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David Morris: Only Congress Can End Forty Years Of Insanity

August 14, 2013

Our attitude toward medical marijuana has unfolded like an interminable tragedy with three acts.

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Image from Flickr via North Cascades National Park

By David Morris
By arrangement with On the Commons

Act I: The People Press Their Case

In 1937 Congress passed the Marihuana Tax Act, which made the recreational use of marijuana illegal. But it affirmed the right of physicians and pharmacists to prescribe and dispense it. The American Medical Association opposed the Act not because it allowed medical marijuana but because it required doctors to register with federal authorities and pay an annual tax or license fee that the AMA felt would unduly inhibit doctors’ ability to offer their patients this medicine. The AMA was right. Few doctors were any longer willing to prescribe marijuana. In 1942 cannabis was removed from the United States Pharmacopeia of existing medicines.

In 1961, 74 nations signed the UN Single Convention on Narcotic Drugs. Again the treaty criminalized the recreational use of marijuana but allowed it for medical purposes. Indeed Article 49 specifically advises, “The use of cannabis for other than medical and scientific purposes must be discontinued as soon as possible…”

Physicians retained the ability to legally prescribe marijuana until the Controlled Substance Act of 1970 made marijuana a Schedule I drug, equivalent to heroin and, according to the Congress, with no medical uses. In the debate leading up to its passage the Assistant Secretary for Health and Scientific Affairs, responding to a Congressional request for guidance noted there was “still a considerable void in our knowledge of the plant and effects of the active drug contained in it” and recommended it be retained within schedule I temporarily while “certain studies now underway to resolve the issue.”

Those studies were undertaken by the newly created National Commission on Marijuana and Drug Abuse Commission, chaired by Pennsylvania Governor Raymond P. Shafer, who had earned a reputation as a tough-on-crime U.S. Attorney.

President Nixon had already made up his mind. In May 1971 he told H.R. Haldeman, “I want a goddamn strong statement about marijuana. Can I get that out of this sonofa-bitching, uh, domestic council? I mean one on marijuana that just tears the ass out of them.” And Nixon told Shafer directly, “You’re enough of a pro to know that for you to come out with something that would run counter to what the Congress feels and what the country feels, and what we’re planning to do, would make your commission just look bad as hell.”

“Marijuana may not be the county’s most pressing crime problem, the sheriff says, but ‘it’s where the money is’.”

In June 1971, to pre-empt the Commission’s report Nixon declared a War on Drugs. “America’s public enemy number one in the United States is drug abuse. In order to fight and defeat this enemy, it is necessary to wage a new, all-out offensive.” Over the next year marijuana arrests jumped by over 100,000.

In March 1972 the Shafer Commission’s submitted its report to Congress. Revealingly titled Marijuana, A Signal of Misunderstanding the Commission concluded, “The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior, a step which our society takes only ‘with the greatest reluctance’.”

The report’s findings led the National Organization for the Reform of Marijuana Laws (NORML) to submit a petition to the Bureau of Narcotics and Dangerous Drugs (BNDD) that spring requesting doctors be allowed to prescribe marijuana. The BNDD (which became the Drug Enforcement Administration (DEA) in 1973) refused to accept the petition for filing. In 1974 a federal Appeals Court condemned BNDD’s a priori refusal as “not the kind of agency action that promoted the kind of interchange and refinement of views that is the lifeblood of a sound administrative process.” Fourteen years, three DEA rejections and three court decisions later NORML’s petition was finally evaluated in detail. After examining thousands of pages of testimony and studies, Administrative Judge Francis Young concluded, “Marijuana is the safest therapeutically active substance known to man…The evidence clearly shows that marijuana is capable of relieving the distress of great numbers of very ill people, and doing so with safety under medical supervision…it would be unreasonable, arbitrary, and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance. The administrative law judge recommends that the DEA Administrator conclude that the marijuana plant considered as a whole has a currently accepted medical use in the United States.”

