The Controlled Substances Act classifies cannabis as a Schedule I drug and defines it as a drug "with no accepted medical value in treatment." Despite its long history of use as a medication, cannabis is classified as a "new drug" and legal access is only possible through an Investigational New Drug Application (IND) issued by the Food and Drug Administration (FDA).
The federal government regulates drugs through the Controlled Substances Act (CSA) (21 U.S.C. 811), which does not recognize the difference between medical and recreational use of marijuana. These laws are mainly targeted towards large quantities of marijuana, with a special interest in cases that cross state lines or international borders.
Marijuana is treated like every other drug. The federal government ranks it on a standardized scale called a Schedule. Access to every drug depends on its assigned schedule, which is established by the CSA. Marijuana is classified as a Schedule I drug. This is the most restrictive of all the schedules, which is reserved for drugs that are highly addictive and have no medical benefit. Doctors may not "prescribe" marijuana for medical use under federal law, though they can "recommend" its use under the First Amendment.
The Drug Enforcement Administration (DEA), charged with enforcing federal drug laws, has taken a substantial interest in medical marijuana patients and caregivers in general, and large cultivation operations more specifically. Over the past few years, dozens of people have been targets of federal enforcement actions. Many of these people have either been arrested or had property seized. A few are currently in prison or are facing charges or ongoing criminal or civil investigations for their use of medical marijuana.
The DEA, like local enforcement officers, can choose how to make the best use of their time. Ideally, they will leave medical marijuana patients and their caregivers in peace. But federal law does not yet recognize medical marijuana, and they are currently allowed to use the Controlled Substances Act to arrest people for its use. In many pending and past cases, the DEA and U.S. Attorney's office have used exaggerated plant numbers and inflammatory rhetoric, as well as informants who trade jail time for testimony, to justify enforcing federal laws on medical marijuana patients and caregivers in California and other states.
Federal marijuana laws are very serious, and punishment for people found guilty is frequently very steep. Federal law still considers marijuana a dangerous illegal drug with no acceptable medicinal value. In several federal cases, judges have ruled that medical marijuana cannot be used as a defense, though defense attorneys should attempt to raise the issue whenever possible during trial.
There are two types of federal sentencing laws: sentencing guidelines, enacted by the United States Sentencing Commission, and mandatory sentencing laws, enacted by Congress. The Sentencing Commission was created in 1987 to combat sentencing disparities across jurisdictions. The current mandatory minimum sentences were enacted in a 1986 drug bill.
Federal sentencing guidelines take into account not only the amount of marijuana but also past convictions. Not all marijuana convictions require jail time under federal sentencing guidelines, but all are eligible for imprisonment. If convicted and sentenced to jail, a minimum of 85% of that sentence must be served. The higher the marijuana amount, the more likely one is to be sentenced to jail time, as opposed to probation or alternative sentencing. Low-level offenses, even with multiple prior convictions, may end up with probation for the entire sentence of one to twelve months, and no jail time required. Possession of over 1 kg of marijuana with no prior convictions is six to twelve months with a possibility of probation and alternative sentencing. Over 2.5 kg with no criminal record is at least six months in jail; with multiple prior convictions, a sentence might be up to two years to three years in jail with no chance for probation.
In United States v. Booker, a Supreme Court decision from January 2005, the court ruled that the federal sentencing guidelines (as outlined above) are advisory and no longer mandatory. However, as expected, some in Congress are attempting to counter the Booker decision. HR 1528 would roll back the Booker decision and effectively make the federal sentencing guidelines a system of mandatory minimum sentences. As of May 2005, the bill was passed by the House Crime Subcommittee and will next be considered by the House Judiciary Committee.
In addition to the sentencing guidelines, there are statutory mandatory minimums sentences, which remain in effect after United States v. Booker and primarily target offenses involving large amounts of marijuana. There is a five-year mandatory minimum for cultivation of 100 plants or 100kgs, and there is a ten-year mandatory minimum for these offenses if the defendant has a prior felony drug conviction. Cultivation or possession of 1000kg or 1000 plants triggers a ten-year mandatory minimum, with a twenty-year mandatory sentence when you have one prior felony drug conviction, and a life sentence with two prior felony drug convictions. To avoid a five-year mandatory minimum, it is advisable to stay well below 100 plants, including any rooted cuttings or clones.
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