A three-judge panel of the US Court of Appeals for the 9th Circuit, covering nine western states, earlier this week ruled unanimously that the Department of Justice is barred by federal law from prosecuting medical marijuana businesses if those businesses are operating in compliance with state law.
This decision came in an appeal in which the court had consolidated ten different cases from California and Washington, in which the defendants — growers and dispensaries — had argued that their federal indictments should be dismissed because of a current ban, enacted by Congress in 2014, on the use of federal funds to prosecute state-compliant medical marijuana activities. Known as the Rohrabacher-Farr Amendment, the language of the enactment said federal funds could not be used to prevent states from “implementing their own state laws that authorize the use, distribution, possession or cultivation of medical marijuana.”
The Department of Justice had argued the ban only precluded their interference with the state governments, and did not ban federal prosecutions against individual defendants. The Court of Appeals rejected this argument, and remanded the cases back to the US District Courts for an evidentiary hearing to determine if the individual defendants had in fact acted in compliance with their state medical marijuana laws.
Judge Diarmuid O’Scannlain, writing for the panel, did warn in his opinion that Congress could restore funding to prosecute these cases “tomorrow, a year from now, or four years from now, and the government could then prosecute individuals who committed offenses while the government lacked funding.”
Like most Americans who follow the debate over marijuana legalization in this country, I was disappointed that the U.S. Drug Enforcement Administration this week once again determined that marijuana has no medical use and left it in Schedule I of the federal Controlled Substances Act.
Disappointed, but not surprised.
NORML first petitioned the DEA to reschedule marijuana to a lower schedule back in 1973, and we have been involved in two subsequent attempts to accomplish the same result, without success. The DEA is a law enforcement agency. So they will continue to oppose any steps to loosen controls over marijuana until Congress forces them to change.
A Brief History of Rescheduling Attempts.
The initial petition NORML filed to reschedule marijuana in 1973 ended up being an endurance test. The agency refused to even acknowledge our petition or respond to it until we went to the court of appeals and forced them to respond. And this strategy of ignore and delay continued at every step, dragging the process out for 15 years until 1988, when DEA Chief Administrative Law Judge Francis Young, following days of testimony, finally ruled in our favor.
The ruling concluded that “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man. By any measure of rational analysis marijuana can be safely used within a supervised routine of medical care.”
Judge Young continued: “It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.”
However, the DEA Administrator simply ignored the decision of his own hearing examiner and rejected our petition, claiming the hearing examiner had relied on anecdotal evidence. NORML again appealed that decision to the U.S. Court of Appeals, but the court allowed the Administrator’s decision to stand, saying he had acted within his discretion.
And twice in the intervening decades NORML has been a party to subsequent attempts to require the DEA to reschedule marijuana; and both times, as they did in this most recent case, the DEA continued to insist that marijuana has no medical usefulness and should remain on Schedule I, along with heroin.
So I hope readers will understand when I say, “Enough is enough! Time to ignore the DEA altogether and focus our efforts on Congress.”
How Marijuana Ended Up on Schedule I in the First Place.
When the federal Controlled Substances Act was being considered by Congress in 1970 — after the prior federal anti-marijuana act had been held unconstitutional — various members of Congress debated the question of where to place marijuana under the new act. A separate provision of that new law established The National Commission on Marijuana and Drug Abuse (aka the Marijuana Commission), which was charged with the responsibility of determining the appropriate policy regarding marijuana and reporting back to Congress. A compromise was reached to temporarily place marijuana in Schedule I until the commission came back with their report.
When the commission came back with its marijuana report in 1972, they recommended that minor marijuana offenses be decriminalized, which would have made it available (again) as a medicine. (Marijuana was on the U.S. Pharmacopeia from the mid-1850s until 1937, and it was available by prescription and widely prescribed for several conditions.)
However, those recommendations were not accepted by then-Presdient Nixon or Congress, and marijuana was left in Schedule I, where it remains today.
In fact, what Congress should really do, and what NORML has been arguing for some time, is to totally de-schedule marijuana by removing it from the Controlled Substances Act and treat it as we do alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal interference.
Bills Pending In Congress.
There are currently several bills pending in Congress that, if adopted, would resolve this matter. HR 1774, the Compassionate Access Act, introduced by Rep. Morgan Griffith (R-Va.) and Rep. Dana Rorhabacher (R-Calif.), would require that marijuana be rescheduled and would prohibit federal officials from interfering in state-compliant activities specific to the physician-authorized use or distribution of medical cannabis.
And Sen. Bernie Sanders (I-Vt.) recently introduced S.2237, the Ending Federal Marijuana Prohibition Act of 2015, that would de-schedule cannabis from the CSA and treat it like alcohol and tobacco.
Of course, neither of these bills have been scheduled for a hearing or given a vote — even in committee. But those conditions may change following the upcoming election in November, and we may well have the opportunity to move a rescheduling proposal forward in the next Congress.
So instead of trying to convince the DEA that they should act responsibly and compassionately and lower marijuana to a more appropriate schedule under federal law, or remove it entirely, it is now time to put our efforts behind a push to convince the next Congress to solve this problem directly.
