by Andrew Wells*

To date, thirty-six states have legalized the possession and use of medical marijuana. However, marijuana possession—regardless of use—is still a federal crime under the Controlled Substances Act (21 U.S.C. § 811). This discrepancy means that an individual legally using medical marijuana under state law can still be prosecuted for violating federal law. In this Contribution, Andrew Wells (’22) argues that Fifth Amendment privilege invocation is proper in such circumstances because the Fifth Amendment protects individuals against compelled disclosures that would create the possibility of prosecution.

The Fifth Amendment states that “[n]o person . . . shall be compelled in any criminal case to be a witness against [themselves].”1 While the Fifth Amendment only explicitly references criminal prosecutions, the Supreme Court has held that the privilege against self-incrimination can be properly invoked “in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory” so long as an individual is compelled to provide testimony that they reasonably believe could be used in a criminal prosecution.2 Outside of a civil or criminal proceeding, the Supreme Court has held that individuals may properly invoke Fifth Amendment privilege when a compelled disclosure creates a “substantial and ‘real,’ and not merely trifling or imaginary, hazard[] of incrimination.”3

Thirty-six states have legalized medical marijuana, and forty-nine states have officially acknowledged the medical benefits of marijuana.4 At the federal level, however, marijuana is still listed as a Schedule I drug in the Controlled Substances Act.5 The incongruity between federal and state laws in their treatment of marijuana is known as the “marijuana policy gap”6 and is the focus of this Contribution. In a state that has legalized medical marijuana, state regulatory agencies may have legitimate reasons for requiring the disclosure of medical marijuana use by license holders. For example, agencies may feel compelled to restrict conduct prohibited under federal law. However, a compelled disclosure in that situation would also be self-incriminating because it requires license holders to admit to a violation of the Controlled Substances Act. As such, compelled disclosure of medical marijuana use by a state regulatory agency may be protected by the Fifth Amendment privilege against self-incrimination, even if such disclosure does not create state-level criminal liability.

Ultimately, this Contribution argues that an individual may properly invoke Fifth Amendment privilege in response to any compelled disclosure of medical marijuana use by a state regulatory agency, regardless of whether that disclosure occurs within a disciplinary proceeding context or not.

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The Supreme Court has asserted that the privilege against self-incrimination “must be accorded liberal construction,” even if such broad allowance “adds to the burden of diligence and efficiency resting on enforcement authorities, [because] any other conclusion would seriously compromise an important constitutional liberty.”7 This liberal construction is influenced by the Court’s understanding that the privilege against self-incrimination is the bedrock of an individual’s rights in the face of compelled testimony.8 The  Court has noted that society’s “unwillingness to subject those suspected of a crime to the cruel trilemma of self-accusation, perjury, or contempt” is a reflection of “our most fundamental values and noble aspirations.”9

The Supreme Court expanded upon this liberal construction of the Fifth Amendment privilege when it held that the privilege protects compelled statements beyond just the criminal cases envisioned by the text of the amendment.10 In doing so, the Court has recognized a range of government actions outside the criminal interrogation process as being sufficiently compulsive to allow for Fifth Amendment protection, including the potential firing of a public employee.11 Directly on point to the consideration of licensees using medical marijuana, the Court held in Lefkowitz v. Turley that architects who held licenses to contract with New York State had the right to invoke Fifth Amendment privilege when forced to answer self-incriminating questions on the pain of having their licenses revoked.12 Garrity v. New Jersey and Lefkowitz establish that license holders who are forced by the state to answer questions under threat of losing their jobs are faced with government compulsion sufficient to invoke the Fifth Amendment if those answers would amount to self-incrimination.

