Ten years ago John Edward Schostag pled guilty in a U.S. District Court in St. Paul, Minnesota to being a felon in possession of a firearm. He was sentenced to 120 months in a federal penal facility and to five years of supervised release.


In October 2015, Schostag was released from federal penal custody and began serving his supervised release. Federal supervised release is akin to a state parole release. The inmate is released from actual prison custody and must spend a specified about of time under the supervision of either a probation or parole officer.


Conditions of Supervised Release


Like a state parole release, federal supervised release imposes prescribed standard conditions, statutorily mandated conditions, and any special conditions the sentencing court feels are warranted in a specific case. Among a long list of additional conditions imposed on Schostag, the sentencing court imposed the following:


  • Mandated Conditions – that Schostag “not commit another federal, state or local crime, to “not unlawfully possess a controlled substance,” and to “refrain from any unlawful use of a controlled substance.”
  • Standard Conditions – That Schostag “not purchase, possess, use, distribute, or administer any controlled substance or paraphernalia related to any controlled substances, except as prescribed by a physician.”
  • Special Conditions – That Schostag “shall not commit crimes, federal, state, or local.”


Marijuana Remains Controlled Substance


Under the federal Controlled Substances Act, 21 U.S.C. § 812(b)(1),(c), marijuana of any kind is categorized as a Schedule I drug with, as the U.S. Supreme Court held in 2005, a “high potential for abuse, lack of any accepted medical use, and absence of any safety for used in medically supervised treatment.”


In 2014, the State of Minnesota—the state where Schostag resided during his supervised release—began allowing physicians to prescribe certain forms of medical marijuana.


Medical Marijuana Violates Conditions of Release


Three years after medical marijuana was legalized in Minnesota a physician prescribed a vaporized oil containing tetrahydrocannabinol (THC) for Schostag’s “chronic pain” condition. Schostag immediately informed (April 2017) his probation officer about the medical marijuana prescription.


The probation officer took a hardline position, informing Schostag that the use of marijuana, even if prescribed for medical purposes, is, as the Eighth Circuit Court of Appeals said in a July 13, 2018 decision, “prohibited under federal law and in violation of [Schostag’s] supervised release.”


In May 2017, just one month after he informed the probation officer about his use of medical marijuana, Schostag tested positive for marijuana. The probation officer immediately filed a “Petition on Supervised Release and a Violation Report.”


Judge Prohibits Use of Medical Marijuana


The sentencing court conducted a revocation hearing at which Schostag freely admitted to using medical marijuana as prescribed by a physician and in compliance with the standard conditions of his supervised release. While the court did not revoke Schostag’s supervised release, the sentencing judge did modify his standard conditions prohibiting any future use of medical marijuana even if prescribed by a physician. The judge informed Schostag that he would have to find an alternative method to manage his chronic pain condition.


Schostag appealed this restrictive modification to the Eighth Circuit.


Medical Marijuana Contravenes Federal Law


Following the lead of a 2011 decision by the Ninth Circuit Court of Appeals upholding a district judge’s revocation of supervised release for a defendant’s use of medical marijuana, the Eighth Circuit held that “Schostag’s use of marijuana—even for medical purposes—contravenes federal law.”


This is the trend in federal courts now concerning the use of medical marijuana while under supervised release.


Last year a U.S. District Court in the District of Columbia held that individuals serving supervised release sentences may be “prohibited from using state-sanction medical marijuana while under federal court supervision.”


This is a case of justice gone awry.


Schostag had a legitimate medical condition. A physician issued a prescription for medical marijuana to treat that condition as he was authorized to do under Minnesota law. Schostag used the medical marijuana as prescribed which, under the standard conditions of his supervised release, was permitted because it had been prescribed by a physician, just as other controlled substances.


There’s nothing fair about this draconian doctrine.