500
Stevens, J., concurring in judgment
ously ill persons upon a physician's recommendation violates federal law," and if so, whether such distribution "should be enjoined pursuant to the injunctive relief provisions of the federal Controlled Substances Act." United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1091 (ND Cal. 1998) (emphasis added).
Accordingly, in the lower courts as well as here, respondents have raised the medical necessity defense as a justification for distributing marijuana to cooperative members, and it was in that context that the Ninth Circuit determined that respondents had "a legally cognizable defense." 190 F. 3d 1109, 1114 (1999). The Court is surely correct to reverse that determination. Congress' classification of marijuana as a schedule I controlled substance—that is, one that cannot be distributed outside of approved research projects, see 21 U. S. C. §§ 812, 823(f), 829—makes it clear that "the Controlled Substances Act cannot bear a medical necessity defense to distributions of marijuana," ante, at 494 (emphasis added).1
Apart from its limited holding, the Court takes two unwar-ranted and unfortunate excursions that prevent me from joining its opinion. First, the Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the defense of necessity is unavailable for anyone under the
1 In any event, respondents do not fit the paradigm of a defendant who may assert necessity. The defense "traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils." United States v. Bailey, 444 U. S. 394, 410 (1980); see generally 1 W. LaFave & A. Scott, Substantive Criminal Law § 5.4, pp. 627-640 (1986). Respondents, on the other hand, have not been forced to confront a choice of evils—violating federal law by distributing marijuana to seriously ill patients or letting those individuals suffer—but have thrust that choice upon themselves by electing to become distributors for such patients. Of course, respondents also cannot claim necessity based upon the choice of evils facing seriously ill patients, as that is not the same choice respondents face.
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