Holder's Baby Step On Medical Marijuana

The Obama Justice Department made news today by codifying a previously-announced policy of ending raids on medical marijuana dispensaries which comply with state laws. Even though medical marijuana is legal in fourteen states -- over one-fourth of the country -- it is still illegal under federal law (the Controlled Substances Act). Since federal law always trumps state law, this has led to continuing raids on dispensaries which state and local governments have explicitly allowed to operate. When President Obama took office, he announced that these raids by the feds would cease, as long as the dispensaries weren't breaking applicable state laws in their operation. A few raids subsequently took place in California, leading to some distrust and skepticism, but today Attorney General Eric Holder sent out guidelines to federal attorneys to halt these raids. This is good news for medical marijuana advocates, but even though this is a historic shift in the War on Drugs, it simply does not go far enough -- because it does not adequately resolve the illogic of the underlying legal issue. At best, it should be seen as only a good first (baby) step on the road towards a rational and cohesive federal medical marijuana policy.

The underlying problem is the fact that the federal government, via the Controlled Substances Act, refuses to admit that marijuana can ever be used medically. This leads to some serious doublethink on the federal level, and also leads to some serious injustice in the courtroom. And nothing the Department of Justice said today changes any of that.

I've written before about the issue of what "schedule" marijuana falls into under the Controlled Substances Act. Schedule I -- which includes marijuana -- differs from Schedule II in only one regard. From the Schedule I language: "The drug or other substance has no currently accepted medical use in treatment in the United States." Schedule II drugs are just as illegal as Schedule I, but have "a currently accepted medical use with severe restrictions." Schedule II drugs include: cocaine, opium, amphetamine, methamphetamine, PCP, and secobarbital. Possessing any of these without a prescription will get you locked up, but the possibility for a doctor to prescribe them exists within the law. Marijuana is not included in this list.

The doublethink occurs when you consider that, since the 1970s, there have been patients who were prescribed marijuana (not the synthetic Marinol, but actual smokable marijuana) to treat their glaucoma. They received prescription joints from their pharmacy, directly from the federal government. At the very same time that marijuana had "no currently accepted medical use." So federal law stated, in essence, that no medical use existed -- except for the patients we're supplying marijuana to.

But the true injustice is the federal gag rule. From the article in today's Washington Post on the new Department of Justice memo:

...the document, posted on the department Web site... makes clear that the department is not "legalizing" marijuana or creating a new legal defense for people who may have violated the Controlled Substances Act.

. . .

Representatives of the group also raised questions about the Justice Department policy shift Monday, wondering, for instance, whether federal prosecutors might allow defendants to introduce medical evidence in criminal cases brought in federal courts. Federal prosecutors have more than two dozen active cases in which defendants have been barred from using evidence of their medical problems.

The actual text of the memo makes this clear, too:

Nor does clear and unambiguous compliance with state law... create a legal defense to a violation of the Controlled Substances Act.

What this all means is that defendants are prohibited from attempting what is known as a "medical necessity defense" in federal courtrooms. In other words, it does not matter whether your doctor tells you that if you don't ingest marijuana you will likely die -- because you cannot tell the jury this during your trial.

In one of the earliest of these federal cases (after Proposition 215 passed in California, legalizing medical marijuana at the state level), Ed Rosenthal had actually been deputized by the city of Oakland, but could not even mention this fact during his trial. The jury heard all the evidence against him, as if he were some street dealer -- but they were precluded by federal law from hearing him attempt to adequately defend himself. He was not allowed to say "I was growing marijuana for medical patients," or to even bring up the fact that the city and state approved what he was doing, and had given the strongest possible stamp of approval to him. The city had thought that deputizing Rosenthal would immunize him, because there is a loophole in the drug laws for undercover police to handle and possess illegal drugs in the performance of their duties. It didn't work, because the jury never heard about it. Nor did they hear his "medical necessity" defense, because his lawyer was not allowed to say one word about it. When informed of the true facts of the case, after they had convicted him, several members of the jury apologized profusely to Rosenthal for the travesty of justice they had just played a part in. One said, of the conviction: "It's the most horrible mistake I've ever made in my entire life."

The concept of a "necessity" defense is a simple one in common law. Its purpose is to explain lawbreaking due to a necessity to prevent a greater evil than the breaking of the law. Say you were walking down a sidewalk and saw a blind man wandering in the street in the path of a bus. If you jumped out and dragged him to safety, you could technically be cited for jaywalking. But the evil of not acting to save the man's life is far greater than the evil of breaking the jaywalking law, so if a cop was insane enough to cite you, you could argue in court the reason you had for breaking the law in the first place, in your defense.

