While an increasing number of states consider the legalization of medical and recreational marijuana, federal authorities have continued to enforce strict Congressional laws that, technically speaking, outlaw the cultivation, possession, and use of cannabis in any form and for any reason — anywhere in the United States.
It’s possibly not overly coincidental that Barack Obama recently spoke out in support of medical cannabis when being interviewed by Dr. Sanjay Gupta on CNN. On April 21, Attorney General Eric Holder announced that Michele Leonhart will be “retiring” her role as chief of the Drug Enforcement Administration (DEA) in May. Leonhart, depicted by even mainstream media as a Luddite who played it by the book, refused to ever admit that cannabis might offer medicinal value. Under testimony before Congress, she even refused to recognize that cannabis might be safer than hard drugs like heroin and methamphetamines.
Leonhart’s behavior has been lockstep with marijuana’s categorization under Schedule I of the Controlled Substances Act. Spanning back to the Nixon administration in 1970, this classification has prohibited the research necessary to prove the medical efficacy of cannabis for a wide range of diseases and ailments.
Recently, 20 lawmakers on the House Oversight committee logged a vote of “no confidence” for Ms. Leonhart’s leadership of the DEA. This was in response to the latest scandal involving drug cartel-funded prostitution parties in Columbia in which DEA agents participated. This inevitably led to AG Holder’s announcement.
Medical Research Needed
With no hard medical evidence, agencies like the DEA and the Department of Justice have been able to say “There’s no medical value, Schedule I makes sense.” But, in a nasty Catch 22, maintaining cannabis as a Schedule I drug has prevented the medical research necessary to prove to the government — and voters in both parties — that cannabis offers solid and significant medical benefits.
With Leonhart no longer warming the DEA chief’s seat in a few short weeks, Obama has the opportunity to prove the sincerity of his recent support for “science-based” medical cannabis — and correct his mistake of appointing Leonhart in the first place.
He can appoint a scientist or senior medical researcher, signaling the administration’s approach to all drugs to be one of health policy, not criminal enforcement. If the new chief recognized the need to reclassify cannabis as Schedule II, it would spur countless research studies and expand entrepreneurial efforts in legal states like Colorado, Washington, and Alaska.
Obama told Gupta during his interview with CNN:
“…not only do I think carefully prescribed medical use of marijuana may in fact be appropriate and we should follow the science as opposed to ideology on this issue, but I’m also on record as saying that the more we treat some of these issues related to drug abuse from a public health model and not just from an incarceration model, the better off we’re going to be.”
There is already an effort in Congress to reclassify cannabis to Schedule II that’s being spearheaded by Senators Cory Booker, Rand Paul, Kirsten Gillibrand, and Dean Heller called the CARERS (Compassionate Access, Research Expansion and Respect States) Act.
CARERS is a bipartisan bill that, if it became law, would allow states to legalize medical marijuana without federal interference. It would also allow Veterans Affairs doctors to recommend cannabis to veterans suffering from brain injury, neurological disorders, and PTSD. In addition, the bill would legalize high CBD strains of marijuana, making them viable medical treatments on a national level (especially for treatment-resistant epilepsy in both children and adults).
Is Obama Sincere?
If Obama wants to validate his own words in support of medical marijuana, he will appoint a new DEA chief that supports rescheduling and, by extension, robust research into the medical efficacy of cannabis. In addition, he should openly support the CARERS Act, possibly giving the bill the momentum it needs to become law and begin the inevitable recognition, legalization, and regulation of medical marijuana on the part of the federal government.
For a late second term president who might be looking for a positive legacy — one that doesn’t involve terrorism, war, corporate bailouts, and a lagging economy — pushing forth the first federal-level medical marijuana legislation could go a long way in terms of public opinion (all of which indicates that the majority of citizens support medical cannabis).
