How Medical Marijuana Went From Political Poison To Popular Policy

Nicole Flatow, Think Progress

More than 40 years ago, psychiatry professor Lester Grinspoon wrote a groundbreaking book on marijuana that the New York Times dubbed at the time “the best dope on pot.” Like many in the medical marijuana community, Grinspoon started out as a skeptic intent on researching marijuana’s harms. But his perspective shifted after a personal experience: He had a son with leukemia who found relief only after he started using marijuana before his chemotherapy treatments. Once he started researching marijuana, Grinspoon found that existing information about marijuana was based on propaganda rather than rigorous scientific study.

“I came to realize that I was the one who was misinformed — that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country,” Grinspoon said in a 2001 interview. For continuing his research on medical marijuana, Grinspoon was in the intervening decades denied promotions and isolated from his Harvard Medical School colleagues until he took emeritus status, he said.

But this month, he returned to give a talk at Harvard Medical School to find for the first time a warm reception. The 200-seat room exceeded capacity. A crowd of attendees waited on a 30-plus-minute line to talk to Grinspoon after the event. No doubt, he faced an audience divided on the issue. But it’s no longer polarized “to the extent it was when I was doing the work,” he said. “Nobody had any interest in it.”

I came to realize that I was the one who was misinformed — that despite my training in science and medicine, I had been brainwashed like just about every other citizen of this country.

Grinspoon, now 85, has lived the evolution of American War on Drugs rhetoric. Until the very recent past, marijuana was relegated to the fringe of mainstream political and scientific discussion. Floating bills in legislatures that were particularly socially progressive or libertarian was one thing. But in the rest of the country and certainly on the national stage, the issue was met with radio silence, relegated to the third rail of politics and not worth the political capital to take a side.

Over the past year, as all eyes turned to the sudden emergence of state recreational marijuana laws, a quiet revolution happened. Medical marijuana began to emerge as mainstream, reborn as a potentially measured and sympathetic compromise in contrast to the more radical move of legalizing recreational marijuana. And politicians are lining up to get behind it.

In February, Missouri Gov. Jay Nixon (D) was asked on national television to go on the record for perhaps the first time publicly about his position on marijuana. Flatly rejecting the prospect of recreational marijuana in his state, he added a “but.”

“Medicinally I think that folks are beginning to see if there are things which the medical community can help on and has specific ways that they can then I think the legislature might consider that but to move beyond that I would say is a bridge too far but that bridge has not yet been built,” Nixon told CNN’s Candy Crowley.

A month earlier, when Louisiana Gov. Bobby Jindal (R) faced an overflowing room questioning his position on legalization of all possession, he tempered his opposition with never-before-expressed support for another marijuana policy.

“I continue to be opposed to legalization of marijuana,” he said. “When it comes to medical marijuana … if there is a legitimate medical need, I’d certainly be open to making it available under very strict supervision for patients that would benefit from that.”

Even Senate Majority Leader Harry Reid (D-NV) conceded this year on medical marijuana, “If you’d asked me this question a dozen years ago, it would have been easy to answer – I would have said no, because [marijuana] leads to other stuff. But I can’t say that anymore.”

Twenty-one states and the District of Columbia now have medical marijuana laws. Polls have found voter support for medical marijuana as high as 85 percent. And while the law still lags behind public opinion, it’s easy to forget just how recently any support for marijuana was on the outskirts of mainstream public opinion.

When Medical Marijuana Was ‘Medical’

In 1970, Congress first established the Controlled Substances Act in the wake of the Reefer Madness era. Assessing the relative medical benefits of marijuana, the initial House of Representatives report recommended that Congress classify marijuana as a dangerous drug with no currently accepted medical value, at least temporarily “until the completion of certain studies now underway to resolve the issue.” Scientific study that relied heavily on self-reporting both before and after this assessment suggested the medical potential of marijuana. In fact, the first academic paper touting the benefits of medical marijuana was published in 1843. But Congress’s designation of marijuana as Schedule I put it in the most restrictive category under the law, meaning it could not be prescribed for any purpose.

Homosexuality, dope, immorality in general. These are the enemies of strong societies. -Richard Nixon

That very same year, the National Organization for the Reform of Marijuana Laws (NORML) was founded. But they were met in 1971 with the emergence of War on Drugs rhetoric via President Richard Nixon, and with it a public relations campaign that permeated American understanding of illicit drugs for the next 40 years.

