Related case - Brief - May the Court Allow Medical Dope Smoking? - United States v. Oakland Cannabis Buyers' Cooperative, 190 F.3d 1109 (9th Cir. 1999)
|||SUPREME COURT OF THE UNITED STATES
|||May 14, 2001
|||UNITED STATES, PETITIONER
OAKLAND CANNABIS BUYERS' COOPERATIVE AND JEFFREY JONES
|||SYLLABUS BY THE COURT
|||OCTOBER TERM, 2000
|||UNITED STATES v. OAKLAND CANNABISBUYERS' COOPERATIVE
|||NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
|||SUPREME COURT OF THE UNITED STATES
|||UNITED STATES v. OAKLAND CANNABIS BUYERS' COOPERATIVE et al.
|||Certiorari To The United States Court Of Appeals For The Ninth Circuit
|||Argued March 28, 2001
|||Decided May 14, 2001
|||Respondent Oakland Cannabis Buyers' Cooperative was organized to distribute
marijuana to qualified patients for medical purposes. The United States
sued to enjoin the Cooperative and its executive director, also a respondent
(together, the Cooperative), under the Controlled Substances Act. The United
States argued that the Cooperative's activities violated the Act's prohibitions
on distributing, manufacturing, and possessing with the intent to distribute
or manufacture a controlled substance. The District Court enjoined the Cooperative's
activities, but the Cooperative continued to distribute marijuana. The District
Court found the Cooperative in contempt, rejecting its defense that any
distributions were medically necessary. The court later rejected the Cooperative's
motion to modify the injunction to permit medically necessary distributions.
The Cooperative appealed, and the Ninth Circuit reversed and remanded the
ruling on the motion to modify the injunction. According to the Ninth Circuit,
medical necessity is a legally cognizable defense likely applicable in the
circumstances, the District Court mistakenly believed it had no discretion
to issue an injunction more limited in scope than the Controlled Substances
Act, and the District Court should have weighed the public interest and
considered factors such as the serious harm in depriving patients of marijuana
in deciding whether to modify the injunction.
|||1. There is no medical necessity exception to the Controlled Substances
Act's prohibitions on manufacturing and distributing marijuana. Pp. 5-11.
|||(a) Because that Act classifies marijuana as a schedule I controlled substance,
it provides only one express exception to the prohibitions on manufacturing
and distributing the drug: Government-approved research projects. The Cooperative's
contention that a common-law medical necessity defense should be written
into the Act is rejected. There is an open question whether federal courts
ever have authority to recognize a necessity defense not provided by statute.
But that question need not be answered to resolve the issue presented here,
for the terms of the Controlled Substances Act leave no doubt that the medical
necessity defense is unavailable. Pp. 5-7.
|||(b) Under any conception of legal necessity, the defense cannot succeed
when the legislature itself has made a determination of values. Here, the
Act reflects a determination that marijuana has no medical benefits worthy
of an exception (other than Government-approved research). Whereas other
drugs can be dispensed and prescribed for medical use, see 21 U. S. C. §829,
the same is not true for marijuana, which has "no currently accepted
medial use" at all, §811. This conclusion is supported by the structure
of the Act, which divides drugs into five schedules, depending in part on
whether a drug has a currently accepted medical use, and then imposes restrictions
according to the schedule in which it has been placed. The Attorney General
is authorized to include a drug in schedule I, the most restrictive schedule,
only if the drug has no currently accepted medical use. The Cooperative
errs in arguing that, because Congress, instead of the Attorney General,
placed marijuana into that schedule, marijuana can be distributed when medically
necessary. The statute treats all schedule I drugs alike, and there is no
reason why drugs that Congress placed there should be subject to fewer controls
than those that the Attorney General placed there. Also rejected is the
Cooperative's argument that a drug may be found medically necessary for
a particular patient or class even when it has not achieved general acceptance
as a medical treatment. It is clear from the text of the Act that Congress
determined that marijuana has no medical benefits worthy of an exception
granted to other drugs. The statute expressly contemplates that many drugs
have a useful medical purpose, see §801(1), but it includes no exception
at all for any medical use of marijuana. This Court is unwilling to view
that omission as an accident and is unable, in any event, to override a
legislative determination manifest in the statute. Finally, the canon of
constitutional avoidance has no application here, because there is no statutory
ambiguity. Pp. 7-11.
|||2. The discretion that courts of equity traditionally possess in fashioning
relief does not serve as a basis for affirming the Ninth Circuit in this
case. To be sure, district courts properly acting as courts of equity have
discretion unless a statute clearly provides otherwise. But the mere fact
that the District Court had discretion does not suggest that the court,
when evaluating the motion, could consider any and all factors that might
relate to the public interest or the parties' conveniences, including medical
needs. Equity courts cannot ignore Congress' judgment expressed in legislation.
