Medical Marijuana: Review and Analysis of Federal and State Policies
Medical Marijuana: Review and Analysis
of Federal and State Policies
Updated November 10, 2008
Specialist in Crime Policy
Domestic Social Policy Division
Review and Analysis of Federal and State Policies
The issue before Congress is whether to continue the federal prosecution of
medical marijuana patients and their providers, in accordance with the federal
Controlled Substances Act (CSA), or whether to relax federal marijuana prohibition
enough to permit the medicinal use of botanical cannabis products when
recommended by a physician, especially where permitted under state law.
The first action on medical marijuana in the current Congress occurred in April
2007, at markup of the Prescription Drug User Fee Act (S. 1082). The Senate
Committee on Health, Education, Labor, and Pensions adopted an amendment, not
included in the enacted bill, requiring “that State-legalized medical marijuana be
subject to the full regulatory requirements of the Food and Drug Administration.”
Then, in July 2007, the Hinchey-Rohrabacher amendment to prevent federal
enforcement of the CSA against medical marijuana users and providers in the states
that have legalized its use was rejected by the full House by a vote of 165 to 262.
In the second session of the current Congress, Representative Barney Frank
introduced H.R. 5842, a bill that would allow the medical use of marijuana in states
that permit its use with a doctor’s recommendation. The Medical Marijuana Patient
Protection Act would move marijuana from Schedule I to Schedule II of the CSA and
exempt from federal prosecution authorized patients and medical marijuana providers
that are acting in accordance with state laws.
Thirteen states, mostly in the West, have enacted laws allowing the use of
marijuana for medical purposes, and many thousands of patients are seeking relief
from a variety of serious illnesses by smoking marijuana or using other herbal
cannabis preparations. Meanwhile, the federal Drug Enforcement Administration
refuses to recognize these state laws and continues to investigate and arrest, under
federal statute, medical marijuana providers and users in those states and elsewhere.
Claims and counterclaims about medical marijuana — much debated by
journalists and academics, policymakers at all levels of government, and interested
citizens — include the following: Marijuana is harmful and has no medical value;
marijuana effectively treats the symptoms of certain diseases; smoking is an improper
route of drug administration; marijuana should be rescheduled to permit medical use;
state medical marijuana laws send the wrong message and lead to increased illicit
drug use; the medical marijuana movement undermines the war on drugs; patients
should not be arrested for using medical marijuana; the federal government should
allow the states to experiment and should not interfere with state medical marijuana
programs; medical marijuana laws harm the federal drug approval process; the
medical cannabis movement is a cynical ploy to legalize marijuana and other drugs.
With strong opinions being expressed on all sides of this complex issue, the debate
over medical marijuana does not appear to be approaching resolution.
This report will be updated as legislative activity and other developments occur.
Introduction: The Issue Before Congress...............................1
Background: Medical Marijuana Prior to 1937..........................2
Federal Medical Marijuana Policy.....................................2
The Marihuana Tax Act of 1937..............................2
Controlled Substances Act (1970).............................3
Anti-Medical Marijuana Legislation in the 105th Congress (1998)....5
The Hinchey-Rohrabacher Amendment (2003-2007)..............5
Medical Marijuana Bills in the 109th Congress (2005).............7th
Legislative Activity in the 110 Congress.......................7
Executive Branch Actions and Policies.............................9
IND Compassionate Access Program (1978)....................9
Approval of Marinol (1985)..................................9
Administrative Law Judge Ruling to Reschedule Marijuana (1988)..10
NIH-Sponsored Workshop (1997)............................11
Institute of Medicine Report (1999)...........................11
Denial of Petition to Reschedule Marijuana (2001)..............12
FDA Statement That Smoked Marijuana Is Not Medicine (2006)...12
Administrative Law Judge Ruling to Grow Research Marijuana
DEA Enforcement Actions Against Medical Marijuana Providers...14
Medical Cannabis in the Courts: Major Cases......................16
U.S. v. Oakland Cannabis Buyers’ Cooperative (2001)...........16
Conant v. Walters (2002)...................................16
Gonzales v. Raich (2005)...................................17
Americans for Safe Access (ASA) Lawsuit Against HHS.........18
State and Local Referenda and Legislation.............................19
States Allowing Use of Medical Marijuana.........................19
Statistics on Medical Marijuana Users........................21
Rhode Island (2006).......................................23
New Mexico (2007).......................................23
Other State and Local Medical Marijuana Laws.....................23
Other State Laws.........................................24
District of Columbia (1998).................................24
Public Opinion on Medical Marijuana.................................25
Analysis of Arguments For and Against Medical Marijuana...............25
Marijuana Is Harmful and Has No Medical Value...................26
Marijuana Effectively Treats the Symptoms of Some Diseases.........28
Smoking Is an Improper Route of Drug Administration...............30
Marijuana Should Be Rescheduled To Permit Medical Use............32
State Medical Marijuana Laws Increase Illicit Drug Use..............34
Medical Marijuana Undermines the War on Drugs...................39
Changed State and Local Law Enforcement Priorities............40
Distinguishing Between Legal and Illegal Providers and Users.....40
Patients Should Not Be Arrested for Using Medical Marijuana .........42
The States Should Be Allowed to Experiment......................43
Medical Marijuana Laws Harm the Drug Approval Process............45
The Medical Marijuana Movement Is Politically Inspired.............47
List of Figures
Figure 1. States With Medical Marijuana Programs......................20
List of Tables
Tables 1 and 2. States Ranked by Percentage of Youth Age 12-17 Reporting
Past-Month Marijuana Use, 1999 and 2002-2003....................36
Tables 3 and 4. States Ranked by Percentage of Persons 12 or Older Reporting
Past-Month Marijuana Use, 1999 and 2003-2004....................37
Medical Marijuana: Review and Analysis
of Federal and State Policies
Introduction: The Issue Before Congress
The issue before Congress is whether to continue the federal prosecution of
medical marijuana1 patients and their providers, in accordance with marijuana’s
status as a Schedule I drug under the Controlled Substances Act, or whether to relax
federal marijuana prohibition enough to permit the medicinal use of botanical2
cannabis products when recommended by a physician, especially in those states that
have created medical marijuana programs under state law.
The first action on medical marijuana in the current Congress occurred on April
18, 2007, at markup of the Prescription Drug User Fee Act (S. 1082). The Senate
Committee on Health, Education, Labor, and Pensions adopted an amendment
requiring “that State-legalized medical marijuana be subject to the full regulatory
requirements of the Food and Drug Administration.” Intended to squelch the medical
use of cannabis products that has been approved by the voters or legislatures of 13
states since 1996, the actual effect of this amendment, if signed into law, is not
entirely clear and may be subject to legal interpretation, as discussed below.
Bills with the opposite intent — to allow patients who appear to benefit from
medical cannabis to use it in accordance with the various state regulatory schemes
that have been created — have been introduced in recent Congresses and are
expected to be reintroduced in the 110th Congress. These include the States’ Rights
to Medical Marijuana Act, which would move marijuana from Schedule I to
Schedule II of the Controlled Substances Act and make it available under federal law
for medical use in the states with medical marijuana programs, and the Steve
McWilliams Truth in Trials Act, which would make it possible for defendants in
federal court to reveal to juries that their marijuana activity was medically related and
legal under state law.
The Hinchey-Rohrabacher amendment, which would prohibit the use of federal
funds to arrest and prosecute medical marijuana patients and providers whose
1 The terms medical marijuana and medical cannabis are used interchangeably in this report
to refer to marijuana (scientific name: Cannabis sativa) and to marijuana use that qualifies
for a medical use exception under the laws of certain states and under the federal
Investigational New Drug Compassionate Access Program.
2 The terms botanical cannabis, herbal cannabis, botanical marijuana, and crude
marijuana, used interchangeably in this report, signify the whole or parts of the natural
marijuana plant and therapeutic products derived therefrom, as opposed to drugs produced
synthetically in the laboratory that replicate molecules found in the marijuana plant.
activities are permitted by the laws of their states, was debated on the floor of the
House on July 25, 2007, and rejected by a vote of 165 to 262. This and other
congressional actions relating to the issue of medical marijuana are discussed below
in greater detail.
Background: Medical Marijuana Prior to 1937
The Cannabis sativa plant has been used for healing purposes throughout
history. According to written records from China and India, the use of marijuana to
treat a wide range of ailments goes back more than 2,000 years. Ancient texts from
Africa, the Middle East, classical Greece, and the Roman Empire also describe the
use of cannabis to treat disease.
