Update - November 16, 2006
This bill will die when the 109th Congress adjourns in the next few weeks. The 110th Congress will have a very different political complexion. Legislatioin on this subject may be very different.
H.R. 2087, the States Rights to Medical Marijuana Act
June, 1 2005
WHAT IS H.R. 2087?
H.R. 2087, the States Rights to Medical Marijuana
Act, introduced by U.S. Rep. Barney Frank (D-MA) on May 4, 2005, would amend the Controlled Substances
Act and the Federal Food, Drug and Cosmetic Act to permit
states to carry out their medical marijuana laws without
Federal interference. The bill was introduced in coalition with more than 30 cosponsors including Ron Paul (R-TX), Maurice Hinchey (D-NY), Sam Farr (D-CA), and Dana Rohrabacher (R-CA). This legislation would effectively protect medical marijuana patient, doctors and pharmacists from prosecution for medical marijuana activities authorized by state law.
WHY IS IT IMPORTANT?
The research is clear. The compounds in marijuana have beneficial effects for a number of conditions. There are, of course, non-controversial compounds that treat those conditions quite well, but for some people those non-controversial medicines don't work, or the side effects are extreme and unacceptable, and for some of those people, marijuana does work. This does not mean that marijuana is a good drug or a better drug.
In the words of the Institute of Medicine, "there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS wasting." (Marijuana and Medicine, Assessing the Science Base, p. 179). Patients who find relief from their condition by using marijuana cannot wait for new drugs to be developed-- particularly when one already exists. Refusing patient access to marijuana can mean the difference between a successful round of chemotherapy and premature and unneccessary death.
The Institute of Medicine of the National Academy of Sciences was commissioned by Barry McCaffrey, former Director of the Office of National Drug Control Policy, to study this issue. Their 267 page report concluded in 1999 that there are a variety of medical benefits from marijuana and its compounds. They noted the problems with smoking marijuana and the problems of using a crude plant as the source for the medicines. They also noted that marijuana use, per se, is NOT a gateway to other illegal drug use. They recommended more research, but concluded that persons with life threatening illnesses who did not respond to conventional medications be permitted to smoke marijuana.
Disregarding the report it commissioned, the Federal government continues to insist that marijuana has no medical value. The Federal government has resisted legal petitions to reschedule marijuana to permit its use in medicine, and repeated its arguments in numerous court cases. It opposes the use of marijuana in medicine on its Websites, http://www.usdoj.gov/dea/ongoing/marinol.html, http://www.nida.nih.gov/MarijBroch/Marijteenstxt.html#Medicine.
Private anti-drug groups also oppose the medical use of marijuana, e.g., the Partnership for a Drug-Free America and National Families in Action
ANALYSIS
State Medical Marijuana Laws Frustrated by Federal Law
Ten states (Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Vermont and Washington) have functioning medical marijuana laws. (Arizona voters adopted a medical marijuana law that is not functioning due to legal consequences involving the word "prescription.")
However, the Federal government has tried to block the implementation of those laws. In 1996, the Clinton Administration issued a comprehensive regulation threatening physicians who made recommendations to their patients to use marijuana to treat their conditions. That regulation was enjoined in Federal court because it interfered in a physician's First Amendment right to counsel their patient.
States like Colorado, Montana and Oregon issue state identification cards to patients who have bona fide recommendations from their physician to use marijuana to treat their disease or condition. Numerous local governments in California have collaborated with the organizers of the medical marijuana dispensaries in their communities to try to carry out the law.
However, the Federal government has raided medical marijuana dispensaries throughout California and prosecuted individuals who were growing marijuana for themselves and such dispensaries. The U.S. Supreme Court has ruled that an organization cannot claim, under the Federal Controlled Substances Act, that an organization is entitled to a "medical necessity" defense to a Federal injunction. The court upheld Congress' finding in 1970 in the Controlled Substances Act that there is no medical use for marijuana.
Various state courts, including the Florida Court of Appeals, (Jenks v. State, No. 90-2462 (1991)) have held that individual patients can claim a "medical necessity" to use marijuana and avoid violating the state's marijuana laws.
What about kids?
