Are Cannabis Registries Unconstitutional?

Can you refuse to comply with cannabis registration requirements on the theory that it violates your Fifth Amendment right not to incriminate yourself?

Maybe.

At least two courts have said no. But there’s a legitimate argument that those courts are wrong.

Registration Requirements

Participating in states’ cannabis industries often requires registering with the state governments. The exact registration requirements varies. But essentially, registration is anything that requires an application to the government.

Some examples.

Nevada’s medical marijuana program requires that persons register with the state government and obtain registry identification cards.

The District of Columbia requires that prospective medical marijuana cultivators file an application in which the applicants admit that they are violating federal law.

The City of Colton in California requires a permit for cultivating cannabis plants inside a private residence.

The Fifth Amendment

The Fifth Amendment Self-Incrimination Clause grants you the right to remain silent. The government can’t force you to say something that may show you committed a crime.

The criminal part of the Fifth Amendment here is no mystery. Federal law criminalizes cannabis. So anything linking you to it tends to show you committed a crime.

But what counts as force? Is the government forcing you to register to enter the cannabis industry? Or is that your choice?

Two Cases on Fifth Amendment Rights with Cannabis Registries

The Nevada Supreme Court (Doe v. State ex rel. Legislature of 77th Session of Nevada) and the District Court for the District Court of Columbia (Sidley v. Obama) have both said that compelled registration is a voluntary choice. You can enter the cannabis industry (and register). Or you can not enter the industry (and not register). And because you have that choice, you can’t claim a third option of entering the cannabis industry and not registering.

But these courts might not be right. Their analysis hinged on a 1984 Supreme Court case, Selective Service System v. Minnesota Public Interest Research Group. This case addressed a law that required students seeking financial aid to certify that they registered for the draft. The Supreme Court found the financial-aid law constitutional because the students weren’t required to apply for financial aid. They could still go to university without it.

The Nevada appellate and federal trial courts found the cannabis-registry laws to be basically the same as the financial-aid law. You can choose not to participate in the state’s cannabis industry, so you’re not being forced to register.

This sounds right.

Until you consider another Supreme Court case.

A Contrary Supreme Court Case

Marchetti v. United States involved a law requiring that certain gamblers register with the government. The Supreme Court found that law unconstitutional because gambling was largely illegal. So there’s a real danger that registration equals self-incrimination.

There’s more. The court recognized that it previously reached the opposite result around a decade earlier. In that earlier decision, the court found that the Fifth Amendment did not apply because “the gambler need not register or pay the occupational tax if only he elects to cease, or never to begin, gambling.”

Sound familiar?

Marchetti rejected this line of reasoning, calling it “no longer persuasive.”

So query. Maybe Marchetti—and not Minnesota Public Interest Research Group—should be the touchstone for analyzing cannabis registration requirements. It’s more on point. Both involve persons who want to (or are) participating in an industry. And both involve laws that require registration to participate in that industry.

Contrast that with Minnesota Public Interest Research Group. That’s about persons who want to participate in an industry (education). But draft registration isn’t required for participating in that industry. They can go to school whether or not they register.