THE COMING RAGING CONTROVERSY ON MARIJUANA LAWS
SENIOR JUDGE ARTHUR L. BURNETT, SR.
NATIONAL EXECUTIVE DIRECTOR
NATIONAL AFRICAN AMERICAN DRUG POLICY COALITION, INC.
NATIONAL BAR ASSOCIATION
“THE LEGALIZATION OF MARIJUANA:
WILL MARIJUANA SAVE YOUR STATE’S FINANCES”
NEW ORLEANS, LOUISIANA
AUGUST 12, 2010
As legal issues discussed herein may come before me in my judicial capacity, I can take no public position as to my personal views. There are a number of hard questions I will raise for this audience. I will endeavor to present a balanced approach of the pros and cons on these issues. No one should interpret from the statements herein what my personal views may be on any of these issues in view of my judicial status.
Should our public policy and laws be driven with respect to marijuana by ideology and moral philosophy or based on scientific and empirical evidence as to the best means to promote public welfare and public safety? Prominent experts and many serious commentators claim that marijuana usage is not as harmful as alcohol and nicotine from smoking tobacco. In a recent NPR Radio interview, Professor Carl Bell, a Clinical Professor of Psychiatry and Public Health at the University of Illinois in Chicago in the context of talking about the impact of crack cocaine on a pregnant woman and her fetus stated “the medical biologic reality is that alcohol and nicotine actually do more harm to a developing brain [in a fetus] than all the other legal drugs combined.”
A recent article excerpt in an electronically distributed publication, Progress Notes, dated July 1, 2010 stated: “Most marijuana users use the drug infrequently and are not in need of intervention, according to Canadian researchers who said public-health efforts around marijuana should be directed primarily at those at most risk of problem use,” according to the Vancouver Sun in a report of June 11, 2010. Benedikt Fischer, a researcher with Simon Fraser University said: “We’re arguing for a differentiated approach that recognizes that some people, but only some, a minority, have problems from their cannabis use and we understand now a lot better what their characteristics and determinants are while the large proportion of users are fairly problem free.”1 University Fischer and his colleagues based their recommendation on a study of 1,303 Canadian marijuana users, determining that the minority who began using the drug before age 16 and continued with daily or near-daily use were at the most risk of other drug use, impaired driving, or other problems. The study was published in the International Journal of Methods in Psychiatric Research.
This differentiated approach suggests an argument that where an individual is a heavy user of marijuana and that use contributed to the commission of some other offense, public policy could justify an enhanced sentence much in the manner in which we now deal with DUI, DWI or negligent homicide and manslaughter offenses in the operation of a motor vehicle, but where no offense occurs and no one is harmed, the individual should not be subject to criminal sanction.2 This problem could also occur where the marijuana is highly potent in its THC chemicals and other substances.
That same issue of Progress Notes of July 1, 2010 featured an article noting that Sarah Palin had said that she does not support marijuana legalization but that she did seemed to offer some support for decriminalization of the drug. CBS News reported June 17, 2010 that during a TV appearance with Representative Ron Paul (R. Texas) – who supports legalization on libertarian grounds – Sarah Palin said, “If we’re talking about pot, I’m not for the legalization of pot. I think that would just encourage especially our young people to think that it was OK to just go ahead and use it.” However, Palin also characterized marijuana use as a “minimal problem” in society relative to other issues. She is reported to have said: “I think we need to prioritize our law enforcement efforts.” She continued: “And if somebody’s gonna (sic) smoke a joint in their house and not do anybody else any harm, then perhaps there are other things our cops should be looking at to engage in and try to clean up some of the other problems that we have in society.” The article item concludes with the comment: “During her run for vice president, Palin acknowledged a past history of smoking marijuana. The drug was decriminalized in Alaska for many years.”3
It is noted that the reference to the libertarian view of Congressman Ron Paul is to the effect that a person should have the freedom to put in his or her body whatever he or she wants as long as it does not harm anyone else. However, this view may be subject to question under the theory underlying our Healthcare Reform legislation mandating that everyone get health insurance, or suffer a penalty for not doing so. That issue is currently before the Courts as to whether Congress has the power to compel every individual to have health insurance for the common good and welfare to reduce the cost of healthcare for all members of our society and the impact on our national economy and our national security.
