Tidbits on Drug Policy

Another two cents thrown in

4th District Court of Appeal Returns Pot to Rightful Owner

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Eight grams of medical marijuana seized from a Garden Grove man during a traffic stop must be returned to him, according to an appeals court ruling directing local law enforcement to uphold state, not federal law.

Source: CBS2.com: Federal Court Rules Pot To Be Returned To Driver

Read the whole story by following the link above. The story is welcome news to anybody who prefers sensible drug policy. I managed to find the text of the decision online and, after reading it, here are my two cents:

The case is a triumph of sensible approach over the formalistic one. While the decision touches upon plenty of legal doctrines, such as standing, California medical marijuana laws, and even the 10th Amendment, the most striking feature about it is the willingness of the justices to use the aforementioned doctrines to render a decision on a very simple issue:

“…we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.”


No legal training is required to arrive at a sensible decision in a case like this. I don’t really believe in modern-day precedent-based jurisprudence, simply because a smart lawyer is always able to either cite a precedent in support of his argument, or, if he or she happens to represent an opposing side, to distinguish it. In the present decision, the Justices cite a bunch of cases that don’t support their decision, yet easily distinguish them from the situation they are faced with. Similarly, the legal doctrines can be twisted any way one wants, and that’s exactly what the Justices do. Just consider the following example:

“…the City argues that in enacting the CSA, Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant’s medical marijuana under state law would be absolutely anathema to congressional intent. We cannot agree.”

Then, Justices proceed to create a solid legal foundation underneath their opinion. However – once again – no legal training is required to spot the fallacy of the statement above. Anybody who is familiar with the history of the Drug War and Drug War jurisprudence would likely agree with me that Congress did indeed intend to occupy the field of marijuana regulation as extensively as possible.

Now, I am not saying that the opinion is legally suspect. All I am saying is that a smart lawyer can use legal doctrines to justify diametrically opposite opinions. Actually, I think that the 4th District Court of Appeal rendered an opinion that is amazingly objective in its treatment of what’s really at stake. In the words of the court itself:

“We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed.”

Anomalous is a very mild description of legally suspect regulations that have sprung up during the War on Drugs. The court above was able to prevent the creation of a yet another anomaly.

Originally written on January 7, 2008

Refusing to See the Obvious: More on Medicinal Marijuana

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Two weeks after I wrote about studies demonstrating marijuana’s potential in treating cancer, the following article pops up on FoxNews.com:

A compound found in cannabis may stop breast cancer from spreading throughout the body, according to a new study by scientists at California Pacific Medical Center Research Institute. The researchers are hopeful that the compound called CBD, which is found in cannabis sativa, could be a non-toxic alternative to chemotherapy.

Source: Marijuana Compound May Stop Breast Cancer From Spreading, Study Says

Let me remind you, that marijuana remains a CSA Schedule I drug, which means, according to the Act that:

The drug or other substance has no currently accepted medical use in treatment in the United States. (Italics added)

That’s despite dozens of studies like the one above and that almost half of the nation’s oncologists recommend their patients obtain marijuana, despite its illegality, in order to alleviate their suffering. I mean, if that’s not currently accepted medical use, I don’t know what is. (By the way, speaking from a purely legal standpoint, this practice of recommending marijuana would fall under the Respectable Minority doctrine used in some states to refute malpractice claims! Or, if put otherwise, this would constitute a legitimate medical practice.) And yet – drug warriors continue to avoid finding medical utility of marijuana, despite pretty much overwhelming evidence to the contrary. One example of how they manage to do so comes from a decision in United States v. Oakland Cannabis Buyers Coop. (2001), where Justice Thomas writes:

In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, […] the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. (Italics added)

Imagine Congress passing legislation that puts aspirin into Schedule I. Now, if this classification is challenged in the Supreme Court, the Court may do the sensible thing, analyze the evidence and address the issue on its merits – namely, should aspirin really remain in Schedule I – or, it could duck the issue by saying that “for purposes of the CSA, aspirin has no currently accepted medical use.”

So, what Justice Thomas was basically saying in that opinion is that “marijuana has no accepted medical use because the legislature says it has no accepted medical use.” He may have been staying within the currently accepted boundaries of judicial review; however, Thomas’ formalism steers far from common sense. No sane person would in all earnest claim that the Earth is flat simply because the legislature made such a determination.