Their choice is whether a particular means of enforcement should be chosen
over another permissible means, not whether enforcement is preferable to
no enforcement at all. To the extent a district court considers the public
interest and parties' conveniences, the court is limited to evaluating how
those factors are affected by the selection of an injunction over other
enforcement mechanisms. Because the Controlled Substances Act covers even
those who have what could be termed a medical necessity, it precludes consideration
of the evidence that the Ninth Circuit deemed relevant. Pp. 11-15.
|||190 F. 3d 1109, reversed and remanded.
|||Thomas, J., delivered the opinion of the Court, in which Rehnquist, C.
J., and O'Connor, Scalia, and Kennedy, JJ., joined. Stevens, J., filed an
opinion concurring in the judgment, in which Souter and Ginsburg, JJ., joined.
Breyer, J., took no part in the consideration or decision of the case.
|||Court Below: 190 F. 3d 1109
|||The opinion of the court was delivered by: Justice Thomas
|||On Writ Of Certiorari To The United States Court Of Appeals For The Ninth
|||The Controlled Substances Act, 84 Stat. 1242, 21 U. S. C. §801 et seq.,
prohibits the manufacture and distribution of various drugs, including marijuana.
In this case, we must decide whether there is a medical necessity exception
to these prohibitions. We hold that there is not.
|||In November 1996, California voters enacted an initiative measure entitled
the Compassionate Use Act of 1996. Attempting "[t]o ensure that seriously
ill Californians have the right to obtain and use marijuana for medical
purposes," Cal. Health & Safety Code Ann. §11362.5 (West Supp.
2001), the statute creates an exception to California laws prohibiting the
possession and cultivation of marijuana. These prohibitions no longer apply
to a patient or his primary caregiver who possesses or cultivates marijuana
for the patient's medical purposes upon the recommendation or approval of
a physician. Ibid. In the wake of this voter initiative, several groups
organized "medical cannabis dispensaries" to meet the needs of
qualified patients. United States v. Cannabis Cultivators Club, 5 F. Supp.
2d 1086, 1092 (ND Cal. 1998). Respondent Oakland Cannabis Buyers' Cooperative
is one of these groups.
|||The Cooperative is a not-for-profit organization that operates in downtown
Oakland. A physician serves as medical director, and registered nurses staff
the Cooperative during business hours. To become a member, a patient must
provide a written statement from a treating physician assenting to marijuana
therapy and must submit to a screening interview. If accepted as a member,
the patient receives an identification card entitling him to obtain marijuana
from the Cooperative.
|||In January 1998, the United States sued the Cooperative and its executive
director, respondent Jeffrey Jones (together, the Cooperative), in the United
States District Court for the Northern District of California. Seeking to
enjoin the Cooperative from distributing and manufacturing marijuana,*fn1
the United States argued that, whether or not the Cooperative's activities
are legal under California law, they violate federal law. Specifically,
the Government argued that the Cooperative violated the Controlled Substances
Act's prohibitions on distributing, manufacturing, and possessing with the
intent to distribute or manufacture a controlled substance. 21 U. S. C.
§841(a). Concluding that the Government had established a probability of
success on the merits, the District Court granted a preliminary injunction.
App. to Pet. for Cert. 39a-40a, 5 F. Supp. 2d, at 1105.
|||The Cooperative did not appeal the injunction but instead openly violated
it by distributing marijuana to numerous persons, App. to Pet. for Cert.
at 21a-23a. To terminate these violations, the Government initiated contempt
proceedings. In defense, the Cooperative contended that any distributions
were medically necessary. Marijuana is the only drug, according to the Cooperative,
that can alleviate the severe pain and other debilitating symptoms of the
Cooperative's patients. Id., at 29a. The District Court rejected this defense,
however, after determining there was insufficient evidence that each recipient
of marijuana was in actual danger of imminent harm without the drug. Id.,
at 29a-32a. The District Court found the Cooperative in contempt and, at
the Government's request, modified the preliminary injunction to empower
the United States Marshal to seize the Cooperative's premises. Id., at 37a.
Although recognizing that "human suffering" could result, the
District Court reasoned that a court's "equitable powers [do] not permit
it to ignore federal law." Ibid. Three days later, the District Court
summarily rejected a motion by the Cooperative to modify the injunction
to permit distributions that are medically necessary.
|||The Cooperative appealed both the contempt order and the denial of the
Cooperative's motion to modify. Before the Court of Appeals for the Ninth
Circuit decided the case, however, the Cooperative voluntarily purged its
contempt by promising the District Court that it would comply with the initial
preliminary injunction. Consequently, the Court of Appeals determined that
the appeal of the contempt order was moot. 190 F. 3d 1109, 1112-1113 (1999).
|||The denial of the Cooperative's motion to modify the injunction, however,
presented a live controversy that was appealable under 28 U. S. C. §1292(a)(1).
