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Volume 6, Issue 7
DEA Denies 9-Year Old Request, Opens Door to Legal AppealAfter more than nine years, the Coalition for Rescheduling Cannabis (CRC) finally has an answer to their federal petition to recognize cannabis as a therapeutic substance: No. The action by the DEA, published in the Federal Register on July 8, opens the door to an appeal that can present the full scientific evidence on the medical uses of cannabis.
The DEA, which had been sitting on the rescheduling petition for more than 5 years since getting recommendations from the Department of Health and Human Services, issued its answer less than two months after ASA and other patient advocates took legal action to compel them to act.
'We have foiled the government's strategy of endless delay,' said Joe Elford, ASA Chief Counsel and lead counsel in the recent lawsuit. 'Now we can take them to court and go head to head on the full facts of the therapeutic value of cannabis.'
The Coalition for Rescheduling Cannabis (CRC), which includes ASA, filed the petition in 2002 seeking to reclassify cannabis from its current federal status as a dangerous drug with no medical value, but heard nothing until it received the denial.
In rejecting the CRC petition, the government reiterated its 40-year-old position that 'marijuana has a high potential for abuse, has no accepted medical use in the United States, and lacks an acceptable level of safety for use even under medical supervision,' recommending that marijuana remain in Schedule I.
The denial of the petition was sent to legal counsel in advance of publication on June 30, one day after the Justice Department issued a memorandum to U.S. Attorneys supporting the use of threats of federal prosecution against local and state officials who attempt to pass and implement medical cannabis laws.
'The Obama Administration is making no bones about its aggressive policy to undermine medical cannabis programs,' said ASA Executive Director Steph Sherer, 'We’ll see them in court soon, where medical science will have a better chance against politics and prejudice.'
The denial comes the same week as the 21st annual symposium of the International Cannabinoid Research Society (ICRS), held this year in St. Charles, Illinois, just outside of Chicago. The symposium is sponsored in part by an array of pharmaceutical companies, the U.S. National Institute on Drug Abuse (NIDA), and ElSohly Laboratories, Inc., the federal government's only licensed source of research-grade cannabis for therapeutic studies.
'The government cannot have it both ways,” said Sherer. “Cannabis is either a medicine or it's not. If they are going to sponsor a conference on its medical use, it should show the same deference to America’s doctors and the millions of patients could benefit from it.'
Currently, several pharmaceutical companies are asking the government to allow them to extract natural THC from cannabis plants to make a generic version of Marinol®, which is currently made through a costly synthetic process.
Each of the two largest associations of physicians in the US has called on the government to reconsider who it classifies cannabis. Cannabis may be used legally under state law for medical purposes in 17 states, plus the District of Columbia, and is available by prescription in Canada and other countries.
DEA answer to CRC petition>
Lawsuit compelling government to answer CRC petition
ASA backgrounder on rescheduling
CRC rescheduling petition
Memo Says No Safety in State Law; State Officials ThreatenedThe Department of Justice last month repudiated President Obama’s campaign promise to not use federal resources to interfere with state medical cannabis programs. A DOJ memo to US Attorneys, the nation’s federal prosecutors, spelled out that they are to prosecute those involved with medical cannabis distribution “even where those activities purport to comply with state law.” That contradicts the public statements of President Obama and Attorney General Eric Holder, as well as White House spokesmen, who have all said that individuals who comply with state law should not be the targets of federal enforcement actions.
The memo from Deputy U.S. Attorney General James Cole is, however, consistent with a pattern of synchronized federal raids and threatening letters to state officials. In the past few months, federal agents staged simultaneous raids on dozens of state-licensed facilities and individuals in both Montana and Washington, just as state lawmakers were debating medical cannabis bills.
At the same time, the US Attorneys in several states considering regulations for distributing medical cannabis sent letters to the states’ governors and made public statements, threatening to prosecute state employees who implement or oversee the programs. The Cole memo specifies that anyone who “facilitates” the distribution of medical cannabis is subject to federal prosecution, regardless of state law.
“The biggest concern has been whether or not government employees are facilitating distribution by processing the licenses,” said Arizona Attorney General Tom Horne in an interview. While a previous DOJ memo had steered federal prosecutors away from “individuals whose actions are in clear and unambiguous compliance” with state law, Horne noted “That has been removed. I would say that makes things worse.”
Threats from US Attorneys to state officials have come recently in Washington, Montana, Colorado, California, Vermont, Rhode Island and Maine. Some have defied the federal prosecutors; most have buckled under the pressure.
