimate efforts to manage the emerging issues within medical cannabis, they are examples of why federal legislation is needed rather than forcing agencies to create “work around” polices.

To date, 48 states and most US territories have passed laws allowing medical cannabis use in some form by qualifying patients. Of those states, some only allow access to CBD extracts of cannabis, but 37 states, the District of Columbia, and most U.S. territories have functional programs that include a range of cannabis products.

Americans for Safe Access works with patient advocates and stakeholders to pass functional medical cannabis laws in states that do not have them and to improve existing state medical cannabis programs. Be sure to sign up with us to get alerts about pending legislation in your area.

Federal marijuana laws remain harsh. People found guilty of federal drug violations can face long mandatory sentences, loss of property and other consequences that can be felt for life. Despite widespread medical use by millions of Americans, federal law still considers cannabis a dangerous illegal drug with no acceptable medicinal value. Medical issues cannot be used as a defense in federal court, though defense attorneys should attempt to raise the issue whenever possible during trial as it may be considered a mitigating factor at sentencing. Federal law applies throughout Washington D.C. and the United States, not just on federal property.

The penalties for federal marijuana offenses are determined by sentencing guidelines, enacted by the United States Sentencing Commission, and mandatory sentencing laws, enacted by Congress. The Sentencing Commission was created in 1987 to combat sentencing disparities across jurisdictions. The current mandatory minimum sentences for marijuana offenses were enacted in a 1986 drug bill. Federal sentencing guidelines take into account not only the amount of cannabis involved in the arrest but also the past convictions of the accused. Not all cannabis convictions require jail time under federal sentencing guidelines, but all are eligible for imprisonment. Any medical cannabis patient convicted and sentenced to federal prison will serve a minimum of 85% of that sentence.

In United States v. Booker (2005), a Supreme Court decision from January 2005, the court ruled that the federal sentencing guidelines (as outlined above) are advisory for judges and not mandatory. Under current sentencing guidelines, the larger the amount of cannabis involved, the more likely the person is to be sentenced to imprisonment. Even for a defendant with multiple prior convictions, being charged with low-level offenses may lead to probation for the entire sentence of one to twelve months, with no prison time required. Possession of over 1 kg of cannabis with no prior convictions carries a sentence of six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record carries a sentence of at least six months in prison; with multiple prior convictions, the recommended sentence might be up to two years to three years with no chance for probation.

In addition to the sentencing guidelines, there are statutory mandatory minimum sentences enacted by Congress that require judges to impose prison time for certain marijuana offenses. These mandatory minimum sentences remain in effect after United States v. Booker. There is a five-year mandatory minimum for cultivation of 100 plants or possession of 100kgs, and there is a 10-year mandatory minimum if the defendant also has a prior felony drug conviction. Cultivation or possession of 1000kg or 1000 plants triggers a 10-year mandatory minimum, with a 20-year mandatory sentence if the defendant has one prior felony drug conviction, and a life sentence with two prior felony drug convictions.

In 1970, Congress placed cannabis in Schedule I under the Controlled Substance Act (CSA) as a placeholder, pending evaluation by a government-appointed commission. That commission, led by Republican former Pennsylvania governor Raymond P. Shafer, founded that cannabis was not a danger to society or individual users and recommended that it not be criminalized, but that  recommendation was rejected by then-President Nixon. Today, cannabis remains a Schedule I drug under the CSA, which defines cannabis as having no accepted medical use. Various efforts to reschedule cannabis in the U.S. – based on peer reviewed medical and scientific information – have been stymied by the Drug Enforcement Administration (DEA). Most recently, the DEA’s “Denial of Petition to Initiate Proceedings to Reschedule Marijuana” focused on the fact that cannabis does not fit with current federal regulations for an FDA-approved drug. In other words, cannabis as a substance simply does not meet the DEA’s definition of “medicine,” not that cannabis has no medical value. 

In 1975, DC resident Robert Randall was arrested for cultivating cannabis in his home. Citing clinical evidence, Mr. Randall successfully used the Common Law Doctrine of Necessity to fight the charges. Mr. Randall then petitioned the federal government to provide him with access to medical cannabis in accordance with his medical necessity and shortly thereafter became the first American to receive a government-supplied source of cannabis. As a result, the FDA established the Investigational New Drug (IND) Compassionate Access Program to supply individuals who suffered from severe or chronic illness with a monthly supply of federally grown cannabis, up to nine pounds annually (a program that Newt Gingrich tried to expand in 1981 through legislation). 

