Panic Street Lawyer: Raiders for a Lost Narc, Part II

So within hours of finishing up Part I on recent U.S. drug raids in Montana, I opened last Sunday’s New York Times and read this headline at the top of the “National” section: “New Federal Crackdown Confounds States That Allow Medical Marijuana.”

You know that New York Times online subscription service that I signed up for back in March? I’m now thinking that this “service” secretly gives the Times access to all content in my computer. They found the Part I article in my Panic Street Lawyer folder and stole my idea for a story.

Or maybe I’m just being paranoid …

The May 8 Times article discussed – as I discussed in Part I — how 2011 raids and strongly worded letters from the Justice Department “have cast new uncertainty on an issue that has long brimmed with tension between federal and state law.” That issue is: “How can a drug that federal drug law says is criminal be considered medicine under state law?”


20101021_justicedepartment_150A 2009 memo from then-Deputy Attorney General David Ogden seemed to clearly rule out federal investigations and prosecutions against individuals who were in compliance with their state laws permitting the medical use of marijuana. A spokeswoman for the Justice Department told the Times that the 2011 actions by the feds “is not a change in policy.” U.S. attorneys denied in the Times piece that they were given some new directive from Washington.

Medical marijuana advocates aren’t so sure. At a minimum, said the American Civil Liberties Union director of drug policy, this “saber rattling” is sending mixed signals from the Obama administration.

If President Obama were indeed sending mixed signals on marijuana, he certainly wouldn’t be the first President to do so. Both a commission organized by President Richard Nixon and a report issued by the Institute of Medicine at the request of President Bill Clinton issued study findings on marijuana that were at odds with their bosses’ public pronouncements on the evilness and uselessness of the substance (and despite the fact that one of those Presidents famously admitted in a political debate that he partook of cannabis while attending college overseas). A Compassionate Investigational New Drug Program, which provided seriously ill persons with federally-approved access to government supplies of medical marijuana, began during the presidency of Jimmy Carter and continued through the entire presidency of Ronald Reagan and most of the first President Bush’s presidency.

20110515_montanaflag_150This year’s raids in Montana and elsewhere were conducted against medical marijuana dispensaries, which were not covered by the 2009 memo from Justice and are not legal in many states that allow medical marijuana.

As mentioned in Part I, Montana will begin closing down that state’s large marijuana-growing farms and dispensaries and only permit approved patients to get the drug by either growing their own or getting it free from a provider who may grow it for no more than 3 people. This change in Montana medical marijuana law was made following the federal raids, which prompted one medical marijuana advocate to conclude that they were “aimed at undermining the democratic process by preventing the people and legislators of Montana from addressing their own public health concerns.”

The U.S. Supreme Court famously weighed in on this issue when it decided Gonzalez v. Raich back in 2005. That case did not arise from the investigation and prosecution of a farm or dispensary following the passage of Proposition 215 (the Compassionate Use Act) by California voters in 1996. Rather, it began with a raid in 2002 on the private residence of Diane Monson and the subsequent destruction of 6 homegrown plants of doctor-prescribed marijuana pursuant to the 1970 Controlled Substance Act. She was joined in a civil action filed against the U.S. Attorney General by Angel Raich, who was provided her doctor-prescribed marijuana free of charge by two anonymous California caregivers. After split decisions by lower federal courts, the Supreme Court addressed the specific question of whether the Controlled Substance Act exceeded the U.S. Constitution, Article I power of Congress to regulate interstate commerce.

20110515_medmarijuana_150In a 6-to-3 decision, the Supreme Court held that Congress had the authority to criminalize the noncommercial cultivation and personal, medical use of marijuana even though it did not cross state lines. The Court vote breakdown can be seen by the populace as yet another “mixed signal.” The 6-person majority permitting a federal crackdown included all of the justices most Court observers considered “liberal” at the time, while the “conservative” justices in the 3-person minority would have protected the right of an individual in California to choose (with doctor’s approval) marijuana use.

The Court ultimately concluded that Congress could regulate intrastate noncommercial medical marijuana use under the Controlled Substance Act’s comprehensive scheme because Congress had a rational basis for concluding that such use could affect interstate commerce. So, just as Congress chose to act in 1970, the tension-brimmed political issue remains squarely within Congress’ ability to further address.

Some people on both sides of the issue say the quickest solution would be for Congress to reclassify marijuana under the Controlled Substance Act regulatory scheme from a Schedule I drug, which includes drugs such as heroin and LSD with no medical utility, to a Schedule II drug, which includes medicines that can be prescribed such as Marinol – which, in pill form, contains the active compound in marijuana.

20110508_marijuanahand_150Will Congress update our national drug laws to reflect current scientific thinking on the issue of medical marijuana? Or will it keep on the books a lost policy of criminalizing all marijuana cultivation and use regardless of purpose? Congress has acted as recently as 2008 to expand the rights of persons with disabilities in face of Supreme Court precedent which it deemed a misinterpretation of its findings. As more and more persons with serious undisputed physical impairments turn to “non-traditional” treatment methods with successful results, Congress will feel more political pressure to issue new findings and take appropriate corrective legislative action in the future.

Of course, that’s assuming we have a future beyond this Saturday’s Judgment Day, as predicted by Mr. Camping.  I like to think of myself as a glass-is-half-full kind of guy, so – goodbye until next week!

The Panic Street Lawyer is a personal opinion column by attorney Jay Hornack. Contact him right here at Ipso FactoThis e-mail address is being protected from spambots. You need JavaScript enabled to view it .