The Federal Prosecution of Medical Marijuana

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A wide variety of drugs have been used to achieve altered states of consciousness since the beginning of recorded history. These substances may provide the user with euphoria, relaxation, or other positive feelings. However, each culture, at some point in its maturation, has also become aware that substance use is a double edged sword with associated health risks and cognitive impairments, while also increasing social ills such as aggression and violence within the society (Drug Laws, 1999). Clearly not all drugs are the same, and this principle is embodied in the Controlled Substance Act, passed in 1970 in response to the growth of recreational drug use. The act separates drugs into five "schedules" based on a number of criteria that include the drug's potential for abuse, its pharmacological effects, current scientific knowledge regarding it, and other factors. LSD, heroin, and marijuana belong to Schedule I, drugs which have a high potential for abuse, a "lack of accepted safety," and no currently accepted medical use. By contrast, PCP, cocaine, morphine, and methamphetamine belong to Schedule II, because they do have currently accepted medical uses. The remaining three schedules consist of legal drugs, and are based on increasingly diminishing abuse potential, with the lowest level, Schedule V, consisting of such items as over-the-counter cough medicine containing codeine (Drug Laws, 1999). Even though marijuana belongs to Schedule 1, by the late 1990s, a number of states had passed initiatives allowing medical use of marijuana, but the drug was not moved to Schedule II. The concept of controlling drugs is a relatively recent phenomenon, and one that has been met with limited success despite the billions of dollars spent. Some people argue that if drugs were legalized (as occurred with the repeal of Prohibition), drug trafficking and the violence it engenders would disappear. Some contend also that with government regulation dosages would be standardized and dangerous contaminants eliminated, making drugs safer. It has also been suggested that resulting lower prices for drugs would preclude the need for criminal activity to raise money for their purchase, and that billions of dollars saved from supply reduction programs could be put toward education and treatment (Medical Marijuana, 2010). Nevertheless, a substantial majority of Americans polled have thought legalization is a bad idea. Those opposed to legalization believe that removal of deterrents would encourage drug use, that people would still steal to buy drugs, and that many drugs are so inexpensive to produce that there would still be a black market (Medical Marijuana, 2010). Opponents argue that the initiative would pave the way for the legalization of other drugs and claim that marijuana is harmful and legalizing medical marijuana will increase recreational use by 'sending the wrong message'(Khatapoush, 2004). I agree with this statement and focus this paper on the benefits of not legalizing medical marijuana. My objection basically claims that the consequences of withholding legalization (especially preventing increased recreational use) are superior to those of legalizing medical marijuana. I argue that harms of legalization outweighed its benefits.

A common ground between medicine and marijuana has existed in this country for many years. Aside from being associated with the "hippie" drug culture that dominated the 1960s, medical marijuana in the United States dates back to 1840s (Drug Laws, 1999). As early as 1850, marijuana was listed in the United States Dispensary, the official list of recognized medicinal drugs. However the federal governments view on medical marijuana is very straightforward. Over time, federal marijuana policy has become increasingly restrictive and punitive, while state policy has been more fluid and lax. Recently, citizen-sponsored state referenda to legalize marijuana for medicinal purposes have challenged federal policy, sparking a national debate Current federal drug policy can be characterized as a "zero tolerance" approach, with primary emphasis on supply reduction, enforcement strategies, and legal sanctions (Drug Laws, 1999. Historically, federal marijuana policy began with the Marijuana Tax Act of 1937 and became more restrictive over time with the passage of the Boggs Act and the Narcotic Control Act during the 1950's. The Boggs Act established uniform penalties and mandatory minimum sentencing and the Narcotic Control Act escalated the penalties and fines for the possession and sale of narcotics and made other provisions and guidelines for the enforcement of narcotic laws (Drug Laws, 1999). Despite the harsher penalties that were enacted in the mid 1950s, recreational marijuana use not only continued, but increased dramatically during the 1960s which lead to Controlled Substance Act of 1970. The primary basis for legal regulation of drugs in the United States is based on the Controlled Substances Act (CSA). Initially passed in 1970, this federal act has been updated by periodic modifications, the most important of which were in 1986 and in 1988 (Drug Laws, 1999). The CSA forms the basis, in federal law, upon which control is exerted over narcotics and other substances deemed 'dangerous drugs'. The law was enacted in order to replace or consolidate existing federal laws, such as the Harrison Act of 1914, the Marihuana Tax Act of 1937, and related legislation. These laws operate in addition to regulation by the Federal Food and Drug Administration, which regulates the manufacture and distribution of legitimate therapeutic drugs. This act also empowers the Attorney General of the United States to enforce drug regulation according to an established 'schedule' of dangerous drugs and to act as the chief monitor over the development and classifications of new drugs insofar as they may be considered 'dangerous'(Drug Laws, 1999). The Attorney General is empowered to add to such a schedule or transfer between such schedules any drug or substance if he finds that such drug or substance has a potential for abuse.