On December 30, 1989 the DEA rejected Young’s recommendation. In February 1994 a Court of Appeals upheld the DEA’s decision.

In 1972, the same year the Shafer Commission issued its report and NORML submitted its original petition, Robert Randall, age 24, who had already lost sight in one eye, was diagnosed with a serious form of glaucoma that would render him totally blind in a few years. He discovered that cannabis significantly improved his vision and grew his own supply. In 1975 he was arrested. In court Randall argued that cannabis was a medical necessity for without it he would go blind. This contention was confirmed in a 13-day controlled study by UCLA in late 1975.

In 1976, D.C. Superior Court Judge James A. Washington, former Dean of Howard University School of Law dismissed all charges against Randall, ruling that he had “established a defense of necessity.” “(W)hile blindness was shown by competent medical testimony to be the otherwise inevitable result of the defendant’s disease, no adverse effects from the smoking of marijuana have been demonstrated…The evil he sought to avert, blindness, is greater than that he performed…” In the next 20 years courts in five states—Hawaii, Florida, California, Washington, Idaho—as well as D.C. have accepted a medical necessity defense.

The newly created National Institute on Drug Abuse (NIDA) agreed to supply Randall with marijuana but ended its collaboration in January 1978 when Randall refused to stop speaking publically about the medicinal benefits of cannabis. Randall filed suit. A settlement resulted in the Compassionate Individual New Drug program that allowed physicians to prescribe marijuana for qualified individuals participating in clinical research with marijuana supplied by the federal government and using protocols designed by the federal government.

Only 34 patients were ever enrolled. The federal government’s reluctance to conduct actual research led states to step in. By the end of 1982, 31 states and the District of Columbia had passed legislation that addressed the use of medical marijuana. The vast majority enabled the development of marijuana therapeutic research programs. At least 7 states obtained all the necessary federal permissions to set up such a program. Twelve permitted doctors to prescribe marijuana but they were still liable to prosecution under federal law and growing and supplying marijuana to them was still illegal.

In 1978 New Mexico became the first to establish a marijuana research program. Although encountering hostility and a distinct lack of cooperation by NIDA, New Mexico’s program eventually included 180 subjects. All were cancer patients that had received chemotherapy. All were either not responding to conventional controlled substances or were suffering severe side effects.

The final report, issued in 1983, concluded that 75 percent of patients showed a positive response. Interestingly, over 90 percent of the patients who inhaled marijuana showed improvement but a much smaller number improved after taking an oral synthetic, delta-9 THC.

By 1985 state research was abandoned, a result of at least two factors. One was that DEA made it legal for patients to receive Marinol, the synthetic compound that New Mexico had found less effective than the whole marijuana plant.

The other was Ronald Reagan’s declaration of a second war on drugs in October 1982. An elaborate national infrastructure was established that created an intimate and mutually self-serving relationship between the DEA and local police departments. DEA’s budget increased from $220 million in 1981 to $775 million in 1987 and almost $1 billion in 1992. Much of that money was disbursed to localities based on their level of drug enforcement, which inevitably focused on marijuana since that was the drug most used and grown.

Wall Street Journal reporter Justin Scheck asked Shasta County Sheriff Tom Bosenko why he devoted so many resources to arresting marijuana growers and users. Bosenko explained that “If he steps up his pursuit of marijuana growers, his department is eligible for roughly half a million dollars a year in federal anti-drug funding, helping save some jobs. The majority of the funding would have to be used to fight pot. Marijuana may not be the county’s most pressing crime problem, the sheriff says, but ‘it’s where the money is’.”

Federal legislation allowed police departments and the DEA to seize assets with minimum justification and required the owner of the seized property to provide the “preponderance of evidence” to retrieve them. According to one study of over 500 federal cases by the Pittsburgh Press over 80 percent of the people whose property was seized were never even charged with a crime. Washington and local police departments shared the revenue from these seizures. The revenue deposited into the Department of Justice Assets Forfeiture Fund soared from $27 million in 1985 to $644 million in 1991.