But if you try to argue a "medical" necessity in your defense against breaking federal drug law, all you will get in federal court is a mistrial or even contempt of court conviction (as happened to the Oakland Cannabis Buyers' Cooperative -- a different case from Rosenthal's -- where a medical necessity defense was specifically disallowed by the U.S. Supreme Court).

What this all means is that today's news, while good for the medical marijuana movement, is simply not good enough, because it changes no underlying federal law. Meaning that, if President Obama -- and Attorney General Holder, and the local Drug Enforcement Agency, and the local federal prosecutor -- all deem a particular medical marijuana dispensary acceptable, then it won't be raided. But if anyone in that chain of command decides you're outside the state law in any way, then you cannot even mention the words "medical marijuana" in your court case after they arrest you. You will simply be prosecuted as a "dealer" or "trafficker" and will be gagged so you cannot explain who you were really selling marijuana to.

This is still unacceptable. The citizens of fourteen states have determined that medical marijuana should be allowable. At the very least, you should be able to present this defense to a jury in a federal courtroom. Because without this change, all it would take is one D.E.A. office or one federal attorney to take a dislike to your operation, and you won't even be allowed to adequately defend yourself in court. And even if everyone in that chain of authority behaves themselves for the next four (or eight) years, Obama won't always be president. Meaning that all it would take is another memo by another attorney general, and the policy will go right back to where it was previously.

Being able to mount an adequate legal defense is a bedrock of the American justice system. Gagging a valid defense in such a fashion is nothing more than a travesty within this system. It is not justice -- it is rank injustice.

Of course, the real answer is to move marijuana to Schedule II. This would not only allow a legal defense in a courtroom, but it would make it much harder to overturn later on (under a different president). And, while Congress is capable of doing this, it doesn't seem likely any time soon (Barney Frank introduced such a bill, H.R. 2835, in the House this earlier this year -- but it has less than 30 cosponsors, and will likely get quietly buried in the Energy and Commerce committee without even getting a committee vote). But Congress doesn't even have to act in order to reschedule marijuana under the Controlled Substances Act. Right there in the text of the law is the following: "the Attorney General may by rule ... transfer between such schedules any drug or other substance...."

Meaning that, while today's news is indeed a positive step towards legal acceptance of medical marijuana, it is a baby step at best. Because Attorney General Holder could have solved the problem once and for all. Instead, while limiting raids by federal agents, he retains the federal government's doublethink on the issue. Fourteen states have legalized medical marijuana. The practice of medicine is supposed to be regulated by the states. And yet, even after one-fourth of the states have said that there is a medical use for the cannabis plant, the federal government refuses to recognize this reality, and continues its position that marijuana is more dangerous to the public than cocaine, methamphetamine, opium, and PCP.

One almost wonders what they've been smoking, to come up with such a ridiculous legal stance.

 

[Legal Note: Anyone wishing to look into the court cases mentioned in this article should check out United States v. Ed Rosenthal and United States v. Oakland Cannabis Buyers' Cooperative. The Rosenthal link is a collection of articles (best link I could find with a limited search), but the O.C.B.C. link is the full legal record of the trial, in original documents. Another Supreme Court case worth looking at, where a slightly different defense was unsuccessfully used, is Gonzales v. Raich (was originally Ashcroft v. Raich).]

 

Chris Weigant blogs at: ChrisWeigant.com

 

 

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Comments

[Chubbster]

Decriminalize pot now.

[pepper47]

I don't think the classification of schedule I was ever meant to suggest that those drugs are more dangerous to the public than cocaine, methamphetamine, opium, and PCP. Schedule I drugs are in that catagory because they are of no known medical use, They are mostly psychedelics.

Also PCP is in scedule one, the precursor to it is in schedule two.


http://www.deadiversion.usdoj.gov/schedules/schedules.htm

[fredamae]

The Hemp/Cannabis Debate is laying out Just like the Health Care Debate.

Cannabis IS Undeniably An Integral Part Of The Health Care Debate!

Science, History and Common Sense Has Proved The Medicinal Value Of This Phytomedicine!

Science, History and Common Sense Has Proved The Industrial Value of Hemp!

The People are Smarter, Have and Use More Common Sense as the Majority of Congressional Body Panders to Big Corps Without Having Demonstrated There Is No Other Reasonable Alternative To Pursuing Cannabis Consumers For The Sole Intent Of Supporting LEO, The Prison Industrial Complex, Health Care Industry, BigPharma, Beer/Wine Industries, Tangible Goods Industry(hemp) and Many Etc's.

So Many Jobs Could Be Created PLUS the Literal Billion's in Revenue Saved By Ending Just Cannabis Eradication Programs!