For most of American history, growing and using marijuana was legal under
both federal law and the laws of the individual states. By the 1840s, marijuana’s
therapeutic potential began to be recognized by some U.S. physicians. From 1850
to 1941 cannabis was included in the United States Pharmacopoeia as a recognized
medicinal.3 By the end of 1936, however, all 48 states had enacted laws to regulate4
marijuana. Its decline in medicine was hastened by the development of aspirin,
morphine, and then other opium-derived drugs, all of which helped to replace
marijuana in the treatment of pain and other medical conditions in Western
Federal Medical Marijuana Policy
All three branches of the federal government play an important role in
formulating federal policy on medical marijuana. Significant actions of each branch
are highlighted here, beginning with the legislative branch.
The Marihuana6 Tax Act of 1937. Spurred by spectacular accounts of
marijuana’s harmful effects on its users, by the drug’s alleged connection to violent
crime, and by a perception that state and local efforts to bring use of the drug under
3 Gregg A. Bliz, “The Medical Use of Marijuana: The Politics of Medicine,” Hamline
Journal of Public Law and Policy, vol. 13, spring 1992, p. 118.
4 Oakley Ray and Charles Ksir, Drugs, Society, and Human Behavior, 10th ed. (New York:
McGraw-Hill, 2004), p. 456.
5 Bill Zimmerman, Is Marijuana the Right Medicine for You? A Factual Guide to Medical
Uses of Marijuana (New Canaan, CT: Keats Publishing, 1998), p. 19.
6 In Spanish, the letter “j” carries the sound of “h” in English. This alternative spelling of
marijuana (with an “h”) was formerly used by the federal government and is still used by
some writers today.
control were not working, Congress enacted the Marihuana Tax Act of 1937.7
Promoted by Harry Anslinger, Commissioner of the recently established Federal
Bureau of Narcotics, the act imposed registration and reporting requirements and a
tax on the growers, sellers, and buyers of marijuana. Although the act did not
prohibit marijuana outright, its effect was the same. (Because marijuana was not
included in the Harrison Narcotics Act in 1914,8 the Marihuana Tax Act was the
federal government’s first attempt to regulate marijuana.)
Dr. William C. Woodward, legislative counsel of the American Medical
Association (AMA), opposed the measure. In oral testimony before the House Ways
and Means Committee, he stated that “there are evidently potentialities in the drug
that should not be shut off by adverse legislation. The medical profession and
pharmacologists should be left to develop the use of this drug as they see fit.”9 Two
months later, in a letter to the Senate Finance Committee, he again argued against the
There is no evidence, however, that the medicinal use of these drugs [“cannabis
and its preparations and derivatives”] has caused or is causing cannabis
addiction. As remedial agents they are used to an inconsiderable extent, and the
obvious purpose and effect of this bill is to impose so many restrictions on their
medicinal use as to prevent such use altogether. Since the medicinal use of
cannabis has not caused and is not causing addiction, the prevention of the use
of the drug for medicinal purposes can accomplish no good end whatsoever.
How far it may serve to deprive the public of the benefits of a drug that on10
further research may prove to be of substantial value, it is impossible to foresee.
Despite the AMA’s opposition, the Marihuana Tax Act was approved, causing
all medicinal products containing marijuana to be withdrawn from the market and
leading to marijuana’s removal, in 1941, from The National Formulary and the
United States Pharmacopoeia, in which it had been listed for almost a century.
Controlled Substances Act (1970). With increasing use of marijuana and
other street drugs during the 1960s, notably by college and high school students,
federal drug-control laws came under scrutiny. In July 1969, President Nixon asked
Congress to enact legislation to combat rising levels of drug use.11 Hearings were
7 P.L. 75-238, 50 Stat. 551, August 2, 1937. In Leary v. United States (395 U.S. 6 (1968)),
the Supreme Court ruled the Marihuana Tax Act unconstitutional because it compelled self-
incrimination, in violation of the Fifth Amendment.
8 P.L. 63-223, December 17, 1914, 38 Stat. 785. This law was passed to implement the
Hague Convention of 1912 and created a federal tax on opium and coca leaves and their
9 U.S. Congress, House Committee on Ways and Means, Taxation of Marihuana, hearings
on H.R. 6385, 75th Cong., 1st sess., May 4, 1937 (Washington: GPO, 1937), p. 114.
10 U.S. Congress, Senate Committee on Finance, Taxation of Marihuana, hearing on H.R.
11 U.S. President, 1969-1974 (Nixon), “Special Message to the Congress on Control of
Narcotics and Dangerous Drugs,” July 14, 1969, Public Papers of the Presidents of the
held, different proposals were considered, and House and Senate conferees filed a
conference report in October 1970.12 The report was quickly adopted by voice vote
in both chambers and was signed into law as the Comprehensive Drug Abuse
Prevention and Control Act of 1970 (P.L. 91-513).
Included in the new law was the Controlled Substances Act (CSA),13 which
placed marijuana and its derivatives in Schedule I, the most restrictive of five
categories. Schedule I substances have “a high potential for abuse,” “no currently
accepted medical use in treatment in the United States,” and “a lack of accepted
safety [standards] for use of the drug ... under medical supervision.”14 Other drugs
used recreationally at the time also became Schedule I substances. These included
heroin, LSD, mescaline, peyote, and psilocybin. Drugs of abuse with recognized
medical uses — such as opium, cocaine, and amphetamine — were assigned to
Schedules II through V, depending on their potential for abuse.15 Despite its
placement in Schedule I, marijuana use increased, as did the number of health-care
professionals and their patients who believed in the plant’s therapeutic value.
The CSA does not distinguish between the medical and recreational use of
marijuana. Under federal statute, simple possession of marijuana for personal use,
a misdemeanor, can bring up to one year in federal prison and up to a $100,000 fine
for a first offense.16 Growing marijuana is considered manufacturing a controlled
substance, a felony.17 A single plant can bring an individual up to five years in
federal prison and up to a $250,000 fine for a first offense.18
The CSA is not preempted by state medical marijuana laws, under the federal
system of government, nor are state medical marijuana laws preempted by the CSA.
States can statutorily create a medical use exception for botanical cannabis and its
derivatives under their own, state-level controlled substance laws. At the same time,
federal agents can investigate, arrest, and prosecute medical marijuana patients,
caregivers, and providers in accordance with the federal Controlled Substances Act,
even in those states where medical marijuana programs operate in accordance with
United States 1969 (Washington: GPO, 1971), pp. 513-518.
12 U.S. Congress, Conference Committees, Comprehensive Drug Abuse Prevention and
Control Act of 1970, conference report to accompany H.R. 18583, 91st Cong., 2nd sess.,
H.Rept. 91-1603 (Washington: GPO, 1970).
13 Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-
14 Ibid., Sec. 202(b)(1), 84 Stat. 1247, 21 U.S.C. §812(b)(1).
15 Ibid., Sec. 202(c), 84 Stat. 1248.
16 Ibid., Sec. 404 (21 U.S.C. §844) and 18 U.S.C. §3571. Sec. 404 also calls for a minimum
fine of $1,000, and Sec. 405 (21 U.S.C. §844a) permits a civil penalty of up to $10,000.
17 Sec. 102(15), (22) of the CSA (21 U.S.C. §802(15), (22)).
18 Sec. 401(b)(1)(D) of the CSA (21 U.S.C. §841(b)(1)(D)).
Anti-Medical Marijuana Legislation in the 105th Congress (1998). In
September 1998, the House debated and passed a resolution (H.J.Res. 117) declaring
that Congress supports the existing federal drug approval process for determining
whether any drug, including marijuana, is safe and effective and opposes efforts to
circumvent this process by legalizing marijuana, or any other Schedule I drug, for
medicinal use without valid scientific evidence and without approval of the Food and
Drug Administration (FDA). With the Senate not acting on the resolution and
adjournment approaching, this language was incorporated into the FY1999 omnibus
appropriations act under the heading “Not Legalizing Marijuana for Medicinal
In a separate amendment to the same act, Congress prevented the District of
Columbia government from counting ballots of a 1998 voter-approved initiative that
would have allowed the medical use of marijuana by persons suffering from serious20
diseases, including cancer and HIV infection. The amendment was challenged and
overturned in District Court, the ballots were counted, and the measure passed 69%
to 31%. Nevertheless, despite further court challenges, Congress continues to
prohibit implementation of the initiative.21
The Hinchey-Rohrabacher Amendment (2003-2007).22 In the first
session of the 108th Congress, in response to federal Drug Enforcement
Administration (DEA) raids on medical cannabis users and providers in California
and other states that had approved the medical use of marijuana if recommended by
a physician, Representatives Hinchey and Rohrabacher offered a bipartisan
amendment to the FY2004 Commerce, Justice, State appropriations bill (H.R. 2799).
