Some people say that if we legalize “drugs” in this country, everybody’s going to get high all the time. They might even point to Netherlands and tell you how the rates of marijuana users spiked after weed there was decriminalized. Well, that’s true – nobody really knows what would happen if marijuana or other drugs ever become available legally. But – we can try and project.

First of all, lets look at Netherlands: if there is any place that can provide at least a vague idea what might happen after an illicit drug starts being sold in coffeeshops – Netherlands (so far) would be it. It is true: after marijuana was decriminalized, the number of people using it went up. But – here’s an interesting detail: weed in Holland was decriminalized in 1976… and the rise in use didn’t occur until 1984. So what happened in the early 1980s? Coffeeshops were allowed to proliferate and advertise. Here’s what MacCoun and Reuter have to say about it:

We hypothesize that the dramatic mid-1980s escalation in Dutch cannabis use is the consequence of the gradual progression from a passive depenalization regime to the broader de facto legalization, which allowed for greater access and increasing levels of promotion, at least until 1995 when the policy was revised. In short, it reflects a shift from a depenalization era to a commercialization era.

Source: MacCoun, Robert J., Reuter, Peter, Drug War Heresies, Cambridge University Press, 2001, p. 259

In the 1990s though, the Dutch passed a series of regulations restricting advertisement of marijuana – and the number of marijuana users leveled out (and currently remains much lower, percentage-wise, than in the United States).

So – it seems like it’s not necessarily the availability of something that sells it, it’s the advertising! Well, any advertising executive could have told us that, right? And, governments seem to recognize it as well – just look at all the restrictions of advertising cigarettes and alcohol. Make a drug available to responsible adults, just don’t allow ads, which would convince and encourage people to buy it.

P.S. Would the First Amendment allow such restrictive measures against speech, albeit commercial one? While there does exist a doctrine of “commercial speech”, I truly think it’s irrelevant for our purposes. I believe the existing patchwork of regulations and voluntary industry action that restrict advertising for alcohol and tobacco should work fine for other prospective legal recreational drugs. However, even commercial speech doctrine as it now stands would probably allow severe restrictions on recreational drug advertising. For a brief treatment of the doctrine by the Supreme Court, see generally Valentine v. Chrestensen, 316 U.S. 52 (1942), Central Hudson Gas & Electric Co. v. Public Service Comm’n, 447 U.S. 557 (1980), Board of Trustees v. Fox, 492 U.S. 469 (1989), 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).

In Morse v. Frederick (2007), a.k.a. the “BONG HiTS 4 JESUS” case, Justice Stevens, in his dissent, delivered the most remarkable quote, that, a few years ago, would have been virtually impossible to hear from someone that high up in the Establishment:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting — however inarticulately — that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

Lets see whether we see this kind of talk make its way into the Court’s majority opinions.

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.”

Source: THE CITY OF GARDEN GROVE v. THE SUPERIOR COURT OF ORANGE COUNTY

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

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.

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.

This nation smokes far more pot than uses any other illicit drugs. For example, almost half (47.8%) of all high school seniors tried it, as compared with the next runner-up – all of hallucinogens, at 12%. Source: Monitoring the Future Study (2002). The numbers are similar for general population drug use – marijuana users represent an overwhelming share of drug users in general.

This information generally requires no specialized knowledge. Similarly, by now it has become apparent to the point of becoming common knowledge, that the dangers of marijuana smoking are seriously overstated, to say the least. Some even call marijuana “the safest therapeutic substance known to man.” Who?? None other than Administrative Judge Francis Young of the DEA in In The Matter Of MARIJUANA RESCHEDULING PETITION (Docket No. 86-22). It is very likely that even the most stalwart DEA officials don’t really believe in the dangerousness of marijuana.

So, how come it remains in Schedule I?

The answer lies in the first paragraph. Removing marijuana from the list of “evil” illicit drugs would substantially reduce this nation’s drug problem: without marijuana the number of drug users – other drug users – would drop significantly. A dramatically smaller drug problem wouldn’t justify tens of billions of dollars in funding that the DEA currently receives. Regardless of the objective pros and cons of marijuana use, the DEA will always oppose the rescheduling of marijuana simply because they want to retain their allowance.

In order to request an addition, deletion or a change in the schedule of the drug, one must petition the DEA. When a petition is received by the DEA, the agency begins its own investigation of the drug. Then, the investigation goes through some more motions, until the DEA Administrator reviews all available data and makes a final decision whether to propose that a drug be controlled and into which schedule it should be placed. I wonder how objective you would be in making a decision that has a potential to deprive you of a substantial majority of your budget?

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.

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

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.

“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