People! IT IS OUR ELECTED FEDERAL CONGRESSIONAL MEMBERS THAT MAINTAIN THESE DRACONIAN LAWS, RULES AND POLICIES! NOT PRES. OBAMA!!!!!

MAKE THEM CHANGE STATUS QUO!

Follow The Directives Of The People, By The People and For The People.

Like Public Option, The Majority Of Americans Say Yes to Federally DE-Scheduling and DE-Criminalizing Cannabis!

[Chubbster]

The continued demonization and criminalization shows how pathetic we really are...

[ConnieInCleveland]

More people would support reclassification of cannabis hemp if they knew the facts. Important facts were removed from educational material and replaced with 'Reefer Madness'. That didn't happen by accident. It was done with forethought. They knew if they removed facts, people would be unable to make educated decisions to support the plant.

Cannabis hemp has so many positive facts, it's hard to believe they were able to hide it's history. But alas, they were able to remove facts and spin disinformation and fear. I was in my mid 30's before I read "The Emperor Wears No Clothes" by Jack Herer and found out they had been lying. The facts did not support the ban on cannabis hemp. They were using distortion to promote their 'war on cannabis'.

The history of cannabis does not support the war. American corporations and our own government were allowed to distort the truth in the name of war. Once war was declared and 'drug testing' became common practice, people had to fear the loss of their lively hood if they stood up for truth.

Truth should win, over spin.

[ConnieInCleveland]

I agree with Abraham Lincoln, Thomas Jefferson, George Washington and John Adams.

"Two of my favorite things are sitting on my front porch smoking a pipe of sweet hemp, and playing my Hohner harmonica." - Abraham Lincoln (from a letter written by Lincoln during his presidency to the head of the Hohner Harmonica Company in Germany)

"Hemp is of first necessity to the wealth & protection of the country."
- Thomas Jefferson, U.S. President

"Make the most you can of the Indian Hemp seed and sow it everywhere."
- George Washington, U.S. President

"We shall, by and by, want a world of hemp more for our own consumption."
- John Adams, U.S. President

[Chubbster]

That was long ago when we had real leaders and had not yet become a fascist state.

[RevRayGreen]

Iowans 4 Medical Marijuana

IMMEDIATE RELEASE: 10/20/09

In a 3-page memo from the U.S. Department of Justice release on October 19, the Obama Administration has formally announced a new federal medical marijuana policy to respect states’ rights to exempt medical patients from the war on drugs. 13 have already enacted laws protecting medical use of marijuana, and the state of Iowa may be next.

To understand what is going on, one must understand that federal drug law is, and always has been, and unfunded mandate. Because state drug law makes the same activity illegal (possession of marijuana, for example), the unfunded part of the federal drug law is normally taken care of by the states.

states tinker with state drug law, such as legalizing the medical use of marijuana1) to step in and take up the slack; or (2) back off. The Obama Administration has chosen the hands off approach

Federal drug law is actually a contract with the states. The contract requires each of the parties to do their part in upholding the contract. Because the states have the power to amend federal drug law by way of the Administrative Procedures Act, the states have failed to uphold their part of the contract. Of the 13 states that have legalized the medical use of marijuana, not one of them has asked the federal government to remove marijuana from its current classification as a substance with no accepted medical use in treatment in the United States.

[RevRayGreen]

Here is my testimony from Iowa City Oct 7th 2009

http://www.vimeo.com/6996770


Iowa Board of Pharmacy Hearing on Medical Marijuana

http://vimeo.com/6968195

[flower power]

As a conservative I must say, this is the first step the Obama administration has taken that I can actually support. The idea that pot is illegal in the first place is so ridiculous it defies all logic. Why can't people decide for themselves what they can consume? Why are we putting people in jail for possessing a product that would probably make society much more happy and less violent? If Obama and Holder can get marijuana legalized it will go a long way toward pulling in support from people like me that never would have, otherwise, given any support at all.

[Chris Weigant - Huffpost Blogger]

flower_power -

I'm trying hard to picture a conservative with the moniker "flower power" but I'm having trouble.

Heh heh. This is why I like Libertarians, because you get people from the far left and the far right agreeing on things at times. While I'm not officially one myself, I have to say they're the most interesting political group around.

:-)

-CW

[flower power]

I consider myself a conservative with some hard libertarian leanings. I am a former hard core leftist and committed communist party member so I can appreciate much of the lefts perspective. I completely understand where many people on the left stand and on most social issues I am wth them.

