The Volokh Conspiracy
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No Medical-Marijuana Exception to Federal Pretrial Release Conditions Barring Violation of Federal Law
From U.S. v. Cannon, decided Wednesday by the Third Circuit (Judges Cheryl Krause, Luis Restrepo, and Brooks Smith):
As a [statutorily required] condition of his bond, a Magistrate Judge ordered that Cameron Cannon {"must not violate federal, state, or local law while on release" [Condition 1]} …. That includes the use and possession of marijuana, a Schedule I controlled substance.
Nonetheless, Mr. Cannon continued to use marijuana for medical purposes on the recommendation of his physician, leading the District Court to revoke his bond. Cannon appeals that decision on the grounds that a different condition of his release {that Cannon "not use or unlawfully possess a narcotic drug or other controlled substances defined in 21 U.S.C. § 802, unless prescribed by a licensed medical practitioner" [Condition 7(m)]} permitted the use of controlled substances with a doctor's prescription.
Whether courts may excuse medical marijuana use in bond revocation hearings is an issue that has confused defendants and divided courts in the Third Circuit. But it is beyond dispute that the use and possession of marijuana—even where sanctioned by a State—remains a violation of federal law. So we will affirm the District Court's revocation of Cannon's bond and deny his motion for release….
[When the conditions were imposed], Cannon raised the issue of medical use of marijuana. As he explained, because he is a paraplegic and suffers from serious and painful medical conditions, his doctor had recommended medical marijuana, and had issued him a certification pursuant to Pennsylvania's Medical Marijuana Act ("MMA"). Under the MMA, this certification—commonly referred to as a "medical marijuana card"—allows a patient to obtain medical marijuana from an approved dispensary.
The Magistrate Judge rejected the notion, responding: "[n]ope. I mean, that's a federal rule from DOJ. It's still federally illegal, card or not, so I can't authorize that." Cannon replied that he was "not worried about using medical marijuana" and that he "[did]n't need it" before agreeing to abide by the conditions of his release.
Cannon's bond was revoked after he had "on several occasions … either tested positive for marijuana or admitted using marijuana, and the following month moved to revoke his bond," and the Third Circuit upheld the revocation:
When a trial judge determines that a defendant on bond has either committed a federal, state, or local crime or violated another condition of their release, the judge must … decide if there is any condition or combination of conditions that could be imposed to assure that the supervisee will not flee or pose a danger to the safety of the community. If not, the judge must enter an order of revocation and detention….
Here, the District Judge concluded that Cannon's use of marijuana violated federal law and therefore Condition 1 of his release and determined, based on Cannon's repeated use of marijuana despite repeated warnings, that no bond conditions would "adequately protect the public" or cause Cannon to "conform to the requirements of law." We hold that both determinations were proper….
District Courts in our Circuit appear to be split on whether state-sanctioned use of medical marijuana may be excused notwithstanding the requirement in 18 U.S.C. § 3142(b) that a defendant not violate federal law…. [But we do not believe that]] we disagree with Cannon that Condition 1 and Condition 7(m) are in conflict with respect to medical marijuana. The Controlled Substances Act lists marijuana as a Schedule I controlled substance, reflecting Congress's express determination that it is illegal "for any purpose" and that it "has no acceptable medical uses." The Act does not contain any exception for medical marijuana. It is thus illegal under federal law for medical practitioners to prescribe marijuana to patients, and doing so may subject them to both criminal penalties and revocation of their licenses to prescribe controlled substances. Pennsylvania law also does not purport to authorize medical practitioners to prescribe marijuana; rather, the MMA only permits them to issue a "certification to use medical marijuana."
The distinction between a "prescription" and a "certification" is critical for medical professionals; the former is an order for a patient to use marijuana, whereas the latter is merely a recommendation—protected by the First Amendment—as to its potential benefits. And that distinction is critical here: Condition 7(m) prohibited Cannon from using or possessing any controlled substances "unless prescribed by a licensed medical practitioner." Under the MMA, Cannon did not have a prescription for marijuana, only a certification, so his use of marijuana violated not only Condition 1, but also Condition 7(m). {Though the use of marijuana here violates both Condition 1 and Condition 7(m), this will not necessarily be the case for every controlled substance.
Some Schedule V substances, such as cough medications with less than 200 milligrams of codeine per 100 milliliters, may be obtained and used legally without a prescription. Thus, their use would not violate Condition 1, but because they are nonetheless controlled substances, their use without a prescription would violate Condition 7(m).}
Nor would it resolve the issue if Condition 7(m) had been drafted to permit the use of controlled substances with a medical practitioner's "recommendation" or "certification." The use of marijuana would still have been in violation of federal law and therefore in violation of Condition 1, which is a mandatory condition under 18 U.S.C. § 3142(b). Under that provision, all defendants subject to federal supervision are prohibited from using medical marijuana as long as it remains illegal under federal law, regardless of whether a state has authorized its use. {We join several of our sister circuits in reaching this holding.}
We recognize that this is the first time we have spoken clearly on this question, meaning some defendants may have reasonably been confused as to whether using medical marijuana would violate their conditions of release. But that is not an issue here, as the record is clear that Cannon was well aware that he was not allowed to use marijuana, regardless of whether it was legal under Pennsylvania law. When he first raised the issue, the Magistrate Judge declined to authorize him to use medical marijuana, citing federal law. He then formally requested that the District Court modify the conditions of his release to include an exemption for medical marijuana use, only to be denied, again, on the ground that marijuana use would violate federal law. Yet in the face of this clear judicial guidance and multiple warnings from the USPO, Cannon nevertheless used medical marijuana in violation of federal law and the conditions of his release. He cannot now claim either ignorance or confusion….
Cannon protests that the District Court should have taken less drastic measures [than revocation] and instead issued a stern warning. But Cannon already received warnings from the Magistrate Judge, the District Judge, and the USPO, so the District Court did not err by deciding that yet another warning would be ineffective…. Likewise, the District Court did not err by declining to consider the existence of Pennsylvania's medical marijuana program as a mitigating factor weighing against revocation. The Pennsylvania legislature may have determined that sanctioning medical marijuana is in the best interests of its citizens, but as a matter of federal law, Congress continues to classify marijuana in the most serious category of controlled substances….
UPDATE: I originally erroneously referred to the conditions as being probation conditions, but they were actually pretrial release conditions (though I take it the same reasoning would apply to probation conditions); my apologies, and thanks to commenter Noscitur a sociis for the pointer.