A presidential commission appointed by Nixon initially recommended no criminal penalties for marijuana, finding that its “relative potential for harm to the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it.” But Nixon insisted he wanted a “Goddamn strong statement about marijuana … that just tears the ass out of them,” as revealed in declassified audio recordings of Nixon’s White House conversations.

“Homosexuality, dope, immorality in general. These are the enemies of strong societies,” Nixon said. “That’s why the Communists and the left-wingers are pushing the stuff, they’re trying to destroy us.”

Even in the midst of this War on Drugs rhetoric, 11 states passed laws to remove criminal penalties for marijuana possession between 1973 and 1977. In fact, decriminalization was even a campaign issue for President Jimmy Carter, before a backlash brought even that issue back into the dark.

The issue of medical marijuana was received differently. Grinspoon, the Harvard Medical School professor, had been up for an early promotion for his research on schizophrenia. But after he wrote his first book, “Marihuana Reconsidered,” he was denied by the promotions committee because of “controversy” over his marijuana research, he was told. Grinspoon took emeritus status without ever having risen above the level of associate professor.

More than 20 years later, California passed the first law to legalize some medical use and distribution in 1996, and a few other states followed suit in 1998. But even these early laws were passed by ballot initiative without requiring the support of lawmakers. And the idea that marijuana could be used for medical purposes continued to see both public and law enforcement resistance, as federal authorities pursued a series of vigorous crackdowns in states where it was legal.

One of the most publicized crackdowns was against the prominent horticulturist Ed Rosenthal for cultivating marijuana in Oakland, Calif., where it was legal. Like many before and since, Rosenthal was convicted in federal court in a 2003 trial during which it was never mentioned that Rosenthal was growing marijuana for medicinal purposes, permitted by state law.

As jurors left the courtroom after Rosenthal’s trial, they first learned from reporters crowded outside the courthouse that they hadn’t been told the full story about Rosenthal, and expressed regret in what became a moment of national sympathy on medical marijuana. One juror told the New York Times, “I’m sorry doesn’t begin to cover it. It’s the most horrible mistake I’ve ever made in my entire life. And I don’t think that I personally will ever recover from this.” Rosenthal was granted a new trial by a federal appeals court citing juror misconduct. But it was the media coverage of the trial that prompted a fundamental shift in the conversation about medical marijuana, said William Dolphin of Americans for Safe Access.

“There was a substantial change in how the media talked about it after that case,” Dolphin said. “Prior to that case, I never saw an article in the mainstream media — if you’ll pardon the phrase — that didn’t put scare quotes around the word medical. And after that trial the scare quotes were gone.”

It was around that time that Americans for Safe Access was formed, an organization aiming to “protect patients and their rights to safe and legal access.” Their acronym, ASA, was a play on the name of Asa Hutchinson, then the head of the Drug Enforcement Administration, who led aggressive raids in California against individuals like Rosenthal. And the organization was born as an emergency response to these raids.

The proposition that smoked marijuana is ‘medicine’ is, in sum, false–trickery used by those promoting wholesale legalization. -DEA, 2011

Hawaii had been the first state whose legislature passed a medical marijuana law in 2000. But in the years after the 2003 Rosenthal trial, other legislatures on the mainland followed suit, including Vermont in 2004 and Rhode Island in 2006 after lawmakers overrode the governor’s veto. In 2009, the American Medical Association even endorsed reviewing the Controlled Substances Act’s designation of marijuana in Schedule I “with the goal of facilitating the conduct of clinical research and development of cannabinoid-based medicines, and alternate delivery methods.”

But in many parts of America, and certainly on the national stage, marijuana remained a third-rail, taboo issue. As late as 2011, even the federal Drug Enforcement Administration was still referring to medical marijuana as “medical” in scare quotes. “The proposition that smoked marijuana is ‘medicine’ is, in sum, false–trickery used by those promoting wholesale legalization,” stated a 2011 DEA memo that asserted marijuana is still “properly categorized under Schedule I.” The memo concluded that FDA-approved drugs are safer for every medical condition than smoking marijuana, and cited a bizarre story in which a 14-year-old girl who was “force-fed” marijuana leaves to help alleviate an adverse reaction to Ecstasy died several days later. There are no known cases of death from a marijuana overdose.

Tom Angell, now chairman of Marijuana Majority, spent much of the mid-2000s lobbying federal lawmakers on drug policy before he decided he had to “bridge the gap between existing public support for many reforms and lack of support by elected officials” first. He said even on issues as subtle as increasing access to education for those with a drug offense on their records, “I would constantly meet with folks and their staffers who would say, ‘look I completely agree with you, but I cannot do anything to help you out in public because this is a third rail issue.’”

