Lewis & Clark Law Review
First Page
1007
Abstract
State legalization of marijuana for medical purposes has skyrocketed since California first authorized medical marijuana in 1996. Today, citizens in 33 states can use marijuana for medical purposes. While each state maintains distinct regulatory systems and eligibility requirements, the core result of these state medical marijuana programs is that citizens in 33 states can lawfully possess and use marijuana. Yet federal law makes any use of marijuana illegal under the Controlled Substances Act (CSA). Through the Supremacy Clause, this illegality is controlling and preemptive in every state; that is, even if a state makes marijuana legal for certain purposes, an individual using marijuana for those purposes still violates federal law. If individuals violate federal criminal law, they potentially face criminal liability and prosecution by the federal government. This places medical marijuana patients, and the states that permit them to use marijuana, in an awkward position.
This awkward disjoint between state and federal law was addressed during the Obama presidency in two ways. The first was a series of memos, which culminated in the Cole Memo. That memo established a policy for the federal Department of Justice (DOJ) that guided federal prosecutors to save resources by focusing them on marijuana activity that implicated one of several federal policies. This predominantly served to leave enforcement of marijuana laws with local and state authorities. The second mechanism for addressing the state-federal conflict is an appropriations rider added to the federal budget in 2014. That provision prevents the federal DOJ from using its funds to prevent certain states from implementing their medical marijuana programs. The appropriations rider has been continuously reenacted, and is currently set to expire on September 30, 2019. The Cole Memo was rescinded by Attorney General Jeff Sessions in early 2018.
The Cole Memo and the rider individually create the appearance of disparate enforcement of federal criminal laws, a potential violation of the equal protection guarantee of the Due Process Clause of the Fifth Amendment. The federal government’s non-prosecution of citizens in some states for conduct for which it does prosecute citizens in other states, looks and acts like a violation of that guarantee. This Comment endeavors to determine whether the Cole Memo and the rider actually do violate equal protection.
To determine whether the disparate enforcement of the CSA by the federal government actually violates equal protection, several interlocking components must be examined. This Comment thus begins by presenting the general history of marijuana prohibition and enforcement in the United States, along with the standards for equal protection and selective prosecution claims. Although marijuana prohibition started in the early 21st Century, modern prohibition started with the passing of the Controlled Substances Act in 1970. The War on Drugs continued thereafter unabated, until California authorized medical marijuana in 1996. Since then, 32 other states have joined California and come directly into conflict with federal law. The rider and the Cole Memo represent the two chief responses of the executive and legislative branches to overcome this conflict. The introduction further identifies the development of the equal protection doctrine, the tiered-scrutiny framework used by the courts for equal protection challenges, and the development and requirements of the specific claim of selective prosecution.
Section II then examines the Cole Memo, and how courts addressed claims that it violated equal protection and amounted to selective prosecution. Virtually every court that has examined such challenges to the Cole Memo has dismissed them. These courts found the non-binding nature of the Memo on prosecutorial discretion to undercut the argument that citizens in states with medical marijuana laws were being treated differently than those in other states. Because citizens in every state remained open, from a legal standpoint, to being federally prosecuted for violating the CSA, equal protection was not violated.
Section III thereafter engages a similar inquiry with the rider. Courts have applied the rider differently over time, and this Section presents the pertinent developments as well as the current authoritative application of the rider. Because few courts have addressed equal protection or selective prosecution challenges to the rider, this Comment presents a critical examination of how those doctrines should apply. In addition to those concerns, this Section also discusses practical concerns that would arise in challenges to the rider.
A brief conclusion subsequently discusses the path trodden and lessons learned. Ultimately, it is not enough to look or act like a duck. Some inequalities may stand despite intuitive concerns about the constitutional guarantee of equal protection.
Recommended Citation
Zachary Nelson,
If It Looks Like a Duck: Equal Protection, Selective Prosecution, and Geographic Differences in the Federal Prosecution of Marijuana Crimes Under the Controlled Substances Act,
23
Lewis & Clark L. Rev.
1007
(2019).
Available at:
https://lawcommons.lclark.edu/lclr/vol23/iss3/8