A patient displays his medical marijuana card in Los Angeles, Calif., Oct. 22, 2009. Attorney General Eric Holder announced new guidelines for federal prosecutors in states where the use of marijuana for medicinal purposes is allowed under state law.
AP Photo

"The Government's Marijuana Problem"

Op-Ed, Boston Globe

December 12, 2011

Author: Juliette Kayyem, Lecturer in Public Policy

Belfer Center Programs or Projects: International Security

Federal bureaucracy makes it hard for states to administer a proven pain-relief medicine

EVEN IF I wanted to get marijuana, I wouldn't know where to start looking. That predicament should not be true for the terminally ill. But the legal limbo regarding medical marijuana has left many state governments deciding between promoting patient care and exposing people to prosecution. Finally, the states are pushing back.

The debate over medical marijuana isn't about the drug war. It is about where the issue fits in the federal bureaucracy. Location is as important for government agencies as for real estate. The Forestry Service is in the Department of Agriculture, not Interior; the Immigration and Customs Enforcement agency is within the Department of Homeland Security, not Commerce. Where an issue is handled is a reflection of the government's priorities and policies.

Decisions about marijuana's medical benefits are made by the Justice Department's Drug Enforcement Agency; decisions about whether to prosecute those who violate federal law against marijuana use reside with local US attorneys' offices; decisions about whether there can be more medical studies are made by the National Institute on Drug Abuse, whose name gives you a sense of its priorities.

Medical marjiuana is governed by drug enforcers and prosecutors. This simple fact has created a legal fight over legitimate state attempts to administer this different kind of pain relief — the only one that, some cancer patients say, relieves their suffering.

Any column praising a marijuana effort should include the usual caveats about not inhaling or "I was once at a party where I saw it." But, this is no reefer madness. The state legislative effort to promote medical marijuana was backed by George Soros's Open Society Institute. Presently, 16 states and the District of Columbia allow medical marijuana; another 10 are considering it. Close to one-third of all Americans live in states that authorize its use. Such crazy partiers as the American Medical Association, the National Academy of Sciences Institute of Medicine, and the American College of Physicians recognize the medical benefits of marijuana or, more cautiously, cannabis.

Nonetheless, even in the states that allow medical marijuana, federal authorities keep bringing cases against medical marijuana distributors, their clients, and the landlords that lease to them. Some may deserve it and just be fronts for recreational use. But because federal and state laws overlap, the only assurance the Justice Department can give to state supporters of medical marijuana is a promise that prosecutions against caregivers or patients are a low priority. That sentiment was reiterated by Attorney General Eric Holder just last week.

Assurances are not legally binding. This leaves governors in a terrible quandary about how, and whether, to proceed with laws allowing the distribution of marijuana for medical use. In Rhode Island, before Governor Lincoln Chafee ever enforced a law allowing distribution by "compassion centers," he received a letter from the state's US attorney to "ensure that there is no confusion." With a passing reference to Holder's priorities, the letter warns that Justice will vigorously enforce laws against the manufacture, distribution, and possession of marijuana "even if such activities are permitted under state law."

Chafee and Washington Governor Christine Gregoire, who received a similar letter, are now asking the federal government to change marijuana from a Schedule I drug, a status it shares with heroin, LSD, and mescaline, to Schedule II. Schedule II drugs, such as cocaine, morphine, and opium, are equally addictive but can also be dispensed for medical use.

The Schedule I designation was initially made by Congress but it can be changed by administrative action. Chafee and Gregoire want the DEA to demote marijuana; they cite 2,300 studies regarding the safety and efficacy of medical marijuana, studies that they found in the government's own Library of Medicine.

A different classification would give some confidence to states that the federal government recognizes the legitimacy of medical marijuana. It would also give the federal government some legal basis, besides priority shifting, for setting standards for lawful medical marijuana use.

It is a simple request, and DEA should not be terribly surprised by it. For decades, and despite repeated attempts by scientists and researchers to prod DEA to reconsider its stance, the agency has never budged. Now the governors are asking.

The federal government is falling behind the science, the sentiment of states, and even compassion. It's time for a change of location. It's time to inhale.

For more information about this publication please contact the Belfer Center Communications Office at 617-495-9858.

Full text of this publication is available at:
http://www.bostonglobe.com/opinion/2011/12/12/the-government-marijuana-problem/I
kzFO6LBsHa6ss8BoWnsJO/story.html

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