Reaching the merits of this issue, the Court of Appeals reversed and remanded.
According to the Court of Appeals, the medical necessity defense was a "legally
cognizable defense" that likely would apply in the circumstances. 190
F. 3d, at 1114. Moreover, the Court of Appeals reasoned, the District Court
erroneously "believed that it had no discretion to issue an injunction
that was more limited in scope than the Controlled Substances Act itself."
Id., at 1114-1115. Because, according to the Court of Appeals, district
courts retain "broad equitable discretion" to fashion injunctive
relief, the District Court could have, and should have, weighed the "public
interest" and considered factors such as the serious harm in depriving
patients of marijuana. Ibid. Remanding the case, the Court of Appeals instructed
the District Court to consider "the criteria for a medical necessity
exemption, and, should it modify the injunction, to set forth those criteria
in the modification order." Id., at 1115. Following these instructions,
the District Court granted the Cooperative's motion to modify the injunction
to incorporate a medical necessity defense.*fn2
|||The United States petitioned for certiorari to review the Court of Appeals'
decision that medical necessity is a legally cognizable defense to violations
of the Controlled Substances Act. Because the decision raises significant
questions as to the ability of the United States to enforce the Nation's
drug laws, we granted certiorari. 531 U. S. 1010 (2000).
|||The Controlled Substances Act provides that, "[e]xcept as authorized
by this subchapter, it shall be unlawful for any person knowingly or intentionally
... to manufacture, distribute, or dispense, or possess with intent to manufacture,
distribute, or dispense, a controlled substance." 21 U. S. C. §841(a)(1).
The subchapter, in turn, establishes exceptions. For marijuana (and other
drugs that have been classified as "schedule I" controlled substances),
there is but one express exception, and it is available only for Government-approved
research projects, §823(f). Not conducting such a project, the Cooperative
cannot, and indeed does not, claim this statutory exemption.
|||The Cooperative contends, however, that notwithstanding the apparently
absolute language of §841(a), the statute is subject to additional, implied
exceptions, one of which is medical necessity. According to the Cooperative,
because necessity was a defense at common law, medical necessity should
be read into the Controlled Substances Act. We disagree.
|||As an initial matter, we note that it is an open question whether federal
courts ever have authority to recognize a necessity defense not provided
by statute. A necessity defense "traditionally covered the situation
where physical forces beyond the actor's control rendered illegal conduct
the lesser of two evils." United States v. Bailey, 444 U. S. 394, 410
(1980). Even at common law, the defense of necessity was somewhat controversial.
See, e.g., Queen v. Dudley & Stephens, 14 Q. B. 273 (1884). And under
our constitutional system, in which federal crimes are defined by statute
rather than by common law, see United States v. Hudson, 7 Cranch 32, 34
(1812), it is especially so. As we have stated: "Whether, as a policy
matter, an exemption should be created is a question for legislative judgment,
not judicial inference." United States v. Rutherford, 442 U. S. 544,
559 (1979). Nonetheless, we recognize that this Court has discussed the
possibility of a necessity defense without altogether rejecting it. See,
e.g., Bailey, supra, at 415.*fn3
|||We need not decide, however, whether necessity can ever be a defense when
the federal statute does not expressly provide for it. In this case, to
resolve the question presented, we need only recognize that a medical necessity
exception for marijuana is at odds with the terms of the Controlled Substances
Act. The statute, to be sure, does not explicitly abrogate the defense.*fn4
But its provisions leave no doubt that the defense is unavailable.
|||Under any conception of legal necessity, one principle is clear: The defense
cannot succeed when the legislature itself has made a "determination
of values." 1 W. LaFave & A. Scott, Substantive Criminal Law §5.4,
p. 629 (1986). In the case of the Controlled Substances Act, the statute
reflects a determination that marijuana has no medical benefits worthy of
an exception (outside the confines of a Government-approved research project).
Whereas some other drugs can be dispensed and prescribed for medical use,
see 21 U. S. C. §829, the same is not true for marijuana. Indeed, for purposes
of the Controlled Substances Act, marijuana has "no currently accepted
medical use" at all. §811.
|||The structure of the Act supports this conclusion. The statute divides
drugs into five schedules, depending in part on whether the particular drug
has a currently accepted medical use. The Act then imposes restrictions
on the manufacture and distribution of the substance according to the schedule
in which it has been placed. Schedule I is the most restrictive schedule.*fn5
The Attorney General can include a drug in schedule I only if the drug "has
no currently accepted medical use in treatment in the United States,"
"has a high potential for abuse," and has "a lack of accepted
safety for use ... under medical supervision." §§812(b)(1)(A)-(C).
