The future of medical marijuana: should the states grow their own?

Author:Kreit, Alex
 
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INTRODUCTION

When thirty federal Drug Enforcement Administration (DEA) agents armed with M-16s (1) burst into a medical marijuana hospice in Santa Cruz, California, on September 5, 2002, arresting the two owners and a wheelchair-bound patient disabled by polio, (2) they propelled an already contentious debate between the federal government and state leaders to new heights. (3) In response, Santa Cruz officials, who had "cooperated closely" with the hospice for six years, (4) "issued a provocative public challenge" to the DEA by organizing an event to distribute medical marijuana on the steps of City Hall. (5) Mayor Christopher Krohn, who attended the event alongside city council members, said that "[c]learly, state law and federal law are on a collision course" and vowed to stand by the hospice until federal law changed. (6) Vice-Mayor Emily Reilly went even further, calling it "absolutely loathsome ... that federal money, energy and staff time would be used to harass people like this." (7)

The outrage spread quickly from Santa Cruz to other parts of California. Patients organized protests across the state, and "State Attorney General Bill Lockyer protested and demanded a meeting with [U.S. Attorney General John] Ashcroft." (8) Just a few weeks after the Santa Cruz City Hall event, San Jose Police Chief William Lansdowne removed his officers from the DEA's High Intensity Drug Trafficking Area task force in protest. (9) Officials in other California cities followed San Jose's lead and asked their police officers to "stop cooperating with federal agents." (10) By November 2002, Berkeley, San Francisco, and Sebastopol had all passed "anti-DEA resolutions." (11)

Tensions between states and the federal government over medical marijuana are not limited to California. Since 1096, nine states have legalized marijuana for medical use, (12) a figure which is likely to increase in the coming years given the overwhelming support for medical marijuana among voters (13) and drug policy reform leaders' continuing focus on state ballot initiatives. The systemic problems in changing drug laws through legislatures, particularly at the federal level, (14) make further local and state initiative efforts even more probable.

On the federal side, early efforts to stop medical marijuana by keeping physicians from recommending the drug (15) or obtaining injunctions against medical marijuana dispensaries (16) have given way to full-blown raids like the one in Santa Cruz. As a candidate, President George W. Bush said he thought the federal government should respect state decisions on medical marijuana. (17) However, his drug czar John Walters, former DEA chief Asa Hutchinson, and current DEA Administrator John B. Brown III have done just the opposite and intensified federal efforts to suppress marijuana use and fight states that allow medical marijuana. (18) Walters views marijuana as a "pernicious" drug with "destructive effects" and argues that medical marijuana supporters are involved in a "cynical campaign ... [that] is part of the drug legalization agenda." (19)

The federal government has also shown renewed interest in bringing criminal charges against particular medical marijuana growers. In February 2003, Ed Rosenthal, a long-time drug policy reform activist who writes for the magazine High Times, was convicted of three federal counts of marijuana cultivation and conspiracy. (20) Rosenthal was growing medical marijuana as a designated agent of the city of Oakland. However, district court Judge Charles R. Breyer--who also heard the Oakland Cannabis Buyers' Cooperative case (21)--barred all evidence relating to Proposition 215 (22), and Rosenthal's purpose in growing marijuana. Upon learning of the excluded evidence after the trial, five jurors issued a public apology to Rosenthal and called for the conviction to be overturned. (23) Juror Marney Craig said that convicting Rosenthal was "the most horrible mistake I've ever made in my entire life. And I don't think that I personally will ever recover from this." (24)

In the face of continuing federal opposition after a loss in the Supreme Court on the issue of medical necessity, (25) medical marijuana advocates have turned toward arguments concerning limits on federal power and placed the issue at the center of two recent California lawsuits. In one, Santa Cruz hospice founders Valerie and Michael Corral are demanding that the federal government return all items seized during the September 5 raid--including the marijuana--arguing that their activity was purely intrastate and thus beyond federal authority. (26) In the other case, two patients and two care givers are seeking an injunction to prevent the federal government from arresting or prosecuting them for their medical-marijuana-related activity. (27) The plaintiffs contend that they "exclusively [use] growing equipment, supplies and materials manufactured within the borders of the State of California." (28) The issues in these cases may pose challenging Commerce Clause questions, but a variety of factors indicate it is unlikely they, or any other effort to limit federal power in the case of private medical marijuana distribution, will ultimately succeed. (29)