The views attributed to Sarah Palin also raises the question of effective use of our law enforcement resources to free them up to concentrate on more serious and dangerous offenses which do far more harm to society, and thus do a better job of promoting public safety.4 And many articles have raised the question whether marijuana offenses are used as a means of targeting minority offenders, profiling and promoting arrests and convictions of a disproportionate number of members of African Americans and other minorities in the United States as a means of disenfranchising larger numbers of minority individuals and keeping them subordinate in our society.
Closely connected with the general marijuana question of decriminalization or legalization is the handling of the medical marijuana exception and the failure of the federal government to reclassify marijuana as a Schedule II drug rather than Schedule 1, and thus confirming that in certain situations it does have medicinal value, just as is done with opiate derivatives. Thus, the issue still remains as to the 16 State jurisdictions authorizing the use of medical marijuana, while at the federal level it still remains a federal criminal offense to possess or distribute marijuana for medical purposes. Questions have been raised as to whether the federal government should enact a statute requiring abstention – it should not be left to the Attorney General’s policy decision or discretion – but be a matter of law, and doctors who recommend the use of medical marijuana and their patients in these States should not have to proceed under the potential threat of being charged with federal criminal offenses. Some commentators have suggested that the federal law should be changed to permit these States to be laboratories for experimentation with doctors prescribing the use of marijuana, perhaps under controlled circumstances to assure purity and the lack of contaminants, or even converted to a liquid, pill or capsule form for use just as a doctor would prescribe an opiate derivative. It has been represented that a drug called “Marisol” is such an approach, but many patients have, so it is alleged, claim that they do not get the same benefit from “Marisol” as they do from the raw plant itself. This raises the question: Why not have clinical trials under the supervision of NIDA or some other governmental agency to determine where the truth lies?5
Indeed an article in Progress Notes for July 1, 2010 captioned “Juiced Marijuana Offered to Medical Users as Alternative to Smoking” states that a California physician is offering his medical-marijuana patients a liquefied version of the drug that he says won’t produce much of a buzz but does contain chemicals helpful in treating a variety of illnesses, according to a Washington Post report June 1, 2010. The article asserts: “Willets, Calif., physician William Courtney, M.D. said that marijuana with high levels of cannabidiol (CBD) seems to have the most medical potential; ironically, CBD levels seem to be lowest in marijuana strains of the plant that are highest in THC – the main psychoactive substance in marijuana.” “What has happened is, almost all strains available in America through the black market are THC concentrates,” said Ethan Russo, senior medical adviser with GW Pharmaceuticals, which is developing the marijuana-based medication Sativex. The CBD in almost all cases has been bred out. The reason is cannabis in this country has been cultivated for its intoxicating effect.” “Medical-marijuana advocates want to see more research into CBD. “The bridge to legalization is medical marijuana,” said Addison DeMoura, one of the owners of the Steep Hill Medical Collective in Oakland. “I believe the bridge from medical marijuana to real science will be CBDs.”
This content suggests that it would be wise for Congress to mandate that NIH do clinical trials on a prescription version of the medication rather than voters in each of the respective States voting under referendums or State legislators enacting laws allowing the use of raw marijuana to be used as medical marijuana with different strengths and possibly contaminants with negative effects.6
Voter or legislator approved medical marijuana usage is now permitted under State law in Alaska, California, Colorado, Hawaii, Iowa, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. The Medical Marijuana Blog on the Internet claims that medical marijuana can be helpful in treating people with Alzheimer’s, Anxiety, AIDS, Arthritis, Autism, Cachexia, Cancer, Chron’s Disease, Depression, Epilepsy, Glaucoma, HIV, Insomnia, Migraine, Multiple Sclerosis, Nausea, Pain, PTSD, Spasticity, Stress, and Wasting Syndrome.7 It is there represented that references to the use of marijuana as a medicine dates back to 2,000 years BC. It is further there represented that in China it was used to treat conditions such as malaria, constipation and rheumatism and that cannabis was used to alleviate menstrual cramps. Recently, there has been an effort to create a Coalition of mothers to urge that marijuana is safer than alcohol, that teens should not face jail time for experimenting with the drug, and that some of the mothers have had success in using marijuana to treat morning sickness and post-partum depression. It is further there claimed that marijuana remained in the United States pharmacopoeia until 1941 and up until that time, cannabis was freely available in Queen Victoria and in the United Kingdom.
