Tidbits on Drug Policy

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.

admin :: Jan.07.2008 :: Legal Issues, Marijuana, Medicinal Value, News :: No Comments »

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.

admin :: Nov.25.2007 :: Legal Issues, Marijuana, Medicinal Value, News :: No Comments »

“America needs to reconsider its punitive approach to “the so-called war on drugs,” presidential candidate John Edwards said here today.”

Source: DesMoinesRegister.com: Edwards: War on drugs too punitive

Something like this coming from a (somewhat) viable presidential candidate twenty years ago would be sufficient to bury his chances of being elected. It seems that we’ve come a long way since the “Casual drug users should be taken out and shot. Smoke a joint, lose your life.” pronouncement by the former Los Angeles Police Chief and the founder of the D.A.R.E. program Daryl Gates on September 5, 1990. Thankfully, today we don’t hear diatribes like this too often.

I hope that the changing nature of drug policy discourse is reflective of the changing social attitudes towards the punitive approach to the drug issues. Even, such admittedly obscurantist entity as the federal Office of National Drug Control Policy lists the “balanced drug control policy” as its main national priority - instead of stressing slash-and-burn tactics in the War on Drugs that it has continued to promote. It is good to see the menacing approach a la William Bennet or Daryl Gates go out of fashion - at least as far as the drug policy debate is concerned, albeit is still hasn’t translated into real action.

I wonder whether we are going to reach a tipping point where all these shy harbingers of common sense would saturate into a mass breaking of the flood gates that would allow the common sense voices to permeate drug policy discourse and, finally, result in real change.

admin :: Nov.23.2007 :: News, Social Policy :: No Comments »

The New York lawmakers went on their summer break without passing any of the important legislation still on their table, including a medical marijuana bill, which was passed by the Assembly, but didn’t get a vote in the Senate. Instead, they passed a law that requires airlines to provide snacks to delayed passengers. Nice prioritizing! Meanwhile, in Connecticut, Governor Jodi Rell vetoed a medical marijuana bill, earlier passed by the Senate and the House.

Oh well, maybe next year…

admin :: Jun.23.2007 :: Laws, statutes, regulations, Marijuana, Medicinal Value, News :: No Comments »

An article in USA Today called “A better way to deal with Afghanistan’s poppy crop (As heroin trade grows, a Nixon-era plan in Turkey provides a model)” talks about different ways of dealing with Afghanistan’s poppy crop, which is estimated to be the source of 90% of the world’s heroin supply. The article sensibly disfavors spraying the crops with herbicide, welcoming

“…pilot projects under which the morphine factories would be set up in Afghan villages and monitored by village elders and outside groups. The factories could provide employment and income for the villages - and plow some profits into alternative industries.”

(Like I wrote in one of the previous posts, unless you are willing to legalize the stuff, buy it from farmers at black market prices. Of course, it is a temporary solution, since farmers will be induced to grow more of the stuff since it is so lucrative and there is a ready buyer. But - I digress.)

The article generally gets the situation right; however, what really caught my attention was the comparison of the current initiatives to Nixon-era crusade against the Turkey opium. The article writes about

“…a program that largely eliminated heroin production in Turkey in the 1970s with the support of President Nixon and Congress.

Like the Bush administration in Afghanistan, Nixon at first insisted on spraying the poppy fields. But Turkish leaders refused because of a revolt from their farmers. The compromise included guaranteed markets for the morphine. Within a few years, Turkey was no longer the premier source for heroin.

Boy, they really got this one wrong. First of all, according to the CIA estimates, even before the Nixon campaign, Turkey produced only from 3 to 8 percent of the world’s illicit opium and nobody was sure what percentage of that, if any, reached the United States (most was destined for European markets). Secondly, the Nixon crusade against Turkish poppy was reflective of the “administration’s determination to achieve quickly some dramatic breakthrough on the opium front.” So, the Nixon quest was largely politically, not pragmatically motivated - Turkey was chosen because as a NATO member it was more susceptible to U.S. pressure, unlike, for example, India, Laos or Burma, all of which produced substantially more poppy than Turkey.

