Reflections on Medical Marijuana Prosecutions and the Duty to Seek Justice

21 Pages Posted: 21 Nov 2013

See all articles by Alex Kreit

Alex Kreit

Northern Kentucky University - Salmon P. Chase College of Law


Whatever else may be said of state medical marijuana laws, few would disagree that they have generated a wide array of difficult legal issues. During the sixteen years since California passed the first modern state medical marijuana law, the Supreme Court alone has reviewed two medical marijuana cases. Federal trial and circuit courts have considered a variety of issues, including whether sick and dying patients have a fundamental right to medical marijuana; whether physicians have a First Amendment right to recommend medical marijuana to patients; and whether a provision of the Controlled Substances Act (CSA) designed to provide immunity to state and local undercover officers also shields a medical marijuana grower deputized by the City of Oakland. State courts have faced an even more varied set of legal questions, with cases that present issues specific to state medical marijuana laws, as well as cases that call on courts to address the relationship between federal and state marijuana laws.

In the midst of these disputes, the application of rules of professional conduct to attorneys who practice medical marijuana law has received comparably little attention. Within the past few years, however, more attorneys have begun to consider this important issue, primarily as the result of two state ethics opinions. Both opinions focused on the application of Rule 1.2(d) of the American Bar Association’s Model Rules of Professional Conduct to attorneys who advise patients and providers on how to comply with state medical marijuana laws. This essay argues that medical marijuana prosecutions raise equally challenging (albeit more nebulous) ethical problems.

In particular, the prosecution of medical marijuana patients and providers presents difficult and important questions about the exercise of discretion in light of the prosecutor’s duty to seek justice. This essay does not seek to offer prosecutors specific advice about how to view medical marijuana prosecutions. Instead, it aims to illuminate some of the ethical issues a conscientious prosecutor should consider. Part I provides an overview of the prosecutor’s ethical duty to seek justice and not merely to convict. Part II considers how this ethical duty may be implicated in federal and state medical marijuana prosecutions. The essay argues that medical marijuana cases can present particularly difficult ethical challenges for prosecutors because they involve a uniquely conflicted area of law that makes the careful exercise of prosecutorial discretion all the more important.

Keywords: controlled substances, medical marijuana, attorney ethics, professional responsibility, prosecutorial ethics, prosecutorial discretion, duty to seek justice

JEL Classification: K14, K42

Suggested Citation

Kreit, Alex, Reflections on Medical Marijuana Prosecutions and the Duty to Seek Justice. Denver University Law Review, Vol. 89, No. 4, p. 1027, 2012, Thomas Jefferson School of Law Research Paper No. 2357681, Available at SSRN:

Alex Kreit (Contact Author)

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

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