Published by the Law Offices of Joseph A. Bondy
148 East 78th Street, New York, NY 10075
Federal Marijuana Defense
A Resource Center for the Defense of Federal Marijuana Cases
In America today, 29 states have enacted medical marijuana laws, while Alaska, California, Colorado, District of Columbia, Maine, Massachusetts, Nevada, Oregon and Washington have legalized adult recreational marijuana use. Several other states allow for patients to possess manufactured cannabinoid products derived from CBD hemp — that is cannabis with less than .03% THC (tetrahydrocannabinol) and with high amounts of the non-psychotropic CBD (cannabidiol), useful in treating a range of ailments including epileptic seizures. Only nine states completely disallow any form of cannabinoid products. Despite such a high percentage of the country's states having recognized marijuana's medical values and benign recreational effects, the federal Controlled Substance Act (CSA), 21 U.S.C. 801-971, continues to classify marijuana as a "Schedule I" drug. See 21 U.S.C. 812. "Schedule I" drugs are defined as substances: (A) having a high potential for abuse; (B) no currently accepted medical use in treatment in the United States; and (C) a lack of accepted safety for use of the drug or other substance under medical supervision. Id. It is beyond serious dispute, however, that marijuana meets none of these criterion.
Given its Schedule I status, the penalties for distributing or conspiring to distribute marijuana under federal law are draconian. Individuals convicted of conspiring to distribute in excess of 100 kilograms of marijuana face a five-year mandatory minimum prison term and up to forty years' imprisonment, 21 U.S.C. 841(b)(1)(B), while those convicted of conspiring to distribute in excess of 1000 kilograms of marijuana face a ten-year minimum sentence and up to life imprisonment. 21 U.S.C. 841(b)(1)(A). The harm inflicted by these sentences far exceeds the total harm inflicted by the offense, thus rendering the current mandatory minimum sentencing regime excessive and immoral.
Mandatory minimum sentences for marijuana defendants are also disparate from the maximum potential sentences many pharmaceutical drug traffickers face. For example, where an individual is convicted of trafficking an infinite amount--in statutory language "40,000 or more units," see U.S.S.G. 2D1.1(c)(10) — of any "Schedule III" substance except for Hydrocodone and Ketamine, the maximum Guidelines offense level is 20. This is equivalent to the Guideline for a mere 40-60 kilograms of marijuana, and carries no minimum sentence. One could thus buy or sell 500 jumbo jets filled with Valium, Xanax, Ambien, Adderall, Klonopin and a whole host of other commonly abused "gateway" pharmaceutical pills, and face a far lighter sentence and no mandatory minimum in comparison to a 100-kilogram marijuana offender. And, of course, the medical, financial, and social harm that pharmaceutical drugs and their abuse and diversion cause in America today — particularly among teen and young adult abusers — far exceeds that of marijuana use and sale. Such a sentencing rubric is absolutely unjustifiable.
Unlike alcohol and tobacco, the scientific evidence of marijuana's various beneficial medical uses, overall low potential for abuse, and benign health impacts is well documented. See, e.g., Cannabinoids for control of chemotherapy induced nausea and vomiting: quantitative systematic review, BMJ. 2001 July 7; 323(7303): 16; Cannabinoids in multiple sclerosis (CAMS) study: safety and efficacy data for 12 months follow up, J Neurol Neurosurg Psychiatry. 2005 December; 76(12): 1664–1669; and The Effect of Cannabis Compared with Alcohol On Driving, Am. J. Addiction 2009, 18(3): 185-93. Nevertheless, the push to reschedule marijuana has met with roadblock after roadblock over the past five decades. Several petitions for rescheduling marijuana have failed to prevail. See, e.g., NORML v. Ingersoll, 497 F.2d 654 (D.C. Cir. 1974); NORML v. DEA, 559 F.2d 735 (D.C. Cir. 1977); Gettman v DEA, 290 F.3d 430 (D.C. 2002); and Americans for Safe Access v. DEA, Dkt. 11-1265.
Although state voters' legalizing marijuana for medical and recreational use represents a watershed change in the way marijuana is viewed legally by our national community, every dispensary, or patient provider, or even patient in those twenty-nine states who possess, cultivate, or sell marijuana are still vulnerable to prosecution under federal laws. See, e.g., 21 U.S.C. 841(b)(1)(a)-(c).
It is through continued citizen advocacy that the marijuana hypocrisy can be ended, and thousands of federal defendants will no longer face mandatory minimum sentences because of the government's unwillingness to acknowledge the scientific record. Until then, three quarters of a million people are arrested every year, and are compelled to defend against the immoral laws that render medical and recreational cannabis users criminals, while ignoring the addictive nature, lack of any medical use, and entirely deleterious health effects of America's most popular drugs, tobacco and alcohol.
In the end, descheduling marijuana for responsible adult recreational use reflects the just, fair and morally correct choice. Legalizing cannabis nationally would save hundreds of thousands of people from exposure to the criminal justice system every year, with a concomitant savings in judicial and law enforcement resources. Legalization would represent an acknowledgement of the truth about marijuana, while ending the risk and uncertainty presented by the current dichotomy of the justice department enforcing the federal law except as it relates to certain state marijuana conduct.
There are a number of steps towards national legalization, including reaching an international consensus with other nations who have signed international treaties with the United States that make the possession, sale, trafficking and cultivation of drugs--including marijuana--illegal. Until we can reach agreement among our international partners, or at least a broad-based coalition, national legalization will run afoul of our international treaty obligations.
Currently, there is a growing international movement toward studying marijuana for medical, scientific, and even recreational purposes. A number of countries, including Canada, Germany, Israel, Italy, Jamaica, Mexico and Uruguay have legalized medical marijuana use, with most appearing desirous of recreational legalization. With dedicated effort, continued study, and diplomatic advocacy, it appears as though the goal of international legalization of cannabis for responsible adult recreational use can be attained.