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Monday, February 1, 2010
By Michael Nichols
Categories: Drug Crimes
In 2008, Michigan joined the other States who have enacted statutes allowing the use of marihuana for qualifying patients under strict guidelines. While Michigan’s Medical Marihuana Act permits qualifying patients to possess up to 2.5 ounces, or their primary care givers to grow up to 12 plants, (MCL 333.26421 to 333.26430), those patients are not protected from Federal prosecution. This creates a conflict of laws that has yet to be decided in the 6th Circuit.
The fundamental difference between the Federal and Michigan laws is in how marihuana is categorized. Pursuant to the Controlled Substance Act of 1970, marihuana is listed under the most restrictive schedule, Schedule 1 (21 USC §801). The Federal criteria for Schedule 1 states “(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 for use of the drug or other substance under medical supervision.” (21 USC §812). Michigan, on the other hand, lists marihuana under a slightly less restrictive schedule, Schedule 2 (MCL 333.7214). The Michigan criteria for Schedule 2 states “(a) The substance has high potential for abuse. (b) The substance has currently accepted medical use in treatment in the United States, or currently accepted medical use with severe restrictions. (c) The abuse of the substance may lead to severe psychic or physical dependence.” (MCL 333.7213). While the Federal criteria, does not acknowledge any medical potential for marihuana, Michigan does.
Since the Federal laws continue to explicitly prohibit the distribution, possession, or use of marihuana in any way, shape, or form, any violation, even if it complies with State law, is a federal crime. For a first offense, Federal law punishes the convicted with a misdemeanor that could result in up to 1 year in jail and up to a $1,000 fine (21 USC §844). Additionally, the convicted could face a civil fine of up to $10,000 (21 USC §844a). For a further elaboration and analysis please see CRS (Congressional Research Service) Report RL33211, Medical Marijuana: Review and Analysis of Federal and State Policies, by Mark Eddy.
A few landmark cases have settled of the differences between the Federal and State laws, but many issues remain unanswered. Mark Eddy’s CRS Report effectively summarizes the cases that have gone to the US Supreme Court on various issues (Id. CRS-15 to CRS-18).
In US v Oakland Cannabis Buyers’ Cooperative, the US Supreme Court ruled that “medical necessity” was not a valid defense against federal prosecution. (Id. at CRS-15; 532 U.S. 483, 499; 121 S.Ct. 1711, 1722 (2001)). In Conant v. Walters, the 9th Circuit Court of Appeals upheld a doctor’s ability to recommend or discuss the use of marihuana for medicinal purposes. The US Supreme Court declined the government’s appeal. This decision, however, was narrowly limited to a medical discussion under the doctor-patient privileged relationship. (Id. at CRS-16; 309 F.3d 629 (2002)). In the Gonzales v. Raich case, the Federal government’s ability to regulate the local distribution of marihuana was challenged as being beyond Federal powers to regulate intrastate commerce. The US Supreme Court held that because the local market had the potential of significantly affecting the national market (albeit, the illegal or black market), the Federal Government had the ability to regulate the local distribution of marihuana. While this decision did not explicitly invalidate State laws, the Supreme Court suggested that Federal laws govern in this conflict. (Id. at CRS-16 to 17; 545 U.S. 1, 125 S.C. 2195 (2005)).
The controversy surrounding the legalization of marihuana continues. Until the Federal Government re-schedules marihuana, from Schedule 1 to Schedule 2, those qualifying patients who possess or primary caregivers who grow marihuana under Michigan’s Medical Marihuana Act, are still potential targets for Federal prosecution.