Controversy over medical marijuana? Or, just an excuse to talk?

Over the week­end, there was quite a ruckus over whether folks should sup­port legal­iza­tion or med­ical use of mar­i­jua­na, as if there was some prob­lem with folks sup­port­ing one or the oth­er, or both.  You can fol­low the dis­cus­sion at CelebStoner.com and TokeOfTheTown.com if you’d like to fol­low along.  I’m post­ing my com­ments here to memo­ri­al­ize my thoughts.

I’m won­der­ing why Cal­i­for­nia has­n’t sued Eric Hold­er for main­tain­ing mar­i­jua­na in a cat­e­go­ry that says it has no accept­ed med­ical use in the Unit­ed States.  It has accept­ed med­ical use in Cal­i­for­nia and Cal­i­for­nia is a state and Cal­i­for­nia is in the Unit­ed States.  I think the state offi­cials in Cal­i­for­nia are respon­si­ble for the mess there and they need to be sued for fail­ure to defend the state med­ical mar­i­jua­na law at the fed­er­al lev­el.  Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), says med­ical use is deter­mined by state law­mak­ers, not by the U.S. Depart­ment of Jus­tice.

I would say that gov­ern­ment offi­cials don’t do any­thing vol­un­tar­i­ly, par­tic­u­lar­ly if there might be some dif­fi­cul­ty involved.  Since the case I’m refer­ring to, Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), took a fed­er­al law suit and law suits costs mon­ey, I don’t think you have to look any fur­ther for a the­o­ry as to why Cal­i­for­nia has not done this.  That’s why it will take a cit­i­zen to file a law suit in state court against the state for fail­ure to do every­thing with­in its pow­er to pro­tect med­ical use by the cit­i­zens.  Cer­tain­ly, demand­ing mar­i­jua­na be removed from fed­er­al sched­ule I is with­in the state’s pow­er and right as a state in the Unit­ed States (since the cri­te­ria for keep­ing it in sched­ule I is that it must have no accept­ed med­ical use in the Unit­ed States).  I don’t see this hap­pen­ing with­out a peti­tion for writ of man­damus filed by Cal­i­for­ni­ans in state court against state offi­cials.  The title of the case would be John Doe v. Cal­i­for­nia (John Doe being who­ev­er files the case).  The ACLU should do this for the cit­i­zens, but I’m sure they won’t.

Just to give you an exam­ple, I filed a peti­tion with the Iowa Board of Phar­ma­cy to remove mar­i­jua­na from sched­ule I and they reject­ed it with­out even con­sid­er­ing it. I sued them and won. After I won, they held months of pub­lic hear­ings and ruled unan­i­mous­ly that mar­i­jua­na should be removed from sched­ule I. The mon­ey for the hear­ings came out of their own oper­at­ing bud­get. They won’t do some­thing like that vol­un­tar­i­ly. You have to sue them. In Cal­i­for­nia, your phar­ma­cy board has no author­i­ty to reclas­si­fy, so you would have to sue the state direct­ly as I am cur­rent­ly doing here in Iowa.

All 16 states that have accept­ed the med­ical use of mar­i­jua­na accept it in it’s nat­ur­al plant form, not as a phar­ma­ceu­ti­cal pre­scrip­tion drug.  The trend is not going toward a takeover by cor­po­rate phar­ma­ceu­ti­cal com­pa­nies.  This is a good thing.  Any­one who does­n’t sup­port this trend is no friend of legal­iza­tion.

Yes, NORML, legal­iza­tion would be good for patients.  Why don’t you go do that for them?

The amaz­ing this is that while NORML blast the med­ical mar­i­jua­na com­mu­ni­ty, NORML is cur­rent­ly work­ing to have mar­i­jua­na trans­ferred to sched­ule III, IV, or V of the fed­er­al Con­trolled Sub­stances Act.  What is that all about?

Make Mar­i­jua­na Legal For Med­ical Pur­pos­es: Help Put Mar­i­jua­na Resched­ule Peti­tion Before Pres­i­dent Oba­ma by Allen St. Pierre, NORML Exec­u­tive Direc­tor Octo­ber 4, 2011

What NORML nev­er tells you is that all 16 states that have accept­ed the med­ical use of mar­i­jua­na have failed to sue Eric Hold­er for keep­ing mar­i­jua­na clas­si­fied as a sub­stance with no accept­ed med­ical use in the Unit­ed States. The Unit­ed States Supreme Court made it abun­dant­ly clear in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006) that states decide what is and is not accept­ed for med­ical use, not the fed­er­al gov­ern­ment. NORM­L’s legal com­mit­tee just does­n’t get it, or is hid­ing it for some rea­son.

There’s a rea­son the fed­er­al gov­ern­ment is crack­ing down on large-scale man­u­fac­ture and dis­tri­b­u­tion — because the state offi­cials have com­mit­ted trea­son by fail­ing to rep­re­sent the peo­ple who elect­ed them to enforce the state laws.

Col­orado is ask­ing the DEA to put mar­i­jua­na in Sched­ule II with­out a shred of evi­dence to back it up. The let­ter was one page. The let­ter says the Col­orado Leg­is­la­ture thinks mar­i­jua­na “may have poten­tial” med­ical use. The Col­orado Con­sti­tu­tion says mar­i­jua­na “is” med­i­cine. It’s trea­son for any state offi­cial to say mar­i­jua­na “may have” when the con­sti­tu­tion says “does have.” How the cit­i­zens of Col­orado are let­ting these state offi­cials com­mit trea­son is beyond belief.