The amendment would have prevented the Justice Department from using
appropriated funds to interfere with the implementation of medical cannabis laws in
the nine states that had approved such use. The amendment was debated on the floor
19 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, P.L. 105-
20 Ibid., District of Columbia Appropriations Act, 1999, Sec. 171, 112 Stat. 2681-150.
21 “The Legalization of Marijuana for Medical Treatment Initiative of 1998, also known as
Initiative 59, approved by the electors of the District of Columbia on November 3, 1998,
shall not take effect.” (District of Columbia Appropriations Act, 2006 (Division B of P.L.
109-115, Sec. 128 (b); 119 Stat. 2521.) This recurring provision of D.C. appropriations acts
is known as the Barr Amendment because it was originally offered by Rep. Bob Barr. Since
leaving Congress in 2003, Barr changed his position and is now working in support of
medical marijuana as a lobbyist for the Marijuana Policy Project. See his website
22 When last considered in July 2007, the amendment stated: “None of the funds made
available in this Act to the Department of Justice may be used, with respect to the States of
Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, New Mexico, Oregon,
Rhode Island, Vermont, and Washington, to prevent such States from implementing their
own State laws that authorize the use, distribution, possession, or cultivation of medical
marijuana.” The wording of previous versions of the amendment was similar.
of the House on July 22, 2003. When brought to a vote on the following day, it was
defeated 152 to 273 (61 votes short of passage).23
The amendment was offered again in the second session of the 108th Congress.
It was debated on the House floor on July 7, 2004, during consideration of H.R.
4754, the Commerce, Justice, State appropriations bill for FY2005. This time it
would have applied to 10 states, with the recent addition of Vermont to the list of
states that had approved the use of medical cannabis. It was again defeated by a
similar margin, 148 to 268 (61 votes short of passage).24
The amendment was voted on again in the first session of the 109th Congress
and was again defeated, 161-264 (52 votes short of passage), on June 15, 2005.
During floor debate on H.R. 2862, the FY2006 Science, State, Justice, Commerce
appropriations bill, a Member stated in support of the amendment that her now-
deceased mother had used marijuana to treat her glaucoma. Opponents of the
amendment argued, among other things, that its passage would undermine efforts to
convince young people that marijuana is a dangerous drug.25
Despite an extensive pre-vote lobbying effort by supporters, the amendment
gained only two votes in its favor over the previous year when it was debated and
defeated, 163 to 259 (49 votes short of passage), on June 28, 2006.26 The bill under
consideration this time was H.R. 5672, the FY2007 Science, State, Justice,
Commerce appropriations bill.
In the first session of the 110th Congress, on July 25, 2007, the amendment was
proposed to H.R. 3093, the Commerce, Justice, Science appropriations bill for
FY2008. It was debated on the House floor for the fifth time in as many years and
was again rejected, 165 to 262 (49 votes short of passage). The amendment’s
supporters framed it as a states’ rights issue:
A vote “yes” on Hinchey-Rohrabacher is a vote to respect the intent of our
Founding Fathers and respect the rights of our people at the State level to make
the criminal law under which they and their families will live. It reinforces rules
surrounding the patient-doctor relationship, and it is in contrast to emotional
posturing and Federal power grabs and bureaucratic arrogance, which is really27
at the heart of the opposition.
23 “Amendment No. 1 offered by Mr. Hinchey,” Congressional Record, daily edition, vol.
24 “Amendment No. 6 Offered by Mr. Farr,” Congressional Record, daily edition, vol. 150
(July 7, 2004), pp. H5300-H5306, H5320.
25 “Amendment Offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 151
(July 15, 2005), pp. H4519-H4524, H4529.
26 “Amendment Offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 152
(June 28, 2006), pp. H4735-H4739.
27 “Amendment Offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 153
(July 25, 2007), p. H8484.
Opponents argued that smoked marijuana is not a safe and effective medicine and
that it sends the wrong message to young people. The amendment is expected to be
offered again as an ongoing measure of sentiment in the House for marijuana law
Medical Marijuana Bills in the 109th Congress (2005). Bills have been
introduced in recent Congresses to allow patients who appear to benefit from medical
cannabis to use it in accordance with the various regulatory schemes that have been
approved, since 1996, by the voters or legislatures of 13 states. This legislative
activity continued in the 109th Congress.
The States’ Rights to Medical Marijuana Act (H.R. 2087/Frank) would have
transferred marijuana from Schedule I to Schedule II of the Controlled Substances
Act. It also would have provided that, in states in which marijuana may legally be
prescribed or recommended by a physician for medical use under state law, no
provisions of the Controlled Substances Act or the Federal Food, Drug, and Cosmetic
Act could prohibit or otherwise restrict a physician from prescribing or
recommending marijuana for medical use, an individual from obtaining and using
marijuana if prescribed or recommended by a physician for medical use, a pharmacy
from obtaining and holding marijuana for such a prescription or recommendation, or
an entity established by a state from producing and distributing marijuana for such
a prescription or recommendation. Versions of this bill have been introduced inth
every Congress since the 105 in 1997 but have not seen action beyond the
committee referral process.
Medical marijuana defendants in federal court are not permitted to introduce
evidence showing that their marijuana-related activities were undertaken for a valid
medical purpose under state law. The Steve McWilliams Truth in Trials Act (H.R.
4272/Farr) would have amended the Controlled Substances Act to provide an
affirmative defense for the medical use of marijuana in accordance with the laws ofth
the various states. First introduced in the 108 Congress, this version of the bill was
named for a Californian who took his own life while awaiting federal sentencing for
marijuana trafficking. At his trial, the jurors were not informed that he was actually
providing marijuana to seriously ill patients in San Diego in compliance with state
law. The bill also would have limited the authority of federal agents to seize
marijuana authorized for medical use under state law and would have provided for
the retention and return of seized plants pending resolution of a case involving
Neither bill saw action beyond the committee referral process.
Legislative Activity in the 110th Congress. The first action on medical
marijuana in the current Congress occurred during consideration of legislation to
reauthorize existing FDA programs and expand the agency’s authority to ensure the
safety of prescription drugs, medical devices, and biologics. On April 18, 2007, at
markup of the Prescription Drug User Fee Act (S. 1082), the Senate Committee on
Health, Education, Labor, and Pensions adopted, in an 11-9 vote, an amendment
offered by Senator Coburn designed to shut down state medical marijuana programs.
The amendment stated:
The Secretary of Health and Human Services shall require that State-
legalized medical marijuana be subject to the full regulatory requirements of the
Food and Drug Administration, including a risk evaluation and mitigation
strategy and all other requirements of the Federal Food, Drug, and Cosmetic Act
regarding safe and effective reviews, approval, sale, marketing, and use of
Herbal cannabis products are not, in fact, being marketed in the United States
as pharmaceuticals, nor are they being developed as investigational new drugs due
largely to federal restrictions on marijuana research. Because of this and other
possibly complicating factors, the validity and actual effect of this amendment, if
signed into law, were unclear and would have been subject to legal interpretation and
judicial review.28 The bill cleared the Senate and was sent to the House on May 9.
The Coburn Amendment, however, was not included in the version of the FDA
amendments act (H.R. 2900) that was approved by Congress and enacted into law
(P.L. 110-85) on September 27, 2007.
In another action on medical marijuana, the House Judiciary Subcommittee on
Crime, Terrorism, and Homeland Security held an oversight hearing on DEA’s
regulation of medicine on July 12, 2007. A DEA official testified that his agency
would “continue to enforce the law as it stands and to investigate, indict, and arrest
those who use the color of state law to possess and sell marijuana.” A California
medicinal cannabis patient and provider stated, “The well-being of thousands of
seriously ill Americans backed by the opinion of the vast majority of their
countrymen demands that medical marijuana be freed from federal interference.” In
his introduction of the patient, the subcommittee chairman observed, “Even if the law
technically gives DEA the authority to investigate medical marijuana users, it is
worth questioning whether targeting gravely ill people is the best use of federal
Two weeks later, on July 25, the whole House decided to continue to use federal
resources against medical marijuana users when it rejected the Hinchey-Rohrabacher
amendment, 165-262, as described above.