The operative question, then, is what threshold risk of prosecution arising from a compelled statement is sufficient to warrant Fifth Amendment protection, and whether the risk of federal prosecution arising from disclosure of state-sanctioned medical marijuana use meets that threshold. The Supreme Court has established that, “in any proceeding, civil or criminal” where an individual is responding directly to questions, the Fifth Amendment privilege against self-incrimination protects “any disclosure[] which [an individual] reasonably believes could be used in a criminal prosecution.”13 Determinations of whether an individual in a criminal or civil proceeding held a reasonable belief that their compelled responses to incriminating questions could lead to criminal prosecution is a fact‑intensive and context‑specific inquiry,14 focusing on the “the implications of the question, in the setting in which it is asked.”15 Outside the context of a proceeding in which an individual was responding directly to incriminating questions, the Court has articulated that compelled disclosures are still protected by the Fifth Amendment when an individual is confronted by a “real and substantial . . . hazard[] of incrimination.”16 The underlying facts of Marchetti v. United States illustrate this point: Marchetti invoked Fifth Amendment privilege in refusing to fill out an IRS form identifying profits from his illicit gambling activity in Connecticut. The Court held that, even though Marchetti had been prosecuted for his gambling activity in the past (and so could not invoke Fifth Amendment protection for that activity), filing gambling revenues with the IRS would subject him to heightened scrutiny from state and federal prosecutors for all of his future activity. This risk of heightened prosecutorial scrutiny, the Court reasoned, amounted to a “real and substantial” hazard of incrimination.17 Because Marchetti v. United States’ “real and substantial hazard of incrimination” standard applies to all invocation of Fifth Amendment privilege, not just those occurring in a proceeding, Hoffman’s context-specific, “implication and settings” approach is not always applicable. Instead, courts determining whether an individual faced a risk of criminal prosecution sufficient to invoke Fifth Amendment privilege have considered whether prosecution was possible.18

The properly understood standard for invocation of Fifth Amendment privilege, while expansive, does have explicit limitations. The Fifth Amendment privilege does not extend to an individual’s compelled testimony for which there is an “absolute bar to subsequent prosecution.”19 In circumstances where the prosecution of an individual on the basis of their compelled disclosure is explicitly barred by procedural grounds, such as the statute of limitations or double jeopardy, then invocation of the privilege is improper.20 Fifth Amendment privilege is also limited to disclosures that have the possibility to “further incriminate” an individual. Invocation of the privilege is thus not able protect a compelled disclosure if the individual had previously volunteered the same incriminating information.21 Finally, Fifth Amendment privilege does not protect an individual from being compelled to provide testimony if the federal government has extended immunity from prosecution on the basis of that individual’s compelled testimony.22 Such immunity can be extended by the federal government in two ways. First, Congress may pass a prospective immunity statute that prohibits federal prosecution for disclosures made in regulatory proceedings, such as the Compulsory Testimony Act of 1893, which immunized statements made before the Interstate Commerce Commission.23 Second, United States Attorneys may petition district courts on a case-by-case basis to grant immunity to witnesses in order to compel their testimony pursuant to 18 U.S.C. §§ 6002 and 6003.24

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Because there is not an absolute bar on federal prosecution for possession of marijuana­­­­­­—and no distinction in the Controlled Substances Act between possession for medical or recreational purposes—individuals must be allowed to invoke Fifth Amendment privilege. This is because, as noted in the decisions above, federal prosecution for such possession is possible.25

Marijuana possession is a federal crime,26 and the federal statute of limitations for marijuana possession runs for five years.27 Based on advances in the understanding of the medical uses for cannabis, medical marijuana use has been legalized in at least some capacity in the majority of states.28 According to the Marijuana Policy Project, over 4.5 million people had active prescriptions for medical marijuana in 2020. However, the Supreme Court held in Gonzales v. Raich that state laws legalizing medical marijuana do not preempt the federal government from pursuing federal prosecutions for marijuana possession under the CSA.29 Thus, an individual compelled to disclose their use of medical marijuana today would be directly implicating themselves in a federal crime, regardless of the legalization of marijuana at the state level, for which they could face prosecution for up to five years.

While Gonzales affirms that the federal government unquestionably has the power to prosecute individuals for marijuana possession in medical marijuana states,30 officials in Congress and the Department of Justice (“DOJ”) have recently demonstrated that they are not particularly interested in exercising this power. On a yearly basis since fiscal year 2014, Congress has passed an appropriations rider to the federal budget, which prohibits treasury funds from being spent pursuing federal prosecutions for marijuana possession against medical marijuana users in compliance with all applicable state laws.31  This appropriations rider prohibits the DOJ from spending money to prosecute marijuana possession cases in medical marijuana states as long as it is included in the federal budget.32

However, the federal government’s current lack of interest in prosecuting marijuana possession in medical marijuana states does not eliminate the “possibility of prosecution” and therefore cannot justify the denial of the privilege if it is invoked.33 The appropriations rider “does not provide immunity from prosecution for federal marijuana offenses,” because “Congress could restore funding tomorrow . . . and the government could then prosecute individuals who committed offenses while the government lacked funding.”34