The use of medical marijuana controversy is about to become even more heated.
The District of Columbia City Council recently enacted a law in the District of Columbia allowing the use of medical marijuana through regulated dispensaries. The 13-member City Council voted unanimously to approve a measure to allow doctors to recommend marijuana for treating certain chronic conditions. The measure empowers the D.C. Mayor to establish up to eight city-regulated dispensaries where patients with H.I.V., glaucoma, cancer or a “chronic and lasting disease” can obtain up to two ounces of the drug per month with their physician’s approval. The mayor could subsequently increase the allowance to four ounces per month without council interdiction. An article in Progress Notes, Vol. XI, No. 14, dated July 1, 2010 states: “Congress last year lifted a longstanding ban on use of public money to support medical marijuana in Washington, D.C., but now a pair of Republican lawmakers wants to block implementation of the law. The Washington Post reported June 23, 2010 that Reps. Jason Chaffetz (R. Utah) and Jim Jordan (R. Ohio) have filed a resolution to have Congress disapprove the law, which would otherwise go into effect in July. Congressional lawmakers blocked the law, approved by district residents [in a referendum] in 1998, for more than a decade before relenting last year.” The article concludes with the observation: “The Chaffetz/Jordan proposed joint resolution is not expected to pass, but the law could still be challenged through the budget process.” In my view, depending on the outcome, it could also lead to further litigation in court.
Then there is the closely related question of the use of hemp in America. Progress Notes for June 1, 2010 reports: “The U.S. Department of Agriculture once used the land in Virginia where the Pentagon now stands to grow hemp, a close cousin of the cannabis sativa plant that produces marijuana, the Washington Post reported on May 13, 2010. To quote the article: “Recently discovered documents show that botanist Lyster H. Dewey used government land known as Arlington Farms to grow exotic varieties of hemp in the late 19th and early 20th centuries. A group called the Hemp Industries Association is using Dewey’s diaries -- found at a yard sale near Buffalo, N.Y. – to support their campaign to legalize industrial use of hemp, which was banned along with marijuana in the 1930s.” The article continues: “The history of Dewey’s hemp farm is particularly poignant for David Bronner, an entrepreneur who developed a successful line of hemp-based soaps and has battled the Drug Enforcement Administration (DEA) over its ban on hemp-based foods. Last October, Bronner was arrested for planting hemp seeds on the lawn at DEA headquarters, and he payed (sic) $4,000 to buy Dewey’s diaries on behalf of the hemp association.” ‘Its kind of ironic that we dug up DEA’s lawn to plant hemp seeds and highlight the absurdity of the drug war, but you take it back 50 years and that’s what the government itself was doing,’ said Bronner.” Other literature reflects that during World War II the United States used hemp to make ropes used in the Philippines and elsewhere.
It is significant to note the volatility of these issues and to focus on what happen in Portugal between 2001 and 2006. According to a Report done under the auspices of the Cato Institute in Washington, D.C. by Glenn Greenwald, an attorney and researcher, Portugal decriminalized possession of small quantities drugs, including marijuana, cocaine, heroin and methamphetamines in 2001 and between 2001 and the end of 2006 the study revealed that there was no increase of marijuana drug usage. Indeed, it was suggested that it was no longer an “attractive nuisance” to entice young people to use marijuana. A Times Magazine article of April 26, 2009 observed that compared to the European Union and the United States, Portugal’s drug use numbers were impressive. “Following decriminalization, Portugal had the lowest rate of lifetime marijuana use in people over 15 in the European Union: 10%,” observing that “the comparable figure in the United States is in people over 12: 39.8%.” The Times article further states that the Report establishes that illegal drug usage among teens in Portugal declined. The Times article also represents that the Cato report shows that “between 2001 and 2006 in Portugal, rates of lifetime use of any illegal drug among seventh through ninth grades fell from 14.1% to 10.6%; drug use in older teens also declined. Lifetime heroin use among 16 to 18 year olds fell from 2.5% to 1.8% (although there was a slight increase in marijuana use in that age group).”
Some might argue that the nature of the population in Portugal may be far different than the population in the United States which may not react in the same manner. But rather than act on assumption, speculation and theory, I would recommend that Congress, or any Commission created by Congress, would hold hearings at which the drug czar of Portugal and other high-level officials would testify before it as well as psychologists as to how Portugal teens and population might differ from teens and the general population in the United States and thus it would be reasonable to conclude that our population might not act in the same manner.