Marijuana useful in treating cancer?

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Jack Herer, the author of The Emperor Wears No Clothes writes:

In 1974, Virginia Medical College in Richmond, Virginia did research on tumors of the lung, brain, liver and kidney using mice and rats. Incredible things were done. The cancer stopped growing and in most cases even reversed itself 100 percent. Some of the mice who were given cancer and treated with cannabis actually lived longer than some of the controlmice who were not even given cancer! It was found that marijuana is the best thing to treat cancer of the lungs, brain, etc. After that they were stopped from doing anymore research at all by first Nixon and then Ford.

Source: Jack Herer’s Home Page

Well, I was sort of skeptical – but then, I found the link to the Virginia the study that he mentions. The synopsis indeed shows that

Lewis lung adenocarcinoma growth was retarded by the oral administration of delta9-tetrahydrocannabinol (delta9-THC), delta8-tetrahydrocannabinol (delta8-THC), and cannabinol (CBN), but not cannabidiol (CBD).

Upon a further search, a study done in Spain in 2000 turned up:

Here, we show that intratumoral administration of Delta9-tetrahydrocannabinol and the synthetic cannabinoid agonist WIN-55,212-2 induced a considerable regression of malignant gliomas in Wistar rats and in mice deficient in recombination activating gene 2. Cannabinoid treatment did not produce any substantial neurotoxic effect in the conditions used.

Finally, the pilot study involving nine patients suffering from glioblastoma – a type of brain cancer, concluded that

Delta(9)-Tetrahydrocannabinol inhibited tumour-cell proliferation in vitro and decreased tumour-cell Ki67 immunostaining when administered to two patients. The fair safety profile of THC, together with its possible antiproliferative action on tumour cells reported here and in other studies, may set the basis for future trials aimed at evaluating the potential antitumoral activity of cannabinoids.

Basically, that’s strong evidence that THC may indeed be effective in treating certain types of cancers. Something like that – I would think – would get plenty of media attention; however there wasn’t much apparently, since even myself, who actively looks for these types of news, wasn’t aware of this.

Suppressing the results of the Virginia study… ignoring credible results of European studies… obstructing studies into THC’s medicinal properties… the amazing consistency of government’s resistance to acknowledging the therapeutic value of marijuana really makes me wonder: it can’t be just about the desire of the anti-drug warriors to retain the lion’s share of their budget. There has to be some compelling reason behind this: a reason so sinister, that the government doesn’t want to disclose it out of concern for our feeble minds… But – I don’t usually subscribe to conspiracy theories – the ugly and banal truth is likely that it is all about the money. Apparently, the well-financed moral posturing is more important than a chance to save lives and alleviate suffering of thousands of people.

The drawbacks of treatment with medicinal marijuana

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Here is an interesting argument against medicinal marijuana, mainly on the grounds that smoking a therapeutic substance isn’t a safe and uniform method of administration:

“If marijuana has therapeutic potential, it should be required to pass muster with the F.D.A. like any other medicine. We have considerable experience with making drugs from plant material, including the opium poppy. We don’t authorize patients to smoke ( or vaporize ) opium for medical purposes; rather, we require that opiate products, including morphine for pain relief and paregoric for diarrhea, be standardized, controlled for quality, fully tested, delivered in an appropriate manner and shown to be safe and effective. Why should marijuana be any different?”

Source:: NYT OPED: Crackpot Legislation

The author’s reasoning is medically sound; however, as far as I understand, the problem is that no marijuana derivative (i.e.: Marinol) in existence has been found just as effective as smoking marijuana. Smoking pot definitely has all the drawbacks that are described in Henry I. Miller’s article – but it still remains the only truly effective method of alleviating symptoms of many debilitating conditions. So far, there hasn’t been a single recorded death attributed to marijuana. Thus, it is no wonder that many patients choose an admittedly imperfect, but a relatively safe treatment over no treatment at all. Legalizing marijuana would certainly allow more research into its therapeutic effects and will allow development of medications that will better address Henry Miller’s concerns.

How much should the jurors be told?