In the second session of the 110th Congress, on April 17, 2008, Representative
Frank introduced H.R. 5842, the Medical Marijuana Patient Protection Act, to
provide for the medical use of marijuana in accordance with the laws of the various
states. Introduced with four original co-sponsors — Representatives Farr, Hinchey,
Paul, and Rohrabacher — the bill would move marijuana from schedule I to schedule
II of the CSA and would, within states with medical marijuana programs, permit
!a physician to prescribe or recommend marijuana for medical use;
!an authorized patient to obtain, possess, transport, manufacture, or
!an authorized individual to obtain, possess, transport, or manufacture
marijuana for an authorized patient; and
28 For a legal analysis of the amendment, see CRS Congressional Distribution Memorandum,
“Possible Legal Effects of the Medical Marijuana Amendment to S. 1082,” by Vanessa
Burrows and Brian Yeh.
!a pharmacy or other authorized entity to distribute medical
marijuana to authorized patients.
No provision of the Controlled Substances Act or the Federal Food, Drug, and
Cosmetic Act would be allowed to prohibit or otherwise restrict these activities in
states that have adopted medical marijuana programs. Also, the bill would not affect
any federal, state, or local law regulating or prohibiting smoking in public. Although
differently worded, H.R. 5842 has the same intent as the States’ Rights to Medical
Marijuana Act, versions of which have been introduced in every Congress since the
105th in 1997. The bill was referred to the House Committee on Energy and
In his introductory statement, Representative Frank said, “When doctors
recommend the use of marijuana for their patients and states are willing to permit it,
I think it’s wrong for the federal government to subject either the doctors or the
patients to criminal prosecution.”29
Executive Branch Actions and Policies
IND Compassionate Access Program (1978). In 1975, a Washington,
DC, resident was arrested for growing marijuana to treat his glaucoma. He won his30
case by using the medical necessity defense, forcing the government to find a way
to provide him with his medicine. In 1978, FDA created the Investigational New31
Drug (IND) Compassionate Access Program, allowing patients whose serious
medical conditions could be relieved only by marijuana to apply for and receive
marijuana from the federal government. Over the next 14 years, other patients, less
than 100 in total, were admitted to the program for conditions including
chemotherapy-induced nausea and vomiting (emesis), glaucoma, spasticity, and
weight loss. Then, in 1992, in response to a large number of applications from AIDS
patients who sought to use medical cannabis to increase appetite and reverse wasting
disease, the George H.W. Bush Administration closed the program to all new
applicants. Several previously approved patients remain in the program today and
continue to receive their monthly supply of government-grown medical marijuana.
Approval of Marinol (1985). Made by Unimed, Marinol is the trade name
for dronabinol, a synthetic form of delta-9-tetrahydrocannabinol (THC), one of the
principal psychoactive components of botanical marijuana. It was approved in May
1985 for nausea and vomiting associated with cancer chemotherapy in patients who
fail to respond to conventional antiemetic treatments. In December 1992, it was
29 “Frank Introduces Legislation to Remove Federal Penalties on Personal Marijuana Use,”
press release from the office of Rep. Barney Frank, April 17, 2008.
30 The Common Law Doctrine of Necessity argues that the illegal act committed (in this
case, growing marijuana) was necessary to avert a greater harm (blindness).
31 Despite the program’s name, it was not a clinical trial to test the drug for eventual
approval, but a means for the government to provide medical marijuana to patients
demonstrating necessity. Some have criticized the government for its failure to study the
safety and efficacy of the medical-grade marijuana it grew and distributed to this patient
approved by FDA for the treatment of anorexia associated with weight loss in
patients with AIDS. Marketed as a capsule, Marinol was originally placed in
Schedule II.32 In July 1999, in response to a rescheduling petition from Unimed, it
was moved administratively by DEA to Schedule III to make it more widely available
to patients.33 The rescheduling was granted after a review by DEA and the
Department of Health and Human Services found little evidence of illicit abuse of the
drug. In Schedule III, Marinol is now subject to fewer regulatory controls and lesser
criminal sanctions for illicit use.
Administrative Law Judge Ruling to Reschedule Marijuana (1988).
Congressional passage of the Controlled Substances Act in 1970 and its placement
of marijuana in Schedule I provoked controversy at the time because it strengthened
the federal policy of marijuana prohibition and forced medical marijuana users to buy
marijuana of uncertain quality on the black market at inflated prices, subjecting them
to fines, arrest, court costs, property forfeiture, incarceration, probation, and criminal
records. The new bureaucratic controls on Schedule I substances were also criticized
because they would impede research on marijuana’s therapeutic potential, thereby
making its evaluation and rescheduling through the normal drug approval process
These concerns prompted a citizens’ petition to the Bureau of Narcotics and
Dangerous Drugs (BNDD) in 1972 to reschedule marijuana and make it available by34
prescription. The petition was summarily rejected. This led to a long succession
of appeals, hearing requests, and various court proceedings. Finally, in 1988, after
extensive public hearings on marijuana’s medicinal value, Francis L. Young, the
chief administrative law judge of the Drug Enforcement Administration (the BNDD’s
successor agency), ruled on the petition, stating that “Marijuana, in its natural form,
is one of the safest therapeutically active substances known to man.”35 Judge Young
32 U.S. Dept. of Justice, Drug Enforcement Administration, “Schedules of Controlled
Substances: Rescheduling of Synthetic Dronobinol in Sesame Oil and Encapsulation in Soft
Gelatin Capsules From Schedule I to Schedule II; Statement of Policy,” 51 Federal Register
33 Ibid., “Schedules of Controlled Substances: Rescheduling of the Food and Drug
Administration Approved Product Containing Synthetic Dronabinol [(-)-delta nine-(trans)-
Tetrahydrocannabinol] in Sesame Oil and Encapsulated in Soft Gelatin Capsules From
Schedule II to Schedule III,” 64 Federal Register 35928, July 2, 1999.
34 Ibid., Bureau of Narcotics and Dangerous Drugs, “Schedule of Controlled Substances:
Petition to Remove Marijuana or in the Alternative to Control Marijuana in Schedule V of
the Controlled Substances Act,” 37 Federal Register 18097, September 7, 1972.
35 Ibid., Drug Enforcement Administration, “In the Matter of Marijuana Rescheduling
Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision of Administrative Law Judge,” Francis L. Young,
Administrative Law Judge, September 6, 1988. This quote and the following two quotes are
at pp. 58-59, 68, and 67, respectively. This opinion is online at [http://www.druglibrary.net/
ol sen/ MEDICAL/ YOUNG/ young.ht ml ] .
The evidence in this record clearly shows that marijuana has been accepted
as capable of relieving the distress of great numbers of very ill people, and doing
so with safety under medical supervision. 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.
Judge Young found that “the provisions of the [Controlled Substances] Act
permit and require the transfer of marijuana from schedule I to schedule II,” which
would recognize its medicinal value and permit doctors to prescribe it. The judge’s
nonbinding findings and recommendation were soon rejected by the DEA
Administrator because “marijuana has not been demonstrated as suitable for use as
a medicine.”36 Subsequent rescheduling petitions also have been rejected, and
marijuana remains a Schedule I substance.
NIH-Sponsored Workshop (1997). NIH convened a scientific panel on
medical marijuana composed of eight nonfederal experts in fields such as cancer
treatment, infectious diseases, neurology, and ophthalmology. Over a two-day period
in February, they analyzed available scientific information on the medical uses of
marijuana and concluded that “in order to evaluate various hypotheses concerning the
potential utility of marijuana in various therapeutic areas, more and better studies
would be needed.” Research would be justified, according to the panel, into certain
conditions or diseases such as pain, neurological and movement disorders, nausea of
patients undergoing chemotherapy for cancer, loss of appetite and weight related to
AIDS, and glaucoma.37
Institute of Medicine Report (1999). In January 1997, shortly after passage
of the California and Arizona medical marijuana initiatives, the Director of the Office
of National Drug Control Policy (the federal drug czar) commissioned the Institute
of Medicine (IOM) of the National Academy of Sciences to review the scientific
evidence on the potential health benefits and risks of marijuana and its constituent
cannabinoids. Begun in August 1997, IOM’s 257-page report, Marijuana and
Medicine: Assessing the Science Base, was released in March 1999.38 A review of
all existing studies of the therapeutic value of cannabis, the IOM Report was also
based on public hearings and consultations held around the country with biomedical
and social scientists and concerned citizens.