This legislation creates a series of five schedules to classify the legal status of regulated drugs. For a given substance the relative penalty legally applicable is determined by its place on the schedule. The major features incorporated into the schedule are whether or not the drug has potential for abuse, whether it is useful for medical treatments, and the relative safety with which the drug can be used. 'Safety' in this context means the likelihood or potential that a person will abuse the drug or become dependent on it (Controlled Substance, 2002).The same drug also may be classified into different schedules based upon the form in which it is vended or distributed. Drugs can always be treated as a substance by lower ordered categories. Furthermore, drugs are often vended in various combinations and concentrations, so these combinations may also be important in determining the ultimate schedule number under which a particular drug is classified. Under federal law, the legal penalties associated with drug possession and trafficking are related to the schedule level at which the drug is classified, the quantity (by weight) of drug involved in the legal action, and whether the action is a first offense by the convicted individual (Controlled Substance, 2002).In general, the greater the quantity of drug, the more severe the penalty, and multiple offenders are more severely punished than first offenders.

Under federal law, possession of marijuana is illegal, without exception. Yet, under some state laws, physicians can recommend the use of marijuana and patients can obtain marijuana with no penalty. Although states are subject to federal law, most have experimented with their own policy approaches. During the late 1960s and 1970s, almost all states reduced the penalties for marijuana use (Marijuana, 2008). By the end of 1971, only three states maintained mandatory minimum felony penalties for possession. Oregon was the first state to decriminalize marijuana in 1973; by 1978, twelve additional states, with collectively more than a third of the total U.S. population, had done so .Californians passed the Moscone Act in 1976, which decriminalized possession of marijuana and removed prison sentences (Marijuana, 2008). For the next 20 years, until the medical marijuana initiative was passed in 1996, California's marijuana laws did not change substantially. In November 1996, California voters passed Proposition 215, the Compassionate Use Act. The California law makes marijuana available for a wide range of medical conditions.

The Compassionate Use Act's primary purpose is to ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes where that medical use is deemed appropriate and has been recommended by a physician who has determined that the person's health would benefit from the use of marijuana in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine, or any other illness for which marijuana provides relief (Marijuana,2008).The Act is intended "to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction. In addition to shielding patients, the Act also protects physicians. The Act states, "notwithstanding any other provision of law, no physician in [California] shall be punished, or denied any right or privilege, for having recommended marijuana to a patient for medical purposes (Marijuana, 2004). Another purpose of the Compassionate Use Act was "to encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana." California's Compassionate Use Act also created an exception to California laws prohibiting the possession and cultivation of marijuana. The exception allows a patient or the patient's primary caregiver to possess or cultivate marijuana for the patient's personal medical use, based on a written or oral recommendation of the physician (Marijuana, 2004).The exception does not expressly create distribution methods; however, marijuana dispensaries were created in California after the Act was introduced. Other state provisions, while more conservative than California's, do allow for the limited use of medical marijuana. Following California's lead, the states of Alaska, Arizona, Colorado, Maine, Maryland, Nevada, Oregon, and Washington have enacted medical marijuana laws by voter initiative (Marijuana, 2004). These state statutes are similar to California's Proposition 215 in the sense that they all diminish or eliminate state criminal penalties for possessing marijuana for medical use. Colorado, for instance, created a patient registry of persons authorized to use medical marijuana and exempted such persons from criminal penalties. Maryland allows medical necessity as a mitigating factor in a criminal prosecution for possession of marijuana. These states also encountered obstacles in implementing their voter initiatives or propositions. These state initiatives clearly conflict with federal policy and much of the concern and opposition has been centered around the notion that allowing medicinal use would "send the wrong message" to youth -- that is, change attitudes and perceptions about marijuana and result in greater recreational use of marijuana and other illicit drugs (Marijuana, 2004).