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Ed Rosenthal, a long-time medical marijuana advocate, is brought to trial in the federal court in San Fransisco on charges of marijuana cultivation. This is his second trial for essentially the same offense: growing marijuana as an agent for the city of Oakland’s medical marijuana distribution program (just to remind the readers, California legalized medical marijuana in 1996).

During his first trial in 2003, he was convicted and sentenced to only one day in jail (which he had already served at the time). That verdict was thrown out by the federal appeals court because of jury misconduct. Probably because Ed Rosenthal is such a well-known and an outspoken public figure, or possibly because they want a precedent on the books, the federal prosecutors are pursuing the conviction, even though they acknowledged that he could not be jailed if convicted again.

The larger issue here is that, just like in the first trial, the information that Ed Rosenthal was growing marijuana for sick patients is being withheld from the jurors. From what I remember, the 2003 conviction culminated in the angry jurors holding a press-conference to apologize to Rosenthal for convicting him and expressing their outrage for being manipulated. In the present case,

“District Judge Charles Breyer told the jurors they were there to decide whether Rosenthal was guilty of growing marijuana, not to draw conclusions about why the government was prosecuting him. For his part, Assistant U.S. Attorney George Bevan described the case as a straightforward prosecution for marijuana cultivation.”

Source: San Fransisco Chronicle: Pot advocate’s new trial begins

Obviously, this is not a straightforward prosecution for marijuana cultivation. While social attitudes to recreational drug use might have remained the same, it seems like, at least in California, the public views therapeutic marijuana use in a favorable light. Not telling the jurors about the reason behind Rosenthal’s marijuana cultivation prods them to make a decision that they would not otherwise have made, as the previous attempt at prosecuting Rosenthal amply demonstrated. The evidence that marijuana cultivation was authorized by the city of Oakland for distribution to sick patients might be irrelevant under the federal Controlled Substances Act; however, it is very relevant to a group of Rosenthal’s peers who are called upon by the federal government to decide his guilt or innocence. As far as I know, the jury still has the power to acquit a defendant regardless of whether he technically broke the law or not. I guess, I can’t say it better than Wikipedia:

“Jury nullification refers to a rendering of a verdict by a trial jury, disagreeing with the instructions by the judge concerning what is the law, or whether such law is applicable to the case, taking into account all of the evidence presented. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops, it can have the practical effect of disabling the enforcement of that position on what is the law or how it should be applied. Juries are reluctant to render a verdict contrary to law, but a conflict may emerge between what judges and the public from whom juries are drawn hold the law to be. A succession of such verdicts may signal an unwillingness by the public to accept the law given them and may render it a “dead-letter” or bring about its repeal. The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict than officials who may be unduly influenced. Jury nullification is a reminder that the right to trial by one’s peers affords the public an opportunity to take a dissenting view about the justness of a statute or official practices.” (Italics Added).

Source: Wikipedia: Jury Nullification

The federal prosecutors and Judge Breyer are undoubtedly aware of the very real possibility of the jury exercising its jury nullification right in this particular trial. Hence, they withheld the information from it, I suppose, on the grounds that the probative worth of such evidence is low considering that (a) it is irrelevant as far as the federal law is concerned, and (b) it might make jurors unduly sympathetic to the defendant and thus, render their reasonable doubts uhm… unreasonable. The irony here is that a reasonable person is likely to render a more equitable decision had he or she been presented with a full context behind Rosenthal’s marijuana cultivation. The fact that that decision would likely not be the one favorable to the government should not be dispositive in excluding the evidence.

Originally written on May 16, 2007

Could Gonzales v. Raich have been decided differently?

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In the previous post, I mentioned that Gonzales v. Raich (2005) (a case where the Supreme Court held that “Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.”) could have been decided against the government based on the Commerce Clause alone. Well, here’s how:

The Gonzales Court’s decision that the Congress is authorized under the Commerce Clause to regulate purely local cultivation and use of marijuana is eerily reminiscent of Wickard v. Filburn, 317 U.S. 111 (1942). Here’s what the case was about:

“Roscoe Filburn was a farmer who produced wheat in excess of the amount permitted under the applicable production quota. He argued that, because the excess wheat was produced for his private consumption on his own farm, it never entered commerce at all, much less interstate commerce, and therefore was not a proper subject of federal regulation under the Commerce Clause.