Last week, two lawmakers in Washington, D.C. expressed their frustration over the fact that the Department of Justice (DOJ) has continued to prosecute patients in states where medical cannabis is legal — in open defiance of a congressional amendment passed last December that protects patients and dispensaries. California Representatives Dana Rohrabacher (a Republican) and Sam Farr (a Democrat), co-sponsors of the amendment that prohibits federal interference in states where medical cannabis is legal, sent a letter to the DOJ demanding that prosecutions of patients and providers cease.
Wrote the representatives in a letter to Attorney General Eric Holder:
“We respectfully insist that you bring your Department back into compliance with federal law by ceasing marijuana prosecutions and forfeiture actions against those acting in accordance with state medical marijuana laws.”
The Justice Department, however, in a very narrow interpretation of the law, has issued statements reflecting its belief that the amendment does not apply to cases against individuals or organizations (such as dispensaries that are currently being prosecuted in California). Patrick Rodenbush, a spokesperson for the DOJ, said the law only stops the department from “impeding the ability of states to carry out their medical marijuana laws.”
Congressmen Rohrabacher and Farr, in their letter to Holder, said that the DOJ’s interpretation of the amendment was “emphatically wrong.” They went on to state that the purpose of the amendment was to prevent the DOJ from wasting law enforcement resources on prosecutions of “medical marijuana patients and providers, including businesses that operate legally under state law.”
These “enforcement resources” are outlined in a 2013 report by Americans for Safe Access. The report illustrated that the Obama administration has spent more than $80 million per year — equal to about $200,000 per day — to prosecute medical marijuana users, cultivators, and dispensaries. The crackdown has been justified by the fact that cannabis is, alongside heroin and meth, a Schedule I drug, giving it an official status of “no currently accepted medical use.”
Separate legislation has been introduced to Congress that would reclassify cannabis to Schedule II, preventing the crackdown by the DOJ and DEA in states with legal medical marijuana. It would also allow much needed research into the plant’s medical efficacy. While passage of this rescheduling is uncertain, it would go beyond the existing federal amendment and offer broader, less ambiguous protections for individuals and retail outlets.
The only thing that seems certain currently is the DOJ’s defiance of the existing amendment and its continued prosecution of patients and dispensaries in places like the San Francisco Bay area and the state of Washington. However, given the strict interpretation of the amendment and defiant stance of the DOJ, patients and providers in all 23 states where medical cannabis is legal are subject to fear, federal scrutiny, and prosecution.
The state of New York recently passed its first medical marijuana law, and is currently defining the specific rules that will govern participants in this legal system. Feedback, so far, has been largely comprised of those who claim the law and rules are too restrictive.
The regulations are being scrutinized because the list of qualifying conditions is only 10 deep, and smoking the plant is not a legal method of consumption. Also, only 20 dispensaries will be licensed to serve the entire state, all of which will be controlled by just five organizations.
Progress is Progress
On the upside, any relief for those with serious disease or illness in the state is welcome. But can providing legal cannabis treatment for only 10 conditions and through only 20 dispensaries be truly effective?
After all, New York isn’t the first state to legalize regulated medical marijuana. California’s law, the first in the nation, was passed nearly 19 years ago. Critics cite that New York’s regulations impliy that it is one of the first states to do so and the clock has been turned back 15 or 20 years.
Gabriel Sayegh, managing director for policy and campaigns at the Drug Policy Alliance pointed out,
“The administration continues to operate as though medical marijuana programs have never been operated before. If we were having this discussion in 1998, one would understand the extreme caution. But it’s not the late 1990s, it’s 2015.”
Can New York’s highly pragmatic and unusually restrictive rules, in a nation where nearly two dozen states have passed considerably more lenient and open medical cannabis laws in the past two decades, deliver more help for patients than frustration?
Patients and dispensary operators may reasonably be confused by or protest some stipulations, like the fact that an electrician or carpenter servicing a dispensary would require prior written approval from the Health Department and a full-time escort when inside a dispensary — a requirement that will inevitably increase prices for patients. Also, the regulations contain strange limitations, such as the fact that consumption of any sort of food or beverage on the premises of a dispensary could be viewed as being in violation of the law.