Labeling marijuana as "medicine" sends the wrong message to children that it is a safe substance. Marijuana is a "gateway" drug. Children who have used marijuana are more than 85 times likelier to use cocaine than children who have never used marijuana. We cannot afford to further erode youth attitudes towards drugs by allowing marijuana to be falsely depicted as a safe drug and as effective medicine. In response to these and other concerns about the medical use of marijuana, the federal government commissioned a study by the Institute of Medicine (IOM). In its final report, the commission noted the potential harms posed by the medical use of marijuana. They stated that information about the harms caused by marijuana is undermined by claims that marijuana might have medical value (Medical Marijuana, 2010).Yet many of our powerful medicines are also dangerous medicines. The question here is not whether marijuana can be both harmful and helpful, but whether the perception of its benefits will increase its abuse. Those who oppose the legalization of medical marijuana focus on the ill effects of marijuana use. Some of the effects mentioned are "paranoia, increased aggressiveness and social disruption" as well as "hallucinations and paranoid delusions." Critics also claim that marijuana "ranks third in drugs that lead to emergency room visits, may have an 8% chance of inducing schizophrenia in users under 15 and a 2% chance of doing so in adults, and mimics schizophrenia in the brain" (Medical Marijuana, 2010). These conditions also lead to more concerns for critics, such as increase in road accidents due to diminished motor skills required for driving or operating heavy equipment or machines. These are situations that affect not only the marijuana user, but also the people around them. Non-supporters also think that the open use of marijuana will only lead to the abuse of other dangerous drugs and that "while a small percentage of the population may benefit from marijuana, there will be a larger percentage of the population who will manipulate laws and illegally obtain marijuana for personal use without being ill" (Medical Marijuana, 2010).They believe that legalization could result to a rapid increase in drug abuse and in crime rates.

Although few users develop a dependence on marijuana, there are known adverse risks: marijuana smoking is associated with abnormalities of cells lining, the human respiratory tract that can lead to an increased risk of lung damage, respiratory disease, and cancer. Marijuana has the potential to increase blood pressure, heart rate, and decrease the oxygen-carrying capacity of blood, which could increase the risk of heart attack in some individuals (Medical Marijuana, 2010).In addition, a distinctive marijuana withdrawal syndrome, characterized by restlessness, irritability, insomnia, sleep disturbance, nausea, and cramping, has been noted in some users, but it is generally mild and short lived. A potentially serious side effect of marijuana use is related to its immunosuppressive effect. Clearly, this effect would be more serious for cancer patients who already have immune suppression as a result of their chemotherapy treatment. Depression, anxiety, paranoia, and personality disturbances have also been associated with frequent marijuana use. Heavy marijuana users have more trouble sustaining and shifting their attention and in registering, organizing, and using information compared with infrequent users and nonusers (Medical Marijuana, 2010).Especially among older individuals, the psychoactive effects of cannabis are not always appreciated or tolerated well. Heavy marijuana use can lead to problems including an adverse impact on memory and learning, trouble sustaining attention, and trouble learning.

One of the most important arguments presented supporting the legalization of medical marijuana points out that the use of marijuana for medical purposes should be allowed as an option to patients suffering from certain illnesses. Although the use of marijuana for medical purposes has been recorded for centuries, it has become of intense interest only in recent times. There are active initiatives in several western countries designed to make marijuana legally available for medical purposes. In view of the controversy surrounding the recreational use of marijuana, it is not surprising that there has been intense debate about marijuana's potential as a therapeutic agent. Advocates describe medical marijuana as a highly effective treatment for a vast array of diseases that are refractory to all other medications. Moreover, they stress that terminally ill patients are being denied a valuable medication that is without adverse effects. Proponents argue medical marijuana has the potential to treat an array of symptoms and disorders. It is used to alleviate pain experienced by terminally ill patients and treat non-terminal diseases as well. The primary justification offered for the use of medical marijuana in the treatment of terminally ill patients is to prevent unnecessary suffering from chronic and unbearable pain that persists until death. Medical marijuana is used for non-terminal illnesses to relieve side effects of standard treatments (Martin, 2002). Its principal medical application is in cancer patients experiencing the side effects of chemotherapy. Cancer patients undergoing this treatment experience severe nausea and vomiting and patients often report that prescribed medications do not work. Some patients even assert that marijuana helps alleviate these side effects more effectively than legal medications. Marijuana use is also prevalent among sufferers of HIV-related conditions and patients dealing with the side effects of standard AIDS therapies (Martin, 2002). It may prevent malnutrition in AIDS patients by increasing their appetite Supporters see that offering it as an option, without really forcing patients to use it when they don't want to, may be the best way for everyone involved. Those whose illnesses and pains are relieved by medical marijuana can avail of its benefits while those who feel that the risks involved are too much may opt to use other medicines and treatment methods. In terms of safety, supporters believe that "marijuana is a safer substance than alcohol or other controlled prescription drugs" and patients using it do not suffer from "withdrawal symptoms or terrible side effects" that go with many available treatment methods or medications (Martin, 2002).

Supporters also claim that the legalization of medical marijuana would also generate taxes and revenues as well as minimize "public spending on building and staffing new prisons for marijuana offenders" (Martin, 2002). For this reason, many supporters believe that the legalization of medical marijuana may actually help the economy, if only properly utilized. Advocates also foresee that the legalization can reduce crime rates, by "crippling Mexican cartels that smuggle marijuana and other drugs into the US," which may lead to a low supply of funds to drug syndicates and terrorist groups. Many in favor of the legalization, however, share the opinion that certain limitations should be put into place, such as imposing appropriate age limits (like in the case of alcohol and tobacco) and prohibiting the sale of medical marijuana near schools (Khatapoush, 2004).

