Medical marijuana: crime versus civil liberties

¶ … medical marijuana a crime or a contravention on our civil liberties?

Are the Federal Laws against Medical Marijuana Constitutional?

There is not a shred of scientific evidence that smoked marijuana is useful or needed. -- U.S. Drug Czar, General Barry McCaffrey, August 16, 1996

Marijuana is the safest therapeutically active substance known to man... safer than many foods we commonly consume. -- DEA Judge Francis L. Young, September 6, 1988

The epigraphs above are illustrative of the differing opinions concerning the use of medical marijuana in the United States today. While the debate over medical marijuana continues to rage and national trends suggesting that the majority of Americans favor its legalization, the U.S. Supreme Court has recently held that federal law as codified in the Controlled Substances Act takes precedence over the individual states' rights to regulate its use. In this environment, do the federal laws prohibiting the use of medical marijuana constitute a legitimate attempt to help terminally ill patients avoid substances that could hasten their deaths, or do they represent a fundamental violation of individual civil liberties? To answer this question, this paper provides a review of the peer-reviewed and other current literature to develop an informed background and to identify the controlling legislation involved. An analysis of the current and future trends in the legalization of medical marijuana will be followed by a summary of the research in the conclusion.

Review and Discussion.

Background and Overview. Mankind has been using various preparations of Cannabis sativa for thousands of years, but it seems that it has attracted the most attention from the authorities - at least in the United States -- in just the past few decades. "Humans use nearly every part of the infamous green weed Cannabis sativa," Earleywine (2002) reports. "The plant grows quickly in many environments and can reach a height of 20 feet. Although industrial hemp, medical marijuana, and cannabis the intoxicant stem from the same species, in many ways they each have their own histories. Cannabis's use as a treatment for a variety of illnesses helped it spread from ancient Asia throughout the world" (9). The use of marijuana as a medicine has appeared consistently throughout history in cultural pharmacologies and folk medicine remedies as a treatment for pain, muscle spasm, seizure, poor appetite, insomnia, nausea, asthma, and depression; in fact, its ability to alleviate labor pains, premenstrual symptoms, and menstrual cramps has received considerable attention in multiple medical reports from ancient times to the current day (Earleywine 9).

According to Wikipedia, "Medical cannabis refers to the use of Cannabis as a prescription drug, most notably as an antiemetic. The term medical marijuana post-dates the U.S. Marijuana Tax Act of 1937 whose effects included, in the United States, making cannabis prescription illegal" ("Medical cannabis" 2).

In reality, there is little differentiation between "medical" and any other type of marijuana, then, in America today; however, this legal distinction flies in the face of a growing body of scientific evidence that again, dates back thousands of years, that marijuana possesses efficacious qualities for the alleviation of certain symptoms of terminal diseases or the harsh treatments that are used to combat them. For example, in his book, Fatal Freedom: The Ethics and Politics of Suicide, Thomas Szasz (1999) reports that, "Activists for medical marijuana, for methadone treatment, and for physician-assisted suicide agitate accordingly for dispensations for glaucoma patients, heroin addicts, and terminally ill patients and their physicians" (22). In fact, Szasz emphasizes that patients and doctors alike reject drug laws that inhibit ready access to pain- and suffering-relieving drugs. Nevertheless, medical marijuana cannot be legally prescribed nor consumed in the United States today by virtue of provisions of the United States Code and recent decisions by the U.S. Supreme Court, issues which are discussed further below.

Controlling Legislation. The Controlled Substances Act prohibits the cultivation and personal possession of marijuana, even by terminally ill patients who argue that it is for "medicinal" use only; the U.S. government maintains that its longstanding war on drugs would be undermined by allowing even limited patient exceptions (Mears 4). Under the Controlled Substances Act, the Congress has granted the federal government the power to regulate the manufacture and distribution of dangerous drugs in the United States (21 U.S.C. Section 801, 2000). Based on this authority, the federal Food and Drug Administration (FDA) has historically maintained that marijuana should continue to be strictly regulated, and determined that it has a "high potential for abuse," "no currently accepted medical use in treatment in the United States," and has a "lack of accepted safety" monitors available for its use in a supervised manner (Christenson 174). Today, federal law as codified in Conant v. Waiters, 309 F.3d 629 (9th Cir. 2002), cert. denied, 124 S. Ct. 387 (2003), prohibits physicians from prescribing marijuana to their patients, and establishes strict protocols whereby the only legal way it can be obtained is through strictly controlled, federally approved research programs (Christenson 174).