Medical marijuana proponents who think "the federal government should stay out of the way" (30) should look to state and local distribution schemes as their best opportunity to place their conduct outside federal reach. There are already indications that movement leaders and frustrated local officials view this as the emerging approach. In the 2002 elections, San Franciscans approved a measure directing the city to "study growing and dispensing marijuana for medical purposes in response to federal crackdowns." (31) Two years earlier, the Maine state legislature considered implementing a program that would have distributed marijuana confiscated by the State during regular drug arrests to patients. One of the principle supporters of the idea, Cumberland County Sheriff Mark N. Dion, asked, "Shall we as a sovereign state be held hostage by the federal government simply because we intend to treat our sick and afflicted?" (32) A similar proposal was included in a defeated 2002 Arizona ballot initiative that featured a number of other drug policy reforms, such as decriminalization of marijuana for recreational use. (33)

The response to federal medical marijuana policy, both from private individuals operating legally under state law and those who argue for state-run distribution schemes, poses a distinct set of problems under the new Commerce Clause doctrine. In the two most famous Commerce Clause cases of the last ten years, United States v. Lopez (34) and United States v. Morrison, (35) the Supreme Court overturned federal statutes that were by and large supported by the states in which they operated. (36) In each case, the challenges were brought by private individuals, not the states themselves. One commentator has referred to the statutes overturned in those cases as "duplicative federal legislation" and has argued that "[t]he Court accomplishes little when it intervenes to protect the states" in such situations. (37) By contrast, the fight over medical marijuana involves conduct that is prohibited by the federal government but affirmatively allowed under state law. Under state or local distribution regimes, government officials themselves would participate in activity that is criminal under federal law.

This Comment looks at the future of the medical marijuana debate by considering federal power under the Commerce Clause to reach state-run medical marijuana distribution under a hypothetical program similar to those proposed in Maine, Arizona, and San Francisco. Part I discusses the history and present state of the modern medical marijuana movement. Part II provides a summary and discussion of federalism principles, in particular the Commerce Clause doctrine. Part III examines the Controlled Substances Act, the federal law which regulates marijuana, as well as the difficulties that face Commerce Clause challenges under existing state medical marijuana laws. Part IV proposes a hypothetical state-run medical marijuana regulatory program and analyzes whether the federal government could constitutionally outlaw such a program. The Comment concludes that medical marijuana advocates should focus on enacting regimes run by state or local governments in the future as providing the strongest potential for protection against federal intervention.

  1. A BRIEF HISTORY OF FEDERAL AND STATE RESPONSES TO MEDICAL MARIJUANA

    The debate in the United States over the medicinal value of marijuana dates back to the middle of the 1800s. (38) Although there was never a consensus on the extent of its efficacy, marijuana was generally thought to have some therapeutic value and was included in the United States Pharmacopeia until 1941. (39) Marijuana use and distribution, medical or otherwise, was not significantly regulated by the federal government until the Marihuana Tax Act of 1937. (40) The tax essentially amounted to a prohibition for recreational users who had to pay a fee of $100 an ounce, (41) which was significantly more than the cost of the marijuana itself. On its face, the Act was much more accepting of medical use of marijuana and taxed registered medical marijuana transactions at only one dollar an ounce. (42) Nevertheless, "the law made medical use of cannabis difficult because of the extensive paperwork required of doctors who wanted to use it." (43) When Congress was considering the Act, the American Medical Association representative objected to it "because he believed that its ultimate effect would be to strangle any medical use of marihuana," (44) and indeed shortly after its enactment, "medical distribution of the drug had all but disappeared." (45)

    While effectively eliminated, medical marijuana use and distribution was still technically allowed under the Marihuana...

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