Under the statute, the Attorney General could not put marijuana into schedule
I if marijuana had any accepted medical use.
|||The Cooperative points out, however, that the Attorney General did not
place marijuana into schedule I. Congress put it there, and Congress was
not required to find that a drug lacks an accepted medical use before including
the drug in schedule I. We are not persuaded that this distinction has any
significance to our inquiry. Under the Cooperative's logic, drugs that Congress
places in schedule I could be distributed when medically necessary whereas
drugs that the Attorney General places in schedule I could not. Nothing
in the statute, however, suggests that there are two tiers of schedule I
narcotics, with drugs in one tier more readily available than drugs in the
other. On the contrary, the statute consistently treats all schedule I drugs
alike. See, e.g., §823(a) (providing criteria for Attorney General to consider
when determining whether to register an applicant to manufacture schedule
I controlled substances), §823(b) (providing criteria for Attorney General
to consider when determining whether to register an applicant to distribute
schedule I controlled substances), §823(f) (providing procedures for becoming
a government-approved research project), §826 (establishing production quotas
for schedule I drugs). Moreover, the Cooperative offers no convincing explanation
for why drugs that Congress placed on schedule I should be subject to fewer
controls than the drugs that the Attorney General placed on the schedule.
Indeed, the Cooperative argues that, in placing marijuana and other drugs
on schedule I, Congress "wishe[d] to assert the most restrictive level
of controls created by the [Controlled Substances Act]." Brief for
Respondents 24. If marijuana should be subject to the most restrictive level
of controls, it should not be treated any less restrictively than other
schedule I drugs.
|||The Cooperative further argues that use of schedule I drugs generally
-- whether placed in schedule I by Congress or the Attorney General -- can
be medically necessary, notwithstanding that they have "no currently
accepted medical use." According to the Cooperative, a drug may not
yet have achieved general acceptance as a medical treatment but may nonetheless
have medical benefits to a particular patient or class of patients. We decline
to parse the statute in this manner. It is clear from the text of the Act
that Congress has made a determination that marijuana has no medical benefits
worthy of an exception. The statute expressly contemplates that many drugs
"have a useful and legitimate medical purpose and are necessary to
maintain the health and general welfare of the American people," §801(1),
but it includes no exception at all for any medical use of marijuana. Unwilling
to view this omission as an accident, and unable in any event to override
a legislative determination manifest in a statute, we reject the Cooperative's
|||Finally, the Cooperative contends that we should construe the Controlled
Substances Act to include a medical necessity defense in order to avoid
what it considers to be difficult constitutional questions. In particular,
the Cooperative asserts that, shorn of a medical necessity defense, the
statute exceeds Congress' Commerce Clause powers, violates the substantive
due process rights of patients, and offends the fundamental liberties of
the people under the Fifth, Ninth, and Tenth Amendments. As the Cooperative
acknowledges, however, the canon of constitutional avoidance has no application
in the absence of statutory ambiguity. Because we have no doubt that the
Controlled Substances Act cannot bear a medical necessity defense to distributions
of marijuana, we do not find guidance in this avoidance principle. Nor do
we consider the underlying constitutional issues today. Because the Court
of Appeals did not address these claims, we decline to do so in the first
|||For these reasons, we hold that medical necessity is not a defense to
manufacturing and distributing marijuana.*fn7
The Court of Appeals erred when it held that medical necessity is a "legally
cognizable defense." 190 F. 3d, at 1114. It further erred when it instructed
the District Court on remand to consider "the criteria for a medical
necessity exemption, and, should it modify the injunction, to set forth
those criteria in the modification order." Id., at 1115.
|||The Cooperative contends that, even if the Controlled Substances Act forecloses
the medical necessity defense, there is an alternative ground for affirming
the Court of Appeals. This case, the Cooperative reminds us, arises from
a motion to modify an injunction to permit distributions that are medically
necessary. According to the Cooperative, the Court of Appeals was correct
that the District Court had "broad equitable discretion" to tailor
the injunctive relief to account for medical necessity, irrespective of
whether there is a legal defense of necessity in the statute. Id., at 1114.
To sustain the judgment below, the argument goes, we need only reaffirm
that federal courts, in the exercise of their equity jurisdiction, have
discretion to modify an injunction based upon a weighing of the public interest.*fn8
|||We disagree. Although district courts whose equity powers have been properly
invoked indeed have discretion in fashioning injunctive relief (in the absence
of a statutory restriction), the Court of Appeals erred concerning the factors
that the district courts may consider in exercising such discretion.
|||As an initial matter, the Cooperative is correct that, when district courts
are properly acting as courts of equity, they have discretion unless a statute
clearly provides otherwise. For "several hundred years," courts
of equity have enjoyed "sound discretion" to consider the "necessities
of the public interest" when fashioning injunctive relief. Hecht Co.
v. Bowles, 321 U. S. 321, 329-330 (1944). See also id., at 329 ("The
essence of equity jurisdiction has been the power of the Chancellor to do
equity and to mould each decree to the necessities of the particular case.
