|
Medical
Marijuana Briefing Paper - 2003
The Need to Change State and Federal Law
The Struggle in Court
In 1972, a petition was submitted to the Bureau of Narcotics and Dangerous
Drugs -- now the Drug Enforcement Administration (DEA) -- to reschedule
marijuana to make it available by prescription.
After 16 years of court battles, the DEA's chief administrative law
judge, Francis L. Young, ruled:
"Marijuana, in its natural form, is one of the safest therapeutically
active substances known. ...
"... [T]he provisions of the [Controlled Substances] Act permit
and require the transfer of marijuana from Schedule I to Schedule II.
"It would be unreasonable, arbitrary and capricious for DEA to continue
to stand between those sufferers and the benefits of this substance. ..."
(September 6, 1988)
Marijuana's placement in Schedule II would enable doctors to prescribe
it to their patients. But top DEA bureaucrats rejected Judge Young's
ruling and refused to reschedule marijuana. Two appeals later, petitioners
experienced their first defeat in the 22-year-old lawsuit. On February
18, 1994, the U.S. Court of Appeals (D.C. Circuit) ruled that the DEA is
allowed to reject its judge's ruling and set its own criteria--enabling
the DEA to keep marijuana in Schedule I.
However, Congress still has the power to reschedule marijuana via
legislation, regardless of the DEA's wishes.
Temporary Compassion
In 1975, Robert Randall, who suffered from glaucoma, was arrested for cultivating
his own marijuana. He won his case by using the "medical necessity defense,"
forcing the government to find a way to provide him with his medicine.
As a result, the Investigational New Drug (IND) compassionate access program
was established, enabling some patients to receive marijuana from the government.
The program was grossly inadequate at helping the potentially millions
of people who need medical marijuana:
-
Most patients would never consider the idea that an illegal drug might
be their best medicine;
-
Most patients fortunate enough to discover marijuana's medicinal value
did not discover the IND program;
-
Most of those who did learn of the program could not find doctors willing
to take on the arduous task of enrolling in and working through the IND
program.
In 1992, in response to a flood of new applications from AIDS patients,
the Bush administration closed the program to all new applicants. On December
1, 1999, the Clinton administration restated that the IND program would
not be reopened. Consequently, the IND program remains in operation only
for the seven surviving previously approved patients.
Public Opinion
There is tremendous public support for ending the prohibition of medical
marijuana:
-
Since 1996, a majority of voters in Alaska, California, Colorado, the District
of Columbia, Maine, Nevada, Oregon, and Washington state have voted in
favor of ballot initiatives to remove criminal penalties for seriously
ill people who grow or possess medical marijuana. Recent polls have shown
that public approval of these laws has increased since they went into effect.
-
A 1990 scientific survey of oncologists (cancer specialists) found that
54% of those with an opinion favored the controlled medical availability
of marijuana and 44% had already broken the law by suggesting at least
once that a patient obtain marijuana illegally. [R. Doblin & M. Kleiman,
"Marijuana as Antiemetic Medicine," Journal of Clinical Oncology 9 (1991):
1314-1319.]
-
A Pew Research poll conducted February 14-19, 2001, found that 73% of American
adults supported permitting doctors to prescribe marijuana for their patients.
Over the last decade, polls have consistently shown between 60% and 80%
support for legal access to medical marijuana.
Changing State Laws
The federal government has no legal authority to prevent state governments
from changing their laws to remove state-level criminal penalties for medical
marijuana use. Indeed, Hawaii enacted a medical marijuana law via its state
legislature in June 2000. State legislatures have the authority and moral
responsibility to change state law to:
-
exempt seriously ill patients from state-level prosecution for marijuana
possession and cultivation; and
-
exempt doctors who recommend medical marijuana from prosecution or the
denial of any right or privilege.
Even within the confines of federal law, states can enact reforms that
have the practical effect of removing the fear of patients being arrested
and prosecuted under state law -- as well as the symbolic effect of pushing
the federal government to allow doctors to prescribe marijuana.
U.S. Congress: The Final Battleground
State governments that want to allow marijuana to be sold in pharmacies
have been stymied by the federal government's overriding prohibition of
marijuana.
Patients' efforts to bring change through the federal courts have made
little progress, as the courts tend to defer to the DEA, which is aggressively
working to keep marijuana illegal.
Efforts to obtain FDA approval of marijuana are similarly stalled. Though
some small-scale studies of marijuana are now underway, the National Institute
on Drug Abuse -- the only legal source of marijuana for clinical research
in the U.S. -- has consistently made it difficult (and often nearly impossible)
for researchers to obtain marijuana for their studies. Under the present
circumstances, it is virtually impossible to do the sort of large-scale
and extremely costly trials required for FDA approval.
In the meantime, patients continue to suffer. Congress has the power
and the responsibility to change federal law so that seriously ill people
nationwide can use medical marijuana without fear of arrest and imprisonment.
Back to page one Medical Marijuana
Credit: http://www.mpp.org
|