We should also hear from law enforcement officials from those States which have decriminalized possession of small amounts of drugs as to whether any tremendous increase in usage has occurred by teenagers or young adults.8 Thus, we should look at such states as Massachusetts where in November 2008 its citizens voted in a referendum to decriminalize small quantities of such drug substances.9
I also note that in 2009 Mexico decriminalized possession of small quantities of drugs.10 I would recommend that we hear from officials of that Nation as to whether such an approach has led to substantial increase of the usage of marijuana or other illegal drug substances. These developments suggest the question of whether we can educate our youth – and the entire population - of the public health consequences of the use of marijuana just as we have educated our public about the consequences of tobacco smoking and achieve a reduction in the use of marijuana in this Nation in eliminating the application of our criminal laws to such behavior.11
Some advocates might urge a move to decriminalization first for a period of 5 to 10 years in our own population’s culture to see what the results will be, and whether there would be a significant increase in drug usage and harms to our society. They might urge that we first go the way Portugal has gone as an interim step while we study and evaluate the process and the consequences. Others might advocate that we should do as
we did with Prohibition and immediately move forward to legalization, with a strong education program to discourage our populace from using black market drugs because of contaminants and quality control issues and for health concerns. Others might argue that in legalizing marijuana, we would be engaging in an experimental phase, if we delayed legalizing heroin, cocaine and methamphetamines until we have seen the result of the legalization of marijuana. This would be a partial and evolutionary approach to this most perplexing problem facing the citizens of this country.
Another approach suggested by some advocates has been to decriminalize the possession of small amounts, but to allow a civil penalty or treat the matter as a civil infraction.12 On April 17, 2008 Congressman Barney Frank introduced H.R. 5843 regarding marijuana for personal use. It would have removed criminal penalties for possession for personal use up to 100 mg and would have also removed penalties associated with the “not-for-profit” transfer up to one ounce of marijuana and only allow a civil penalty of no more than $100 to be imposed for the public use of marijuana. That Bill however never gained any traction. Some commentators have claimed that it would not eliminate the black market in the selling and distribution of marijuana.
This leads to the question of whether merely moving to decriminalization is enough. Decriminalization would still leave in place the black market and the selling of marijuana by drug cartels and dealers, could lead to fights over turf or territories, and result in burglaries, robberies and homicides. Thus, some thoughtful commentators might suggest that legalization is the far better approach with marijuana being regulated and taxed, and dispensed through State controlled dispensaries or stores, much in the manner some States have used State Controlled Liquor Stores to sell hard liquor. In California in 2009 State Assemblyman Tom Ammiano introduced a Bill that would have legalized marijuana and impose a $50-per ounce state tax on the drug, saying that the measure would raise up to $1.3 billion for the State annually. That Bill did not gain traction and pass, but now pending before the voters of California is a referendum referred to as Proposition 19 to achieve this purpose to be voted on in November 2010. The Governor of California in May 2009 stated that he was “open for debate” on the question of whether marijuana should be legalized, taxed and regulated in order to generate revenue for the state, according to the San Francisco Chronicle of May 6, 2009.13 In this way the government could restrict the distribution of marijuana to persons under 21 years of age, just as it now deals with underage alcohol beverage drinking.
Further, if there were competitive lawful dispensaries selling marijuana at reasonable prices, some would assert, this could eliminate the drug cartels, the illegal dealer operations, and the related violence which accompanies drug distribution in America today and would tremendously reduce the crime rate and its costs, the use of vital government financial resources for law enforcement activities, court operations, and incarceration, freeing up these funds for education, healthcare services, trash and garbage collection services, maintenance of highways, bridges and streets and other vital public services needed for a thriving society. To the extent that there are individuals willing to purchase marijuana for personal consumption, they would be assured of the content of the substance and that the drug was not contaminated by substances which might lead to overdose hospitalizations, death or other harmful consequences.14
I conclude with the qualification I expressed at the beginning of this Paper that I have endeavored to set forth the pros and cons on both sides of the issues herein in a balanced fashion, and as I retain my Commission to sit as a Senior Judge for the rest of my life and may have to decide some of these issues in a litigation context, civil or criminal, no one should infer what my personal view is on any of the issues presented.15