When AIDS sufferers discovered cannabis could relieve their weight loss and nausea, an informal network sprang up to supply it.

In 1988, Reagan created the Office of National Drug Control Policy (ONCP) to coordinate drug-related legislative, security, diplomatic, research and health policy throughout the government. In 1993, President Bill Clinton raised the post to Cabinet-level status.

Even as the war on marijuana and incentives for arresting users escalated, there arose a disease that again galvanized the movement for medical marijuana. By the late 1980s AIDS had assumed epidemic proportions. Its epicenter was San Francisco where it ravaged the gay community. When AIDS sufferers discovered cannabis could relieve their weight loss and nausea, an informal network sprang up to supply it. Despite the continued ban on physicians’ prescribing marijuana, a survey of members of the American Society of Clinical Oncology in the spring of 1990 found that more than 44 percent recommended the use of marijuana for the control of nausea and vomiting to at least one cancer chemotherapy patient.

In the 1980s Robert Randall, still receiving marijuana from the federal government established the Marijuana AIDS Research Service to help AIDS patients apply for the FDA program. In June 1991 the federal government responded by closing the program to new applicants. “A federal program that has provided free marijuana to the seriously ill is being phased out by Health and Human Services officials who have concluded it undercuts official Bush administration policy against the use of illegal drugs, according to HHS officials,” reported Michael Isikoff in the Washington Post.

The federal government never conducted clinical research on the 34 people to whom it gave marijuana. The only study of the program, privately financed concluded “cannabis smoking, even of a crude, low-grade product, provides effective symptomatic relief of pain, muscle spasms, and intraocular pressure elevations…” and “clinical cannabis patients are able to reduce or eliminate other prescription medicines and their accompanying side effects.”

Five months after the closure of the federal program infuriated San Franciscans passed Proposition P by an overwhelming 79 percent of the vote. The initiative called on the State of California to “restore hemp medical preparations to the list of available medicines in California,” and not to penalize physicians “from prescribing hemp preparations for medical purposes.” In 1992 the San Francisco Cannabis Buyers Club became the first public medical cannabis dispensary in the United States. In 1995 the Oakland Cannabis Buyers Cooperative (OCBC) began delivering cannabis to patients in the East Bay cities of Oakland, Berkeley, San Leandro, and Fremont.

In 1996, as a result of ballot initiatives, California and Arizona became the first two states to allow the sale and medical use of marijuana. Spurred by these results and the possibility of further initiatives in January 1997, the ONDCP asked the Institute of Medicine (IOM) to conduct a review of the scientific evidence regarding the potential health benefits and risks of marijuana. Two years later IOM concluded, “The accumulated data indicate a potential therapeutic value for cannabinoid drugs, particularly for symptoms such as pain relief, control of nausea and vomiting, and appetite stimulation.”

In January 1998 the Department of Justice filed suit against six cannabis clubs in northern California, including the OCBC. OCBC closed voluntarily in October. The Oakland City Council formally declared “a local public health emergency with respect to safe, affordable access to medical cannabis in the City of Oakland.” The OCBC argued that the distributions were a medical necessity. The Ninth Circuit Court agreed. But in 2001 a unanimous Supreme Court ruled that even if marijuana were needed to prevent severe pain or even death no medical necessity exception exists under the Controlled Substances Act.

A few days before the 1998 elections former Presidents Ford, Carter, and Bush released a statement urging voters to reject initiatives that circumvented the standard process by which the Food and Drug Administration (FDA) tests medicines for safety and effectiveness. “Compassionate medicine must be based on science, not political appeals,” they insisted. A few weeks later medical marijuana initiatives passed in every state where they appeared on the ballot by wide margins. By 2000 eight states had legalized medical marijuana.