The official policy stance of the DOJ regarding federal prosecution of marijuana offenses in medical marijuana states also suggests that the current dearth of federal prosecution is an uneasy peace. In 2018, Attorney General Jeff Sessions circulated a memorandum to all United States Attorneys reaffirming the DOJ’s ability to prosecute all marijuana crimes pursuant to “investigative and prosecutorial discretion in accordance with all applicable laws.”35 According to the Sessions memo, which currently dictates DOJ policy, prosecutions of marijuana possession in marijuana-legal states could resume as soon as the appropriations rider is rescinded.36 Further, even if a future Attorney General circulates new guidance discouraging United States Attorneys from federally prosecuting marijuana possession in medical marijuana states, that guidance alone would be insufficient protection from potential future prosecution to warrant the denial of privilege where state regulatory agencies compel incriminating testimony concerning medical marijuana use.37 Simply, discouragement is a far cry from a prohibition and so as long as there is a potential for future prosecution, the privilege must be afforded to compelled individuals.

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Although it is unlikely that state-compliant medical marijuana users would face federal criminal charges given current federal policies, an individual may still properly invoke the Fifth Amendment privilege in response to a compelled disclosure of medical marijuana use by a state agency because such disclosure exposes them to the possibility of federal prosecution.38 This is true because “[n]either the practical unlikelihood of further prosecution, nor the [prosecutor’s] denial of an intention to charge” are sufficient for finding those individuals’ implications of privilege improper.39 This expansive conception of Fifth Amendment privilege as it applies to compelled disclosures of federally criminalized medical marijuana possession is consistent with settled Supreme Court precedent.40 Further, lower courts have demonstrated that executive officials and agencies that need to compel potentially incriminating testimony may do so without infringing on the Fifth Amendment by demonstrating that there is an “absolute bar to future prosecution” on the basis of the compelled disclosure.41 Unless and until state regulatory agencies can demonstrate that such a complete barrier exists, individuals who are compelled by those agencies to disclose state-compliant medical marijuana use may properly invoke Fifth Amendment privilege.

* Andrew Wells is a J.D. Candidate (2022) at New York University School of Law. This piece arose from the problem presented at the 2021 Frank A. Schreck Gaming Law Competition at the William S. Boyd School of Law at the University of Nevada, Las Vegas. The issue in the problem considered whether an individual may properly invoke the Fifth Amendment privilege against self-incrimination in response to questions about their medical marijuana use in the context of a state regulatory proceeding in a state that has legalized medical marijuana. The views expressed in this article do not necessarily represent the views of the author on this point of law. Rather, this article is a distillation of one side of the arguments made by the team at the Schreck Gaming Law Competition.

1. U.S. Const. amend. V.

2. Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (citations omitted).

3. Marchetti v. United States, 390 U.S. 39, 53 (1968) (quoting Rogers v. United States, 340 U.S. 367, 373 (1951) and Brown v. Walker, 161 U.S. 591, 16 S. Ct. 644, 40 L. Ed. 819 (1896)).

4. Medical Marijuana by the Numbers, Marijuana Pol’y Project, https://www.mpp.org/issues/medical-marijuana/medical-marijuana-numbers/ (last visited Mar. 27, 2022).

5. 21 U.S.C. § 812.

6. See generally Joanna R. Lampe, Cong. Rsch. Serv., LSB10482, State Marijuana “Legalization” and Federal Drug Law: A Brief Overview for Congress (2020).

7. Hoffman v. United States, 341 U.S. 479, 489-90 (1951).

8. See, e.g., United States v. White, 322 U.S. 694, 699 (1944) (declaring the privilege “a bulwark against iniquitous measures of prosecution”).

9. Murphy v. Waterfront Com’n, 378 U.S. 52, 55 (1964) abrogated on other grounds by United States v. Balsys, 524 U.S. 666, 667 (1998).

10. See Kastigar v. United States, 406 U.S. 441, 444-45 (1972) (stating that the Fifth Amendment privilege “can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory”); Marchetti v. United States, 390 U.S. 39, 53 (1968) (“The central standard for the privilege’s application has been whether the claimant is confronted by substantial and ‘real,’ and not merely trifling or imaginary, hazards of incrimination.” (internal quotation marks omitted) (citations omitted).