For the most part, the IOM Report straddled the fence and provided sound bites
for both sides of the medical marijuana debate. For example, “Until a nonsmoked
36 Ibid., “Marijuana Scheduling Petition; Denial of Petition,” 54 Federal Register 53767 at
53768, December 29, 1989. The petition denial was appealed, eventually resulting in yet
another DEA denial to reschedule. See Ibid., “Marijuana Scheduling Petition; Denial of
Petition; Remand,” 57 Federal Register 10499, March 26, 1992.
37 National Institutes of Health. The Ad Hoc Group of Experts. Workshop on the Medical
Utility of Marijuana: Report to the Director, August 1997. (Hereafter cited as NIH
38 Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., eds., Marijuana and
Medicine: Assessing the Science Base (Washington: National Academy Press, 1999).
(Hereafter cited as the IOM Report.) [http://www.nap.edu/books/0309071550/html/]
rapid-onset cannabinoid drug delivery system becomes available, we acknowledge
that there is no clear alternative for people suffering from chronic conditions that
might be relieved by smoking marijuana, such as pain or AIDS-wasting” (p. 179) and
“Smoked marijuana is unlikely to be a safe medication for any chronic medical
condition” (p. 126). For another example, “There is no conclusive evidence that
marijuana causes cancer in humans, including cancers usually related to tobacco use”
(p. 119) and “Numerous studies suggest that marijuana smoke is an important risk
factor in the development of respiratory disease” (p. 127).
The IOM Report did find more potential promise in synthetic cannabinoid drugs
than in smoked marijuana (p. 177):
The accumulated data suggest a variety of indications, particularly for pain relief,
antiemesis, and appetite stimulation. For patients such as those with AIDS or
who are undergoing chemotherapy, and who suffer simultaneously from severe
pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum
relief not found in any other single medication.
In general, the report emphasized the need for well-formulated, scientific
research into the therapeutic effects of marijuana and its cannabinoid components on
patients with specific disease conditions. To this end, the report recommended that
clinical trials be conducted with the goal of developing safe delivery systems.
Denial of Petition to Reschedule Marijuana (2001). In response to a
citizen’s petition to reschedule marijuana submitted to the DEA in 1995, DEA asked
the Department of Health and Human Services (HHS) for a scientific and medical
evaluation of the abuse potential of marijuana and a scheduling recommendation.
HHS concluded that marijuana has a high potential for abuse, no currently accepted
medical use in treatment in the United States, and a lack of accepted safety for use
under medical supervision. HHS therefore recommended that marijuana remain in
Schedule I. In a letter to the petitioner dated March 20, 2001, DEA denied the
FDA Statement That Smoked Marijuana Is Not Medicine (2006). On
April 20, 2006, the FDA issued an interagency advisory restating the federal
government’s position that “smoked marijuana is harmful” and has not been
approved “for any condition or disease indication.” The one-page announcement did
not refer to new research findings. Instead, it was based on a “past evaluation” by
several agencies within HHS that “concluded that no sound scientific studies
supported medical use of marijuana for treatment in the United States, and no animal
or human data supported the safety or efficacy of marijuana for general medical
39 U.S. Dept. of Justice, Drug Enforcement Administration, “Notice of Denial of Petition,”
40 U.S. Food and Drug Administration, “Inter-Agency Advisory Regarding Claims That
Smoked Marijuana Is a Medicine,” press release, April 20, 2006, p. 1. Although not cited
in the press release, the “past evaluation” referred to is apparently the 2001 denial of the
Media reaction to this pronouncement was largely negative, asserting that the
FDA position on medical marijuana was motivated by politics, not science, and
ignored the findings of the 1999 Institute of Medicine Report.41 In Congress, 24
House Members, led by Representative Hinchey, sent a letter to the FDA acting
commissioner requesting the scientific evidence behind the agency’s evaluation of
the medical efficacy of marijuana and citing the FDA’s IND Compassionate Access
Program as “an example of how the FDA could allow for the legal use of a drug,
such as medical marijuana, without going through the ‘well-controlled’ series of
steps that other drugs have to go through if there is a compassionate need.”42
Administrative Law Judge Ruling to Grow Research Marijuana
(2007). Since 1968, the only source of marijuana available for scientific research
in the United States has been tightly controlled by the federal government. Grown
at the University of Mississippi under a contract administered by the National
Institute on Drug Abuse, the marijuana is difficult to obtain even by scientists whose
research protocols have been approved by the FDA. Not only is the federal supply
of marijuana largely inaccessible, but researchers also complain that it does not meet
the needs of research due to its inferior quality and lack of multiple strains.43 Other
Schedule I substances — such as LSD, heroin, and MDMA (Ecstasy) — can be
provided legally by private U.S. laboratories or imported from abroad for research
purposes, with federal permission. Only marijuana is limited to a single, federally
In response to this situation, Dr. Lyle Craker, a professor of plant biology and
director of the medicinal plant program at the University of Massachusetts at
Amherst, applied in 2001 for a DEA license to cultivate research-grade marijuana.
The application was filed in association with the Multidisciplinary Association for
Psychedelic Studies (MAPS), a nonprofit drug research organization headed by Dr.
Rick Doblin, whose stated goal is
to break the government’s monopoly on the supply of marijuana that can be used
in FDA-approved research, thereby creating the proper conditions for a $5
million, 5 year drug development effort designed to transform smoked and/or44
vaporized marijuana into an FDA-approved prescription medicine.
petition to reschedule marijuana discussed above.
41 See, for example, “The Politics of Pot,” editorial, New York Times, April 22, 2006, p.
A26, which calls the FDA statement “disingenuous” and concludes: “It’s obviously easier
and safer to issue a brief, dismissive statement than to back research that might undermine
the administration’s inflexible opposition to the medical use of marijuana.”
42 The text of the letter, dated April 27, 2006, is available at Rep. Hinchey’s website
[http://www.house.gov/ hinchey] .
43 Jessica Winter, “Weed Control: Research on the Medicinal Benefits of Marijuana May
Depend on Good Gardening — and Some Say Uncle Sam, the Country’s Only Legal Grower
of the Cannabis Plant, Isn’t Much of a Green Thumb,” Boston Globe, May 28, 2006.
44 “The UMass Amherst MMJ Production Facility Project,” on the MAPS website at
[http://www.maps.org/mmj/mmjfacility.html]. See the entry for February 8, 2005.
After being sued for “unreasonable delay” in the DC Circuit Court of Appeals,
the DEA rejected the Craker/MAPS application in December 2004 as not consistent
with the public interest. Upon appeal, nine days of hearings were held over a five-
month period in 2005, at which researchers testified that their requests for marijuana
had been rejected, making it impossible to conduct their FDA-approved research. On
February 12, 2007, DEA’s Administrative Law Judge Mary Ellen Bittner found that
“an inadequate supply” of marijuana is available for research and ruled that it “would
be in the public interest” to allow Dr. Craker to create the proposed marijuana
production facility.45 The ruling, however, is nonbinding, and a decision by the DEA
Administrator on whether to accept or reject the Craker decision is pending.
DEA Enforcement Actions Against Medical Marijuana Providers.
Most arrests in the United States for marijuana possession are made by state and local
police, not the DEA. This means that patients and their caregivers in the states that
permit medical marijuana mostly go unprosecuted, because their own state’s
marijuana prohibition laws do not apply to them and because federal law is not
usually enforced against them.
Federal agents do, however, move against medical cannabis growers and
distributors in states with medical marijuana programs. In recent years, DEA agents
have conducted many raids of medical marijuana dispensaries, especially in
California, where the law states that marijuana providers can receive “reasonable
compensation” on a nonprofit basis. The DEA does not provide statistics on its
moves against medical marijuana outlets because the agency does not distinguish
between criminal, non-medical marijuana trafficking organizations and locally
licensed storefront dispensaries that are legal under state law. They are all felony
criminal operations under the Controlled Substances Act. As a practical matter,
however, the DEA reportedly targets larger, for-profit medical marijuana providers
who are engaged in “nothing more than high-stakes drug dealing, complete with the
same high-rolling lifestyles.”46 A few high-profile medical marijuana patients are47
also being prosecuted under federal law.