Many opponents of the legalization of the medical use of marijuana insist that permitting such use sends the wrong message to young people. This is a mistaken analysis. The key thing taught in every drug education program is that you should not take any drug that is not prescribed by your doctor or given to you by your parents. Only those drugs are okay for you to take, and no others are. That's what is taught for all drugs -- over-the-counter, prescription, and otherwise.
Federal and state law do not deny medical use of addictive and potentially dangerous drugs-- such as morphine for pain patients or cocaine for ophthalmic surgery patients-- out of fear of sending the wrong message to kids. Acknowledging the medical value of those drugs has not caused a surge in persons who think it is okay to use those drugs socially. To deny medicine to very sick people because our society is afraid of adequately educating young people about drugs is not only stupid, but cruel.
Teenage marijuana use started dropping steadily in 1979. This continued throughout the 1980s while the medical use of marijuana was being hotly debated, and when bills to permit medical use of marijuana had scores of sponsors in the U.S. House of Representatives. Teenage marijuana use continued to decline even after the DEA Chief Administrative Law Judge Francis Young ruled in 1988 that marijuana "has a currently accepted medical use in treatment in the U.S.," that marijuana ought to be rescheduled, and to find otherwise would be arbitrary and capricious.
In 1976, the federal government started a "compassionate use" investigational new drug program for medical marijuana. The program remained relatively obscure despite the successful treatment of patients until the late 1980's when it received an unprecedented number of applications from AIDS patients. In 1992, at this critical point in the program, the Bush Administration closed the program to new patients, insisting that the program was sending the wrong message to youth. At this time, marijuana use among twelfth graders was at its lowest point since 1979, with 22 percent of youth reporting marijuana use in the past twelve months.
Ironically, however, when President Bush closed the program on the ground it "sent the wrong message to youth", teenage marijuana use began to rise. From 1992 to 1997, reported marijuana use among eighth, tenth, and twelfth graders again went up, nearly doubling to 22.1, 38.5, and 42.4 percent respectively (Monitoring the Future, 2003.).
Teenage marijuana use continued going up in California-- as in the rest of the country-- until the widely-publicized passage of California's Compassionate Use Act (Proposition 215, the medical marijuana initiative) in 1996, at which point teenage use in California started to fall. Since 1996, government surveys of rates of teenage marijuana use in California have stayed below the national average.
The historical record of teenage marijuana use completely rebuts the assertion that such use is increased by public discussion or acceptance of the medical value of marijuana.
ACTION OF CALIFORNIA SUPREME COURT
On July 18, 2002, the California Supreme Court upheld the validity of California's Compassionate Use Act (Proposition 215, which had been approved by the voters in 1996 with a 56% affirmative vote).
The justices unanimously ruled that medical patients could move to dismiss attempts to prosecute them in a pretrial motion. That means they do not have to go through an entire trial and prove to a judge or jury that they are valid medical patients.
The court also ruled that to prevent being prosecuted or convicted all that a defendant must do is establish at least reasonable doubt that their marijuana possession or cultivation was actually criminal. Establishing reasonable doubt is a very low threshold of evidence. Simply offering to the court a document such as a prescription or letter of recommendation from a physician would probably suffice. The court held that for the purpose of this law, a prescription for marijuana was the same as a prescription for any other controlled substance a physician might write for his or her patient. The People v. Myron Carlyle Mower, S094490, July 18, 2002.
The complete opinion can be found here.
However, the Federal government continues to investigate and prosecute individuals and organizations that are attempting to follow and implement this law in California. To allow the ten states (plus Arizona) to carry out their laws without interference requires an Act of Congress, and this is the intention of H.R. 2087.
As of May 4, 2005, H.R. 2087 had 30 co-sponsors in the House of Representatives. None of the 22 U.S. Senators from any of the eleven states that have adopted medical marijuana laws have introduced or cosponsored a bill like H.R. 2087 to allow their state's law to operate without Federal interference.
WHAT YOU CAN DO
Write to your U.S. Representative and U.S. Senators and share your opinions about this issue. You can find your elected officials here.
Invite a speaker to come to your organization or business.
Attend upcoming drug policy events.
FOR MORE INFORMATION: Citations to much of the published research into medical utility of marijuana can be found here.