In 1992, in response to an overwhelming number of applications from people suffering the effects of AIDS, President George H. W. Bush closed the program to new applicants, citing concerns that the program undermined the “war on drugs.” Today, one surviving IND-participant continues to receive medical cannabis from the U.S. government, paid for by federal tax dollars. 

Twenty-five years of federal roadblocks led frustrated patient advocates to turn to their local and state governments for protection. In 1996, patient advocates successfully brought their case to the voters in California and Arizona, passing medical cannabis laws in defiance of federal prohibition. From the start, the federal government met new medical cannabis laws with tactics of interference and intimidation. Following the passage of the first state medical cannabis laws, U.S. Attorney General Janet Reno announced that the DOJ would end the career of any doctors who recommended medical cannabis by revoking their license to prescribe medication. In response, a group of physicians led by AIDS specialist Dr. Marcus Conant challenged the policy in federal court as a Constitutional violation. In 2002, the U.S. 9th Circuit Court ruled in Conant v. Walters that physicians have a First Amendment right to make recommendations, but may not aid or abet patients in actually obtaining cannabis. 

From 1997-1999, the Institute of Medicine (IOM) of the National Academy of Sciences, on directive from the Office of National Drug Control Policy (ONDCP), conducted a review of the scientific evidence on the potential health benefits and risks of cannabis. The report concluded that cannabis appears to be a beneficial treatment option for some debilitating conditions and called on the federal government to conduct more research on patients with specific conditions. Its recommendations were ignored. 

As the legal battle over physicians’ right to discuss treatment options with their patients was unfolding, the federal government began a campaign in 1997 to stop California from implementing its state law. That campaign included civil legal actions, armed raids on medical cannabis facilities, and prosecutions of medical cannabis patients and their providers. Between 1996 and 2002, there were 14 Federal raids on cannabis facilities. 

In 2005, in the case Gonzales v. Raich, the United States Supreme Court held that the federal government has the constitutional authority to prohibit cannabis for all purposes. Thus, federal law enforcement officials may prosecute medical cannabis patients, even if they grow their own medicine and even if they reside in a state where medical cannabis use is protected under state law. The Court indicated that Congress and the Food and Drug Administration should work to resolve this issue.

The Raich decision did not say that the laws of California (or any other medical cannabis state) are unconstitutional or otherwise invalidate them in any way. Nor does it say that federal officials must prosecute patients. Decisions about prosecution are still left to the discretion of local federal prosecutors who must now determine compliance with state medical cannabis laws in deciding to bring charges. 

In October 2004, ASA launched a legal challenge to HHS to correct published medical marijuana misinformation under the Data Quality Act (DQA), a little-known law that requires federal agencies to rely on sound science.   On April 20, 2005, HHS denied the petition, and ASA quickly filed an appeal, which was finally denied in July 2006. ASA then sued seeking judicial review of the decision by HHS, but the district court found that the DQA does not provide for judicial review, and the Ninth Circuit Court of Appeals then dismissed an appeal of that decision due to a pending rescheduling petition. That rescheduling petition, like all the others before it, was denied. 

The criminal cases brought by the federal government against patients and providers were consistently lopsided, as federal trial rules prevented (and still prevent) defendants from telling a jury that the cannabis was for medical treatment in accordance with state law. Patients were left with no real defense, effectively ensuring convictions and giving federal prosecutors extraordinary leverage for obtaining plea deals. Raids continued for the next 13 years, and between 2005 and 2009, the DOJ conducted another 212 raids and prosecuted 55 individuals. These raids often involved dozens of DEA agents in riot gear using “dynamic entry” tactics, such as kicking in the door without warning or using a battering ram to “surprise” patients and dispensary staff. The agents would then seize all the cannabis and cash – often without making an arrest – in what came to be known as “smash and grab” raids. Seized cash is kept by the local DEA offices for their own use. 

On October 19, 2009, the DOJ issued a memo authored by Deputy U.S. Attorney David Ogden, the second in command at DOJ, to provide guidance to U.S. Attorneys for determining when to prosecute medical cannabis cases. The memo clearly stated that it was not the Administration’s policy to prosecute anyone “in clear and unambiguous compliance with existing state laws providing for the medical use of cannabis.” Despite this, many of the U.S. attorneys in medical cannabis states ignored the memo and continued to authorize federal raids and prosecute medical cannabis patients and providers. 

In the spring of 2011, U.S. attorneys adopted a new tactic of threatening state officials. Between February and May, federal prosecutors sent letters to elected officials in 10 states, either implicitly or explicitly threatening criminal prosecution of elected officials and state employees if they implemented laws regulating the distribution of medical cannabis. Some letters also threatened to seize the buildings housing state administrative offices that process license applications for medical cannabis providers. 