Washington State’s Governor Christine Gregoire vetoed a provision of a state measure in response to the threat from the US Attorney there to go after state employees. A city plan in Oakland, California to license the cultivation and distribution of medical cannabis was abandoned after city officials were similar threatened by the US Attorney in Northern California. City officials in Chico who were threatened over regulations for exactly two dispensaries passed them nonetheless. In the wake of a day of raids on over a dozen locations in Montana, the US Attorney there said the prosecution of those who distribute medical cannabis is a “core priority” of the DOJ. And as Colorado lawmakers worked on regulations for distributing medical cannabis, the US Attorney warned them the new rules could lead to federal prosecutions. As a result of a similar threat letter, Rhode Island’s governor has refused to issue licenses to dispensaries approved by the state health department.
Vermont and Delaware have defied the threats and created new legislation to regulate distribution of cannabis to patients in those states.
Attorney General Holder sidestepped questions on the new intimidation tactics when confronted in New Hampshire by news media last month, saying only that he hopes for “clarification sooner rather than later.” The latest memo appears to be that clarification.
“The Obama Administration is escalating the conflict between state medical cannabis programs and federal prohibition, not resolving it,” said Steph Sherer, ASA Executive Director. “Threatening state officials for implementing compassionate programs that 80% of the public supports is not what the President promised when he ran for office.”
Seventeen states plus the District of Columbia have removed criminal penalties for those who use medical cannabis with physician approval. Ten states have laws regulating distribution of cannabis to patients. The latest DOJ memo reiterates the federal government’s position that cannabis is a dangerous drug with no medical use.
DOJ memorandum from June 29, 2011
DOJ memorandum from October, 2009
The memo by then-Deputy Attorney General David Ogden was sent to the U.S. Attorneys in all states with medical cannabis laws. But since then U.S. Attorneys in at least ten states have formally threatened local and state officials with criminal prosecution if they implement licensed production and distribution systems.
The memo from Deputy U.S. Attorney General James Cole is, however, consistent with a pattern of synchronized federal raids and threatening letters to state officials. In the past few months, federal agents staged simultaneous raids on dozens of state-licensed facilities and individuals in both Montana and Washington, just as state lawmakers were debating medical cannabis bills. At the same time, the US Attorneys in several states considering regulations for distributing medical cannabis sent letters to the states’ governors and made public statements, threatening to prosecute state employees who implement or oversee the programs. The Cole memo specifies that anyone who “facilitates” the distribution of medical cannabis is subject to federal prosecution, regardless of state law.
“Recent actions by United States Attorneys across the country have prompted states to deny patients safe and reliable access to their medicine,” Reps. Frank and Polis wrote in their June 20 letter to Holder.
Threats sent to lawmakers in Arizona, California, Hawaii, Montana, Rhode Island, and Washington have stopped the implementation of local medical cannabis laws. In one such letter, U.S. Attorney Melinda Haag told officials in Oakland, California that the Justice Department 'will enforce the [Controlled Substances Act] vigorously against individuals and organizations that participate in unlawful manufacturing and distribution activity involving marijuana, even if such activities are permitted under state law.'
Reps. Frank and Polis say in their letter that this wastes federal resources and 'harms the people whose major goal is to seek relief from pain wholly caused by illness.'
Medical cannabis is legal under local law in 17 states and the District of Columbia.
The charges range from conspiracy and “manufacturing marijuana” to money laundering, distribution of marijuana, and possession with intent to distribute. If convicted, most of those indicted face mandatory minimum sentences of five years in prison with a maximum of 40 years and $5 million in fines.
Despite President Obama’s campaign promises and an October 2009 Justice Department memorandum de-emphasizing federal enforcement against medical cannabis, the Obama Administration has been responsible for more than 100 SWAT-style federal raids in at least seven states. The indictments in Montana follow more than two-dozen similar medical cannabis-related prosecutions in the past two years.
Medical cannabis patients and providers prosecuted in federal court are prevented by the federal rules of evidence from presenting a medical or state law defense, or even using the phrase “medical marijuana.” As participants in state medical cannabis programs, they are at a particular disadvantage as their activities are often a matter of public record. As a result, most defendants choose to take plea deals with federal prosecutors.
'There's a reason pharmacies are located in every neighborhood,' said ASA California Director Don Duncan. 'Making seriously ill patients with limited mobility travel to industrial areas for medicine is a cruel barrier.'
Because collectives are defined in California’s Medical Marijuana Program Act as two or more patients working together to provide their own medicine, the new bill could be used to prohibit all but individual cultivation.
'That is not what voters intended,' said Duncan. 'Prop 215 told lawmakers 'to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana.''
Research conducted by ASA on the experience of communities and local officials over more than 15 years indicates local regulations reduce crime and complaints. That research report can be seen at AmericansForSafeAccess.orghttp://american-safe-access.s3.amazonaws.com/documents/dispensaries.pdf.