Medical Marijuana And The Law

Is medical marijuana legal?

Medical marijuana is illegal under federal law. The federal government criminalizes all marijuana possession regardless of the need for medical use. So that means if a patient, a medical marijuana patient who has been duly recommended the marijuana by their doctor has just one marijuana cigarette, the person can go to federal prison. Because federal law makes no exception for medical use of marijuana whatsoever. The catch is, that our democracy and the way our constitution has set up the states in this system of government we have, allows the states to actually make their own laws. They serve as laboratories of democracy as Justice Brandeis once said. And in that role, the federal government is actually allowed states on health and justice policies to have a very broad latitude in terms of deciding their own policies and initiatives on health and justice matters. In fact, it is so broad that it says unless a state law positively conflicts with the federal law to the extent that both can not stand consistently together, then the state law will stand. And so of course, while we do have this situation where marijuana is illegal under federal law, we now have thirteen states that actually allow medical marijuana. They allow patients to be recommended medical marijuana by their doctors, by the physicians. And in some cases it even allows for the patient to get the marijuana through a dispensary or some sort of clinic. So it is because of our wonderful system of constitutional democracy which allows the states to have broad latitude in this particular case, to decide its own policy. Many people ask why marijuana is allowed to be legal under state law but not under federal law? If it is illegal under federal law, how is it possible that it could be legal under state law? It is because of this word that most law students fear called pre-emption. And there are two different types of pre-emption basically. One that gives states a lot of latitude. And one that actually causes the state laws to be forestalled if they are inconsistent with the federal law. In the case of the controlled substances act, which is the law governing marijuana at the federal level, that law, the controlled substances act has a very broad pre-emption provision attached to it. Which is what allows all this experimentation on the state level to occur.

Is the medical marijuana movement just a ploy to legalize marijuana for everyone?

The movement is really aimed at making sure that the most seriously ill among society are allowed to have the medicine that they need. The idea that this is a stocking horse for something larger is really not supported by the evidence, as far as I can tell, and it's certainly a hysterical note to sound, on our opponents' part. It can be effective, but I simply don't think that's true. What we're talking about is medicine for sick people. And we're talking about people in the White House, George Bush in the White House, and they don't want these sick people to have their medicine. That's really what we're talking about.

How many states have medical marijuana laws?

Thirteen states have medical marijuana laws, mostly in the mountainous west. But that also includes Hawaii and Alaska. California was the first state to pass proposition 215 in 1996 through a voter initiated referendum, and in that election the voters of California decided that they were going to allow seriously ill people who are designated under the initiative to have medical marijuana as long as their doctor recommended it, their doctor certified that they could benefit from it therapeutically. And ever since 1996 we have seen a cascade of states come through on medical marijuana and pass laws allowing for the use. Most notably and recently New Mexico became a new medical marijuana state.

Was marijuana always an illegal substance?

Marijuana has not always been an illegal substance. In fact the cannabis sativa” plant was used to create hemp which was put on the conestoga wagons or hemp was closely connected to the early history of this country. People often hear stories about George Washington and the founding fathers and indeed the conestoga wagons were covered with material derived from “cannabis sativa” plant. The marijuana tax stamp act was actually based on another idea that Congress had put through related to machine guns, The National Firearms Act, which created tax stamps for machine gun sale transfers over states. Of course the catch was the government did not produced these stamps, so anytime such a transfer occurred it was illegal because it did not have the requisite stamp. Well they did the same thing for marijuana after figuring out that this worked relatively well and started the process of marijuana prohibition essentially at that point of marijuana prohibition in earnest at least. Marijuana prohibition did not really hit hay-day until 1970 when Richard Nixon decided that he wanted a new tool to crack down on the social movement that was blossoming before him and which made him in all of his paranoia, extremely uncomfortable. He wanted a new bludgeon to be able to wield against some of the folks who were rising up against his administration so that is at least one speculation as to why it was in there. Obviously this country has a strange relationship with marijuana going back to marijuana tax stamp act, going back to the jazz age. There are racist tendencies of course racist implications in the drug war but essentially in 1970, the congress and Richard Nixon decided to make marijuana illegal under federal law, put it in schedule one of the controlled substances act (which is the most harsh schedule available). It means that the drug has absolutely no medical value and it means it's extremely dangerous and has a high potential for addiction. Well of course as we all know, cocaine and methamphetamine are probably a lot more addictive than marijuana is. Yet both of those drugs that are just named are in the lower schedule than marijuana is, believe that or not.

Why is marijuana classified as an illegal substance?