The courts had concluded that there is no direct conflict between federal and state cannabis laws, but the Justice Department appeared intent on creating one. Prior to this, elected officials had never been threatened with federal prosecution for implementing a state law. Letters were not the only attempts to pressure elected officials. Raids on 26 cannabis businesses in Montana in March 2011 were staged while state lawmakers were considering changing their law. The raids resulted in 31 plea deals and two trials that resulted in convictions after jurors were prevented from hearing medical evidence.

In July of 2011, the DOJ issued a new policy, claiming to “clarify” the policy set forth in the Ogden memo. Following that, U.S. attorneys began sending letters to landlords who rented to medical cannabis facilities, threatening to seize their property. Over the next two years, U.S. attorneys would send more than 500 of these letters and begin asset forfeiture proceedings on approximately 30 properties. On August 29, 2013, the DOJ’s Deputy Attorney General, James Cole, issued a guidance memo to prosecutors concerning cannabis enforcement under the CSA making it clear that prosecuting state legal medical cannabis cases is not a priority. The Cole memo included eight guidelines for prosecutors to use to determine federal enforcement priorities. Many medical cannabis programs require the same guidelines laid out by the Cole Memo, ensuring that any business with a license is also meeting these requirements.

In 2014, Congress passed the landmark Rohrabacher-Farr amendment to the Commerce, Justice, Science and Related Agencies (CJS) Appropriations Act, which prevents the DOJ from using any funds to interfere in state medical cannabis programs and bars ongoing federal cases involving individuals who are in compliance with state law. After this “ceasefire,” state medical cannabis programs have expanded dramatically. 

Known originally as the Rohrabacher-Farr Amendment for its first House sponsors, the CJS budget amendment was first signed into law on December 16, 2014 and has been passed in every budget since. The CJS amendment doesn’t just prevent direct interference with state implementation. Federal courts have ruled that it also prohibits federal medical cannabis raids, arrests, criminal prosecutions, and civil asset forfeiture lawsuits, as well as providing current medical cannabis prisoners with a way to petition for their release.

In August 2016, a federal appeals court upheld the CJS amendment in United States v. McIntosh and ruled in favor of the 10 cases that had been grouped together upholding the prohibition of the DOJ to use funds on enforcing cannabis prohibition under the Controlled Substances Act in states with medical cannabis reform laws. The CJS budget restriction is the best protection that medical cannabis patients and providers have ever enjoyed, but it must be renewed annually. Momentum is on the side of medical cannabis patients, but an annual appropriations amendment is always subject to shifting political will in Congress. 

In 2018, the Cole Memo was rescinded by then-Attorney General Jeff Sessions, meaning that the DOJ had discretion as to how they would prosecute drug cases. This move left many patients and businesses uncertain about their medicine. In early 2019, then-Attorney General William Barr told the Senate Judiciary Committee that he does “not intend to go after parties who have complied with state law in reliance on the Cole Memorandum.” 

Under the Biden Administration, Attorney General Merrick Garland has not reinstated the Cole Memo, but has stated that he has no intention of pursuing individuals following state laws.

In October 2022, Biden issued a statement announcing that he is pardoning individuals with federal cannabis possession convictions, calling on Governors to do the same, and called on HHS to look into the scheduling of cannabis. This action did not change the legal status of cannabis but is another example of asking agencies to work around the illegal status of cannabis.

Today most Americans live in states with medical cannabis laws, but millions still find themselves without safe access due to the continued federal prohibition. These patients include:

• Federal employees and consultants
• Patients living in Section 8 housing
• Veterans
• People in jurisdictions with restrictive lists of qualifying conditions
• Employees subject to drug testing in jurisdictions that don’t provide employment protections for medical cannabis patients
• Patients in treatment or hospice centers
• School-age minors in some medical cannabis jurisdictions
• Patients who need to travel across state lines
• People living in underserved areas
• People living in poverty
• Minor qualifying patients whose educational institutions don’t permit them to consume their medication on-campus
• People on organ transplant lists where explicit patient protections are not written into law

Americans for Safe Access is calling on Congress and the Biden Administration to create an Office of Medical Cannabis Control (OMC) housed in HHS and to create of a new schedule for cannabis, Schedule VI. The mission of the OMC would be to facilitate access to medical cannabis for therapeutic use and research, regulate the production of medical cannabis products, and oversee the new Schedule VI.

Please get involved today to help us bring safe access to everyone!