By August 2005 an estimated 115,000 people had obtained marijuana recommendations from doctors in the states with programs. Despite the federal government’s continued prosecution of medical marijuana, by 2010 80 percent of Americans supported medical marijuana, up from an already substantial 69 percent in 1997.

Act II: Washington Gives the Green Light

During the presidential campaign in 2008 Barack Obama was asked about his position on medical marijuana. He responded, “I’m not going to be using Justice Department resources to try to circumvent state laws on this issue.” In March 2009 Attorney General Eric Holder insisted, “What the president said during the campaign, you’ll be surprised to know, will be consistent with what we’ll be doing in law enforcement,” Gil Kerlikowske, head of ONCP agreed. “We’re not at war with people in this country.”

In October 2009, the Department of Justice issued a memo directing federal law enforcers not to expend federal resources “on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana.”

In early 2010 Newsweek estimated there are about 370,000 medical marijuana users in the 13 states with established programs, with California’s patient population accounting for almost 70 percent of the total.

In July 2010 the Department of Veteran Affairs validated marijuana as a legitimate treatment for soldiers returning from the front lines.

In November 2010 TIME magazine ran an article by Andrew Ferguson reflecting the new tolerance, “How Marijuana Got Mainstreamed.”

“Anyone who has ever bought pot in a cloudy Baggie or a wad of tinfoil while someone flushes in the next stall will be impressed by the modern face of marijuana retailing…”

In 2011 the California medical pot industry had become a $1.3 billion enterprise generating about $100 million in annual tax revenue.

In early December 2011 the Discovery Channel premiered the first of what were to be four episodes of a series called Weed Wars. It featured Oakland’s Harborside Health Center. Opened in 2006, the Center’s work force of 100 was serving about 90,000 clients. One reviewer commented, “Anyone who has ever bought pot in a cloudy Baggie or a wad of tinfoil while someone flushes in the next stall will be impressed by the modern face of marijuana retailing…” Another observed, “Many viewers were truly stunned at the tableau: dozens of lab-tested strains; the peaceful, bank-like environment.”

One of the most interesting segments looked at the case of Jayden David, 6 years old, who suffers from Dravet’s syndrome, a rare and catastrophic form of epilepsy. His doctors prescribed 22 anti-seizure pills a day, which controlled the seizures but left him immobilized due to the side effects. Forty-four times he had been rushed to the hospital in an ambulance. In the show Jayden’s clearly desperate father visits Harborside. They don’t guarantee they can help but explain that a high THC strain of marijuana would probably exacerbate Jayden’s symptoms and instead prescribe a specialized non-psychoactive tincture distilled down to mostly cannabidiols.

Before Jayden took the marijuana he couldn’t walk, eat solid food or take a bath. On June 4, 2011, his father gave his son marijuana. For the first time since Jayden was 4 months old, the boy went through an entire day without a seizure. By late 2011 Jayden was not just talking but running. His father had begun to wean him off the powerful pharmaceutical pills, which he believes have kept his son from developing properly.

As of today 18 states, plus the District of Columbia, have approved marijuana for medical purposes. Twelve, including DC, have laws allowing dispensaries. But the legal medical marijuana sector is very young and still evolving. States and cities have adopted different strategies.

Most states require a statement of approval signed by the patient’s physician, but some permit a patient’s pertinent medical records to serve as valid documentation. Some states have developed a formal state registry and issued ID cards to registered patients.

California, for example, has passed several new state and local laws related to medical marijuana since 1996. Much of the regulatory authority has been delegated to cities and counties. A recent study 35/Issue 35 Last Article Heddleston.pdf identifies three dramatically different approaches. San Francisco Bay Area cities have created a “pro-regulation” model. Officials have worked with activists to shape dispensary regulations that try to balance the needs of city governments, citizens, and cannabis patients. That includes limiting the number of dispensaries. For example, Oakland has allowed only eight.

