Robert J. Corry, Jr. †
Travis B. Simpson ††
Medical marijuana epitomizes the re-maturation of the United States. For the majority of our history, growing and possessing the hemp plant was not only legal, it had been required during notable portions of colonial and wartime history. The Declaration of Independence was printed on hemp paper and a plurality of the Founding Fathers grew hemp on their plantations.
Then, with the onset of the Prohibitionist mentality in the early 20th Century, it was said that a puff of "marihuana" could turn a mild-mannered, law-abiding American into a raving lunatic. Almost seventy-five years later, thousands of people throughout fourteen states use marijuana as a medicine to effectively treat debilitating medical ailments such as cancer, HIV/AIDS, glaucoma, muscular dystrophy, nausea, muscle spasms, and chronic pain.
In Colorado, the right to use, possess, and access medical marijuana is protected by the supreme law of the state, the Colorado Constitution. However, medical marijuana remains a gray area of the law, spawning many difficult questions and problems. State law and federal law are still at odds over the legality of medical marijuana. Furthermore, there are questions about the future of medical marijuana and its role in the repeal of prohibition on marijuana.
Did voters intend to authorize the commercial sale of medical marijuana?
In 2000, Colorado voters approved Amendment Twenty to the Colorado Constitution. This amendment provides an affirmative defense to criminal prosecution and an exception to Colorado's marijuana laws to residents who have received a physician's recommendation that medical marijuana could help alleviate the symptoms of their debilitating medical conditions. The affirmative defense and exception to the state's criminal laws also protects patients' primary caregivers, those who provide medical marijuana to patients.
In spite of the constitutional right bestowed upon patients and their caregivers, medical marijuana stayed out of the public eye for many years as a result of government intimidation of physicians and illegal policies by the Colorado Department of Public Health and Environment, limiting caregivers to only five designated patients. However, on July 20, 2009, the Colorado Board of Health rejected proposed regulatory changes that would have reinstated the five patient cap. For-profit dispensaries with hundreds of patients then arose throughout Colorado. In fact, as of January 2010, the City of Denver alone had issued over 300 sales tax licenses for medical marijuana dispensaries. Detractors claim that Colorado voters did not intend to instigate a proliferation of "pot shops." However, the Colorado Constitution and the Colorado Revised Statutes support the commercial sale of medical marijuana. Just as the First Amendment’s right to free speech includes the commercial, for-profit sale of speech by newspapers and broadcast journalists, the constitutional right to medical marijuana encompasses the commercial trade in it.
The Colorado Constitution provides more than just an affirmative defense and exception to criminal laws for using or possessing marijuana. It provides that "no person, including a patient or primary care-giver, shall be entitled to the protection of this section for his or her acquisition, possession, manufacture, production, use, sale, distribution, dispensing, or transportation of marijuana for any use other than medical use." Thus, all of these activities are constitutionally-protected so long as marijuana is for medical use.
The Colorado Constitution is the supreme law of Colorado. On June 7, 2010, Governor Bill Ritter signed into law House Bill 1284 (HB 1284), a bill that seeks to regulate Colorado’s burgeoning medical marijuana industry. While Colorado courts have yet to test the constitutionality of the bill, HB 1284 validates the commercial dispensary model. HB 1284 refers to these businesses as “Medical Marijuana Centers” and delineates a complex licensing process and elaborate operating requirements, further legitimizing these businesses.
How should State and Federal Governments interact?
While Colorado's Constitution has protected the rights associated with medical marijuana for nearly a decade, medical marijuana use, possession, and distribution arguably remains a crime under federal law. Furthermore, marijuana is listed as a schedule I drug in federal law, technically not considered to possess medical value although thousands of scientific studies establish the contrary.
The conflict between state and federal law is addressed by the decision in the United States Supreme Court case of Gonzales v. Raich, which arose on August 15, 2002, when U.S. Drug Enforcement Administration agents raided the home of California medical marijuana patient Angel Raich and destroyed her 6 marijuana plants. Ms. Raich brought an action against the Attorney General of the United States seeking injunctive and declaratory relief prohibiting the enforcement of the federal Controlled Substances Act (CSA) for the narrow purpose of possessing, obtaining, or manufacturing cannabis for medical use. However, the U.S. Supreme Court held that the regulation of marijuana is within the ambit of congressional authority and the supremacy clause mandates deference to federal law.
However, four years after Gonzales, the federal government was still dealing with a global war against terrorism and a virtual collapse of the free market, so perhaps a harmless plant that possesses medical properties was lower on the list of federal priorities. During the 2008 presidential campaign, then-candidate Barack Obama repeatedly promised that, if elected, the U.S. government would leave medical marijuana alone in states where is it legal. Then in February 2009, after Barack Obama’s election and swearing in as President of the United States of America, the United States Attorney General, Eric Holder, confirmed that “what the President said during the campaign will be consistent with what we will be doing in law enforcement. . . . What he said during the campaign is now American policy.” In October 2009, the U.S. Justice Department issued a written formal directive to federal prosecutors, instructing them not to expend resources to prosecute persons suspected of violating federal marijuana laws, so long as those people are in compliance with state Medical Marijuana laws.
