Urgent Compassion: Medical Marijuana, Prosecutorial Discretion and the Medical Necessity Defense

For centuries physicians and patients have extolled the medical benefits of marijuana. The federal government, however; refuses to retreat from its dogged war on drugs, preventing those in serious medical need from realizing marijuana’s therapeutic potential. Numerous states have shown their opposition to the federal government’s position, as well as their compassion for the seriously ill, by placing pro-medical marijuana initiatives on their election ballots or by introducing such legislation in their state legislatures. Furthermore, the United States Court of Appeals for the Ninth Circuit has recently rendered two landmark decisions holding that the common law medical necessity defense is available to medical marijuana defendants who are criminally prosecuted under federal law, despite the federal government’s general marijuana prohibition. Because a change in federal drug policy is unlikely in the near future, one way federal prosecutors can avoid this conflict with the federal judiciary, as well as respect the will of the people in states that have passed pro-medical marijuana laws, is to exercise appropriate prosecutorial discretion, refusing to prosecute medical marijuana patients. This especially should be the case in states where the citizens have clearly expressed their values regarding medical marijuana through the initiative or legislative process.