The policy of supply reduction aims to decrease the available amount of a drug and make its cost prohibitively high due to the short supply. One strategy for supply reduction is the passage and enforcement of strict laws that govern the prescribing of narcotic drugs. Other strategies are aimed at disrupting drug trafficking. In general, heroin and the other opiates come into the United States from SW and SE Asia, Central America, and Colombia, cocaine from South America, marijuana from domestic sources, Mexico, Colombia, and Jamaica, and designer drugs from domestic clandestine laboratories (Drugs and violence in USA, 2008). The Bureau of Immigration and Customs Enforcement is charged with interdicting smuggled drugs that come in across land borders, the U.S. Coast Guard with interdiction on the seas. Other attempts to disrupt the flow of drugs involve the seizure of clandestine labs, arrest and conviction of drug dealers and middlemen, and international efforts to break up drug cartels and organized crime distribution networks (Drugs and violence in USA, 2008). Asset seizure is a controversial but effective strategy that allows authorities to confiscate any profits derived from or property used in drug trafficking, including cars, houses, and legal fees paid to defense attorneys. Eradication of crops was the strategy behind the spraying of paraquat on Mexican marijuana crops in the 1970s. Some attempts at reducing drug production by creating more lucrative markets for nondrug crops in drug-producing areas also have been made.

Federal legislation in the demand reduction area (prevention and treatment) is sparse compared to that of supply reduction. The first piece of federal legislation that was demand reduction oriented was the Porter Narcotic Farm Act of 1929, which provided for the U.S. Public Health Service to establish federal hospitals specifically for the treatment of imprisoned addicts (Drugs and violence in USA, 2008). In 1962, the Supreme Court in Robinson v. California held that addiction to narcotics was, in and of itself, an illness and not a criminal offense. This led to an increase in federal treatment efforts. The Community Mental Health Centers Act of 1963 established specialized addict treatment grants, bringing narcotic addiction into the realm of mental illness and enabling federal support for local drug treatment efforts. In 1966, Congress passed the Narcotic Addict Rehabilitation Act. The legislation called for addicts charged with federal crimes to be civilly committed rather than face prosecution, and it allowed the court to mandate a treatment program in lieu of prison. It also permitted the establishment of a treatment program for addicts not charged with other crimes. In all cases, before civil commitment could occur, the addict had to be judged by the court as likely to be rehabilitated (Drugs and violence in USA, 2008).Federal efforts in demand reduction activities probably did not begin as a major or focal activity until the passage of the Drug Abuse Office and Treatment Act of 1972. This law created the Special Action Office for Drug Abuse Prevention to establish objectives for all federal demand reduction programs. The National Institute on Drug Abuse was created to be the center piece for a major federal effort in demand reduction.

It seems, though, that those who oppose the legalization of medical marijuana, just like those who are in favor of it, are open to meeting the other side somewhere in between. While advocates accept that certain limitations must be in place for the legalization to be effective and beneficial, some critics agree that if legalization is to be done to address the needs of patients suffering from certain illnesses, strict regulatory measures must be adopted, such as requiring a legal medical prescription before anyone can get access to medical marijuana.

In summary, over the past decades, legal and legislative actions highlight the twisted path of the legal use of marijuana for medical purposes. Legislation made very little distinction between narcotics, cocaine, and marijuana; federal law did not recognize any distinction between marijuana and other illicit substances.

While the 1937 Marijuana Tax Act effectively stopped physicians from using marijuana as medicine, the 1970 Controlled Substances Act placed marijuana as a Schedule I drug, and subsequent efforts to move marijuana from Schedule I to another schedule repeatedly failed. Often, state regulations differed sharply with congressional action as numerous states allowed for the medical use of marijuana. The U.S. federal government does not, and never has, recognized legitimate medical uses of marijuana. The risks of smoking could be avoided by using medical use of cannabis in a therapeutic research alternatives ways of delivering THC, such as lozenges, sublingual delivery.

Much remains unknown about the effects of marijuana on human psychological and physical health. Nonetheless, studies have provided strong evidence that marijuana use can produce multiple adverse effects and that many people experience problems related to marijuana use. The demonstration of causal relationships between marijuana and some of these effects has proven difficult, and the magnitude of risk and functional significance of some effects remains elusive. As with other abused substances, many individuals use marijuana without significant consequence, but others misuse, abuse, or become dependent. Dependence on marijuana develops in much the same way as with other drugs, although in general the associated consequences appear less severe than those associated with alcohol, heroin, or cocaine dependence.