In July 2007, DEA’s Los Angeles Field Division Office introduced a new
enforcement tactic against medical marijuana dispensaries in the city when it sent
letters to the owners and managers of buildings in which medical marijuana facilities
(Numerous documents related to the Craker/MAPS application are linked here.)
45 U.S. Dept. of Justice, Drug Enforcement Administration, “In the Matter Lyle E. Craker,
Ph.D., Docket No. 05-16, Opinion and Recommended Ruling, Findings of Fact, Conclusions
of Law, and Decision of Administrative Law Judge,” Mary Ellen Bittner, Administrative
Law Judge, February 12, 2007, p. 87. This opinion is online at [http://www.maps.org/mmj/
DEAl a ws u i t .ht ml ] .
46 Rone Tempest, “DEA Targets Larger Marijuana Providers,” Los Angeles Times, January
47 These include medical marijuana activist and author Ed Rosenthal, whose first jury
renounced its guilty verdict when it learned after the trial that he was legally helping patients
under state law and who is being tried again. See Paul Elias, “Federal Prosecutors Will
Retry Ed Rosenthal Against Judge Recommendation,” Associated Press, April 15, 2007.
are operating. The letters threaten the property owners and managers with up to 20
years in federal prison for violating the so-called “crack house statute,” a provision
of the CSA enacted in 1986 that made it a federal offense to “knowingly and
intentionally rent, lease, or make available for use, with or without compensation, [a]
building, room, or enclosure for the purpose of unlawfully manufacturing, storing,
distributing, or using a controlled substance.”48 The DEA letters also threaten the
landlords with seizure of their property under the CSA’s asset forfeiture provisions.49
In response, L.A. City Council members wrote a letter to DEA Administrator
Karen Tandy in Washington urging her to abandon this tactic and allow them to
continue work on an ordinance to regulate medical cannabis facilities “without
federal interference.” They also unanimously approved a resolution endorsing the
Hinchey-Rohrabacher amendment, which would prohibit such DEA actions and
which was about to be debated in the House, as discussed above. An editorial in the
Los Angeles Times called the DEA threats to landlords a “deplorable new bullying
In subsequent months, DEA expanded this enforcement mechanism to other
parts of California, including the Bay Area. In one lawsuit challenging the right of
landlords to evict marijuana dispensaries, a Los Angeles County Superior Court
judge ruled, in April 2008, that federal law preempts California’s Compassionate Use
Act. If the ruling is affirmed on appeal, it would threaten the future of medical
marijuana in California and elsewhere.
DEA’s actions against medical marijuana growing and distribution operations
have provoked other lawsuits. In April 2003, for example, the city and county of
Santa Cruz, CA, along with seven medical marijuana patients, filed a lawsuit in San
Jose federal district court in response to DEA’s earlier raid on the Wo/Men’s
Alliance for Medical Marijuana (WAMM). The court granted the plaintiffs’ motion
for a preliminary injunction, thereby allowing WAMM to resume growing and
producing marijuana medications for its approximately 250 member-patients with
48 Sec. 416 of the Controlled Substances Act (21 U.S.C. § 856) as amended by P.L. 99-570,
Title I, sec. 1841(a), October 27, 1986; 100 Stat. 3207-52. Actually, the crack house statute
was amended in 2003 by the “rave act” (§ 608 of P.L. 108-21, May 1, 2003; 117 Stat. 691),
which broadened the language of the crack house statute to include outdoor venues and
other possible places where raves could be held by striking the words “building, room, or
enclosure” (which appear in the DEA letter) and replacing them with “place.” This and
other subtle but significant changes in the language of the law were designed to penalize
rave promoters and the owners and managers of the venues where raves (all-night music
festivals) occur at which Ecstasy (MDMA) and other club drugs might be used. The July
2007 DEA letter cites the language of the pre-2003 version of the crack house statute rather
than the provision of law currently in force. This section of the CSA has also been used by
the DEA against fund-raising events put on by drug law reform organizations.
49 21 U.S.C. § 881(a)(7).
50 “New Challenges for Medical Marijuana,” Los Angeles Times editorial, July 19, 2007.
serious illnesses, pending the final outcome of the case.51 The suit is said to be the
first court challenge brought by a local government against the federal war on drugs.
Medical Cannabis in the Courts: Major Cases
Because Congress and the executive branch have not acted to permit seriously
ill Americans to use botanical marijuana medicinally, the issue has been considered
by the judicial branch, with mixed results. Three significant cases have been decided
so far, and other court challenges are moving through the judicial pipeline.52
U.S. v. Oakland Cannabis Buyers’ Cooperative (2001). The U.S.
Department of Justice filed a civil suit in January 1998 to close six medical
marijuana distribution centers in northern California. A U.S. district court judge
issued a temporary injunction to close the centers, pending the outcome of the case.
The Oakland Cannabis Buyers’ Cooperative fought the injunction but was eventually
forced to cease operations and appealed to the Ninth Circuit Court of Appeals. At
issue was whether a medical marijuana distributor can use a medical necessity53
defense against federal marijuana distribution charges.
The Ninth Circuit’s decision in September 1999 found, 3-0, that medical
necessity is a valid defense against federal marijuana trafficking charges if a trial
court finds that the patients to whom the marijuana was distributed are seriously ill,
face imminent harm without marijuana, and have no effective legal alternatives.54
The Justice Department appealed to the Supreme Court.
The Supreme Court held, 8-0, that “a medical necessity exception for marijuana
is at odds with the terms of the Controlled Substances Act” because “its provisions55
leave no doubt that the defense is unavailable.” This decision had no effect on state
medical marijuana laws, which continued to protect patients and primary caregivers
from arrest by state and local law enforcement agents in the states with medical
Conant v. Walters (2002). After the 1996 passage of California’s medical
marijuana initiative, the Clinton Administration threatened to investigate doctors and
revoke their licenses to prescribe controlled substances and participate in Medicaid
and Medicare if they recommended medical marijuana to patients under the new state
51 County of Santa Cruz v. Ashcroft, 314 F.Supp.2d 1000 (N.D.Cal. 2004); the decision,
however, rests on the 9th Circuit’s ruling in Raich, subsequently reversed by the Supreme
Court, as described below.
52 For a legal analysis of the three Supreme Court cases mentioned here, see CRS Report
RL31100, Marijuana for Medical Purposes: The Supreme Court’s Decision in United States
v. Oakland Cannabis Buyers’ Cooperative and Related Legal Issues, by Charles Doyle.
53 The necessity defense argues that the illegal act committed (distribution of marijuana in
this instance) was necessary to avert a greater harm (withholding a helpful drug from
seriously ill patients).
54 190 F.3d 1109.
55 532 U.S. 483 (2001) at 494 n. 7.
law. A group of California physicians and patients filed suit in federal court, early
in 1997, claiming a constitutional free-speech right, in the context of the doctor-
patient relationship, to discuss the potential risks and benefits of the medical use of
cannabis. A preliminary injunction, issued in April 1997, prohibited federal officials
from threatening or punishing physicians for recommending marijuana to patients
suffering from HIV/AIDS, cancer, glaucoma, or seizures or muscle spasms associated
with a chronic, debilitating condition.56 The court subsequently made the injunction
permanent in an unpublished opinion.
On appeal, the Ninth Circuit affirmed, in a 3-0 decision, the district court’s order
entering a permanent injunction. The federal government, the opinion states, “may
not initiate an investigation of a physician solely on the basis of a recommendation
of marijuana within a bona fide doctor-patient relationship, unless the government
in good faith believes that it has substantial evidence of criminal conduct.”57 The
Bush Administration appealed, but the Supreme Court refused to take the case.
Gonzales v. Raich (2005). In response to DEA agents’ destruction of their
medical marijuana plants, two patients and two caregivers in California brought suit.
They argued that applying the Controlled Substances Act to a situation in which
medical marijuana was being grown and consumed locally for no remuneration in
accordance with state law exceeded Congress’s constitutional authority under the
Commerce Clause, which allows the federal government to regulate interstate
commerce. In December 2003, the Ninth Circuit Court of Appeals in San Francisco
agreed, ruling 2-1 that states are free to adopt medical marijuana laws so long as the
marijuana is not sold, transported across state lines, or used for nonmedical
purposes.58 Federal appeal sent the case to the Supreme Court.