“And that sort of constantly running into that line of thinking over the course of my career just made me realize that that’s the major roadblock standing in the way,” Angell said.

A New Era

It is in this moment of increased interest in marijuana policy generally that public support for medical use in particular has skyrocketed. While national support for recreational marijuana nationally exceeded 50 percent after the passage of ballot initiatives in Colorado and Washington, polling for medical marijuana has hit the high 80s in some polls, and majority support holds even in deep red states. The New England Journal of Medicine found that 76 percent of doctors would prescribe marijuana to their patients.

There’s a lot of stuff on the table now that would’ve been unthinkable two years ago.

In a high-profile about-face, CNN Chief Medical Correspondent Sanjay Gupta reversed his position on medical marijuana in August, saying, “we have been terribly and systematically misled” on marijuana. He aired a documentary on a young girl’s success using marijuana to treat seizures that has since prompted more than 100 other families to move to Colorado and seek similar treatment.

The list of politicians first taking a position on marijuana is growing. A Florida ballot initiative on medical marijuana has forced several Democrats to take a position for the first time on the issue, including Sen. Bill Nelson (D-FL) who went from saying marijuana is harmful to saying,“Marijuana used as a medical relief for people that are desperate, I agree that ought to be legal,” and Gubernatorial candidate Charlie Crist (D), who previously opposed decriminalization but came out in favor of medical use in January.

Even the most prominent organization opposing recreational marijuana proposals, Smart Approaches to Marijuana, explicitly endorses greater research on medical marijuana for “cannabis-based medicines.” (although it opposes smoked marijuana and moving the drug from Schedule I.)

And so medical marijuana has emerged as the moderate stance for politicians who feel pressured for the first time to take a position. The Obama administration has taken a number of positions. The Department of Justice recently pledged once again to avert prosecution of those individuals complying with state marijuana law. President Obama conceded that alcohol is more dangerous than marijuana, but the administration has declined to take independent action to reschedule the drug under the Controlled Substances Act. And after years of withholding a legal supply of marijuana for clinical research, a federal panel last month made a potentially momentous shift in allowing access to marijuana for a double-blind study on marijuana and post-traumatic stress disorder.

Making A Hash Of The Law

Longtime marijuana advocates are heartened by what they perceive as a tangible shift. “There’s a lot of stuff on the table now that would’ve been unthinkable two years ago,” Angell said.

But while public and political opinion are embracing medical marijuana, the law hasn’t. In fact, there are still people serving five- and ten-year minimum prison sentences for distributing medical marijuana in states where it is legal.

“There still exists a very significant gap between the overwhelming public support and the willingness of politicians to take action on it,” Angell said. “Even if you just look at the issue of just simply letting states set their own policy.”

I feel, at the age of almost 64 years old, that what I’m doing about medical marijuana in my life is probably, and forgive me I loved raising my four sons… this might be the most important thing I’ve ever been involved in in my life. -Ellen Lenox-Smith, Rhode Island

It is in that spirit that a convening of medical marijuana advocates headed to Capitol Hill in early April for their annual lobbying day, on the heels of a statement by U.S. Attorney General Eric Holder the previous week that he would “be glad to work with Congress” to reschedule marijuana. There’s a bill for that.

HR 689 has a modest ask: to move marijuana’s designation under the Controlled Substances Act from Schedule I — for dangerous drugs with no currently accepted medical value — to Schedule III or higher. The synthetic version of marijuana, Marinol, has long been designated Schedule III, even though it has been associated with significantly greater danger than the marijuana plant.

This change in marijuana’s designation means it would still be limited and regulated, but the Food and Drug Administration could begin the drug approval process, those using it or distributing it as medicine would no longer fear federal prosecution, and access to the drug for research would likely be relaxed. It would also curb the legal limbo that has put many states in a precarious position.

Zoe Patchell came from Delaware to lobby her members of Congress on the law. Her state passed a medical marijuana bill 2011. But the state suspended implementation after receiving a menacing letter from the Department of Justice warning that growers, distributors, and state employees could be subject to prosecution.

After the Justice Department recently shifted its position on prosecution once again, the state is preparing to open just one “compassion center” to dispense marijuana in the state later this year. But in the meantime, people are “basically being told to do what they’ve been doing before which is obtain untested, unregulated medicine off the street,” Patchell said.

Other states like Virginia don’t have any viable medical marijuana law. George and Garrett Vogel traveled from Richmond, Va., to lobby their members of Congress. Garrett was a college baseball player whose health fast deteriorated after he developed a host of health difficulties ranging from Crohn’s disease to 15 vertebral fracture.