[Brinna]

You want to talk "doublethink," Mr. Weigant? In my opinion, the most under-reported story in mainstream media with regard to government's official position on medical marijuana (and its persistent classification in Schedule I under the CSA, as having no medical use) is the fact the US Dept. of Health and Human Services holds a patent (#6,630,507) based upon the medicinal properties of cannabis. The patent was awarded in 2003, and the US Govt. is offering it for licensing!

This patent, based on research done at the National Institute of Health, states specifically that cannabinoids (derived from cannabis) are useful in the PREVENTION and TREATMENT of a wide variety of ailments, including stroke, trauma, auto-immune disorders, Parkinson's, Alzheimer's and HIV dementia.

In spite of this, the FDA, daughter organization under HHS, stated in 2006, that "after checking with all their departments and agencies" they still maintain that cannabis is not a medicine. Clearly, they neglected to check with their patent department.

[TakeSake]

How about this:
1) Everyone knows that cannabis has useful and effective medicinal properties.
2) There are powerful interests who stand to lose their position should cannabis be available.
3) Those interests recognize that one day it could become legal.
4) A patent is held by the U. S. government.

Therefore:
5) Someone is really going to get a lot in licencing fees when it becomes "legal". (That is, legal only for corporations to sell some processed version with the natural herb still being illegal)

[Paulied]

OK, hold up! The President is now ignoring superceding federal law in favor of state laws? I guess the old "goverment of laws" meme only applies DOMA and DADT. Interesting.

[illinoisan]

Interesting to note that Obama didn't act unilaterally on DADT specifically because the next president could simply reinstate it.

[sherbug]

Why not just legalize marijuana. Legalize all of it for that matter.

[Raccoon1]

I think this is a prepatory step toward Califormia legalizing it. They figure they could make billions from taxing it.

[Chris Weigant - Huffpost Blogger]

Raccoon1 -

Outright legalization will most likely be one (perhaps even two or three) of the ballot measures CA will vote on next year. Stay tuned...

-CW

[rjmiller]

"Meaning that all it would take is another memo by another attorney general, and the policy will go right back to where it was previously."

"Right there in the text of the law is the following: "the Attorney General may by rule ... transfer between such schedules any drug or other substance.... Attorney General Holder could have solved the problem once and for all."

If Holder moves it to Schedule II, the AG of the next Republican administration can just move it back to Schedule I. It is by no means the permanent solution you make it out to be.

[Chris Weigant - Huffpost Blogger]

rjmiller -

While you're right, allow me to explain my thinking. (1) We've never gone back to Prohibition, and (2) it's harder to take away something that people have gotten used to.

But, technically, you're right -- another AG could overturn such a decision. But I bet by that time state laws would have changed enough to make it tough to do, politically (perhaps I'm being optimistic, I admit).

-CW

[ResidualSelfImage]

Obama and Clintons and Bidens JOB # 1

Continue the drug war against U.S.!!!
Continue the Global Drug War too its such a success.

[lightningbolt]

"One almost wonders what they've been smoking, to come up with such a ridiculous legal stance."

Somebody is making money from prohibition. The timber industry is still afraid that hemp will replace timber in paper production. The cotton industry is still afraid hemp will replace cotton in clothing. The pharmaceutical industry is afraid marijuana will replace some of their expensive pills. Like every problem this country has, one just has to look at who is making money, and the culprit can be found. The solution, therefore, is to make bribery (aka private campaign finance) illegal to remove the bad influence special interests have on our government. The FIRST problem we need to solve is the bribery problem. No other problems can be solved without first eliminating bribery.

[bioluminescence]

America incarcerates more people per capita than any other country in the world. Five times the rate that number two China does. If decriminilization becomes fashionable here. It won't be driven by principle. It will be driven by overcrowded jails.

[lightningbolt]

I don't think profiteering jail owners will care about overcrowding as long as they keep making money.

[fredamae]

Yup, "Mandatory Confinement Rent" goes for about $2800.00 Per Head, (Reimbursement)Per Month income...PLUS Inmates "get" to make tangible Goods to Sell. In Oregon, there is a Prison that manufactures "Blue Jeans". Inmates may get paid as much as $.80 per hour and the Jeans Retail for about $350.00 per in SF.
I understand....on Inmate Pay-Day, the Prison DEDUCTS From Their Pay, Room and Board expenses!

Sweet Deal IF you own a Prison...and you can...It Is a Privatized Industry now and it Is one of the Fastest growing industries in the country.

Send Mfg jobs overseas...Lock up, otherwise Productive citizens for Profit,
(Increasing Laws And Penalties with Extended Sentences by changing Misdemeanors to Felonies and WE Voter's Approved a Lot of this...because "they" scared us)....
This Keeps the revolving doors going, Manufacture goods for Corporate Profit at Third World wage rates....
Ahh, America.