This column originally appeared on ATTN.com.
The latest Gallup Poll, based on polling conducted from July 13-17, 2016, reports that 13% of adults in the US are current marijuana smokers, and 43% have smoked marijuana at some point in their lives. According to Gallup, the numbers of adults acknowledging their personal use of marijuana has risen from 7% in 2013 to 11% in 2015; and to 13% in 2016.
This may surprise some marijuana smokers, who tend to choose their friends (at least partially) based on their mutual enjoyment of marijuana, and to whom it may seem as if a majority of Americans are current smokers, but the great majority of Americans are not current marijuana users.
The results show that age and religiosity are key determinants of marijuana use. Almost one in five adults (19%) under the age of 30 report currently using it — at least double the rate seen among each older age group.
In addition, religiosity appears to be a key determinant for current marijuana usage, with only 2% of those who report regular church attendance and 7% of those who report frequent church attendance acknowledging current marijuana usage. Apparently marijuana smoking is still considered bad behavior, or “sinful,” among some religious communities.
How Are We Winning Politically?
Which raises the obvious question: how is the legalization of marijuana continuing to move forward politically in more and more states if only one out of 8 Americans are current users? The answer: you don’t have to be a marijuana smoker to oppose prohibition.
Most of us support gay rights, although most of us are not gay or lesbian; and most of us support equality for all minorities, while by definition most of us are not minorities. Most Americans seek to treat others in a fair manner, despite our gender or racial differences, or our sexual preferences. And the same is true about marijuana smokers.
A majority of the non-smokers have concluded that marijuana prohibition is a failed public policy that causes more harm to society than the use of marijuana itself. They favor an end to marijuana prohibition, although they are not “pro-pot.” In fact, a recent poll by The Third Way discovered that nearly two-thirds (64%) of the non-smokers who favor legalization continue to hold an unfavorable impression of recreational marijuana smokers. They do not believe we should be treated like criminals, but neither do they approve of our marijuana usage.
Current Support Levels
From a low of only 12% public support for legalization when NORML was founded in 1970, we have seen those support levels build gradually over four decades, as Americans became more familiar with marijuana and less fearful of the possible harm from responsible marijuana smoking. Gallup first found a majority of Americans supporting full legalization in 2013, and their most recent data (released in October, 2015) finds the current support level at 58%. Several other national polls find similar support levels, with one 2016 Associated Press poll finding support at 61%.
All of which suggests that we have largely won the hearts and minds of most adult Americans, including a majority of those who do not smoke. And that is really all we need to continue forward politically. We don’t need to “turn-on” more Americans. Rather we need to continue to demonstrate that responsible marijuana smokers present no threat to non-smokers, or to society as a whole.
So long as we do that, a clear majority of Americans are willing to respect our right to smoke marijuana, just as tens of millions of Americans enjoy a beer or a glass of wine when they relax at the end of the day. Thankfully a majority of Americans understand and support the concept of personal privacy.
The United States Drug Enforcement Administration has rejected a pair of administrative petitions that sought to initiate rulemaking proceedings to reschedule marijuana under federal law.
Although the DEA’s ruling continues to classify marijuana in the same category as heroin, the agency also announced in a separate decision that it is adopting policy changes designed to expand the production of research-grade cannabis for FDA-approved clinical studies.
Presently, any clinical trial involving cannabis must access source material cultivated at the University of Mississippi — a prohibition that is not in place for other controlled substances. Today, the agency announced for the first time that it will be seeking applications from multiple parties, including potentially from private entities, to produce marijuana for FDA-approved research protocols as well as for “commercial product development.” This change was initially recommended by the DEA’s own administrative law judge in 2007, but her decision was ultimately rejected by the agency in 2011.
Below is a statement from NORML Deputy Director Paul Armentano regarding the DEA’s decisions:
For far too long, federal regulations have made clinical investigations involving cannabis needlessly onerous and have placed unnecessary and arbitrary restrictions on marijuana that do not exist for other controlled substances, including some other schedule I controlled substances.
While this announcement is a significant step toward better facilitating and expanding clinical investigations into cannabis’ therapeutic efficacy, ample scientific evidence already exists to remove cannabis from its schedule I classification and to acknowledge its relative safety compared to other scheduled substances, like opioids, and unscheduled substances, such as alcohol. Ultimately, the federal government ought to remove cannabis from the Controlled Substances Act altogether in a manner similar to alcohol and tobacco, thus providing states the power to establish their own marijuana regulatory policies free from federal intrusion.
Since the DEA has failed to take such action, then it is incumbent that members of Congress act swiftly to amend cannabis’ criminal status in a way that comports with both public and scientific opinion. Failure to do so continues the federal government’s ‘Flat Earth’ position; it willfully ignores the well-established therapeutic properties associated with the plant and it ignores the laws in 26 states recognizing marijuana’s therapeutic efficacy.