Flexibility rather than rigidity has distinguished it"); Weinberger
v. Romero-Barcelo, 456 U. S. 305, 312 (1982) ("In exercising their
sound discretion, courts of equity should pay particular regard for the
public consequences in employing the extraordinary remedy of injunction").
Such discretion is displaced only by a "clear and valid legislative
command." Porter v. Warner Holding Co., 328 U. S. 395, 398 (1946).
See also Romero-Barcelo, supra, at 313 ("Of course, Congress may intervene
and guide or control the exercise of the courts' discretion, but we do not
lightly assume that Congress has intended to depart from established principles").
|||The Cooperative is also correct that the District Court in this case had
discretion. The Controlled Substances Act vests district courts with jurisdiction
to enjoin violations of the Act, 21 U. S. C. §882(a). But a "grant
of jurisdiction to issue [equitable relief] hardly suggests an absolute
duty to do so under any and all circumstances," Hecht, supra, at 329
(emphasis omitted). Because the District Court's use of equitable power
is not textually required by any "clear and valid legislative command,"
the court did not have to issue an injunction.
|||TVA v. Hill, 437 U. S. 153 (1978), does not support the Government's contention
that the District Court lacked discretion in fashioning injunctive relief.
In Hill, the Court held that the Endangered Species Act of 1973 required
the District Court to enjoin completion of a dam, whose operation would
either eradicate the known population of the snail darter or destroy its
critical habitat. Id., at 193-195. The District Court lacked discretion
because an injunction was the "only means of ensuring compliance."
Romero-Barcelo, supra, at 314 (explaining why the District Court in Hill
lacked discretion). Congress' "order of priorities," as expressed
in the statute, would be deprived of effect if the District Court could
choose to deny injunctive relief. Hill, supra, at 194. In effect, the District
Court had only a Hobson's choice. By contrast, with respect to the Controlled
Substances Act, criminal enforcement is an alternative, and indeed the customary,
means of ensuring compliance with the statute. Congress' resolution of the
policy issues can be (and usually is) upheld without an injunction.
|||But the mere fact that the District Court had discretion does not suggest
that the District Court, when evaluating the motion to modify the injunction,
could consider any and all factors that might relate to the public interest
or the conveniences of the parties, including the medical needs of the Cooperative's
patients. On the contrary, a court sitting in equity cannot "ignore
the judgment of Congress, deliberately expressed in legislation." Virginian
R. Co. v. Railway Employees, 300 U. S. 515, 551 (1937). A district court
cannot, for example, override Congress' policy choice, articulated in a
statute, as to what behavior should be prohibited. "Once Congress,
exercising its delegated powers, has decided the order of priorities in
a given area, it is ... for the courts to enforce them when enforcement
is sought." Hill, 437 U. S., at 194. Courts of equity cannot, in their
discretion, reject the balance that Congress has struck in a statute. Id.,
at 194-195. Their choice (unless there is statutory language to the contrary)
is simply whether a particular means of enforcing the statute should be
chosen over another permissible means; their choice is not whether enforcement
is preferable to no enforcement at all.*fn9
Consequently, when a court of equity exercises its discretion, it may not
consider the advantages and disadvantages of non-enforcement of the statute,
but only the advantages and disadvantages of "employing the extraordinary
remedy of injunction," Romero-Barcelo, 456 U. S., at 311, over the
other available methods of enforcement. Cf. id., at 316 (referring to "discretion
to rely on remedies other than an immediate prohibitory injunction")
To the extent the district court considers the public interest and the conveniences
of the parties, the court is limited to evaluating how such interest and
conveniences are affected by the selection of an injunction over other enforcement
|||In this case, the Court of Appeals erred by considering relevant the evidence
that some people have "serious medical conditions for whom the use
of cannabis is necessary in order to treat or alleviate those conditions
or their symptoms," that these people "will suffer serious harm
if they are denied cannabis," and that "there is no legal alternative
to cannabis for the effective treatment of their medical conditions."
190 F. 3d, at 1115. As explained above, in the Controlled Substances Act,
the balance already has been struck against a medical necessity exception.
Because the statutory prohibitions cover even those who have what could
be termed a medical necessity, the Act precludes consideration of this evidence.