Marijuana is classified as an illegal substance for many, many reasons - political, social reasons. It would seem to go back to racist tendencies in the earlier part of last century. It certainly seems that there was a lot of hysteria around the idea of black jazz musicians pursuing white women and using marijuana somehow for nefarious purposes, to lure these women. The government certainly picked up on that theme. Really, back in the “good old days” of the old Justice Department, they knew they didn't have the resources to pursue everybody who smoked marijuana, everybody who would have marijuana available to them, where it would grow in their yards, might grow in their farm fields. People might find it on the side of the road. During World War II, just several years after the passage of the Marijuana Tax Stamp Act, the government was actively encouraging people to grow hemp for the campaign to win in Europe and Japan. It was actually called “Hemp for Victory”. Back in the time where it was widely available and the government was first getting into the business of earnest marijuana prohibition, they realized, we don't have the resources to get to everybody who might have this drug available to them and either prosecute them or intervene in some way. So they started this hysterical campaign. They started these hysterical campaigns where they'd tell people that marijuana will make you wild-eyed, and you will see people who have been smoking marijuana on the streets lurking in dark alleys with red eyes with their inner demons having come out waiting to pounce on unsuspecting passers-by.

What is the 'Controlled Substances Act'?

The Controlled Substances Act was Title II of the 1970 Crime Bill. What it did was create five schedules for any substance, any compound, chemical compound, that the government wished to control in some way, to regulate. Strictly speaking, marijuana is not completely illegal. It is just highly, highly, highly regulated. It is placed in Schedule 1 of the Controlled Substances Act and there are possibilities for receiving marijuana, procuring marijuana through certain government means, through the National Institute on Drug Abuse, for example. So strictly speaking, marijuana is not 100% illegal, because there are certain uses for it, including the fact that the Government actually mails marijuana to five federally approved patients every month. The Controlled Substances Act creates five schedules, or lists, of chemicals. On this list, you might find GHB, the date rape drug. You'll find hydrocodone, you'll fine any number of drugs that might be considered dangerous. You'll also find your run of the mill, say antibiotics. The kind of things your doctor will prescribe to you. The things on the Controlled Substances Act are the drugs your doctor will prescribe you when you go and you're sick and you need something. Your doctor can only prescribe a couple of those categories of drugs from the Controlled Substances Act. Doctors are absolutely prohibited from writing prescriptions for Schedule 1 drugs. Marijuana is a Schedule 1 Drug. Because the Controlled Substances Act says that marijuana has no medicinal value, it has absolutely no therapeutic use, and is very dangerous, is what the government says about this.

What is the 'States' Rights to Medical Marijuana Act'?

The "States' Rights to Medical Marijuana Act" has been introduced in many iterations throughout many congresses now at this point. Introduced at one point by Nancy Pelosi, by the way. And it basically, reschedules marijuana out of Schedule 1 removes it from that harsh schedule of Schedule 1 in the Controlled Substances Act which says that there's no medical value for a substance in that list. And places it, I believe, in Schedule 2 of the Controlled Substances Act which allows for broader use. And it also allows the states which have passed laws allowing for recommendation of marijuana by physicians to actually make that legal under federal law. So right now we this state of conflict, or if not conflict, at least inconsistency between the state and federal Law. This bill, the "States' Rights to Medical Marijuana Bill" would actually eliminate that inconsistency by allowing under federal law the states that, right now, allow medical marijuana to be provided to patients. So you wouldn't have this situation that we have now where the federal government comes in and raids patients in the states that allow medical marijuana.

Why are you in favor of moving marijuana from Schedule I to Schedule II?

Well, I am in favor of moving marijuana out of Schedule I and I would argue that it ought not be in Schedule II. I'd argue that it's probably not appropriately placed in Schedule III even. I think that we need to have a very vigorous debate about where it ought to be scheduled after we see some real science, some real studies initiated by the federal government, following up on the recommendations from the Institute of Medicine, the White House's own report from 1999, which said that more research needed to be done and said that marijuana does have therapeutic potential. We need to have that debate with that new research to be able to have an idea of where we stand right now and where marijuana appropriately belongs in that scheduling scheme because we certainly know, and anybody who knows anything about this knows, it should not be in Schedule I.

What are some of the legal consequences medical marijuana patients could face?

Medical marijuana patients face an array of legal consequences. Most people think about drug possession, as the major consequence associated with drugs; most people think about a drug possession charge, as the major consequence associated with drugs. Some people think about driving with it of course, as another problematic area. What people don't realize is that the government has engineered all sorts of peripheral laws, that get in your business if you are involved in any kind of drugs. And of course, because the government doesn't make any distinction for medical marijuana, that could be a medical marijuana patient as well. It could be an elderly woman with cancer who's using medical marijuana, and she might get caught up in this scheme by which the government can take your property, it can deny you federal financial aid for school, they can of course arrest you, and prosecute you. So these are just a few of the collateral consequences that people face. In certain states they can take away your kids, you can be ineligible from ever owning a firearm. So, people don't think about this array of other problems with marijuana prohibition, but they're out there. And you know, you can lose your kids!