These statements, both spoken and written, create a due process defense to federal prosecution through the doctrine of “Entrapment by Estoppel,” which occurs when a government official informs a person that certain conduct is legal and the person acts in reliance on the official. In order to raise an Entrapment by Estoppel affirmative defense, the defendant’s reliance must be “reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Voters, medical marijuana patients, caregivers, and physicians reasonably rely on the Attorney General’s representations that the federal government does not intend to prosecute those in compliance with state Medical Marijuana laws.
In addition to this defense, state medical marijuana laws may survive federal preemption because of the anti-commandeering rule, which states that Congress may not command state legislatures to enact laws nor order state officials to administer them. The anti-commandeering rule distinguishes between action and inaction and constrains Congress' power to preempt when state law merely permits private conduct to occur. Medical marijuana laws permit the use, cultivation, and distribution of medical marijuana, rather than requiring affirmative action. Therefore, state medical marijuana laws are shielded from Congressional preemption.
What is the future for medical marijuana?
Medical marijuana is not only a viable treatment option for people with certain debilitating medical conditions, it is a precursor to full-scale marijuana legalization. The prohibition of marijuana is nearly identical to the failed prohibition of alcohol. Both prohibitions failed to curb use of the substance. Both prohibitions gave birth to a dangerous and unregulated black market controlled by gangs. Furthermore, both prohibitions created a subclass of previously law-abiding citizens, afterwards condemned and vilified as criminals.
The prohibition of alcohol shares another similarity with the current prohibition of marijuana: medical use. The Colorado Constitution provides that a medical marijuana patient may possess medically-necessary amounts of medical marijuana. The National Prohibition Act of 1919 mandated that "not more than a pint of spirituous liquor to be taken internally shall be prescribed for use by the same person within any period of ten days."
Just as the patients in Gonzales v. Raich sued the federal government for injunctive relief allowing them use and possess Medical Marijuana with immunity from the CSA, in the 1926 case of Lambert v. Yellowley, a physician sued to enjoin the federal government from hindering his practice of prescribing alcohol to his patients. In both cases, the Supreme Court ruled that Congress had not exceeded its power in enacting the prohibitory laws and that the laws were not unconstitutional. However, less than a decade after the Lambert decision, alcohol prohibition was repealed.
An old adage teaches: "Fool me once, shame on you. Fool me twice, shame on me." The utter failure of the prohibition on alcohol illustrates the failure of the prohibition on marijuana. While alcohol prohibition lasted a mere thirteen years, the prohibition on marijuana, a substance with far fewer deleterious effects on the user and society, has ravaged the American psyche and decreased individual freedom for over seventy years.
Colorado voters created a constitutional right to medical marijuana and provided patients with safe access to medical marijuana. In America’s free market system, retail outlets are the safest and most effective mechanism to provide medical marijuana to patients.
Federal law may still conflict with state medical marijuana laws. However, the federal government has declined to prosecute the plethora of medical marijuana dispensaries, caregivers, grow facilities, and patients who act openly every day, serving thousands of patients. The federal government freely accepts tax monies from these entities, and thus actively and passively ratifies their existence. Furthermore, the statements of the President of the United States and formal guidelines issued by the United States Attorney General allude to the federal government's increasingly tolerant attitude towards medical marijuana.
The failure of alcohol prohibition provides a sober analogy to the fruitless and harmful effects of marijuana prohibition. Medical marijuana bridges the gap from irrational claims of marihuana-induced insanity and elucidates marijuana's beneficial properties. As more states continue to embrace medical marijuana, the unjustified stigma associated with marijuana will further erode. The true insanity lies, not in the physiological effects of marijuana but, in the government's stubborn inertia in fighting an unwinnable war.
† Attorney at Law, J.D., Stanford Law School 1994. Admitted in Colorado, California, and the District of Columbia.
†† J.D. expected, University of Denver Sturm College of Law, 2011.
 Colo. Const. art. XVIII, § 14(2)(a).
 H.B. 1284, 67th Leg., 2nd Reg. Sess. (Colo. 2010).
 United States v. Tallmadge, 829 F.2d 767, 773 (9th Cir. 1987).
 United States v. Gutierrez-Gonzalez, 184 F.3d 1160, 1166 (10th Cir. 1999) (citing United States v. Nichols, 21 F.3d 1016, 1018 (10th Cir. 1994)).
 Printz v. United States, 521 U.S. 898, 920 (1997).
 Robert A. Mikos, On the Limits of Supremacy: Medical Marijuana and the States’ Overlooked Power to Legalize Federal Crime, 62 Vand. L. Rev. 1421, 1446-47 (2009).
 Colo. Const. art. XVIII, § 14(4)(a)(I).
 National Prohibition Act, ch. 85, Title II, § 7, 41 Stat. 305, 311 (1919).