The issue before the Supreme Court was whether the Controlled Substances Act,
when applied to the intrastate cultivation and possession of marijuana for personal
use under state law, exceeds Congress’s power under the Commerce Clause. The
Supreme Court, in June 2005, reversed the Ninth Circuit’s decision and held, in a 6-3
decision, that Congress’s power to regulate commerce extends to purely local
activities that are “part of an economic class of activities that have a substantial effect
on interstate commerce.”59
Raich does not invalidate state medical marijuana laws. The decision does
mean, however, that DEA may continue to enforce the CSA against medical
marijuana patients and their caregivers, even in states with medical marijuana
Although Raich was not about the efficacy of medical marijuana or its listing
in Schedule I, the majority opinion stated in a footnote: “We acknowledge that
56 Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997).
57 Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002); the parties agreed that “a doctor who
actually prescribes or dispenses marijuana violates federal law,” ibid. at 634.
58 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).
59 Gonzales v. Raich, 125 S.Ct. 2195, 2205 (2005).
evidence proffered by respondents in this case regarding the effective medical uses
for marijuana, if found credible after trial, would cast serious doubt on the accuracy
of the findings that require marijuana to be listed in Schedule I.”60 The majority
opinion, in closing, notes that in the absence of judicial relief for medical marijuana
users there remains “the democratic process, in which the voices of voters allied with
these respondents may one day be heard in the halls of Congress.”61
Thus, the Supreme Court reminds that Congress has the power to reschedule
marijuana, thereby recognizing that it has accepted medical use in treatment in the
United States. Congress, however, does not appear likely to do so. Neither does the
executive branch, which could reschedule marijuana through regulatory procedures
authorized by the Controlled Substances Act. In the meantime, actions taken by state
and local governments continue to raise the issue, as discussed below.
Americans for Safe Access (ASA) Lawsuit Against HHS. The federal
Data Quality Act of 2001 (DQA) requires the issuance of guidelines “for ensuring
and maximizing the quality, objectivity, utility, and integrity of information
(including statistical information) disseminated by Federal agencies” and allows
“affected persons to seek and obtain correction of information maintained and
disseminated by the agency that does not comply with the guidelines.”62
In October 2004, Americans for Safe Access (ASA), a California-based patient
advocacy group, formally petitioned HHS, under the DQA, to correct four erroneous
statements about medical marijuana made by HHS in its 2001 denial of the marijuana
rescheduling petition discussed above. Specifically, ASA requested that “there have
been no studies that have scientifically assessed the efficacy of marijuana for any
medical condition” be replaced with “[a]dequate and well-recognized studies show
the efficacy of marijuana in the treatment of nausea, loss of appetite, pain and
spasticity”; that “it is clear that there is not a consensus of medical opinion
concerning medical applications of marijuana” be replaced with “[t]here is
substantial consensus among experts in the relevant disciplines that marijuana is
effective in treating nausea, loss of appetite, pain and spasticity. It is accepted as
medicine by qualified experts”; that “complete scientific analysis of all the chemical
components found in marijuana has not been conducted” be replaced with “[t]he
chemistry of marijuana is known and reproducible”; and that “marijuana has no
currently accepted medical use in treatment in the United States” be replaced with
“[m]arijuana has a currently accepted use in treatment in the United States.” The
petition claimed that “HHS’s statements about the lack of medical usefulness of
60 Ibid. at 2211 n. 37. For a legal analysis of this case, see CRS Report RS22167, Gonzales
v. Raich: Congress’s Power Under the Commerce Clause to Regulate Medical Marijuana,
by Todd B. Tatelman.
61 Ibid. at 2215.
62 P.L. 106-554, 114 Stat. 2763A-153, 44 U.S.C. § 3516 note. For background on the DQA
see CRS Report RL32532, The Information Quality Act: OMB’s Guidance and Initial
Implementation, by Curtis W. Copeland.
marijuana harms these individuals [ill persons across the United States] in that it
contributes to denying them access to medicine which will alleviate their suffering.”63
Were HHS to accept the ASA petition, the revised statements would set the
preconditions for placing marijuana in a schedule other than I. HHS denied the
petition in 2005 and rejected ASA’s subsequent appeal in 2006 on just those grounds:
that HHS is already in the process of reviewing a rescheduling petition submitted to
DEA in October 2002 and will be evaluating all of the publicly available peer-
reviewed literature on the medicinal efficacy of marijuana in that context. In
response, in February 2007, ASA filed suit in U.S. District Court for the Northern
District of California to force HHS to change the four statements, which the
organization believes are not science-based. The case is pending.
State and Local Referenda and Legislation
In the face of federal intransigence on the issue, advocates of medical marijuana
have turned to the states in a largely successful effort, wherever it has been
attempted, to enact laws that enable patients to obtain and use botanical marijuana
therapeutically in a legal and regulated manner, even though such activity remains
illegal under federal law.
States Allowing Use of Medical Marijuana64
Thirteen states, covering about 25% of the U.S. population, have enacted laws
to allow the use of cannabis for medical purposes.65 These states have removed state-
level criminal penalties for the cultivation, possession, and use of medical marijuana,
if such use has been recommended by a medical doctor. All of these states have in
place, or are developing, programs to regulate the use of medical marijuana by
approved patients. Patients in state programs (except for New Mexico) may be
assisted by caregivers — persons who are authorized to help patients grow, acquire,
and use the drug. Physicians in these states are immune from liability and
prosecution for discussing or recommending medical cannabis to their patients in
accordance with state law.
63 The original petition and all subsequent documents relating to the case can be found at
[http://www.safeaccessnow.org/article.php?id=4401]. See also Carolyn Marshall, “U.S. Is
Sued Over Position on Marijuana,” New York Times, February 22, 2007.
64 The information in this and the following section is drawn largely from: State-by-State
Medical Marijuana Laws: How to Remove the Threat of Arrest, Marijuana Policy Project,
July 2004, available at [http://www.mpp.org/statelaw/index.html]. More recent information
is from press reports.
65 Alaska (Stat. §11.71.090); California (Cal.Health & Safety Code Ann. §11362.5) and
(2003 CA S.B. 420 (SN)); Colorado (Colo.Const. Art. XVIII §14); Hawaii (Rev.Stat.
§§329-121 to 329-128); Maine (Me.Rev.Stat.Ann. tit.22 §1102 or 2382-B(5)); Montana
(Mont.Code Ann. §§50-46-101 to 50-46-210); Nevada (Nev.Rev.Stat.Ann. §§453A.010 to
453A.400); New Mexico (S.B. 523); Oregon (Ore.Rev.Stat. §§475.300 to 475.346); Rhode
Island (RI ST §§21-28.6-1); Vermont (Vt.Stat.Ann. tit. 18, §§4472-4474d); Washington
(Wash.Rev.Code Ann. §§69.51A.005 to 69.51A.902).
Figure 1. States With Medical Marijuana Programs
Nine of the 13 states that have legalized medical marijuana are in the West:
Alaska, California, Colorado, Hawaii, Montana, Nevada, New Mexico, Oregon, and
Washington. Of the 37 states outside the West, Michigan plus three other states, all
in the Northeast — Maine, Rhode Island, and Vermont — have adopted medical
cannabis statutes. Hawaii, New Mexico, Rhode Island, and Vermont have the only
programs initiated by acts of their state legislatures. The medical marijuana
programs in the other nine states were approved by the voters in statewide referenda
or ballot initiatives, beginning in 1996 with California. Since then, voters have
approved medical marijuana initiatives in every state where they have appeared on
the ballot with the exception of South Dakota, where a medical marijuana initiative
was defeated in 2006 by 52% of the voters. Bills to create medical marijuana
programs have been introduced in the legislatures of additional states — Alabama,
Connecticut, Illinois, Maryland, Minnesota, New Hampshire, New Jersey, among
others — and have received varying levels of consideration but have so far not been
Effective state medical marijuana laws do not attempt to overturn or otherwise
violate federal laws that prohibit doctors from writing prescriptions for marijuana and
pharmacies from distributing it. In the 13 states with medical marijuana programs,
doctors do not actually prescribe marijuana, and the marijuana products used by
patients are not distributed through pharmacies. Rather, doctors recommend
marijuana to their patients, and the cannabis products are grown by patients or their
caregivers, or they are obtained from cooperatives or other alternative dispensaries.
The state medical marijuana programs do, however, contravene the federal
prohibition of marijuana. Medical marijuana patients, their caregivers, and other
marijuana providers can, therefore, be arrested by federal law enforcement agents,
and they can be prosecuted under federal law.
