January 2010 Activist Newsletter
Volume 5, Issue 1
New Federal Policy on Medical MarijuanaIn a reversal of previous federal policy, the U.S. Department of Justice has softened its stance on medical cannabis. In a memo issued in October, U.S. Attorneys were told they should not expend resources prosecuting medical cannabis patients and their caregivers in states that have adopted laws allowing medical use.
The memo came shortly after ASA Executive Director Steph Sherer, Government Affairs Director Caren Woodson and Special Advisor David Krahl met with Justice Department officials in Washington D.C. and explained the need for a written directive.
The memo's tacit recognition of both the legitimate medical applications of cannabis and the rights of patients whose doctors advise them to use it marks a policy reversal from previous administrations, which have attempted to subvert state medical cannabis laws. The change makes good on a campaign promise of President Barack Obama which was previously affirmed by Attorney General Eric Holder.
"The Truth in Trials bill seeks to restore the balance of justice and bring fundamental fairness to federal medical marijuana trials," said Woodson. "This legislation complements the recent Justice Department guidelines for federal prosecutors and is now more necessary than ever."
Just seven months after the DEA again rejected a judge's recommendation that a university be granted a license to grow research cannabis, a federal "Request for Proposals" has been issued for the production and distribution of cannabis
For more than 40 years, the University of Mississippi has had an exclusive contract with the National Institute on Drug Abuse (NIDA) to produce cannabis. The pre-rolled cannabis cigarettes they produce are used by both American researchers and the four remaining patients who receive free federal cannabis as part of an Investigational New Drug program started in 1978 and closed to new participants in 1991.
The decision by the AMA marks a change in policy for the organization, which has historically supported the federal government's contention that there are no currently accepted medical uses for cannabis. Led by ASA Medical and Scientific Advisory Board member Dr. Sunil Aggrawal, the AMA's Medical Student Section pushed the larger organization to change its position based on the thousands of published, peer-reviewed scientific articles exploring the therapeutic applications of cannabis and cannabinoids, including 33 controlled clinical trials in the United States.
It's been 72 years since the AMA has officially recognized that marijuana has medical utility," said Dr. Aggarwal, who was one of the expert reviewers for the AMA and a co-author of a review of those 33 clinical trials. "The AMA has written an extensive, well-documented, evidence-based report."
The AMA's formal recognition of the established science has larger policy implications. The U.S. federal government has long used the AMA's opposition to medical cannabis as justification for its own position. But that position has now been undermined by the AMA's report, which also urges the federal government to reconsider the classification of cannabis as a Schedule I drug. Reclassifying it as a medicine would, the AMA notes, help meet "the goal of facilitating clinical research and development of cannabinoid-based medicines, and alternate delivery methods."
The first case before the high court alleged that the federal prohibition of marijuana preempts the state law that allows legal access for qualified patients. Officials in three California counties argued they could not be forced to implement an identification card program for medical marijuana patients mandated by the legislature. State courts all the way to the California Supreme Court had said they must, and the U.S. Supreme Court refused to consider the counties' challenge, letting state law stand.
The U.S. Supreme Court also refused review of a landmark decision in which a succession of California courts found that state law requires local police to return medical cannabis seized by local police from a qualified patient. A basis of the ruling is that state medical marijuana programs are not preempted by federal law. ASA Chief Counsel Joe Elford argued the 2007 appeal on behalf of medical marijuana patient Felix Kha, when the City of Garden Grove said its officers could not return the less than $200 worth of cannabis seized from Kha, because to do so would violate federal law. A district court had already ordered cannabis returned, and the appeals court found that "it is not the job of the local police to enforce the federal drug laws." The California state supreme court upheld the appellate ruling in March 2008.
Garden Grove's resistance proved expensive. As part of a settlement to resolve their unsuccessful challenge to the state's medical marijuana law, Garden Grove officials reimbursed ASA for $139,000 in attorneys' fees; the city's cost of litigating is estimated to exceed $250,000.
The rulings in the ID card case laid the foundation for ASA to file suit in Solano County to compel officials to implement the state program. Five months later, county supervisors voted to make the optional cards available to qualified patients, and more than half of the dozen counties that had not complied now did, with the others receiving notice from ASA that they must or face litigation.
Arguing on behalf of ASA that the laws Congress passes have consequences that federal agencies cannot ignore was noted legal scholar Alan Morrison, who founded Public Citizen's Litigation Group and taught administrative law at Stanford. A decision is expected in 2010.
The change stems from an ASA lawsuit filed in 2008 on behalf of a 53-year-old woman with 37 years of clean driving record whose license was revoked solely because she is a qualified medical cannabis patient. The DMV Driver Safety Procedure Manual now says that "use of medicinal marijuana approved by a physician should be handled in the same manner as any other prescription medication which may affect safe driving."
Rhode Island, Maine and the District of Columbia are also embracing the dispensary model as a safe, effective way of ensuring patient access. Legislators in Rhode Island legislators expanded their state's medical marijuana law to establish a dispensary distribution program for qualified patients, overriding their governor's veto with a near-unanimous vote. Voters in Maine approved a measure to establish medical cannabis dispensaries in their state. The nation's capitol will also have dispensaries soon, as lobbying by ASA helped convince Congress to lift the ban on the initiative providing for them that local voters passed in 1998.
"Local governments cannot simply ban an activity that has been deemed lawful by the state," said ASA Chief Counsel Joe Elford during oral arguments.
While a decision was expected by the end of the year, the Fourth Appellate District Court has asked for additional briefing on the intent of the legislature in adopting the Medical Marijuana Program act of 2003, which specifically exempts patients, caregivers, and patient collectives from state laws prohibiting the cultivation, possession, and distribution of marijuana.
With the holidays just behind us, please think of those who don't have their freedom. Will you write a personal letter of support to a medical cannabis prisoner?
Although the actions of many of these prisoners were legal under state law, defendants cannot bring up a medical defense in federal court. To see a list of medical cannabis prisoners and tips for writing, visit: AmericansForSafeAccess.org/prisoners.
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