Since December 2014, there has been a provision in the federal budget that, generally stated, denies funds to the U.S. Department of Justice (the DOJ) to prosecute conduct that is in compliance with state medical-marijuana law. That “rider” – referred to variously as the Rohrabacher-Farr Amendment or the Rohrabacher-Blumenauer Amendment (and referred to herein as the Amendment) – was again included in “Fiscal Year 2020 spending legislation,” which the president recently signed into law.
The full scope and effect of the Amendment, however, is far from certain. To date, only one federal appellate court – the U.S. Court of Appeals for the Ninth Circuit – has really considered this provision. However, just recently, the U.S. Court of Appeals for the Tenth Circuit cleared the way for another federal court to address the potential application of the Amendment. In Sandusky v. Goetz, No. 18-1483 (10th Cir. Dec. 16, 2019), the Tenth Circuit permitted a federal inmate’s claim that the Amendment precludes his continued incarceration to move forward in the federal district court below. All eyes should and will be on the U.S. District Court for the District of Colorado as it takes up the inmate’s case.
The current iteration of the Amendment, which has not really changed substantively over time, reads as follows:
“None of the funds made available under this Act to the Department of Justice may be used, with respect to any of the States of Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana, Iowa, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin, and Wyoming, or with respect to the District of Columbia, the Commonwealth of the Northern Marina Island, the United States Virginia Islands, Guam, or Puerto Rico [collectively, the Medical Marijuana States], to prevent any of them from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”
Note that the Amendment only applies to medical marijuana; attempts to extend it to adult-use marijuana have failed so far.
United States v. McIntosh
Considering a previous version of the Amendment (which is no different than the current version in any material respect), the Ninth Circuit explained that the Amendment “prohibits [the] DOJ from spending money on actions that prevent the Medical Marijuana States’ giving practical effect to their state laws that authorize the use, distribution, possession, or cultivation of medical marijuana.” In United States v. McIntosh, 833 F.3d 1163 (9th Cir. 2016), that court concluded that, at a minimum, the Amendment “prohibits [the] DOJ from spending funds from relevant appropriations acts for the prosecution of individuals who engaged in conduct permitted by the State Medical Marijuana Laws and who fully complied with such laws.”
However, the Ninth Circuit cautioned that the Amendment “does not provide immunity from prosecution for federal marijuana offenses.” It explained, in relevant part:
“Congress currently restricts the government from spending certain funds to prosecute certain individuals. But Congress could restore funding tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding.”
Sandusky v. Goetz
Recently, in Sandusky, the Tenth Circuit held that the district court erred in dismissing for lack of subject-matter jurisdiction a federal inmate’s habeas petition, which asserted that the Amendment prevented the federal Bureau of Prisons (the BOP) from expending any funds to incarcerate him in connection with two marijuana-trafficking convictions.
The inmate, who had been the president of a California-based medical-marijuana cooperative at a time when medical marijuana was already legal in that state, was convicted on two counts: “(1) conspiracy to manufacture and possess with the intent to distribute more than 1,000 marijuana plants; and (2) possession with intent to distribute at least 50 kilograms of a mixture or substance containing a detectable amount of marijuana.”
After earlier proceedings in another federal district court and another federal appellate court, the inmate filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. section 2241 (Section 2241). In his petition, he alleged that “(a) Congress enacted the [Amendment] approximately two years after he was convicted and sentenced in federal court, (b) the [Amendment] effectively prohibited the DOJ from spending any funds to ‘incarcerate individuals who engage in conduct permitted by State Medical Marijuana Laws and who fully complied with such laws,’ and (c) his ‘incarceration violate[d] this newly enacted prohibition.’” He argued that the Amendment prevented the DOJ and the BOP from expending any funds to execute his sentence.
After the federal district court dismissed with prejudice the inmate’s petition, he appealed to the Tenth Circuit. And, on December 16, 2019, that federal appellate court reversed the judgment of the district court and remanded the matter for further proceedings to address the merits of the inmate’s Section 2241 petition. In relevant part, the Tenth Circuit explained:
“[The inmate] is not seeking to have his convictions overturned. Indeed, he expressly refutes that notion. Further, [the inmate] is not arguing ‘that his sentence was imposed in violation of the Constitution or laws of the United States, or that the sentencing court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.’ Moreover, [he] is not asking to have his sentence formally modified in any manner, and thus is not seeking any relief unique to the sentencing court. To be sure, he is seeking to be released from the BOP’s custody. But, even if his proposed interpretation of the [Amendment] should prove to be correct and he establishes his entitlement to release, Congress could always decide in future appropriation acts to modify or exclude altogether the appropriations rider. In that event, the BOP would presumably be free to incarcerate [him] again and require him to complete the remainder of his sentence. For these reasons, we conclude that [his] habeas petition was challenging only the execution of his sentence, and not the validity of his conviction or sentence” (internal citation omitted).
Therefore, the Tenth Circuit concluded that the district court should not have dismissed the inmate’s claim for lack of subject-matter jurisdiction. The Tenth Circuit remanded the case “to the district court for further proceedings.” As part of those proceedings, the lower court will need to analyze the Amendment and determine the scope of its application.
While any decision by the district court should determine whether the Amendment precludes the inmate’s further incarceration, any decision is also likely to have broader effect to the extent that it addresses the appropriate scope and application of the Amendment. As such, those involved in any way with the medical-marijuana industry will want to pay close attention to these proceedings.