In addition, the Controlled Substances Act ("CSA" or the "Act") also provides that in order to prescribe controlled substances, a physician must obtain a registration from the Drug Enforcement Agency (DEA); such registration can be revoked or denied if the DEA determines that the physician has committed acts that are "inconsistent with the public interest...." And it is this "public interest" standard that allows for potentially broad interpretation and enforcement of government policies (Christenson 175). The CSA states: "Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally... To manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance"; further, "It is "unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner" (Schneider 12). "Dispense" means "to deliver a controlled substance to an ultimate user... by, or pursuant to the lawful order of, a practitioner, including the prescribing and administering of a controlled substance...." (21 USC 802[10]) (U.S. v. Moore, 423 U.S. 122, 1975).

On June 6, 2005, in the case of Gonzales v. Raich, Case No. 03-1454, Mears (2005) reports that the U.S. Supreme Court held that physicians can be prevented from prescribing marijuana for patients suffering from pain caused by cancer or other serious illnesses. The vote, 6-3, meant that the Bush administration won another victory in its fight against the cultivation of marijuana for personal use based on its potential broader social and financial implications. Writing for the majority, Justice John Paul Stevens characterized the issue thusly: "Congress' power to regulate purely activities that are part of an economic 'class of activities' that have a substantial effect on interstate commerce is firmly established" (cited in Mears 3). This author points out that the case was unusually protracted, and Justices Sandra Day O'Connor, William Rehnquist and Clarence Thomas dissented. The bottom-line for medical marijuana activists seeking to circumvent federal laws by achieving legality on a state-by-state basis was disastrous.

If medical marijuana advocates want to get their views successfully presented, they have to go to Congress; they can't go to the states, because it's really the federal government that's in charge here," one observer noted. "At issue," Mears suggests, "was the power of federal government to override state laws on use of 'patient pot'" (4). Given these recent events, what initiatives are in the works that could possibly make a difference in the future? Well, the times they are a'changin', Bob Dylan suggested then, and they are changing now as well, and these issues are discussed further below.

Future Trends. Notwithstanding the recent Supreme Court decision in Gonzales v. Raich, there have been some mixed signals coming from the federal government concerning medical marijuana. For example, when he was candidate for president the first time, President George W. Bush said he believed the federal government should respect state decisions on medical marijuana; however, his former Drug Enforcement Agency heads have pursued diametrically opposite courses of action in recent years and have further intensified federal efforts to suppress marijuana use and challenge states that allowed medical marijuana.

According to Alex Kreit's essay, "The Future of Medical Marijuana: Should the States Grow Their Own" (2003), one former head of the DEA, John Walters, regarded all marijuana as a "pernicious" drug that carried with it "destructive effects"; Walters maintained that medical marijuana supporters were involved in a "cynical campaign... [that] is part of the drug legalization agenda" (Kreit 1787). While there may be a "wink-wink/nudge-nudge" quality to some of the debates over the legalization of medical marijuana, the fundamental issues involved are profoundly serious; however, there are a number of considerations involved in this analysis that transcend a black-and-white summation of these issues. For example, in his book, Waiting to Inhale: The Politics of Medical Marijuana, Alan W. Bock (2000) makes the point that the issue of precisely what is considered to be a "medicine" in the United States is not as simple as it appears at first blush. "You could say that anything that makes you feel better," Bock says, "whether chocolate or sex or invigorating exercise or a relaxing evening (depending on one's condition or circumstances), is good for you and could be viewed as medicine. Indeed, most Americans use the term 'good medicine' metaphorically and sometimes almost literally to describe some function or activity that promotes a sense of well-being" (131).

Certainly, crack addicts would maintain that they "feel better" when they have plenty of their drug of choice, just as alcoholics or any other substance abuser; with marijuana though, it remains unclear just how long the federal government can hold out against this growing social shift in how this seemingly benign drug is viewed by most Americans today, many of whom may have experimented with it when they were younger, or indeed, who continue to use it on a regular basis in their adult lives. In this regard, Earleywine emphasizes that, "Marijuana's possible medical application has continued to increase its popularity, even with individuals who would frown upon recreational use" (3).