121 Pages of Restrictions
The state has defended these tight restrictions, the draft regulations for which span 121 pages, by claiming that it wants to protect itself — and, by extension, patients — against “legal challenges and enforcement action,” referring to the federal ban on marijuana. Monica Mahaffey, the director of public affairs at New York’s Health Department, said the law ensures “appropriate access through comprehensive regulations and safeguards.” But again, this applies only to patients with one of 10 qualifying ailments (a considerably more restrictive list than those implemented by many other states).
Are the new regulations overly narrow and too comprehensive? Will “safeguards” ensure that millions of sick patients are denied access to medical cannabis, rather than granting them safe, legal access? Will the program be so restrictive as to fail, allowing politicians and prohibitionists to claim that there’s little demand or that such a system simply doesn’t work?
Closed-market Prices Too High?
Another major concern for potential patients is price which, unlike in an open market like Colorado, will be determined by a single individual, Dr. Howard Zucker, the state’s health commissioner. Because medical cannabis will not be covered by insurance, Zucker’s pricing may be prohibitive for extremely sick patients who are unable to work and may live on government assistance.
Ironically, this is the group that needs medical cannabis the most. If they can get better prices or more ready access on the black market, patients may find themselves in the exact same situation they’ve always faced: Breaking the law and having to purchase from street dealers.
Democratic Senator Diane Savino has admitted that the new regulations will be burdensome for many. “Is it inconvenient? Yes,” she said. Savino later elaborated,
“But what’s a bigger inconvenience is if we don’t have these tight controls and the federal government comes in and shuts down the whole program and disrupts the flow of product to patients.”
This is a logical stance, especially given the recent federal law enforcement activity of the Department of Justice and the DEA in progressive states like California and Washington. However, one must ask oneself if such strict regulations defy the spirit of the law, which is simply to provide safe access to affordable, legal medical cannabis for millions of sick New Yorkers.
The following are the only conditions which qualify a patient for a medical marijuana recommendation in The Empire State:
- Lou Gehrig’s disease
- Parkinson’s disease
- Multiple sclerosis
- Spinal cord damage
- Inflammatory bowel disorder
- Huntington’s disease
In a memorandum this week, the justice department reported that it will not stop Native Americans from growing or selling marijuana on sovereign land. The U.S. attorney for North Dakota, Timothy Purdon, is the chairman of the Attorney General’s Subcommittee on Native American Issues. He said that the issue will work on a case-by-case basis, and must still adhere to the same federal regulations and state guidelines.
For tribes, this could mean a revenue generating opportunity similar to the that of cigarette sales and gambling, both of which have been big earners in the past.
Not every tribe wants to be involved in cannabis cultivation or sales, however. At this time, according to Amanda Marshall, Oregon U.S. Attorney, only 3 of the 566 tribes conveyed any interest in the matter, likely because there are social and community uncertainties as well as huge risks involved for tribes located within states where marijuana is still very illegal.
In 2013, in response to the legalization amendments approved in Colorado and Washington, the Cole Memorandum was drafted to give specific guidelines for state legalization, and these same guidelines will be applied to cannabis legalization on tribal lands. According the the Cole Memorandum, the federal government will allow states to enforce their own legalization laws as long as the states are able to demonstrate efforts to enforce the following criteria:
- Preventing minors from accessing cannabis
- Preventing cannabis sale revenue from reaching criminal cartels
- Preventing cannabis from reaching outside of the state in which it is legal
- Preventing cannabis sales from being used as a cover for other illegal activity
- Preventing gun violence related to marijuana sales
- Preventing driving under the influence of cannabis
- Preventing marijuana from being grown on public lands
- Preventing marijuana possession and use on federal property
Although not all tribes may be interested, it is only fair that the same Cole Memorandum regulations to be applied to sovereign Native American lands. As Purdon pointed out, “We need to make sure with this policy that we honor the idea that tribes are sovereign.”
photo credit: Kris Krug