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July 10, 2023

District judge bemoans federal marijuana developments that "do little to promote congruity in the law in this arena"

LawProf Jacob Schuman alerted me to the notable recent opinion by Chief Judge Mark Hornack in US v. Hannon, No. 2:17-cr-00180-7 (W.D. Pa. June 30, 2023) (available here).  The short opinion explains why the judge denies a motion by the defendant "seeking
relief from conditions of his supervision related to his requested use of marijuana to treat what he describes as a 'serious medical condition' and pursuant to a medical marijuana card issued by a licensed provider of such in the Commonwealth of Pennsylvania."  Along the way, the judge highlights "inconsistencies" in federal law and practice and makes these sorts of observations:

A rational observer could conclude that this state of affairs does not well serve the sound and fair administration of justice in the federal system.  It can be logically seen as unfair to the probation officers who are obligated to supervise those under their jurisdiction in the context of these conflicting expressions of federal policy.  Those same observers could also conclude that it is unreasonable for those in the shoes of the Defendant, who would just as logically be uncertain as to what conduct is for him lawful, under either state or federal law, in the face of what is stated to be a “serious medical condition”.  They might well also conclude that it is unfair to federal prosecutors, who are charged with advancing revocation proceedings for the use of “medical marijuana,” but run directly into the Congressional directive that no appropriated funds may be used to prosecute the possession or use of marijuana when such is lawful for medical purposes under state law.  And then, all of these participants in the legal process would also be observing the President declaring that no person should spend time in prison for simple possession of marijuana
and issuing blanket pardons to that same effect, when time in prison is statutorily mandated upon a revocation of federal supervised release, even if marijuana is “simply” possessed or personally used for medical uses as otherwise authorized by Pennsylvania law....

This situation could also be seen as undercutting the public’s understanding of the essential principle of respect for the law. When the highest levels of two of the three Branches of the federal government use their Constitutional appropriations and pardon powers to in essence speak at cross- purposes with the provisions of federal criminal statutes that remain on the books, it becomes more difficult to generate that respect for the law which is fundamental to our founding principles.

July 10, 2023 at 11:47 PM | Permalink


Sounds like an Obama-appointed judge. Oh, wait, it is an Obama-appointed judge! While what he says has a degree of force, there's something he doesn't say that's important: The Constitution and its embrace of federalism necessarily contemplates that the feds and the states will have different laws, and the states will have different laws from one another. There are some states where, if you commit mass murder, you could get the DP, but right across the border, for the identical crime, you could only go to prison. That's the way federalism works and was designed to work.

Now we could do away with federalism, sure, but that would require a thorough re-writing of the Constitution.

Posted by: Bill Otis | Jul 11, 2023 10:00:12 AM

Did you bother to read the opinion, Bill? The judge is not fretting about federalism, he is lamenting "inconsistencies in what FEDERAL law says, and how it will be enforced [which] seem to do little to promote congruity in the law in this arena." That said, one might believe "congruity" is near impossible given the states' diverse choices on marijuana policy. Or, as is my view, one could really take federalism seriously by urging federal law to not bother with criminalizing, in any way, local behavior like the personal use of medical marijuana consistent with state law.

Posted by: Doug B | Jul 11, 2023 10:29:26 AM

Doug --

"Did you bother to read the opinion, Bill?"

I read your entry, which quotes what I take it you believe are important parts of the opinion. The parts you selected make it crystal clear that the Judge is concerned both with inconsistencies within federal law, and with inconsistencies between federal and Pennsylvania law. This is so plain I'm mystified why you want to poke at me about it.

What part of the Constitution says that "congruity" is required or even particularly desirable in a federated nation? The liberals used to be quite enthralled with "50 laboratories of democracy." Did that get thrown over the side of the ship?

"Or, as is my view, one could really take federalism seriously by urging federal law to not bother with criminalizing, in any way, local behavior like the personal use of medical marijuana consistent with state law."

Starting in January 2021, President Biden's party had control of both Houses and could have changed the law in the way you suggest. Before then, the same party had the same situation for Obama's first two years. Also no action. I think your concerns might more productively be lodged with them; I don't belong to that party.

Posted by: Bill Otis | Jul 11, 2023 3:01:03 PM

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