Under the U.S. Controlled Substances Act of 1970, the cannabis plant and its organic cannabinoids are classified as Schedule I prohibited substances — the most restrictive category available under the law. By definition, substances in this category must meet three specific inclusion criteria:
The substance must possess “a high potential for abuse”; it must have “no currently accepted medical use” in the United States; and, the substance must lack “accepted safety for use … under medical supervision.”
Substances that do not meet these criteria must, by law, be categorized in less restrictive federal schedules (Schedules II through V) and are legally regulated accordingly. Alcohol and tobacco, two substances widely acknowledged to possess far greater dangers to health than does cannabis, are not classified under the Controlled Substances Act.
A recent review of FDA-approved clinical studies evaluating the safety and efficacy of herbal cannabis concluded: “Based on evidence currently available the Schedule I classification is not tenable; it is not accurate that cannabis has no medical value, or that Information on safety is lacking.”
Added Armentano: “The DEA’s decision is strictly a political one. There is nothing scientific about willful ignorance.”
The DEA has previously rejected several other rescheduling petitions, including a 2002 petition filed by a coalition of marijuana law reform and health advocacy organizations, and a 1972 petition filed by NORML. The petitions that triggered this latest DEA action were filed in 2009 by a nurse practitioner and in 2011 by then-Govs. Christine Gregoire of Washington and Lincoln Chafee of Rhode Island.
My name is Randy Quast and I am NORML’s new Acting Executive Director. Let me be the first to welcome you to a new era at NORML.
I’m from Minnesota. My background is in business. I worked my way up in trucking, starting with my family’s small 10-employee trucking company in the 1980s. I worked in various departments of the company and eventually became president and CEO in 1988. By the time I sold the company ten years later, it employed 700 people in 23 service centers in 10 Midwestern states and had revenues over $50 million a year.
After retiring, I turned my love of flying into 2,500 flight-hours. I volunteered myself and my airplane to AirLifeLine to fly patients who couldn’t afford commercial flights to receive medical treatments. I eventually became the president and CEO of that non-profit until we merged with another similar organization. The combined companies still operate today under the name Angel Flight.
Coming Out of the Closet
But throughout my previous careers, I had always been a regular marijuana consumer — a corporate stoner, if you will. But like many in similar positions, I kept that information private. It wasn’t until 2007 that I was forced out of the cannabis closet and into the arms of NORML.
While out for dinner one evening a thief broke in my home and dragged my safe, where I stored my marijuana, out the back door. When neighbors confronted the thief, he ran, leaving the safe in the middle of my back yard.
When I came home, there were cop cars all around my home. I’d left an aluminum one-hitter in the bathroom. That led to cops’ suspicions about what was in my safe. That led to a search warrant and a SWAT raid of my home. The three ounces in my safe led to a felony possession charge.
Because I was fortunate to be a white person and able to afford an attorney, I received a stay of adjudication with two years’ probation. When my probation ended in 2009, I attended my first NORML Conference in Portland, Oregon. I then returned home to start Minnesota NORML in 2010. Recently, I moved to Oregon in 2015 and co-founded Portland NORML.
Now, I’m in Washington, D.C., working to take National NORML into the next era, one that includes continuing the fight for legalization in places like Minnesota and includes expanding the rights of legal cannabis consumers in places like Oregon.
Positioning NORML For the Future
NORML has formed a search committee to find a new, permanent Executive Director. In the interim, we’re continuing our important work. We’re educating lawmakers and judges on the scientific truth about cannabis, public policy, and health.
We’re supporting our chapters and grassroots supporters in Arizona, California, Maine, Massachusetts, and Nevada as they push for legalization in 2016 and we are supporting our chapters and advocates in Arkansas, Florida, Missouri, and Montana as they fight to protect medical marijuana patients from arrest.
We’re are also working with congressmen and senators on Capitol Hill to pass legislation needed to secure banking and tax relief for our legal marijuana industries.
On the state level, we’re working with legislators to reduce marijuana penalties and to increase patients’ access, while also organizing municipal initiatives to permit social use and to mitigate criminal sanctions.
In the past few months, we’ve witnessed many successes on the state level. Three states have enacted legislation to permit medical marijuana access while many others have expanded access to greater numbers of patients. Many states have amended their laws to significantly reduce penalties for the possession of marijuana or cannabis paraphernalia, while other states have taken steps to authorize the growing of industrial hemp.
As we look forward to the future, specifically this November, we realize that our role is more important than ever. With voters deciding on nine marijuana-specific ballot measures, this election is the most important in recent memory. And the results of Election Day hold the potential to transform American public policy.
So, as I begin this new chapter at NORML I ask all of you to join me. Please help usher in this new era by making a donation today of $50.00 or more to NORML. Your donation will help assure that we continue to play a necessary role in shaping public opinion and policy in such a way that puts the needs of responsible marijuana consumers first. As the nation continues to engage in this ongoing narrative regarding legalization, there exists a greater need than ever for politicians, media, and policy analysts to seek guidance and expertise from NORML with regard to the benefits of regulation as well as the health and societal effects of responsible cannabis consumption.
I’m excited to do my part to make NORML the best organization it can be and I hope you’ll join me.