« Detailed examination of how local costs may slowly kill the death penalty | Main | President Obama (aka clemency grinch) grants a few holiday pardons and commutations »

December 17, 2014

Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?

Images (6)As reported in this post yesterday, an astute lawyer in California sought (and, I now know, obtained) a significant postponement of his client's scheduled federal marijuana sentencing based on a provision in H.R. 83, the 1700-page Cromnibus spending bill, which directs the US Department of Justice not to use any funds to interfere with state-legalized medical marijuana regimes.  Specifically, Section 538 of the Cromnibus states, in relevant part:

None of the funds made available in this Act to the Department of Justice may be used ... to prevent such States [with current medical marijuana laws] from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana.

Though this provision (which was officially signed into law by President Obama on Tuesday) is rightly being hailed as historic, what exactly Section 538 of the Cromnibus means formally and functionally for the Department of Justice and federal marijuana prohibition is anything but obvious or clear.  For starters, this provision is a funding directive to DOJ, not a formal restriction on DOJ activities, and it is unclear how such a provision is to be administered or enforced.  Moreover, this provision plainly does not provide a formal right or even permission for individuals under federal law to be involved in the "use, distribution, possession, or cultivation of medical marijuana."  Indeed, given that federal law currently has marijuana listed as a Schedule I drug, the very use of the term "medical marijuana" in this Section 538 of the Cromnibus is somewhat oxymoronic as a new phrase in the federal legal nomenclature.

That all said, the enactment of formal federal law ordering that DOJ not use funds to prevent the implementation of state medical marijuana laws clearly means something significant not only in states that have medical marijuana laws but throughout the nation.  In particular, as the question in the title of this post is meant to connote, I think this congressional approval (of sorts) of state medical marijuana laws should have a tangible (and perhaps significant) impact on any and all federal marijuana sentencings scheduled for the weeks and months ahead.

The specific instructions of 18 U.S.C. § 3553(a) tells federal judges that they must consider at sentencing, inter alia, "the nature and circumstances of the offense" as well as the "need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense."  Even before the passage of Section 538 of the Cromnibus, I thought it was appropriate for a judge at a federal marijuana sentencing to consider based on these provisions a defendant's claim that he was in compliance with state medical marijuana laws.  But DOJ in the past could respond by reasonably asserting that Congress would not want a federal judge for federal sentencing purposes to inquire into any claims of state-law compliance.  

Now that Section 538 of the Cromnibus is official federal law, I believe every federal judge at any future federal marijuana sentencings should feel duty-bound to examine the particulars of a defense claim of compliance with state medical marijuana laws.  In light of what Congress enacted, consideration of claimed compliance with state medical marijuana laws seems essential to "promote respect for the law" as well as to stake proper stock of "the nature and circumstances of the offense" and "just punishment for the offense."

Moreover, I think some viable sentencing arguments might now be made based on Section 538 on behalf of some federal marijuana defendants even in the 18 states that have not yet enacted medical marijuana reforms.  If a federal defendant can reasonably assert, even in a non-reform state, that he was (mostly? somewhat? a little?) involved in distribution of marijuana for medical purposes, he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions.

Critically, I am not contending (yet) that Section 538 of the Cromnibus must or even should have a direct and substantial impact on federal marijuana sentencings in reform or non-reform states.  But I am contending that, thanks to Section 538 of the Cromnibus, there are now a lot more federal sentencing issues that need to be subject to a lot more thought before federal judges move ahead with the roughly 100 federal marijuana sentencings that take place throughout the US every week.

In sum, to answer my own question in the title of this post, I would say simple YES.

Some previous related posts:

December 17, 2014 at 01:08 PM | Permalink

TrackBack

TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d83451574769e201b8d0abc429970c

Listed below are links to weblogs that reference Should ALL federal marijuana sentencings be postponed now that Cromnibus precludes DOJ from interfering with state medical marijuana laws?:

Comments

"he might point to 3553(a)(6) and claim that sentencing him hard for medical marijuana distribution in a non-reform state would create (unwarranted?) sentencing disparity when compared to sentences likely to be imposed for the same offense in reform-state jurisdictions"

I'm all for leniency here but why would it be "unwarranted" to punish someone in a state that does not have a medicinal marijuana law while avoiding it (I assume to promote federalism / local option == a major point of such experimentation is to have different regimes, at times upheld via criminal laws) in a state that does? Is there a precedent to some sort of equal protection claim of this sort?

I appreciate the reporting of this budget tidbit -- it is a very positive development.

Posted by: Joe | Dec 17, 2014 2:49:46 PM

There is only one kind of federal marijuana prosecution that should be considered as relevant to this discussion: cases where the defendant was otherwise FULLY in compliance with the State's medical marijuana laws. Those are few and far between, and maybe ought be dismissed completely.

I'd prefer full decriminalization at the federal level. I'd also prefer to be married to Elisabeth Moss and make $1,000,000 a month. Either of those seem equally likely.

Posted by: Wayne-O | Dec 17, 2014 7:30:35 PM

Again, the stupidity of the lawyer. Prohibit a substance but allow 2 others that are 10,000 times more harmful. Half of murderers, half of murder victims, half of suiciders, half or more of domestic abusers, half the rapists, half the rape victims, it goes on and on, are legally drunk. We talk about lead here, with strained correlations. Well here is a substance that causes half of violent crime, not some secular trend discerned by sophisticated data mining. If it were to be replaced by a safer substance, there goes the lawyer jobs.

Posted by: Supremacy Claus | Dec 17, 2014 9:39:48 PM

This legal system is so stupid, sclerotic, and self-dealing, we have to wait for the natural deaths of its hierarchy to make any change. There is no worse legal system in the world. Then these idiots have the nerve to call it the best. Special ed students could do a better job than its top members.

Posted by: Supremacy Claus | Dec 18, 2014 1:47:23 AM

Will you consider cross-posting on the Marijuana blog? This issue has been a hot topic on the NORML listserv, and someone on the list cited to your post.

Happy Hanukkah,
Rebecca

Posted by: Rebecca Pressman | Dec 18, 2014 2:10:26 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB