Monday, August 13, 2012

Doesn’t Anybody Read Anymore? (Or Even Think?)

There’s been a lot of talk recently about state and local employees who administer medical marijuana programs being subject to federal prosecution under the Controlled Substances Act (CSA).  For example, Governor Christie used this as one of his reasons for delaying the medical marijuana program in New Jersey.  More recently, the state Attorney General for Arizona has tried to put a stop to their program in part because of this “concern.”

Before we even get to the part about not reading, let’s consider these people’s apparent inability to even give some serious thought to this issue.  Their alleged concern is that the CSA, a federal law, makes it illegal for anyone to be involved with controlled substances in any way whatsoever.  State laws in this case are irrelevant.  Marijuana is illegal at the federal level, and that’s that.  On the surface, it would appear that this is a valid concern.  State and local employees would indeed be involved in a program that the federal government views as illegal.  Sounds simple enough, obvious even.  Until you think about it.

But what about other state and local officials that are involved with controlled substances, and have been since those substances first became controlled?  I’m talking about state and local police.  These people are often in possession of a controlled substance, in clear violation of federal law.  When a cop takes a joint from a kid on the street, when a warehouse full of cocaine is seized, they are in violation of federal law.  The police are also involved in trafficking as well.  When they set up a sting to buy or sell drugs, that could be considered trafficking in a controlled substance under federal law.  Even planning the sting could be considered conspiracy.

Yet state and local law enforcement officers are not arrested and charged with federal crimes for their involvement with controlled substances.  How can that be?  Isn’t that exactly what Governor Christie and the AZ Attorney General are so concerned about?  Don’t they see the inconsistency in their argument?

The answer to why these people are not prosecuted of course can be found by simply reading the CSA.  In particular, Section 885. Burden of proof; liabilities, which states in section d:

(d) Immunity of Federal, State, local and other officials
Except as provided in sections 2234 and 2235 of title 18, no civil or criminal liability shall be imposed by virtue of this subchapter upon any duly authorized Federal officer lawfully engaged in the enforcement of this subchapter, or upon any duly authorized officer of any State, territory, political subdivision thereof, the District of Columbia, or any possession of the United States, who shall be lawfully engaged in the enforcement of any law or municipal ordinance relating to controlled substances.

If anybody bothered to first think about the issue, then follow up with reading the relevant piece of legislation, this “concern” would have never arisen.  As you can see, state and local authorities are immune from prosecution for performing their duties under state and local law.  Period.  End of discussion.  It’s a non issue.

Unfortunately, this seems to be an effective scare tactic, as federal officials can count on no one actually reading the CSA.  Even the ACLU seems to be unaware of this provision of the CSA. They are challenging this threat in California with some court cases that supposedly set a precedent for not prosecuting local authorities, when all they really need to do is refer to the immunity clearly provided by the CSA.  We can only hope that someday, somewhere, somehow, someone will read the CSA and call these bullies on their lies and empty threats.

Tuesday, July 31, 2012

Federal Government Acknowledges Medical Use of Marijuana

In light of the upcoming lawsuit (Americans for Safe Access v. DEA, to begin oral arguments this October), a review the federal government’s position on the medical use of marijuana is in order.  The DEA may not want to admit it, but the federal government already has. Cannabis and cannabis-derived compounds do have medical uses.  The federal government has acknowledged this in the programs they administer, in the results of their research, and in their official policy.  

With respect to federal programs, the Compassionate Investigational New Drug  (IND) program is a federal program administered by the National Institute on Drug Abuse.  It has been providing patients with FDA-approved marijuana since 1976.  In fact, this program was started in response to a lawsuit (Randall v. US) that the government lost.  In that decision, marijuana was deemed a medical necessity, and criminal charges were dropped.  (I’m not sure why this decision doesn’t apply to anyone today, but that’s another story.)  Since then, a small group of individuals have continued to this day to receive medicinal marijuana, grown on the only farm licensed by the federal government.  But wait, you might say, this is a research program, and the feds have always encouraged medical marijuana research.  Not that I’d say something like that, but someone might suggest that a research program is not necessarily an admission that marijuana has medical uses.  And that would be true.  But the IND program is NOT about research.  I would ask any naysayers to point me to one published study done on any of the participants of the IND medical marijuana program over the last 35 years.  And if they’re not doing research, the federal government must believe that marijuana is useful in treating these people’s various conditions.  Otherwise, the federal government would just be trafficking in a controlled substance.  And we know they’d never do that.

When it comes to research, I won’t even mention the MANY government-sponsored research programs that have found evidence to support the use of marijuana for the treatment of a variety of conditions.  In science (and in the DEA), results can always be disputed.  I’m talking about US Patent 6630507 - Cannabinoids as antioxidants and neuroprotectants. The assignee of that patent is The United States of America as represented by the Department of Health and Human Services. What this patent means is that the research has been done, and the results are conclusive enough to warrant a patent. (I didn’t even know the government could hold patents.  I always thought the results of research paid for by tax dollars was in the public domain.  Shows how much I know.)  Granted, this patent is not on raw marijuana, but on compounds derived from marijuana.  Still, how could the federal government have a patent on something that it claims doesn’t exist, like medical uses for marijuana?  Therefore, the very existence of this patent is an acknowledgment by the federal government that marijuana has some very clearly-defined medical applications.

Finally, the federal government has established a formal policy with respect to the medicinal use of marijuana. Just recently (July 2012), the Department of Veterans Affairs officially announced that it will allow patients treated at its hospitals and clinics to use medical marijuana in states where it’s legal.  Again, this is not a research program.  The DVA is saying they will allow patients to use marijuana as part of their treatment regimens.  If marijuana cannot be used safely as a medical treatment, as its Schedule 1 classification suggests, why would the DVA be subjecting our vets to such danger?  They wouldn’t, of course.  So this must be yet another acknowledgment by the federal government that marijuana has medical uses that are not inconsistent with the medical care provided by the DVA.

There are other examples of the federal government’s acknowledgment that marijuana has medical uses, like Congress explicitly allowing Washington, DC to implement a medical marijuana program.  But I believe these three are the most compelling.  So it would appear that the DEA is one of the few holdouts in the federal government, along with the NIDA, the Drug Czar, a few overzealous prosecutors, and of course the president.  So my question is, why is it the DEA that represents the federal government with respect to medical marijuana when they are clearly in the minority amongst their federal peers?