Sunday, December 2, 2007


Pubdate: Sun, 2 Dec 2007



The United States is a nation governed by law at the federal, state 

and local levels. Sometimes these laws differ with each other. That's 

where the great principle of federalism comes in. Federalism permits 

state laws to be in conflict with each other, and even with the 

federal government. But that's OK. The sometimes messy business of 

federalism permits different locales to try different solutions to 

vexing problems, allowing the states to act as the "test tubes of democracy."


We see federalism in action most vividly today surrounding the 

controversy over medical marijuana. Ten states have either legalized 

cannabis for medicinal use or permit a medical purpose defense 

against prosecution. Their actions do not force other states to go along.


But federalism also means that the federal government can't be 

compelled to accede to the state's laws, either, and indeed, when 

federal and state laws conflict - as currently it does in states that 

have legalized medical marijuana - both federal and state laws may 

operate at the same time. Thus, the Supreme Court of the United 

States has twice ruled that the federal government is entitled to 

enforce its total ban against all marijuana possession and 

consumption where such use is statutorily authorized.


And that's exactly what the Drug Enforcement Administration and 

Department of Justice have done under Presidents Bill Clinton and 

Bush. People using and distributing marijuana for medicinal use have 

been prosecuted and convicted - even in states like California, where 

it is legal. The upset caused by federal law enforcement actions has 

made medical marijuana an issue in the current presidential campaign, 

with candidates increasingly being asked by reporters and medical 

marijuana activists whether they will promise to call off the DEA raids.


According to Granite Staters for Medical Marijuana ( ), most of the Democrats, including Hillary 

Clinton, Barack Obama and John Edwards, have promised to call off the 

dogs. The leading Republican candidates, including Rudy Giuliani and 

Mitt Romney, have refused to so pledge, worrying, as John McCain put 

it in also rejecting the request, that marijuana is a "gateway drug." 

(Fred Thompson did not answer the question.)


But this is both the wrong question and the wrong solution to the 

controversy. The problem isn't the DEA raids. They are a symptom. The 

real illness, if you will, is the Federal Controlled Substances Act, 

passed in 1970, which explicitly lists marijuana as a "Schedule I" 

drug. This means that under federal law, marijuana has a "high 

potential for abuse" and "no accepted medical use in treatment in the 

United States." Because marijuana is listed under Schedule I, doctors 

may not legally prescribe it, and the federal government can ignore 

state medical marijuana laws.


People can debate marijuana's potential for abuse, but it is 

increasingly clear that cannabis has definite medicinal benefits. 

Studies and abundant anecdotal evidence demonstrate that marijuana 

can stimulate the appetites of people with AIDS and cancer, reduce 

nausea in chemotherapy patients, and help people with such 

debilitating conditions as multiple sclerosis, diabetes and glaucoma. 

And the American people know it: Polls show support in the 70 percent 

range for medical marijuana.


The good news is that just because marijuana is currently on Schedule 

I, doesn't mean that it has to stay on Schedule I. The classification 

can be changed in two ways: Either by the DEA - a highly unlikely 

course - or by legislation. Indeed, Congress could pass a law 

tomorrow listing marijuana under Schedule II of the controlled 

substances law. This means that marijuana would still be considered a 

drug with "a high potential for abuse" but one that also "has a 

currently accepted medical use."


This would hardly be a radical move. It would merely allow doctors to 

prescribe cannabis according to the same rules currently permitted 

for far stronger and addicting drugs such as morphine, opium and 

cocaine. Moreover, and here's a bitter irony, Marinol - the synthetic 

version of marijuana (which many patients contend does not work as 

well as the real McCoy), is listed as a Schedule III drug, meaning it 

has less of a "potential for abuse" than drugs on Schedule I or II.


Given these facts and the high public support for marijuana as 

medicine, one would think that the Democratic Congress would be 

galloping to reclassify marijuana into either Schedule II or III. But 

you can hear the crickets chirping: Even though most of the 

Democratic presidential candidates are currently in the U.S. Senate 

or House, there is no bill pending to reschedule marijuana. Moreover, 

while there is discussion among medical marijuana supporters about 

introducing a bill of some sort, past proposals have not attacked the 

heart of the problem, which is the Schedule I classification.


To be sure, reclassifying marijuana would be resisted. But this isn't 

because opponents are heartless. They worry that marijuana promoters 

are cynically using the medicinal issue as a subterfuge for outright 

legalization. This is undoubtedly true in some quarters, but so what? 

If morphine and cocaine can be prescribed without being legalized as 

an intoxicant, why can't marijuana?


Opponents are also concerned that legitimizing medical marijuana 

would increase abuse. But it is the Schedule I listing that actually 

forces medical marijuana to be distributed through a semi-anarchic 

system in which doctors write notes, instead of properly regulated 

prescriptions, and patients pick up their drug from pot "clubs" 

instead of pharmacies.


This is a prescription for chaos. "None of us would have advocated 

for the current model of distribution," Allen St. Pierre, the 

executive director of the marijuana legalization advocacy group the 

National Organization for the Reform of Marijuana Laws, told me. "The 

government's actions have led to the law of unintended consequences: 

People are literally getting cannabis for writer's block." The best 

way to prevent such shadow legalization is to change the law and 

thereby cut medical marijuana off from the broader advocacy movement.


This much is sure: Marijuana's Schedule I status breeds disrespect 

for government, forces the DEA to waste resources raiding the homes 

of sick people, leads to chaotic distribution schemes, and prevents 

reasonable medical testing to see which maladies benefit - and which 

do not - from marijuana use. Worse, the stigma of federal illegality 

deters some sick people from seeking a drug that could help them feel better.


So the time has come to put the presidential candidates on the hot 

seat. Merely asking whether they will halt the DEA raids allows them 

to expediently wiggle past the real issue, and indeed, seeks a 

promise from a future president to violate his or her oath of office 

by pledging not to enforce valid federal law.


What we really need to know is whether the next president will remove 

marijuana from Schedule I classification. That would help sick 

people, remove the issue of medicinal use from the broader debate 

over legalization, and bring the federal law in alignment with 

empirical realities.


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