"The notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs — I don’t think that’s sensible at all. That is responsible for a high percentage of our prisoners. And these punishments are often very, very severe… It’s all very expensive, and it’s a waste of a lot of high quality legal minds, but it’s also a waste of people’s lives who could be at least moderately productive without having to spend year after year in prison. That is a serious problem.” -Judge Richard Posner [i]
As a quick introductory note, MSU ILR's symposium this year will discuss developments in global drug policies. If this topic is of interest to you, please check out our webpage's section on the symposium.
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In December 2013, Uruguayan lawmakers voted to permit the growth, use, and cultivation of marijuana, as well as establish a government-run market for the distribution and sale of the drug. [ii] The legislation followed a landmark year for marijuana legislation worldwide, as Colorado and Washington enacted similar laws in 2012. [iii] While the reformation of drug law policies around the world seems to reflect an understanding of the social cost of harsh penalties for offenses, not all actions taken are equal. Specifically, some state-level medical marijuana programs in the United States have created conflicts with other laws in a way that has seen registered patients sacrifice their constitutional rights in exchange for the “right” to their medicine.
Medical Marijuana Programs vs. Full Legalization
In the case of Uruguay, a federal law was passed that permitted the growth and use of marijuana, individually and through registered collectives, as well as established a governmental program to grow and sell marijuana to the public. [iv] By contrast, in Colorado, a ballot initiative resulted in an amendment to the Colorado State Constitution specifically allowing for the personal use of marijuana by those at least twenty-one years of age, and provided that the state government would regulate, tax, and oversee the industry. [v]
Rather that amending existing law, some states have created medical marijuana programs (such as Michigan) that simply provide certain individuals with immunity from prosecution under existing drug laws.[vi] In effect, this means that while registered patients may avoid prosecution under drug laws, they are still engaging in conduct that is viewed as a violation of the law. As a result, full legalization has tended to avoid causing any serious conflicts with other laws.
An Avoidable but Real Constitutional Conflict
The proposition that registered medical marijuana patients are still technically in violation of state drug laws was reinforced by subsequent court decisions in Michigan. [vii] A recent Michigan Court of Appeals decision established that even though registered patients were in full compliance with the medical marijuana law, evidence of their marijuana use could be used in a search warrant affidavit as evidence of criminal activity. [viii] The decision allows a police officer to obtain a lawful search warrant for the home of any medical marijuana patient when the officer is able to find even the slightest evidence of marijuana use, such as smell. The decision effectively strips medical marijuana patients of their Fourth Amendment right to be free from unreasonable searches, even though the patients are in complete compliance with the Michigan Medical Marijuana Act.
Other states have faced the same issue, but they have not only identified but also remedied the conflict. In Arizona, the issue of search warrants and medical marijuana patients came before the court in 2015. Rather than adopt the court’s reasoning in Michigan, the Arizona Court of Appeals held that because of the Arizona Medical Marijuana Act (which is very similar to Michigan), possession of marijuana was no longer per se illegal in Arizona. [ix] Because the court found possession or use of marijuana was not per se illegal, it further held that even if the police have evidence of the use of marijuana, “a reasonable, prudent, and cautious person could not, in the absence of further information, form a well-founded belief that a criminal offense was committed.” [x] Arizona thus reached a holding contrary to that of the Michigan Court of Appeals, and by doing so avoided the Fourth Amendment conflict that is raised by Michigan’s holding. By requiring that police officers demonstrate evidence that marijuana-related activity is illegal and not permitted by Arizona medical marijuana law, the courts ensured that unreasonable searches like those that can occur in Michigan are not permitted.
Marijuana legalization and regulation continues to present new and important issues. However, medical marijuana programs that operate in a system where mere possession and use of marijuana remain illegal run the risk of substantially interfering with citizen’s constitutional rights. Subsequent court interpretation increases the risk of creating conflicts with other laws, which has occurred in Michigan and had occurred in Arizona before 2015. Full legalization programs, like that of Uruguay and Colorado, help to eliminate the conflict issues and seem to be more successful, so long as they reflect the will of the electorate. These issues need to be considered when attempting serious drug law reform.
[i] Nick Wing, Richard Posner, Federal Judge, Slams 'Absurd' Laws Against Marijuana, Other Drugs, Huff. Post, Sep. 11, 2012, http://www.huffingtonpost.com/2012/09/11/richard-posner-marijuana-drug-laws_n_1874768.html.
[ii] Nick Miroff, Uruguay Votes to Legalize Marijuana, Wash. Post, Dec. 10, 2013, https://www.washingtonpost.com/world/the_americas/uruguays-senate-is-expected-to-legalize-marijuana-in-latin-american-country/2013/12/10/20ae3cfa-61e5-11e3-bf45-61f69f54fc5f_story.html.
[iii] Aaron Smith, Marijuana Legalization Passes in Colorado, Washington, CNN, Nov. 8, 2012, http://money.cnn.com/2012/11/07/news/economy/marijuana-legalization-washington-colorado/.
[iv] Miroff, supra note 1.
[v] Colo. Const. art. XVIII, § 16
[vi] Mich. Comp. Laws § 333.26424(a) (2010).
[vii] People v. Brown, 825 N.W.2d 91, 95 (Mich. Ct. App. 2012).
[ix] State v. Sisco, 359 P.3d 1, 7 (Ariz. Ct. App. 2015).
[x] Id. at 8.