Your con­sti­tu­tion in Col­orado does not say “may have.” It says mar­i­jua­na is med­i­cine. Your leg­is­la­ture has enact­ed an uncon­sti­tu­tion­al law that says “may have” and you’ve just con­sent­ed to it. You’re free to give up your rights, but not all of us play that way.

Med­ical mar­i­jua­na is not a pre­scrip­tion drug. It isn’t pre­scribed in any state where it’s legal for med­ical use. Peo­ple who make the argu­ment that it’s just a pre­tense for cor­po­rate con­trol by the phar­ma­ceu­ti­cal com­pa­nies aren’t look­ing at the facts. The fact is the plant is most use­ful in its nat­ur­al form and the laws in 16 states that have legal­ized it for med­ical use all reflect that fact. Mar­i­jua­na does not belong in Sched­ule I, but it also does not belong in Sched­ules II, III, IV, or V because those sched­ules all con­tain pre­scrip­tion drugs. So, med­ical use does lead to legal­iza­tion. The fact that mar­i­jua­na is cur­rent­ly clas­si­fied as “good for noth­ing” is the prob­lem and med­ical mar­i­jua­na is the solu­tion because it proves mar­i­jua­na is “good for some­thing.” The fact that NORML and its friends are unable to have fun, or what­ev­er “recre­ation­al” use means, is just not a com­pelling argu­ment.

Now, the real ques­tion is why the large scale man­u­fac­tur­ers and dis­trib­u­tors haven’t sued their state offi­cials for fail­ure to rep­re­sent the will of the peo­ple and sue Eric Hold­er for fail­ing to remove mar­i­jua­na from it’s cur­rent clas­si­fi­ca­tion as hav­ing no accept­ed med­ical use in the Unit­ed States.  It’s like they want the fed­er­al gov­ern­ment to keep mar­i­jua­na clas­si­fied as hav­ing no accept­ed med­ical use in the Unit­ed States.  The doc­u­men­tary on the Nation­al Geo­graph­ic chan­nel last month “Mar­i­jua­na Gold Rush” actu­al­ly made this argu­ment that as long as it remains ille­gal under fed­er­al law, high risk investors can make a lot of mon­ey from it.  What a shame.

This lat­est round by NORML reminds me of com­ments Scott Imler made sev­er­al years ago that got quot­ed over and over again by the drug war­riors. My prob­lem with Cal­i­for­nia is that the state offi­cials have not filed against the U.S. Attor­ney Gen­er­al for main­tain­ing mar­i­jua­na in a clas­si­fi­ca­tion that says it has no accept­ed med­ical use in the Unit­ed States.  Cal­i­for­nia is a state and it’s in the Unit­ed States. When I read the deci­sion in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), it became clear to me that accept­ed med­ical use is defined by state law, not by the 8 fac­tors in 21 U.S.C. 811©. The DEA can not put mar­i­jua­na into any of the oth­er four sched­ules, because it isn’t being sold inter­state and it isn’t being pre­scribed. That would leave it com­plete­ly unsched­uled, which is exact­ly where it should be.

I think NORM­L’s com­ments have stim­u­lat­ed an impor­tant dis­cus­sion.  On the one hand, the med­ical cannabis indus­try could pro­vide much need­ed resources to get the states to demand fed­er­al reclas­si­fi­ca­tion.  On the oth­er hand, they prob­a­bly won’t if they’re just in it for the mon­ey.  We cer­tain­ly need to expand pro­duc­tion and dis­tri­b­u­tion, but it can’t be done by sim­ply chang­ing state law.  Fed­er­al law also has to be changed before it will work.  So, NORML has a point worth con­sid­er­ing, even it was­n’t artic­u­lat­ed very well.

So, yes, we need a med­ical cannabis indus­try, but, no, the mod­el we are see­ing devel­op is severe­ly flawed. The main point I would take issue with NORML over is the idea that cannabis con­sumers just can’t have any fun unless mar­i­jua­na is legal. Who is going to get all teary-eyed about that? Med­ical cannabis is going to result in full legal­iza­tion, not the oth­er way around. NORML needs to get its pri­or­i­ties in order.

Let’s just take Har­bor­side Health Cen­ter for an exam­ple.  They gross over $20 mil­lion per year.  They just got hit with a $2.5 mil­lion IRS tax levy because mar­i­jua­na is fed­er­al­ly clas­si­fied as a sub­stance with no med­ical use in the Unit­ed States.  But, it has accept­ed med­ical use in Cal­i­for­nia, which is a state in the Unit­ed States.  Has Cal­i­for­nia ever sued the U.S. Attor­ney Gen­er­al, like Ore­gon sued John Ashcroft for try­ing to inter­fere with it’s state assist­ed sui­cide law?  No.  Has Har­bor­side sued Cal­i­for­nia for fail­ure to sue Eric Hold­er?  No.  What’s going on is some kind of rela­tion­ship between Cal­i­for­nia and Har­bor­side that makes it incon­ve­nient for Har­bor­side to sue Cal­i­for­nia, so the prob­lem just does­n’t get fixed.  Cal­i­for­nia should be pay­ing that $2.5 mil­lion IRS tax levy for Har­bor­side, but Har­bor­side is com­pro­mised because Cal­i­for­nia allows it to exist in the first place.

With the health ben­e­fits of juic­ing cannabis being revealed, we need large scale pro­duc­tion and dis­tri­b­u­tion, and the cur­rent dis­pen­sary mod­el just isn’t going to fill that need.