Psychiatric Times.
No. 1
NEWS
The Past, Present, and Future of Medical Marijuana in the United States
By John Thomas, JD, LLM, MPH |
January 6, 2010
New Haven, Connecticut
Professor Thomas is a former litigator who teaches law and medicine, advanced law and medicine, civil procedure, and commercial law at the Quinnipiac University College of Law. His publication topics range from health policy to mental health treatment to acoustic music. He is an accomplished fingerstyle guitarist who has performed at regional festivals, on live radio, and in clubs, coffee houses, and bookstores in the New Haven, Conn, area.
The October 19, 2009, memorandum
The Justice Department’s memorandum begins by stating that the department is “committed to the enforcement of the Controlled Substances Act in all States” and that it is cognizant that “Congress has determined that marijuana is a dangerous drug.” But, because the department “is also committed to making efficient and rational use of its limited investigative and prosecutorial resources,” the department should neither investigate nor prosecute “individuals whose actions are in clear and unambiguous compliance with” state law.
How, one might wonder, will federal authorities know without investigating whether an individual’s conduct complies with state law? “Typically, when any of the following characteristics is present, the conduct will not be in clear and unambiguous compliance with applicable state law”: “unlawful possession or unlawful use of firearms,” “violence,” “sales to minors,” or “ties to other criminal enterprises.”
On the other hand, neither “compliance with state law [n]or the absence of one or all of the above factors create[s] a legal defense to a violation of the Controlled Substances Act.” The memo is but a recommendation to federal agents, and medical use remains illegal.
The current and future status of the medical use of marijuana
Imagine the cancer survivor who resides in one of the 13 states that recognizes medical use of marijuana. She can ingest the herb knowing that federal agents are unlikely to kick her door down and arrest her. She will also know that her conduct is patently illegal. Every day, to address the nausea that accompanies her chemotherapy, she will engage in illegal conduct that the attorney general has authorized.
This is the nature of the compromise that the October 19 memorandum represents. The nation’s top law enforcement official has embraced the “compassionate use” that the California electorate recognized more than a dozen years ago. Current law may be the best that the cancer patient can hope for, but the remainder of the populace should not be satisfied. Those who support medical use of marijuana should not be happy with its continuing illegality. Those opposed to it should not accept federally licensed illegal behavior. Now, perhaps more than ever, in the words of Richard Nixon, we need “a goddamn strong statement on marijuana.”
References
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http://www.justice.gov/opa/documents/medical-marijuana.pdf. Accessed December 10, 2009.
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The Marihuana Conviction: A History of Marihuana Prohibition in the United States. Charlottesville, VA: University of Virginia Press; 1974:154-174.
12. 21 USC §§801-904.
13. Report of the National Commission on Marihuana and Drug Abuse: Marihuana: A Signal of Misunderstanding. Commissioned by President Richard M. Nixon, March, 1972
http://www.iowamedicalmarijuana.org/documents/nc1contents.aspx. Accessed December 10, 2009.
14. Conversation 498-5: meeting with Nixon, Haldeman, and Ehrlichman; Oval Office, May 13, 1971, 10:30 am through 12:30 pm [transcript].
http://www.csdp.org/research/nixonpot.txt. Accessed December 10, 2009.
15. Cal Health & Safety Code §§11362.5 et seq.
16. Medical Marijuana: 13 Legal Medical Marijuana States—Laws, Fees, and Possession Limits. 2009.
http://medicalmarijuana.procon.org/viewresource.asp?resourceID=000881. Accessed December 10, 2009.
17. Gonzales v Raich, 545 U.S. 1 (2005).