So, to summarize - the USA Today article correctly treats some of the issues behind Afghani poppy cultivation, but gets the history totally wrong by comparing current programs to Nixon’s misguided attempt to rack up election points. For a brief, but nevertheless informative and fascinating story about Nixon’s fight against Turkish poppy, see:

Agency of Fear: The War of the Poppies

- a short chapter in Edward Jay Epstein’s Agency of Fear: Opiates and Political Power in America.

admin :: May.25.2007 :: News, Opiates :: No Comments »

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.

admin :: May.16.2007 :: Legal Issues, Marijuana, Medicinal Value, News :: No Comments »

“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.

admin :: May.12.2007 :: Marijuana, Medicinal Value, News :: No Comments »

An 83-year-old Florida woman was forced to smoke crack cocaine by her housemate, so that the latter could steal personal information to get a credit card in the old woman’s name. After successfully obtaining the credit card, the ingenious thief racked up more than $3,000 in charges before being arrested on April 28. She is charged with:

“[…] criminal use of personal identification, use of another person’s ID without permission and retail theft, according to jail records.
[…]

The sheriff’s office said more charges were pending…”

Source: CNN: Thief made woman, 83, smoke crack, police say

If the article is wholly true, the additional charges that are pending could include:

• possession of a controlled substance;
• distribution of a controlled substance;
• battery (possibly aggravated, since either crack would be considered a “deadly weapon” or, in this context, involuntary crack smoking by an 83-year-old woman would be considered severe injury);
• domestic violence (the article says the woman got the old lady to smoke crack at least twice);
• elder abuse (if they have that in that jurisdiction - New York is currently trying to increase the penalties for elder abuse legislatively).

Some people really have a knack for complicating their lives. Had the crack “administrator” simply stole $3,000, she would be charged (under New York law) with larceny in the fourth, or possibly in the third degree. Instead, with one fell swoop, she has racked up an impressive criminal record.

admin :: May.08.2007 :: Cocaine and Crack, News :: No Comments »

Andrew Feldmar, A Canadian psychotherapist was denied entry into the United States after he admitted past use of LSD in a statement to the border officials. The full article can be found here:

LSD as Therapy? Write about It, Get Barred from US

” The Blaine border guard explained that Feldmar had been pulled out of the line as part of a random search. […]

When Feldmar said he was psychologist, the official typed his name into his Internet search engine. Before long the customs guard was engrossed in an article Feldmar had published in the spring 2001 issue of the journal Janus Head. The article concerned an acid trip Feldmar had taken in London, Ontario, and another in London, England, almost forty years ago. It also alluded to the fact that he had used hallucinogenics as a “path” to understanding self and that in certain cases, he reflected, it could “be preferable to psychiatry.”

The official said that under the Homeland Security Act, Feldmar was being denied entry due to “narcotics” use. […] He asked for a statement from Feldmar admitting to having used LSD and he fingerprinted Feldmar for an FBI file.” […]

“Admitted drug use is admitted drug use,” says Mike Milne, spokesman for U.S. border and protection, based in Seattle. […] If there’s no criminal record, as in Feldmar’s case? Not necessarily the criterion, Milne said. You can still be considered dangerous.

Admittedly, the federal government has plenty of leeway when deciding whom it admits into this country. However, as this incident demonstrates, a researcher who ventures into the areas that are pretty much designated as taboo here (and who publishes its findings) can easily become a persona non grata.

I wonder if the outcome would have been different had Feldmar not admitted his LSD use to the border authorities? Would the US still be able to exclude Feldmar just on the basis of his article? Would such a decision to exclude Feldmar be more legally suspect than the one based on his statement admitting drug use? Considering that it happened to a non-US national in an immigration situation, not too many venues for challenging the denial of entry are open to him. However, just considering the situation on its merits raises all sorts of interesting Constitutional issues.

admin :: May.01.2007 :: News :: No Comments »