It was thus error for the Court of Appeals to instruct the District Court
on remand to consider "the criteria for a medical necessity exemption,
and, should it modify the injunction, to set forth those criteria in the
modification order." Ibid.
|||The judgment of the Court of Appeals is reversed, and the case is remanded
for further proceedings consistent with this opinion.
|||It is so ordered.
|||Justice Breyer took no part in the consideration or decision of this case.
|||Justice Stevens, with whom Justice Souter and Justice Ginsburg join, concurring
in the judgment.
|||Lest the Court's narrow holding be lost in its broad dicta, let me restate
it here: "[W]e hold that medical necessity is not a defense to manufacturing
and distributing marijuana." Ante, at 10 (emphasis added). This confined
holding is consistent with our grant of certiorari, which was limited to
the question "[w]hether the Controlled Substances Act, 21 U. S. C.
801 et seq., forecloses a medical necessity defense to the Act's prohibition
against manufacturing and distributing marijuana, a Schedule I controlled
substance." Pet. for Cert. (I) (emphasis added). And, at least with
respect to distribution, this holding is consistent with how the issue was
raised and litigated below. As stated by the District Court, the question
before it was "whether [respondents'] admitted distribution of marijuana
for use by seriously ill persons upon a physician's recommendation violates
federal law," and if so, whether such distribution "should be
enjoined pursuant to the injunctive relief provisions of the federal Controlled
Substances Act." United States v. Cannabis Cultivators Club, 5 F. Supp.
2d 1086, 1091 (ND Cal. 1998) (emphasis added).
|||Accordingly, in the lower courts as well as here, respondents have raised
the medical necessity defense as a justification for distributing marijuana
to cooperative members, and it was in that context that the Ninth Circuit
determined that respondents had "a legally cognizable defense."
190 F. 3d 1109, 1114 (1999). The Court is surely correct to reverse that
determination. Congress' classification of marijuana as a schedule I controlled
substance -- that is, one that cannot be distributed outside of approved
research projects, see 21 U. S. C. §§812, 823(f), 829 -- makes it clear
that "the Controlled Substances Act cannot bear a medical necessity
defense to distributions of marijuana," ante, at 10 (emphasis added)).*fn10
|||Apart from its limited holding, the Court takes two unwarranted and unfortunate
excursions that prevent me from joining its opinion. First, the Court reaches
beyond its holding, and beyond the facts of the case, by suggesting that
the defense of necessity is unavailable for anyone under the Controlled
Substances Act. Ante, at 6-9, 10, n. 7, 15. Because necessity was raised
in this case as a defense to distribution, the Court need not venture an
opinion on whether the defense is available to anyone other than distributors.
Most notably, whether the defense might be available to a seriously ill
patient for whom there is no alternative means of avoiding starvation or
extraordinary suffering is a difficult issue that is not presented here.*fn11
|||Second, the Court gratuitously casts doubt on "whether necessity
can ever be a defense" to any federal statute that does not explicitly
provide for it, calling such a defense into question by a misleading reference
to its existence as an "open question." Ante, at 5, 6. By contrast,
our precedent has expressed no doubt about the viability of the common-law
defense, even in the context of federal criminal statutes that do not provide
for it in so many words. See, e.g., United States v. Bailey, 444 U. S. 394,
415 (1980) ("We therefore hold that, where a criminal defendant is
charged with escape and claims that he is entitled to an instruction on
the theory of duress or necessity, he must proffer evidence of a bona fide
effort to surrender or return to custody as soon as the claimed duress or
necessity had lost its coercive force"); id., at 415, n. 11 ("Our
principal difference with the dissent, therefore, is not as to the existence
of such a defense but as to the importance of surrender as an element of
it" (emphasis added)). Indeed, the Court's comment on the general availability
of the necessity defense is completely unnecessary because the Government
has made no such suggestion. Cf. Brief for Petitioner 17-18 (narrowly arguing
that necessity defense cannot succeed if legislature has already "canvassed
the issue" and precluded it for a particular statute (internal quotation
marks omitted)). The Court's opinion on this point is pure dictum.
|||The overbroad language of the Court's opinion is especially unfortunate
given the importance of showing respect for the sovereign States that comprise
our Federal Union. That respect imposes a duty on federal courts, whenever
possible, to avoid or minimize conflict between federal and state law, particularly
in situations in which the citizens of a State have chosen to "serve
as a laboratory" in the trial of "novel social and economic experiments
without risk to the rest of the country." New State Ice Co. v. Liebmann,
285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). In my view, this is
such a case.*fn12 By passing Proposition
215, California voters have decided that seriously ill patients and their
primary caregivers should be exempt from prosecution under state laws for
cultivating and possessing marijuana if the patient's physician recommends
using the drug for treatment.*fn13 This
case does not call upon the Court to deprive all such patients of the benefit
of the necessity defense to federal prosecution, when the case itself does
not involve any such patients.
