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Media commentary has suggested that the federal government’s recent decision about medical marijuana (in states where it is legal) could open the doorway for other states, like New York, to create laws that would allow cancer patients and other patients to use marijuana legally.
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(excerpt from) Huffington Post
Holder’s Baby Step On Medical Marijuana
by Chris Weigant / October 19, 2009 08:06 PM
The Obama Justice Department made news today by codifying a previously-announced policy of ending raids on medical marijuana dispensaries which comply with state laws. Even though medical marijuana is legal in fourteen states — over one-fourth of the country — it is still illegal under federal law (the Controlled Substances Act). Since federal law always trumps state law, this has led to continuing raids on dispensaries which state and local governments have explicitly allowed to operate. When President Obama took office, he announced that these raids by the feds would cease, as long as the dispensaries weren’t breaking applicable state laws in their operation. A few raids subsequently took place in California, leading to some distrust and skepticism, but today Attorney General Eric Holder sent out guidelines to federal attorneys to halt these raids. This is good news for medical marijuana advocates, but even though this is a historic shift in the War on Drugs, it simply does not go far enough — because it does not adequately resolve the illogic of the underlying legal issue. At best, it should be seen as only a good first (baby) step on the road towards a rational and cohesive federal medical marijuana policy.
The underlying problem is the fact that the federal government, via the Controlled Substances Act, refuses to admit that marijuana can ever be used medically. This leads to some serious doublethink on the federal level, and also leads to some serious injustice in the courtroom. And nothing the Department of Justice said today changes any of that…
What this all means is that defendants are prohibited from attempting what is known as a “medical necessity defense” in federal courtrooms. In other words, it does not matter whether your doctor tells you that if you don’t ingest marijuana you will likely die — because you cannot tell the jury this during your trial…
What this all means is that today’s news, while good for the medical marijuana movement, is simply not good enough, because it changes no underlying federal law. Meaning that, if President Obama — and Attorney General Holder, and the local Drug Enforcement Agency, and the local federal prosecutor — all deem a particular medical marijuana dispensary acceptable, then it won’t be raided. But if anyone in that chain of command decides you’re outside the state law in any way, then you cannot even mention the words “medical marijuana” in your court case after they arrest you. You will simply be prosecuted as a “dealer” or “trafficker” and will be gagged so you cannot explain who you were really selling marijuana to.
This is still unacceptable…
Of course, the real answer is to move marijuana to Schedule II. This would not only allow a legal defense in a courtroom, but it would make it much harder to overturn later on (under a different president). And, while Congress is capable of doing this, it doesn’t seem likely any time soon (Barney Frank introduced such a bill, H.R. 2835, in the House this earlier this year — but it has less than 30 cosponsors, and will likely get quietly buried in the Energy and Commerce committee without even getting a committee vote). But Congress doesn’t even have to act in order to reschedule marijuana under the Controlled Substances Act. Right there in the text of the law is the following: “the Attorney General may by rule … transfer between such schedules any drug or other substance….”
Meaning that, while today’s news is indeed a positive step towards legal acceptance of medical marijuana, it is a baby step at best. Because Attorney General Holder could have solved the problem once and for all…
[Legal Note: Anyone wishing to look into the court cases mentioned in this article should check out United States v. Ed Rosenthal and United States v. Oakland Cannabis Buyers’ Cooperative. The Rosenthal link is a collection of articles (best link I could find with a limited search), but the O.C.B.C. link is the full legal record of the trial, in original documents. Another Supreme Court case worth looking at, where a slightly different defense was unsuccessfully used, is Gonzales v. Raich (was originally Ashcroft v. Raich).]
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Filed under: health, Healthcare, New York State Politics, News, politics Tagged: | Criminal Justice, drug laws, health care, marijuana, medical marijuana
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