The Court […] held that Congress could regulate wholly intrastate, non-commercial activity if such activity, viewed in the aggregate, would have a substantial effect on interstate commerce, even if the individual effects are trivial.”

Source: Wikipedia: Wickard v. Filburn

The Gonzales Court used a similar line of reasoning to discuss the possible diversion of medical marijuana into illicit markets. The Court didn’t even bother assessing the evidence of the impact on illicit interstate marijuana trade by the possible diversion of locally grown medicinal pot. In his dissent, Justice Thomas touched exactly upon this issue:

But even assuming that States’ controls allow some seepage of medical marijuana into the illicit drug market, there is a multibillion-dollar interstate market for marijuana. […] It is difficult to see how this vast market could be affected by diverted medical cannabis, let alone in a way that makes regulating intrastate medical marijuana obviously essential to controlling the interstate drug market.”

In Wickard v. Filburn, the Commerce Clause allowed federal governments to regulate locally-grown wheat because of the possible substantial aggregate effect on the interstate commerce by hundreds of thousands of farmers growing wheat intrastate. However, the potential aggregate effect of diverting all of medicinal marijuana into illicit channels would barely make a splash in the huge river of interstate marijuana trade. Thus, because of the negligible effect of locally-grown medicinal marijuana on interstate commerce, “the CSA [the Controlled Substances Act] exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.” Gonzales v. Raich (2005) (Justice Thomas, dissenting). Uhm… I mean, could have exceeded if Gonzales v. Raich had been decided differently.

No judicial relief for medical marijuana

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“Oakland medical marijuana patient and activist Angel Raich dropped her lawsuit against the federal government Thursday,” reports InsideBayArea.com.

Earlier in the decade, the Court delivered a one-two punch to the quest to quell the federal persecution of medicinal marijuana patients and their providers with two cases, United States v. Oakland Cannabis Buyers Coop. (2001) and Gonzales v. Raich (2005). The Oakland Cannabis Buyers Corp. held that “there is no medical necessity exception to the Controlled Substances Act’s prohibitions on manufacturing and distributing marijuana,” but declined to consider the constitutional issues. Justice Thomas, writing for the majority stated that:

“[T]he Cooperative asserts that, shorn of a medical necessity defense, the statute exceeds Congress’ Commerce Clause powers, violates the substantive due process rights of patients, and offends the fundamental liberties of the people under the Fifth, Ninth, and Tenth Amendments. […] [W]e [do not] consider the underlying constitutional issues today. Because the Court of Appeals did not address these claims, we decline to do so in the first instance.”

So, a few short years later, in Gonzales v. Raich, the Court got an opportunity to rule whether the federal laws banning local cultivation and use of marijuana violates the Commerce Clause. It sided with the government, holding that “Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.” However, once again, the Court decided to consider only the issues squarely before it:

“Respondents also raise a substantive due process claim and seek to avail themselves of the medical necessity defense. These theories of relief were set forth in their complaint but were not reached by the Court of Appeals. We therefore do not address the question whether judicial relief is available to respondents on these alternative bases. We do note, however, the presence of another avenue of relief. As the Solicitor General confirmed during oral argument, the statute authorizes procedures for the reclassification of Schedule I drugs. But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress.”

It seemed like the Court was determined to dodge the larger moral issue of whether it is appropriate for the federal government to persecute very, very ill people for trying to make their lives a little more bearable. I fully understand the Court for taking the formalistic approach and that “sympathetic plaintiffs make bad law,” but this case could have been decided differently, even when limited in scope to the Commerce Clause (For how respondents could have prevailed in Gonzales v. Raich, see the next post).

Well, the quote above provided Angel Raich with a roadmap to other possible “theories of relief.” First, she continued her legal quest, but, after she lost in the 9th Circuit on due process grounds, she gave up, stating that “I’ve lost all faith in the judicial system.” She now plans to heed the suggestion of the Gonzales Court and take her battle from courts to Congress. By the way, a bill that would alleviate the threat of federal prosecution for medical marijuana patients in the 12 states that allow it was soundly defeated in the House of Representatives four times during the past four years, each time it was introduced.

Originally written on May 12, 2007

What does it take to prove medicinal value?

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According to the statute, the substances listed in Schedule I (Title 21, Volume 9, Section 1308.11 of the Code of Federal Regulations) have “no currently accepted medical use in treatment in the United States.” 21 USC Sec. 812.