11. See Garrity v. New Jersey, 385 U.S. 493, 500 (1967) (holding that the Fifth Amendment protected police officers from being forced to provide incriminating testimony under threat of removal from office, and that this protection “extends to all,” including “members of our body public”).

12. 414 U.S. 70, 82-83 (1973) (holding that the “threat of substantial economic sanction” is sufficiently compulsive to warrant Fifth Amendment protection).

13. Kastigar, 406 U.S. at 444-5.

14. See Convertino v. United States Dept. of Just., 795 F.3d 587, 592 (6th Cir. 2015) (stating that invocation of the Fifth Amendment privilege in response to a compelled disclosure is improper only “if it is ‘perfectly clear, from a careful consideration of all the circumstances in the case, that [an individual] is mistaken, and that the answer(s) cannot possibly have such tendency’ to incriminate.” (quoting Hoffman v. United States, 341 U.S. 479, 488 (1951))).

15. Hoffman, 341 U.S. at 486­-87.

16. Marchetti v. United States, 390 U.S. 39, 53 (1968).

17. Id.

18. See In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974) (“[T]he right to assert one’s privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution.” (citations omitted)); In re Folding Carton Antitrust Litig., 609 F.2d 867, 871 (7th Cir. 1979) (reversing the finding of the trial court that a witness’s invocation of privilege was improper, stating “we cannot agree that a witness’ constitutional privilege against self-incrimination depends upon a judge’s prediction of the likelihood of prosecution”).

19. Cf. Folding Carton, 609 F.2d at 872.

20. See id. (asserting that procedural bars on prosecution are appropriate limitations for the scope of an asserted privilege).

21. E.g., Rogers v. United States, 340 U.S. 367, 373 (1951); Brown v. Walker, 161 U.S. 591, 597 (1896).

22. Kastigar v. United States, 406 U.S. 441, 462 (1972).

23. Id. at 451.

24. Id. at 462.

25. See In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974) ((“[T]he right to assert one’s privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of prosecution.” (citations omitted)).

26. See generally Controlled Substances Act, 21 U.S.C. § 801 et seq.

27. 18 U.S.C. § 3282(a).

28. See Medical Marijuana by the Numbers, supra note 4.

29. 545 U.S. 1, 9 (2005).

30. Id. at 17.

31. See generally Consolidated Appropriations Act of 2020, Pub. L. No. 116–93, 133 Stat. 2317, 2431 (2019); Joanna R. Lampe, Cong. Rsch. Serv., LSB10482, State Marijuana “Legalization” and Federal Drug Law: A Brief Overview for Congress 3 (2020).

32. United States v. McIntosh, 833 F.3d 1163, 1178 (9th Cir. 2014).

33. In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974).

34. McIntosh, 833 F.3d at 1179 n. 5.

35. Office of the Att’y Gen., Memorandum for All United States Attorneys (Jan. 4, 2018), available at https://www.justice.gov/opa/press-release/file/1022196/download (last visited Mar. 27, 2022).

36. Id. (“[T]his memo is intended solely as a guide to the exercise of investigative and prosecutorial discretion in accordance with all applicable laws, regulations, and appropriations.”).

37. See United States v. Miranti, 253 F.2d 135, 139 (2d Cir. 1958) (“We find no justification for limiting the historic protections of the Fifth Amendment by creating an exception to the general rule which would nullify the privilege whenever it appears that the government would not undertake to prosecute.”).

38. In re Master Key Litig., 507 F.2d 292, 293 (9th Cir. 1974).

39. United States v. Johnson, 488 F.2d 1206, 1209 n.2 (1st Cir. 1973).

40. See Hoffman v. United States, 341 U.S. 479, 486, 489-90 (1951) (stating that the Fifth Amendment privilege “must be accorded liberal construction,” even if such broad allowance of the privilege “adds to the burden of diligence and efficiency resting on enforcement authorities, [because] any other conclusion would seriously compromise an important constitutional liberty”).

41. See In re Folding Carton Antitrust Litig., 609 F.2d 867, 872 (7th Cir. 1979) (recognizing that limitations on Fifth Amendment privilege invocations are appropriate where there is an “absolute bar to subsequent prosecution”).