• There is no “substantive right,” under federal law, to use marijuana for medicinal purposes.

The use of marijuana for medicinal purposes, being contrary to a prior Ninth Circuit case decision and not a “substantive right,” remains illegal under federal law.  Its continuing illegality under federal law does not violate the Due Process Clause.   The fact that multiple states have legalized the use of marijuana for medicinal purposes has no effect on federal law.

In 2017, defendant Richard Langley plead guilty to possession of child pornography (per 18 U.S.C. § 2252(a)(4)(B)) in federal court.  He was sentenced to time served (56 days) with ten years of supervised release (i.e., probation).  The conditions of Langley’s supervised release included that he “not commit [a] federal, state or local crime,” “not illegally possess a controlled substance,” and “refrain from any unlawful use of a controlled substance.”  It is a statutory requirement under federal law (18 U.S.C. § 3583(d)) that these conditions be imposed. Defendant accepted these conditions (the alternative being that he stay in jail) despite being prone to smoking a little doobie once in a while.  He claimed that smoking marijuana was necessary for him in order to alleviate the pain he felt from a previous amputation of his right leg below the knee; the result of a motorcycle accident.  Sometime that same year, defendant returned to the federal district court and asked that his supervised release conditions be amended to permit him to use marijuana for medicinal purposes, as was then allowed under California law.  Marijuana possession and use still being illegal under federal law, his motion was denied.  In 2020, defendant renewed his motion, coming to court this time with a physician’s report opining that marijuana was the best medical solution to his pain issues.  His motion was denied again.  Defendant appealed from this denial.

The Ninth Circuit Court of Appeal affirmed.  Defendant’s argument on appeal was that he has a fundamental constitutional right under the Fourteenth Amendment’s Due Process Clause to use medical marijuana, at least under these circumstances.  Defendant’s belief that the Due Process Clause applied was because with so many states (36 states and the District of Columbia) now allowing the use of medical marijuana, and with a physician’s recommendation that he use it to treat his pain, his right to toke on an occasional doobie had become a “substantive right.”  Defendant defined a “substantive right,” as it applies to him, to be “the right to make a life-shaping decision on a physician's advice to use medical marijuana to preserve bodily integrity, avoid intolerable pain, and preserve life, when all other prescribed medications and remedies have failed.”  However, the Ninth Circuit Court of Appeal had already ruled on this issue some 15 years ago in Raich v. Gonzales (9th Cir. 2007) 500 F.3rd 850.  In Raich, at page 866, the court “rejected the claim that this purported right, which was defined using identical language (as in this current case), is a fundamental right.” Raich specifically held that “federal law does not recognize a fundamental right to use medical marijuana prescribed by a licensed physician to alleviate excruciating pain and human suffering.”  The Court in Raich further determined that the right to use medical marijuana does not rise to the level of a “substantive right” in that it “is not, objectively, ‘deeply rooted in this Nation's history and tradition,’ and ‘implicit in the concept of ordered liberty,’ such that ‘neither liberty nor justice would exist if [it] were sacrificed,’”  (Citing and quoting the U.S. Supreme Court decision of Washington v. Glucksberg (1997) 521 U.S. 702, 719-720.)  Further, the possession and use of marijuana continues to be in violation of federal statutes.  The bottom line is defendant does not have a “substantive right” to use medical marijuana to treat his pain.  Whether that rule is right or wrong by today’s standards, the Ninth Circuit does not have the power to change it.  This Court is bound by its 15-year-old decision in Raich until overruled by a higher authority; i.e., the U.S. Supreme Court.  Defendant’s motion to allow him to use medical marijuana, therefore, was properly denied.

Keep in mind that this applies only to federal probationers/parolees.  With marijuana being legal in California, state probationers/parolees dance to a different tune.  As for whether this decision stands the test of time, we’ll have to wait and see whether the U.S. Supreme Court takes the hint and decides to hear this issue.  However, with an en banc panel rehearing having just recently being denied by the Ninth Circuit (see 2022 U.S.App. LEXIS 3446 (9th Cir. Cal., Feb. 8, 2022)), it may be awhile yet before we know whether this decision is appealed, and if so, whether the Supreme Court cares enough to grant certiorari.  And even if it does, it’s hard to believe that the High Court would reverse, at least as long as the possession and use of marijuana is illegal under federal statutory law.  To do so, the Court would have to agree with defendant’s argument that medicinal marijuana is such an important “substantive right” that it violates the Due Process Clause to deny him a little doobie on occasion, at least when needed to alleviate his pain and with a doctor’s recommendation.  I don’t think that’s going to happen.   Meanwhile, I have to admit that I’m not a big fan of another mind-altering substance being legalized and put out on the street, with all the societal problems that naturally follow.  However, I do have some sympathy for persons who need marijuana, at least for pain.  However, no one having asked my opinion, and with medicinal and recreational marijuana now being a fact of life at least in California, we still have to deal with the issues caused by marijuana’s continuing illegally under federal law.  We also have to deal with the reality that legalizing, and thus (in theory) controlling the marijuana trade (whether for medicinal or recreational purposes), has apparently not solved all the problems marijuana’s proponents claimed it would.  That’s perhaps because California’s marijuana cultivation, possession, disbursal, and use has become the subject so many restrictive statutes that many dope peddlers are figuring it out that continuing to resort to a Black Market is just easier, faster, and cheaper.  How California is going to resolve this problem, having already dug itself into a hole, I don’t know.