Federal vs. state laws

Complete Dust-Up: | | Day 3

How the law is enforced is the problem
Point: Stephen Gutwillig

Under the Obama administration, the federal government may finally be recovering from a long bout with “reefer madness.” The new administration’s promise to stop undermining state medical marijuana laws ends a controversial period in U.S. history. The controversy has not been rooted in the question of legal supremacy; indeed, the U.S. Supreme Court has reminded us that state law may indeed diverge from federal law in our federalist system. Rather, the controversy has stemmed from the federal government’s attempts to strong-arm states into recriminalizing medical marijuana.

Consider that federal authorities have never been in the business of making widespread arrests for low-level federal marijuana laws across the 50 states. If federal agents did so, they would be within their rights. But the federal government has historically relied on states to create and enforce their own marijuana prohibition laws. Some 800,000 people in the U.S. were arrested last year for a marijuana law violation -- the vast majority of those were for breaking a state law and thus the arrests were made by state law enforcement agents, not federal ones.

Since 1996, 13 states have legalized medical marijuana, pulling their state marijuana laws out of alignment with the federal government’s. Although medical marijuana is legal in the states’ view, it remains illegal in the feds’ view. According to the Supreme Court, this is a completely acceptable arrangement, but the federal government has found it uncomfortable.

What were the feds to do? They could have respected the state’s laws and chosen to not enforce the federal law in those states; or they could have taken over the day-to-day enforcement of low-level federal marijuana law violations against patients and providers in those 13 states. This would arguably be a legitimate -- yet nearly impossible and incredibly wasteful -- use of federal resources and power. The real problem is that the Bush administration did not opt for either of these approaches.

Up until U.S. Atty. Gen. Eric Holder indicated that the Obama administration was going to allow states to chart their own course on this issue, the federal government has worked to sabotage and interfere with state-run medical marijuana programs at every turn. Rather than simply enforcing federal law in a fair and equitable way, the federal government has pursued a policy of targeted enforcement of federal law in medical marijuana states. It has threatened and selectively utilized arrests and criminal prosecutions to terrorize patients and state officials in an effort to cripple legitimate state medical marijuana programs.

The government’s use of federal marijuana laws to commandeer the states’ legitimate lawmaking function and to force states to continue to carry out federal policy is a violation of our federalist system of government.

It is extremely encouraging that the Obama administration has repeatedly said it will respect the rights of Americans in more than a dozen states to determine their own health laws. It would be even better if the federal government reconsidered its own broad prohibition against the use of marijuana for medicinal purposes.

Stephen Gutwillig is California director for the Drug Policy Alliance.

‘States’ rights’ is no solution
Counterpoint: Scott Imler

The federal government’s enforcement of its own drug laws is considered controversial precisely because of what you allude to, Stephen, as the road less traveled in American drug policy -- the road of truth.

Actually, fact-based marijuana policy in the U.S. has been effectively dead since Richard Nixon’s wholly unexpected success at getting marijuana placed in Schedule I in the 1970 Controlled Substances Act, along with heroin, LSD, PCP and other awesomely dangerous illicit drugs.

With burgeoning numbers of young Americans lighting up around that same time, researchers were working overtime to map the “marijuana genome,” if you will, and to understand the unique properties and allure of a plant that has 5,000 years of recorded use as a medicine.

Ronald Reagan went one step further than Nixon by seeking to have all research documentation about medical marijuana purged from university libraries and research institutes in his effort to supplant the fact-based policy of “we need to know” with a values-based policy of “just say no.” As marijuana stood at the threshold of Phase III efficacy trials after two decades of scientific research, denial was more conducive to drug-war hegemony than the truth that thousands of seriously ill and disabled Americans had found marijuana to be an effective treatment.

The hypocrisy was further compounded when the first President Bush closed the federal Compassionate Investigational New Drug program. At the time, hundreds of AIDS patients had applied for legal access to federal marijuana supplies.

In fairness to George the Elder, the program was never really meant to provide large-scale prescriptive access, but rather to deal with a number of legal anomalies coming out of state and federal courts, where legitimate patients had proven common law or statutory claims of “medical necessity.” The necessity doctrine is essentially a matter of lesser harms. In 1976, the District of Columbia Superior Court had made such a finding in the case of cab driver and glaucoma patient Robert Randall. The court ruled that it would be unreasonable to leave Randall, for whom all other treatments had been ineffective, with no option but blindness.

Stephen, you are correct in pointing out that the feds had a variety of options when Proposition 215 became law after the 1996 election. That said, I take some exception to the suggestion that just ignoring federal law was ever -- or is ever -- a fruitful option for the government, the second Bush administration’s proclivities notwithstanding.

On the contrary, the minute you look at any section of the Controlled Substances Act other than its baseline prohibitions, you realize that rigorous enforcement of existing federal law and regulations is the only viable comprehensive national solution to the medical marijuana problem. For instance, the feds could start by enforcing the act’s rescheduling rules. In 1988, the DEA’s administrative law judge, Francis Young, ruled that it would be unreasonable, arbitrary and capricious for the DEA to continue to stand between patients and the therapeutic value of cannabis. A federal appeals court eventually ruled that while not optimal, the DEA administrator did indeed have the authority to act unreasonably, arbitrarily and capriciously if he so wanted.

The DEA could also enforce drug manufacturing laws, which require any individual or company involved in the manufacturing of controlled substances, including marijuana, to obtain a manufacturing license. In an effort to leave no stone of cooperation and compliance unturned, the Los Angeles Cannabis Resource Center in 1999 applied for a DEA license to manufacture marijuana. Consequently, several DEA agents visited our operation.

Then, of course, there is the Food and Drug Administration, which has its labeling code and standard practices regulations, which require anyone who is manufacturing or distributing a controlled substance to acquire an FDA labeling code number. Again, the Los Angeles Cannabis Resource Center applied to the FDA and a number was promptly issued, which appeared on every patient disbursement made by the group.

There are also the basic federal prohibition laws that, when enforced appropriately, give the federal government the responsibility of protecting national forests, parklands and wilderness areas, which are being decimated by illegal marijuana grows. The environmental degradation left behind by growers is heartbreaking and is evidence that the feds do have an important role to play in medical marijuana states that do not regulate production or distribution.

In my view, at the heart of the “get lost” demands of medical marijuana advocates rest a somewhat skewed understanding of federalism and “states’ rights.” The fact is, “states’ rights” and federal negligence deliver an unbalanced system that has black-marketeers in California laughing all the way to the bank while AIDS patients in Oklahoma face 20 years in prison for growing a few plants. Whether it is desegregation, gay marriage or medical marijuana, the “states rights” argument is the last refuge of the lawless, the hopeless and the politically timid. Such an approach promotes provincialism and denies equal protection of the law guaranteed to all Americans.

The Obama administration deserves credit for fulfilling a campaign promise, but continuing with half measures while turning a blind eye to abuses in states is a recipe for continued injustice. The solution to the medical marijuana problem can be found by acknowledging the truth about its value and for states and the federal government to vigorously enforce their laws relative to the manufacturing and distribution of any controlled substance.

Proposition 215 called on the state and federal government to cooperate in implementing a plan for the safe and affordable access for all those for whom marijuana provides relief.

Isn’t it time we got on with it?

The Rev. Scott Imler was coauthor of Proposition 215 and founder of the Los Angeles Cannabis Resource Center, Southern California’s first patient-based medical marijuana cooperative.