by: Andrew J. LeVay

Despite its long standing position in the common law, the case law dealing with the necessity defense is relatively underdeveloped. This can be explained, in large part, by the fact that many of the cases in which a necessity defense would be appropriately asserted are simply not prosecuted. The notion that the prosecuting attorney is vested with a broad range of discretion in deciding whether to prosecute is firmly entrenched in American jurisprudence. When exercised properly, this discretion can assure that justice will prevail over law. In the words of then Attorney General, Justice Robert Jackson:

“The prosecutor has more control over life, liberty, and reputation than any other person in America.”

The role of prosecutorial discretion in the federal sphere has received increased discussion and debate in recent years as Congress sought to “federalize” crimes that are traditionally left exclusively to state control. Such concurrent jurisdiction can result in problems when the values of a state, as evidenced by its legislative and constitutional decisions concerning criminal law or procedure, differ from that of the federal government. Federal prosecutorial discretion is thus especially relevant in states like California that have passed medical marijuana laws, because it has the potential to correct the imperfection of the federal law’s reflection of state and community values.

The Department of Justice (“DOJ”) instructs federal prosecutors to commence with prosecution when a federal offense is violated and there is evidence to convict, unless no “substantial federal interest” is served by the prosecution. In determining whether to exercise their prosecutorial discretion to decline prosecution in a particular case, therefore, prosecutors must first conclude that declining prosecution would not sacrifice a substantial federal interest. A subchapter of the DOJ’s United States Attorney Manual (“the Manual”), entitled “Initiating or Declining Charges—Substantial Federal Interest,” sets forth the considerations that a prosecutor should weigh in determining whether a substantial federal interest is at stake. The Manual states that:

[I]n determining whether prosecution should be declined because no substantial Federal interest would be served by prosecution, the attorney for the government should weigh all relevant considerations, including: (1) federal law enforcement priorities; (2) the nature and seriousness of the offense; (3) the deterrent effect of prosecution; (4) the person’s culpability in connection with the offense; (5) the person’s history with respect to criminal activity; (6) the person’s willingness to cooperate in the investigation or prosecution of others; and (7) the probable sentence if convicted or other consequences if the person is convicted.

Addressing the first factor, “federal law enforcement priorities,” the DOJ acknowledges that it must be mindful of the limited enforcement resources available. In establishing national prosecutorial priorities, therefore, the DOJ states that it should focus on those matters that are most deserving of federal attention and that are most likely to be handled effectively at the federal level. The DOJ also acknowledges, however, that individual United States Attorney offices must be free to establish their own prosecutorial priorities within the national priorities in order to focus most effectively on matters of local concern.

In referring to its second listed factor, “nature and seriousness of the crime,” the Manual asserts that “of primary importance is the actual or potential impact of the offense on the community and on the victim.” Moreover, the Manual states that in assessing the impact of the offense on the community, a prosecutor properly may take into account the gravity of the offense and the community’s attitude towards prosecution under the circumstances of the case. The importance of considering the community’s views as a factor in deciding whether to prosecute is emphasized also by scholars who suggest that prosecutors often decline prosecution based on their expectation that, given the community’s attitude towards a particular offense, a judge or jury will choose to acquit, notwithstanding proof of guilt beyond a reasonable doubt. Thus, the inability of a prosecutor to obtain a conviction for certain offenses, scholars argue, should influence the decision of whether to prosecute future offenses.

The Manual also states that federal prosecutors should take cognizance of a “person’s personal circumstances.” In so doing, the Manual maintains that: “[s]ome circumstances peculiar to the accused, such as . . . mental or physical impairment, may suggest that prosecution is not the most appropriate response to his/her offense.” This factor is thus representative of the DOJ’s recognition that, in the name of justice, prosecutors must tailor their decision of whether to prosecute, not only to the particular type of offense, but to the circumstances surrounding the particular person as well. According to the DOJ, then, a federal prosecutor should weigh the potential defendant’s personal circumstances with the other seven considerations listed in the Manual in deciding whether a substantial federal interest exists so as to justify prosecution.

Although prosecutorial discretion potentially can bring the law into conformity with the values of the community, like all types of discretion, it has a high potential for abuse. Indeed, Justice Jackson, in his earlier quoted statement, went on to say that:

“While the prosecutor at his best is one of the most beneficent forces in our society, when he acts from malice or other base motives, he is one of the worst.”

This abuse is most glaring where the government prosecutes a defendant for political—as opposed to purely legal—reasons. In such cases, contrary to the ideal application of a prosecutor’s discretion, the prosecutor uses the technicalities of the law to harass a person for conduct that the community might not find criminal. Scholars suggest several indicia for when the government is prosecuting “political defendants”: (1) where the defendants are “political persons” dissenting from the conventional wisdom; (2) where the defendants are being prosecuted in part for what they say or think; (3) where there is selective prosecution; and (4) where the trial is not a model of evenhandedness and judicial restraint.

It is apparent that the Controlled Substances Act was not intended to prohibit the medical use of marijuana forever. The legislative history surrounding the law’s enactment suggests that Congress did not even consider the medical utility of marijuana in placing marijuana in Schedule I, let alone the question of whether it should be illegal to use a Schedule I substance in a medical emergency. On the contrary, Congress intended to place marijuana in Schedule I only temporarily, pending the outcome of the Commission’s report. For political reasons, however, this report, which concluded that marijuana lacked any harmful physiological effects, was never employed properly to reschedule marijuana.

Original Article here>>