If fact, since 1996, nine states have legalized marijuana for medical use; this figure was expected to rise in the years to come given the overwhelming support for medical marijuana among American voters and drug policy reform leaders' continuing focus on state ballot initiatives (Kreit 1788); however, the recent decision by the U.S. Supreme Court combined with systemic problems in changing drug laws through legislatures, particularly at the federal level, had introduced a setback proponents had not expected. Under federal law, marijuana continues to be listed as a Schedule I drug, meaning that it is not accepted as a medical treatment; however, several states subsequently passed laws saying that marijuana does have medical uses. In this regard, medical marijuana advocates argue that it can ease chronic pain that other drugs cannot and that it can lessen nausea caused by AIDS and powerful cancer-fighting drugs (Lauerman 295). According to Herman (2002), Congress grouped marijuana, together with LSD and heroine, in Schedule I in the Act and marijuana remains in Schedule I today. "Organizations such as the National Organization for the Reform of Marijuana Laws ('NORML') and the Alliance for Cannabis Therapeutics ('ACT')," she says, "have been trying to reschedule marijuana from Schedule I to Schedule II for many years. However, their efforts have repeatedly failed at both the legislative and administrative levels" (121). Proponents of rescheduling maintain that failure to reschedule marijuana is unsupportable and irrational when substances such as morphine and cocaine remain classified as Schedule II substances, particularly in view of the growing medical knowledge of greater risks associated with the latter substances (Herman 122).

Following passage of the 1996 medical marijuana law in California, a number of marijuana cooperatives were established that provided the drug to patients; following the May 1996 Supreme Court decision, federal law enforcement officials closed down many of the cooperatives operating in California and seized plants from growers who provided the cooperatives with marijuana. Advocates of legalizing medical marijuana in California reported that they would attempt to change federal law and would seek other venues by which to distribute marijuana, perhaps by relying on state officials, an effort that was ultimately doomed to failure (see further discussion in "Future Trends" below) (Lauerman 295).

The U.S. Supreme Court issued a unanimous ruling on May 14, 2001, that upheld an injunction against an Oakland, California, marijuana cooperative that provided medical marijuana to sick patients. In the case, United States v. Oakland Cannabis Buyers' Cooperative, the U.S. Supreme Court held that they found no medical exception to the Controlled Substances Act's prohibitions on the manufacture and distribution of marijuana. According to Herman (2002), "Justice Thomas reasoned that because Congress unambiguously designated marijuana as a Schedule I substance within the CSA, it had determined that there was no current 'accepted medical use' or medical benefit of marijuana to warrant an exception granted to other drugs under the Act" (121). As a result, based on what Justice Thomas considered to be the "apparently absolute language" of the CSA, the Court rejected the assertion of the Oakland Cannabis Buyers' Cooperative that a medical necessity defense existed under the common law and therefore a medical necessity exception should be read into the Act. Herman adds that the Court also held that while lower federal courts enjoyed a certain amount of "sound discretion" in these issues, this discretion did not allow federal courts to ignore Congress's judgment expressed within legislation (Herman 122). The decision in United States v. Oakland Cannabis Buyers' Cooperative was not even close (8 to 10), and meant that federal law overruled a 1996 California law legalizing the use of marijuana for people with certain categories of illnesses. As a result, the decision meant that the distribution of marijuana by a cooperative was illegal, even in the State of California (Lauerman 295). As noted above, more recently in June 2005, the Supreme Court has confirmed this view in Gonzales v. Raich, and the prospects currently appear dim for medical marijuana proponents for anything to change in the near future.

The California initiative, though, was firmly founded on the basis of individual civil liberties as they relate to the ability of an individual to choose for him- or herself the best course of medical treatment among those available. The process in California was started by Dennis Peron in late 1995, a longtime civil libertarian who was responsible for the passage of Proposition P, an advisory initiative endorsing the medical use of marijuana, on the San Francisco ballot in 1991; at that time, the measure passed with a 79.3% majority (Bock 14). After the second piece of medical marijuana legislation in 2 years had been defeated by the California legislature, though, Peron and like-minded activists determined that the most appropriate approach to ensuring their continued ability to use medical marijuana was to use California's initiative process, a tactic that avoided a potential veto by the governor. A number of legal and medical authorities participated in the initiative process, with an emphasis on the specific patient rights involved.

Some people think we just sat around the table one night and came up with it," Peron said, but noted "It was considerably more complicated than that" (quoted in Bock 14). The California initiative was crafted by a multidisciplinary task force that took into account both public opinion as well how best to phrase the legislation so as to maximize its chances of passage; however, Bock suggests that the lack of a political sponsor besides state Senator Milton Marks doomed the measure from the outset, but the approach was legitimate: "We worked very hard to write not only something that would protect patients' rights but something that would have a chance to win," Rosen reported. "I'm glad it was written mostly by patients and patients' advocates rather than the professional politicians. There was a lot of experience with patients in that room" (emphasis added) (quoted in Bock 15). Clearly, there are some compelling arguments in favor of legalized marijuana for medical use, but it is becoming painfully obvious that the federal government perceives such initiatives as a potential breach in the already leaky levee that is holding back growing public opinion favoring its decriminalization for personal use across the board, as well as for medicinal use.