When Congress enacted the Controlled Substances Act in 1970, it included within the statute an extensive list of controlled substances and directed the placement of various substances on specific schedules, commonly referred to as Schedules I, II, III, IV and V.
Congress also specified the criteria that would guide the placement of a controlled substance upon a particular schedule. Congress noted that in placing substances on Schedule I, it had made findings that the particular substance posed a high potential for abuse, that it contained no currently accepted medical use in the United States and that it lacked accepted safety for use under medical supervision. Based upon these findings, Congress elected to include marijuana on Schedule I.
Several states have chosen to enact statutes that appear to be in direct conflict with the Controlled Substances Act. Colorado has purported to legalize the possession of small quantities of marijuana intended for personal use. Washington is in the process of adopting procedures to implement a voter-adopted initiative licensing the production and sale of marijuana in small quantities for personal use.
On Aug. 28, Attorney General Eric Holder Jr. announced that the Department of Justice would not challenge these actions. Although Holder couched his announcement as an exercise of the power of prosecutorial discretion, I submit that such an analysis is mistaken.
Prosecutorial discretion, properly understood, reflects a prosecutor’s inherent discretion with respect to charging an individual with an offense. It rests upon the principle that a prosecutor’s fundamental obligation is to seek justice. Thus, in some instances, a prosecutor must concentrate the resources of his office in a particular manner. In other instances, a prosecutor may recognize that the literal application of a statute to a particular situation may result in an injustice.
Prosecutorial discretion, properly understood, does not purport to validate turning a blind eye to a course of conduct that is facially illegal.
The attorney general’s announcement spoke of the need to marshal department resources, and to not let those resources be expended upon the prosecution of minor offenses. Such a decision with respect to the proper allocation of resources is well within the authority of the attorney general.
The initiation of a declaratory judgment action in the appropriate federal district court, seeking a declaration that these state actions are invalid in the face of a contradictory federal statute, does not risk the depletion of such prosecutorial resources. It does not represent the diversion of federal resources to the prosecution of relatively minor, low-level offenses. Rather, it would acknowledge the principle that in our federal system, one state is not free to act to nullify a federal statute. It would, moreover, appear to fall squarely within the holding of Gonzalez v. Raich, in which the U.S. Supreme Court held that California’s decision to permit the medical use of marijuana was trumped by the clear federal statutory ban.
The failure to seek such declaratory relief, in the face of the clear conflicts posed by the actions of Colorado and Washington, gives the appearance that the Justice Department sanctions the doctrine of nullification. The department’s failure to act in this instance may encourage other states to enact similar statutes purporting to legalize the possession of small quantities of marijuana for personal use. It may also encourage states to act in other areas that clearly conflict with federal law. Indeed, Missouri is on the verge of adopting a statute in clear conflict with federal gun control statutes.
The question is not whether the federal Controlled Substances Act represents good law or policy; if it does not, the statute should be changed. Rather, the question is whether federal law controls. The attorney general, the nation’s chief law enforcement officer, should not be so quick to surrender federal primacy. •