|||An additional point deserves emphasis. This case does not require us to
rule on the scope of the District Court's discretion to enjoin, or to refuse
to enjoin, the possession of marijuana or other potential violations of
the Controlled Substances Act by a seriously ill patient for whom the drug
may be a necessity. Whether it would be an abuse of discretion for the District
Court to refuse to enjoin those sorts of violations, and whether the District
Court may consider the availability of the necessity defense for that sort
of violator, are questions that should be decided on the authority of cases
such as Hecht Co. v. Bowles, 321 U. S. 321 (1944), and Weinberger v. Romero&nbhyph;Barcelo,
456 U. S. 305 (1982), and that properly should be left "open"
by this case.
|||I join the Court's judgment of reversal because I agree that a distributor
of marijuana does not have a medical necessity defense under the Controlled
Substances Act. I do not, however, join the dicta in the Court's opinion.
|||*fn1 The Government requested, and the
District Court granted, an injunction that prohibited the possession of
marijuana with the intent to manufacture and distribute, as well as the
distribution and manufacture of marijuana. For simplicity, in this opinion,
we refer to these activities collectively as distributing and manufacturing
marijuana. The legal issues are the same for all of these activities.
|||*fn2 The amended preliminary injunction
reaffirmed that the Cooperative is generally enjoined from manufacturing,
distributing, and possessing with the intent to manufacture or distribute
marijuana, but it carved out an exception for cases of medical necessity.
Specifically, the District Court ordered that "[t]he foregoing injunction
does not apply to the distribution of cannabis by [the Cooperative] to patient-members
who (1) suffer from a serious medical condition, (2) will suffer imminent
harm if the patient-member does not have access to cannabis, (3) need cannabis
for the treatment of the patient-member's medical condition, or need cannabis
to alleviate the medical condition or symptoms associated with the medical
condition, and (4) have no reasonable legal alternative to cannabis for
the effective treatment or alleviation of the patient-member's medical condition
or symptoms associated with the medical condition because the patient-member
has tried all other legal alternatives to cannabis and the alternatives
have been ineffective in treating or alleviating the patient-member's medical
condition or symptoms associated with the medical condition, or the alternatives
result in side effects which the patient-member cannot reasonably tolerate."
App. to Pet. for Cert. 16a-17a. The United States appealed the District
Court's order amending the preliminary injunction. At the Government's request,
we stayed the order pending the appeal. 530 U. S. 1298 (2000). The Court
of Appeals has postponed oral argument pending our decision in this case.
|||*fn3 The Cooperative is incorrect to
suggest that Bailey has settled the question whether federal courts have
authority to recognize a necessity defense not provided by statute. There,
the Court rejected the necessity defense of a prisoner who contended that
adverse prison conditions justified his prison escape. The Court held that
the necessity defense is unavailable to prisoners, like Bailey, who fail
to present evidence of a bona fide effort to surrender as soon as the claimed
necessity had lost its coercive force. 444 U. S., at 415. It was not argued,
and so there was no occasion to consider, whether the statute might be unable
to bear any necessity defense at all. And although the Court noted that
Congress "legislates against a background of Anglo-Saxon common law"
and thus "may" have contemplated a necessity defense, the Court
refused to "balanc[e] [the] harms," explaining that "we are
construing an Act of Congress, not drafting it." Id., at 415, n. 11.
|||*fn4 We reject the Cooperative's intimation
that elimination of the defense requires an "explici[t]" statement.
Brief for Respondents 21. Considering that we have never held necessity
to be a viable justification for violating a federal statute, see supra,
at 5-6, and n. 3, and that such a defense would entail a social balancing
that is better left to Congress, we decline to set the bar so high.
|||*fn5 As noted, supra, at 5, the only
express exception for schedule I drugs is the Government-approved research
project, see 21 U. S. C. §823(f). Unlike drugs in other schedules, see §829,
schedule I drugs cannot be dispensed under a prescription.
|||*fn6 The Government argues that the
1998 "sense of the Congress" resolution, 112 Stat. 2681-760 to
2681-761, supports its position that Congress has foreclosed the medical
necessity defense. Entitled "Not Legalizing Marijuana for Medicinal
Use," the resolution declares that "Congress continues to support
the existing Federal legal process for determining the safety and efficacy
of drugs and opposes efforts to circumvent this process by legalizing marijuana,
and other Schedule I drugs, for medicinal use without valid scientific evidence
and the approval of the Food and Drug Administration." Because we conclude
that the Controlled Substances Act cannot sustain the medical necessity
defense, we need not consider whether the 1998 "sense of the Congress
resolution" is additional evidence of a legislative determination to
eliminate the defense.