What exactly constitutes “accepted medical use in treatment in the United State” under the statute can be argued; however many people have already concluded that a bunch of substances that are currently placed in Schedule I actually do have medicinal value. There are not many people in this country who are not aware about the raging debate about medicinal properties of marijuana, and it is an open secret that plenty of oncologists across the country have been recommending it to their patients as treatment for nausea and vomiting resulting from chemotherapy. Indeed, that would likely satisfy Judge Young’s “significant minority of physicians” test in determining what constitutes “accepted medical use.” In The Matter Of MARIJUANA RESCHEDULING PETITION, US DoJ DEA, Docket No. 86-22 (overruled by the DEA Adminstrator).

But, I got distracted here.

There are actually other Schedule I substances that appear to have medicinal properties. One of them is psilocybin, an active ingredient in magic mushrooms and LSD that appears to help cluster headache sufferers. Fred Reed wrote an article about psilocybin being used as a treatment for cluster headaches, obviously by cluster headache sufferers themselves. The reason why it caught my attention is because way back in college, a friend of mine actually suffered from cluster headaches and cured himself with a low doze of “shrooms.” From what I know about cluster headaches, the condition is so painful that sufferers have been known to literally bang their heads against walls. A low dose of magic mushrooms or LSD (a dose that is not sufficient to induce hallucinogenic effects) is claimed to be effective in aborting the cluster headache episode that’s in progress and extending remission periods. In his article, Fred Reed asks:

“When a seriously painful medical condition is cured by an illegal substance, the cure being substantiated by premier researchers at as good a medical institution as exists, what do we do?”

Source: Washington Times: When the Law Can Be Painful

Well, here’s what is generally done:

“Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a state or local government agency, or an individual citizen. When a petition is received by the DEA, the agency begins its own investigation of the drug.

The DEA also may begin an investigation of a drug at any time based upon information received from law enforcement laboratories, state and local law enforcement and regulatory agencies, or other sources of information.

Once the DEA has collected the necessary data, the DEA Administrator, by authority of the Attorney General, requests from HHS a scientific and medical evaluation and recommendation as to whether the drug or other substance should be controlled or removed from control. This request is sent to the Assistant Secretary of Health of HHS. Then, HHS solicits information from the Commissioner of the Food and Drug Administration and evaluations and recommendations from the National Institute on Drug Abuse and, on occasion, from the scientific and medical community at large. The Assistant Secretary, by authority of the Secretary, compiles the information and transmits back to the DEA a medical and scientific evaluation regarding the drug or other substance, a recommendation as to whether the drug should be controlled, and in what schedule it should be placed.

The medical and scientific evaluations are binding to the DEA with respect to scientific and medical matters. The recommendation on scheduling is binding only to the extent that if HHS recommends that the substance not be controlled, the DEA may not control the substance. (Italics Added).”

Source: Wikipedia: Controlled Substances Act

For example, a recently-approved study aiming to evaluate the efficacy of MDMA (Ecstasy) in treatment of post-traumatic stress disorder first had to get the FDA approval, then had to get approved by an Institutional Review Board (IRB) (because it involves research with human subjects) and, finally, had to obtain DEA approval, since it involves a Schedule I substance. If the study actually confirms therapeutic value of MDMA, would that mean that Ecstasy will be moved from Shedule I? I am not sure, but one article that I found suggests that it will:

“If Ecstasy proves to be an effective and safe treatment for post-traumatic stress disorder, therapists can sign legal prescriptions for the drug.”

Source: Wired: DEA Accedes to Ecstasy Test

Getting back to psilocybin, shrooms, LSD and cluster headaches, the good news is that a study of psilocybin and LSD in people with episodic cluster headaches is currently being developed. The bad news is that it will probably take years to clear all bureaucratic hurdles.

Generally, I believe that many substances currently listed in Schedule I have medicinal properties – albeit unknown to medical science in its current state. The dangers (or the perceived dangers) of these substances got them into Schedule I in the first place. It would be nice if the reports of possible medical benefits of these substances actually induced FDA, DEA and HHS to assume a more proactive stance in investigating these benefits. After all, the medical science would certainly benefit from having another tool added to to its arsenal of treatments.

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