He tells a common story: “Pretty much the only thing that has helped me has been cannabis.”

His father, a veteran, assumed the views of generation “Reefer Madness” until his son showed him marijuana’s medical potential. “He really educated me,” said George, who is now part of a post-traumatic stress group in which many of his fellow veterans praise marijuana’s potential to help them sleep and function.

In Rhode Island, Ellen Lenox Smith has full access to medical marijuana to treat her chronic lung and ligament conditions. And along with her service dog and her husband, she credits marijuana in oil form as one of three things keeping her alive. But the grandmother and former school teacher knows what her life would be like if she lived in one of the majority of states where she didn’t have access, because she’s lived the chronic pain and sleepless nights.

“Every person in this country should have the right I have to be able to live my life, whatever’s left of it, with dignity and an opportunity to make my life productive,” Lenox Smith told a crowd of marijuana advocates in April. “I feel, at the age of almost 64 years old, that what I’m doing about medical marijuana in my life is probably, and forgive me I loved raising my four sons… this might be the most important thing I’ve ever been involved in in my life.”

Lenox Smith and some 200 others who met with their representatives in Congress are not under illusions that HR 689 will become law this year, let alone get introduced in the Senate. “I’ll be honest with you,” Americans for Safe Access’s Don Duncan told attendees at a lobbying training. “It’s very unlikely that HR 689 is going to the Senate this year. … We’re gonna talk about it anyway, because one day a bill like that will go the Senate.”

Even the small medical marijuana victories have been met with continuing obstacles. Take one of the medical community’s most confounding battles of all: allowing research. The only federally sanctioned supply of marijuana is controlled by the federal government, and anyone who wants to conduct research has to gain permission from a federal panel. For years, that panel has denied a University of Arizona academic who specializes in treating veterans access to cannabis for an FDA-approved, triple-blind, study on the impact of marijuana on post-traumatic stress disorder. Last year, theoretical physicist John H. Schwarz blasted the control of science funding by those who inherently assume the drug contains no benefits as akin to creationionists controlling paleontology.

In an unexpected victory last month, the panel granted access to marijuana for the PTSD study, paving the way for more rigorous data on what marijuana can and can’t do. But that was not the end of it. An Arizona bill to fund the study that passed the state’s house is now being held up by one state Senate legislator who believes it is a “back-door” to recreational legalization. And so even that one study remains thwarted for now.

The limited research that has occurred has already led researchers to discover the potential of cannabidiol, one of the most powerful chemical compounds in marijuana credited as a remarkable treatment for populations as vulnerable as young children. Even in many medical marijuana states, state officials have claimed that the marijuana extract is not permitted, and prescribing any marijuana derivative to minors has been banned. To gain access to a strain of marijuana high in cannabidiol dubbed “Charlotte’s Web,” more than 100 families with sick young children have relocated to Colorado, where it is legally available. The strain is named after six-year-old Charlotte Figi, whose story of transformation from seizure-ravaged to functioning was featured in a CNN documented.

Cannabidiol, more than anything else, exemplifies the Reefer Madness-era attitude that is in the midst of toppling. While smoking marijuana high in the psychoactive component THC raises cognitive concerns, cannabidiol has no psychoactive effects. In fact, some research suggests cannabidiol actually counteracts the psychoactive effects of THC.

Professor Grinspoon called it an “anti-high.” “You can’t take it and then smoke marijuana,” he said. “You won’t get anywhere with it.”

Recognizing this, bills passed in several states now create narrow exceptions for minors, where none existed before.

Despite this incremental movement in state legislatures, each and every one of the individuals making, distributing, or using marijuana remains subject to federal prosecution — however politically unpalatable it is — so long as marijuana remains prohibited for all purposes under federal law. In a few places, federal prosecution of some of the largest medical dispensaries in the country remains ongoing even after Attorney General Holder’s directive that prosecutors avert crackdowns of those complying with state law. In states without their own medical marijuana laws, users get prosecuted, too.

While several members of Congress have sponsored bills in the House to reform marijuana law, most of the newly converted politicians are not yet advocating a change in federal law. But this year in Florida, election-watchers are getting a sense of just how politically potent medical marijuana can be, as pollsters predict a medical marijuana ballot initiative could tip the gubernatorial race.

“It’s an issue that the Democrats can use to pump up the youth vote,” Republican political consultant Alex Patton said in January. “The politics of it are dangerous for the GOP.”

Graphics by Adam Peck.