Los Angeles adopted a “laissez-faire” model. The study notes, “the free market became the chief regulatory mechanism for dispensaries, and their number grew rapidly.” The high number and overly commercial appearance of LA’s dispensaries ultimately led to a crackdown by local authorities in cooperation with the DEA.

San Diego adopted a “prohibitionist model”. “With no local ballot initiatives, hostile city and county officials, no viable regulations, and overly punitive law enforcement agencies resulted in frequent multi-agency raids.”

Mendocino County, one of the major marijuana growing regions, established a pilot program in 2010 to regulate marijuana growers. After paying a licensing fee and submitting to police inspection, growers were given zip ties by the sheriff. Police officers who found bags of pot cinched by those ties then had reason to believe the product had been grown legally.

Act III: Washington Switches the Light to Red

But these early regulatory efforts were thwarted in 2011 by a dramatic change in federal policy. In March, DEA agents swept through Montana, frightening state legislators into passing a law that severely restricts the distribution of medical marijuana, and makes it more difficult to qualify for as a patient. In April, after the legislature passed a bill legalizing medical marijuana dispensaries the DEA carried out coordinated raids on dispensaries in eastern Washington. The next day Governor Christine Gregoire vetoed the licensing bill declaring, “The landscape has changed.” In Rhode Island, Governor Lincoln Chafee scrapped a plan to implement the 2009 legislation by allowing “compassion centers.”

In July a new memo was issued by the Department of Justice formally affirming a third war on marijuana. Gil Kerlikowske who two years before had said Washington would not intervene now declared, “No state, no executive can nullify a statute that has been passed by Congress.”

In July the U.S. Attorney’s Office sent a letter to Chico’s mayor and city council threatening them with personal prosecution for encouraging medical marijuana dispensaries. The City Council rescinded a medical marijuana ordinance. A month later, facing a similar threat, the Eureka City Council did the same.

Just before the Mendocino County Board of Supervisors was going to vote on making the bag tie program permanent U.S. Attorney Melinda Haag threatened the supervisors with legal action. The board ended the program, but Haag went on to empanel a grand jury and subpoena information from the county about its program, seeking the names of people who had registered as growers, as well as all financial information related to the program.

In September of 2011 the Bureau of Alcohol, Tobacco and Firearms formally announced that anyone using medical marijuana no longer has the right to own guns or ammunition.

By early 2012 the number of DEA raids were four times what they were during George W. Bush’s full 8 years in office.

In early 2012 the Discovery Channel cancelled its Weed Wars series.

In July 2012, the Justice Department initiated forfeiture proceedings on Harborside.

By early 2012 the number of DEA raids were four times what they were during George W. Bush’s full 8 years in office. Indictments had increased from one to over 60. Hundreds of dispensaries have been targeted for closure. Many people have gone to jail. Some people indicted have faced prison terms of up to 80 years. Thousands of jobs and hundreds of millions in tax revenue is threatened.

In 2012 Governor Lincoln Chafee of Rhode Island, former Republican senator described the situation as “Utter chaos.”

Act IV, or a New Play?

Cities and states and patients have asked the judicial branch to protect them from federal invasion over the issue of medical marijuana. In late 2012 Oakland became the first city to file a lawsuit to prevent the Department of Justice from seizing property. In July 2013 Judge Maria-Elena James granted a motion to stay by the action, effectively delaying the feds case for 15 months or longer. The Judge observed, “We find that the hardship and public interest factors tip sharply in the appellants favor”. Berkeley promptly became the second city to directly challenge the federal government crackdown, filing a claim to protect the largest of its three dispensaries, the Berkeley Patients Group.

But it is doubtful federal courts will be responsive. As noted, in 2001 the Supreme Court unanimously concluded the use of medical marijuana could not be justified as a medical necessity. In 2005 it reviewed a case involving two women that had sued for injunctive relief. The case was ideal for those who supported medical marijuana. One of the petitioners, Angel Raich, grew marijuana herself to cope with severe pain, including an inoperable brain tumor and seizures. She claimed she needed the marijuana to keep herself alive. The government did not dispute her contentions. Meanwhile, in the 1990s the conservatives on the Court had considerably tightened the use of the interstate commerce to justify federal interference in state and local affairs. But in 2005, by a 6-3 vote, the Court ruled in favor of the government.