|||*fn7 Lest there be any confusion, we
clarify that nothing in our analysis, or the statute, suggests that a distinction
should be drawn between the prohibitions on manufacturing and distributing
and the other prohibitions in the Controlled Substances Act. Furthermore,
the very point of our holding is that there is no medical necessity exception
to the prohibitions at issue, even when the patient is "seriously ill"
and lacks alternative avenues for relief. Indeed, it is the Cooperative's
argument that its patients are "seriously ill," see, e.g., Brief
for Respondents 11, 13, 17, and lacking "alternatives," see, e.g.,
id., at 13. We reject the argument that these factors warrant a medical
necessity exception. If we did not, we would be affirming instead of reversing
the Court of Appeals. Finally, we share Justice Stevens' concern for "showing
respect for the sovereign States that comprise our Federal Union."
Post, at 3 (opinion concurring in judgment). However, we are "construing
an Act of Congress, not drafting it." United States v. Bailey, 444
U. S. 394, 415, n. 11 (1980). Because federal courts interpret, rather than
author, the federal criminal code, we are not at liberty to rewrite it.
Nor are we passing today on a constitutional question, such as whether the
Controlled Substances Act exceeds Congress' power under the Commerce Clause.
|||*fn8 Notwithstanding Justice Stevens'
concerns, post, at 4, it is appropriate for us to address this issue because
this case arises from a motion to modify the injunction, because the Court
of Appeals held that the District Court misconstrued its equitable discretion,
and because the Cooperative offers this conclusion as an alternative ground
|||*fn9 Hecht Co. v. Bowles, 321 U. S.
321 (1944), for example, held that the District Court was not required to
issue an injunction to restrain violations of the Emergency Price Control
Act of 1942 and regulations thereunder when "some `other order' might
be more appropriate, or at least so appear to the court." Id., at 328
(quoting statutory provision that enabled district court to issue an injunction,
a restraining order, "or other order"). Weinberger v. Romero&nbhyph;Barcelo,
456 U. S. 305 (1982), held that a District Court had discretion not to issue
an injunction precluding the United States Navy from releasing ordnance
into water, but to rely on other means of ensuring compliance, including
ordering the Navy to obtain a permit. Id., at 314-318. See also Amoco Production
Co. v. Gambell, 480 U. S. 531, 544-546 (1987) (holding that a District Court
did not err in declining to issue an injunction to bar exploratory drilling
on Alaskan public lands, because the district court's decision "did
not undermine" the policy of the Alaska National Interest Lands Conservation
Act, 16 U. S. C. §3120, and because the Secretary of the Interior had other
means of meaningfully complying with the statute).
|||*fn10 In any event, respondents do
not fit the paradigm of a defendant who may assert necessity. The defense
"traditionally covered the situation where physical forces beyond the
actor's control rendered illegal conduct the lesser of two evils."
United States v. Bailey, 444 U. S. 394, 410 (1980); see generally 1 W. LaFave
& A. Scott, Substantive Criminal Law §5.4, pp. 627-640 (1986). Respondents,
on the other hand, have not been forced to confront a choice of evils --
violating federal law by distributing marijuana to seriously ill patients
or letting those individuals suffer -- but have thrust that choice upon
themselves by electing to become distributors for such patients. Of course,
respondents also cannot claim necessity based upon the choice of evils facing
seriously ill patients, as that is not the same choice respondents face.
|||*fn11 As a result, perhaps the most
glaring example of the Court's dicta is its footnote 7, where it opines
that "nothing in our analysis, or the statute, suggests that a distinction
should be drawn between the prohibitions on manufacturing and distributing
and the other prohibitions in the Controlled Substances Act." Ante,
at 10, n. 7.
|||*fn12 Cf. Feeney, Bush Backs States'
Rights on Marijuana: He Opposes Medical Use But Favors Local Control, Dallas
Morning News, Oct. 20, 1999, p. 6A, 1999 WL 28018944 (then-Governor Bush
supporting state self-determination on medical marijuana use).
|||*fn13 Since 1996, six other States
-- Alaska, Colorado, Maine, Nevada, Oregon, and Washington -- have passed
medical marijuana initiatives, and Hawaii has enacted a similar measure
through its legislature. See Alaska Stat. Ann. §§11.71.090, 17.37.010 to
17.37.080 (2000); Colo. Const., Art. XVIII, §14; Haw. Rev. Stat. §§329-121
to 329-128 (Supp. 2000); Me. Rev. Stat. Ann., Tit. 22, §2383-B(5) (2000);
Nev. Const., Art. 4, §38; Ore. Rev. Stat. §§475.300 to 475.346 (1999); Wash.
Rev. Code §§69.51A.005 to 69.51A.902 (1997 and Supp. 2000-2001).
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