Do people really go to prison for medical marijuana offenses?

People really do go to prison for medical marijuana offenses, absolutely. The DEA has stepped up its enforcement efforts in California to extensively send a message. That's what they say; they say they want to send a message. And of course Bush, Bush likes to send messages, he's doing this right now to strike fear into the heart of the community of California that is advocated for medical marijuana. People really do go to prison for this There are a couple of notable cases of people actually getting prosecuted, high profile cases of people getting raided, prosecuted and then their sent to prison. A poor guy named Ron Naulls, Ronnie Naulls, I believe is his name has had his family torn apart and what he was doing was providing medical marijuana to sick people in California. Legal under state law it's allowed under state law and he helping out sick people and he had a beautiful family, beautiful wife, beautiful kids and it was torn apart. His wife's been charged with child endangerment he's in prison, his kids were taken by child protective services and again these are collateral consequences to this sort of thing. So yes people do go to prison for it and it ruins lives.

What is the US drug Czar John Walters' position on medical marijuana?

Drug Czar John Walters is a vehment opponent of medical marijuana, he is a vehment opponent of any "liberalization or relaxation of drug laws in the United States, or around the world and for that matter, and he is not afraid to exert the very limited influence they have with some of our neighboring countries at this point on these topics because they have so little credibility. But he is a guy it is not let the facts get in the way. He would would never let any scientific study interfere with his very closely held dogma that marijuana is absolutely dangerous for you. And he has actually personally, verbally attacked me in public settings with absolutely vicious things. It's just all lies and it's incredible actually, the capacity of the government to lie is just a remarkable.

Why is the federal government blocking research on medical marijuana?

There is a classic idea in Washington, that it's impossible to ever eliminate any kind of program that provides a lot of jobs or a lot of money to state or local entities, or any kind of business in any case. And so, what's one of the biggest pork barrels that we've ever had in the history of this country? It's law enforcement. It's locking people up. It's prisons. It's cops on the street. It's SWAT teams. It's a militarization of SWAT teams with surplus military equipment. You talk to the cops out in some small town in America. They like having those M16's. They like having the kevlar vests from the military surplus. They like having the ability to have their own SWAT team. Just about every town in America has its own SWAT team now. Those are dollars and resources that state and local governments become addicted to and so do the politicians who represent those states and localities. They become addicted to those dollars and they don't want to see them disrupted so there's a very direct monetary interest in this, and at the same time we see record arrests for marijuana. Every year it goes up and we're at nearly a million people. Almost a million people arrested every year for marijuana. And this addiction on the state and local level and among the politicians, to the cash that this drug war brings in, and to the cash that particularly the war on marijuana brings in, because as we all know, marijuana is a very widely used drug.

Why has the US government blocked clinical trials of marijuana?

The FDA is the entity that actually takes all of this data that's generated during clinical trials that the company does for safety and efficacy. And reviews that data, has scientist review that data and decide through several phases of approval process whether or not this drug is actually safe and effective for humans and what the various side effects are. The things that you hear on the television commercial, when your becoming addicted to gambling or whatever the drug causes you to become addicted to gambling. Those kinds of things are determined by the FDA. The DEA is the entity that enforces federal drug laws. They're responsible for enforcing the controlled substances act and import and export of drugs, enforcing that. And the DEA actually licenses importers and exporters and manufacturers of drugs that are listed on the controlled substances act. The DEA also has this ability to approve or deny applications for marijuana, for example. And right now, believe it or not, most people do not know this, but the federal government actually sends medical marijuana to five patients who are approved by the government. They've been grand fathered in through an old FDA program, compassionate program. And they still, every month receive marijuana; which is terrible marijuana, the quality is awful by the way. From the National Institute on Drug Abuse, NITA. Right now NITA, National Institute on Drug Abuse has a monopoly on the production of marijuana in this country. Essentially for FDA approval to be possible, it must be the case, that there is a private production facility or some sort of private production source for marijuana. It's impossible to use the governments marijuana, which is again very low quality, it's extremely poor, there are many many problems with it, it's production and manufacturing. I don't think it's very effective for, or as effective as other things might be for some of the patients who use it. For FDA approval to be possible it must be the case that there's private production, that there's some production source of marijuana, that can be used and given to the studies that are going to be undertaken. With human clinical trials and where they're going to gather data that they are going to submit to the FDA. There has to be a source for that, that's not the National Institute on Drug Abuse, essentially.