In January 2013 the U.S. Circuit Court of Appeals in D.C. once again supported the DEA’s decision to keep marijuana a Schedule I drug. “On the merits, the question before the court is not whether marijuana could have some medical benefits,” the court wrote. “Rather, the court was tasked with deciding whether the DEA was following its own rules in refusing to initiate reschedule proceedings for marijuana.” The Court upheld the DEA interpretation of ‘adequate and well-controlled studies’ “to mean studies similar to what the Food and Drug Administration requires for a New Drug Application.”

The DEA insists it will not reschedule marijuana until multi-year, multi million dollars studies are performed. At the same time it will not undertake nor enable such studies. Indeed, in 2006 the Boston Globe reported that Nora Volkow, NIDA’s director, has stressed that it’s “not NIDA’s mission to study the medicinal use of marijuana or to advocate for the establishment of facilities to support this research.”

When the University of Massachusetts-Amherst Medicinal Plant Program tried to acquire a license from the DEA to grow marijuana for FDA-approved research. (DEA) the DEA rejected the application. In 2007, DEA Administrative Law Judge Mary Ellen Bittner recommended granting the University a license. The DEA rejected her recommendation on January 14, 2009, six days before the inauguration of President Obama.

The pharmaceutical companies have no dog in this fight. They may have a financial incentive to research isolated compounds of marijuana that they can patent but not the whole plant, which they cannot.

It appears the only way to resolve this tragedy is for Congress to intervene. So far the signs are not positive. In 2008, when Obama promised to halt federal raids against state-sanctioned clinics if elected, the Republican National Committee issued this statement, “Barack Obama’s pledge to stop Executive Agencies from implementing laws passed by Congress raises serious doubts about his understanding of what the job of President of the United States actually is.” In the spring of 2012 an amendment to the Justice Department’s appropriation bill was introduced to bar the DOJ from spending funds to attack medical marijuana operations in states where it is legal the amendment failed by the lopsided vote of 163-262.

In April of this year the Respect State Marijuana Laws Act of 2013 was introduced. The brief bill states simply, “Notwithstanding any other provision of law, the provisions of this subchapter related to marihuana shall not apply to any person acting in compliance with State laws relating to the production, possession, distribution, dispensation, administration, or delivery of marihuana.” Passage of this bill on July 4th could have been a cause of massive celebration and symbolic for libertarians and liberals and the 74 percent of Americans who support such a bill.

Only 3 Republicans and 15 Democrats signed on to the bill. More ominously, of California’s 53 Representatives only 3 were signatories. In Washington it was 2 of 10 and in Colorado 1 of 7.

More than a third of country has legalized medical marijuana. An overwhelming percentage of the population favors its use for this purpose. As many as 1 million people have been using state-sanctioned marijuana to alleviate severe pain or to treat physically debilitating diseases.

Denying people access to well regulated medical marijuana forces them into the illegal marijuana market, boosting profits for drug kingpins and drastically reducing the number of people who will gain the benefits of this medicine. Equally damning, the current efforts by the federal government have stopped the kind of research and development companies like Harborside had been doing that could create specialized strains to treat specific diseases.

Passage of a state’s rights bill should be a gimmee to a Congress controlled by states rights and individual liberty advocates, at least rhetorically. One would think the possibility of symbolically passing such a bill on July 4th would have been irresistible. The possibility was not even debated. The 43-year-old tragedy drags on.

David Morris is co-founder and vice president of the Minneapolis- and DC-based Institute for Local Self-Reliance and directs its Public Good Initiative. His books include The New City-States and We Must Make Haste Slowly: The Process of Revolution in Chile.

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