Statistics on Medical Marijuana Users. Determining exactly how many
patients use medical marijuana with state approval is difficult. According to a 2002
study published in the Journal of Cannabis Therapeutics, an estimated 30,000
California patients and another 5,000 patients in eight other states possessed a
physician’s recommendations to use cannabis medically.66 More recent estimates are
much higher. The New England Journal of Medicine reported in August 2005, for
example, that an estimated 115,000 people have obtained marijuana67
recommendations from doctors in the states with programs.
Although 115,000 people may be approved medical marijuana users, the number
of patients who have actually registered is much lower. A July 2005 CRS telephone
survey of the state programs revealed a total of 14,758 registered medical marijuana
users in eight states.68 (Maine and Washington do not maintain state registries, and
Rhode Island, New Mexico, and Michigan had not yet passed their laws.) This
number vastly understates the number of medical marijuana users, however, because
California’s state registry was in pilot status, with only 70 patients so far registered.
A brief description of each state’s medical marijuana programs follows. The
programs are discussed in the order in which they were approved by voters or passed
by the state legislatures.
California (1996). Proposition 215, approved by 56% of the voters in
November, removed the state’s criminal penalties for medical marijuana use,
possession, and cultivation by patients with the “written or oral recommendation or
approval of a physician” who has determined that the patient’s “health would benefit
from medical marijuana.” Called the Compassionate Use Act, it legalized cannabis
for “the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana provides relief.” The law
permits possession of an amount sufficient for the patient’s “personal medical
purposes.” A second statute (Senate bill 420), passed in 2003, allows “reasonable
compensation” for medical marijuana caregivers and says that distribution should be
done on a nonprofit basis.
Oregon (1998). Voters in November removed the state’s criminal penalties
for use, possession, and cultivation of marijuana by patients whose physicians advise
that marijuana “may mitigate the symptoms or effects” of a debilitating condition.
The law, approved by 55% of Oregon voters, does not provide for distribution of
66 Dale Gieringer, “The Acceptance of Medical Marijuana in the U.S.,” Journal of Cannabis
Therapeutics, vol. 3, no. 1 (2003), pp. 53-67. The author later estimated that there were
more than 100,000 medical marijuana patients in California alone (personal communication
dated April 30, 2004).
67 Susan Okie, “Medical Marijuana and the Supreme Court,” New England Journal of
Medicine, vol. 353, no. 7 (August 18, 2005), p. 649.
68 The telephone survey was conducted for this report by CRS summer intern Broocks
cannabis but allows up to seven plants per patient (changed to 24 plants by act of the
state legislature in 2005). The state registry program is supported by patient fees. (In
the November 2004 election, 58% of Oregon voters rejected a measure that would
have expanded the state’s existing program.)
Alaska (1998). Voters in November approved a ballot measure to remove
state-level criminal penalties for patients diagnosed by a physician as having a
debilitating medical condition for which other approved medications were
considered. The measure was approved by 58% of the voters. In 1999, the state
legislature created a mandatory state registry for medical cannabis users and limited
the amount a patient can legally possess to 1 ounce and six plants.
Washington (1998). Approved in November by 59% of the voters, the ballot
initiative exempts from prosecution patients who meet all qualifying criteria, possess
no more marijuana than is necessary for their own personal medical use (but no more
than a 60-day supply), and present valid documentation to investigating law
enforcement officers. The state does not issue identification cards to patients.
Maine (1999). Maine’s ballot initiative, passed in November by 61% of the
voters, puts the burden on the state to prove that a patient’s medical use or possession
is not authorized by statute. Patients with a qualifying condition, authenticated by
a physician, who have been “advised” by the physician that they “might benefit” from
medical cannabis, are permitted 1¼ ounces and six plants. There is no state registry
Hawaii (2000). In June, the Hawaii legislature approved a bill removing state-
level criminal penalties for medical cannabis use, possession, and cultivation of up
to seven plants. A physician must certify that the patient has a debilitating condition
for which “the potential benefits of the medical use of marijuana would likely
outweigh the health risks.” This was the first state law permitting medical cannabis
use that was enacted by a legislature instead of by ballot initiative.
Colorado (2000). A ballot initiative to amend the state constitution was
approved by 54% of the voters in November. The amendment provides that lawful
medical cannabis users must be diagnosed by a physician as having a debilitating
condition and be “advised” by the physician that the patient “might benefit” from
using the drug. A patient and the patient’s caregiver may possess 2 usable ounces
and six plants.
Nevada (2000). To amend the state constitution by ballot initiative, a
proposed amendment must be approved by the voters in two separate elections. In
November, 65% of Nevada voters passed for the second time an amendment to
exempt medical cannabis users from prosecution. Patients who have “written
documentation” from their physicians that marijuana may alleviate their health
condition may register with the state Department of Agriculture and receive an
identification card that exempts them from state prosecution for using medical
Vermont (2004). In May, Vermont became the second state to legalize
medical cannabis by legislative action instead of ballot initiative. Vermont patients
are allowed to grow up to three marijuana plants in a locked room and to possess 2
ounces of manicured marijuana under the supervision of the Department of Public
Safety, which maintains a patient registry. The law went into effect without the
signature of the governor, who declined to sign it but also refused to veto it, despite
pressure from Washington. A 2007 legislative act expanded eligibility for the
program and increased to nine the number of plants participants may grow.
Montana (2004). In November, 62% of state voters passed Initiative 148,
allowing qualifying patients to use marijuana under medical supervision. Eligible
medical conditions include cancer, glaucoma, HIV/AIDS, wasting syndrome,
seizures, and severe or chronic pain. A doctor must certify that the patient has a
debilitating medical condition and that the benefits of using marijuana would likely
outweigh the risks. The patient may grow up to six plants and possess 1 ounce of
dried marijuana. The state public health department registers patients and caregivers.
Rhode Island (2006). In January, the state legislature overrode the
governor’s veto of a medical marijuana bill, allowing patients to possess up to 12
plants or 2½ ounces to treat cancer, HIV/AIDS, and other chronic ailments. The law
included a sunset provision and was set to expire on July 1, 2007, unless renewed by
the legislature. The law was made permanent on June 21, 2007, after legislators
voted again to override the governor’s veto by a wide margin.
New Mexico (2007). Passed by the legislature and signed into law by the
governor in April, the Lynn and Erin Compassionate Use Medical Marijuana Act
went into effect on July 1, 2007. It requires the state’s Department of Health to set
rules governing the distribution of medical cannabis to state-authorized patients.
Unlike other state programs, patients and their caregivers cannot grow their own
marijuana; rather, it will be provided by state-licensed “cannabis production
Michigan (2008). Approved by 63% of Michigan voters in the November
2008 presidential election, Proposal 1 permits physicians to approve marijuana use
by registered patients with debilitating medical conditions, including cancer,
HIV/AIDS, hepatitis C, multiple sclerosis, glaucoma, and other conditions approved
by the state’s Department of Community Health. Up to 12 plants can be cultivated
in an indoor, locked facility by the patient or a designated caregiver.
Other State and Local Medical Marijuana Laws
Arizona (1996). Arizona’s law,69 approved by 65% of the voters in
November, permits marijuana prescriptions, but there is no active program in the
state because federal law prohibits doctors from prescribing marijuana. Patients
cannot, therefore, obtain a valid prescription. (Other states’ laws allow doctors to
“recommend” rather than “prescribe.”)
Maryland (2003). Maryland’s General Assembly became the second state
legislature, after Hawaii, to protect medical cannabis patients from the threat of jail
69 Ariz.Rev.Stat.Ann. §13-3412.01(A).
when it approved a bill, later signed by the governor, providing that patients using
marijuana preparations to treat the symptoms of illnesses such as cancer, AIDS, and
Crohn’s disease would be subject to no more than a $100 fine.70 The law falls short
of full legalization and does not create a medical marijuana program, but it allows for
a medical necessity defense for people who use marijuana on their own for medical
purposes. If patients arrested for possession in Maryland can prove in court that they
use cannabis for legitimate medical needs, they escape the maximum penalty of one
year in jail and a $1,000 fine.
Other State Laws. Laws favorable to medical marijuana have been enacted71
in 36 states since 1978. Except for the state laws mentioned above, however, these
laws do not currently protect medical marijuana users from state prosecution. Some
laws, for example, allow patients to acquire and use cannabis through therapeutic
research programs, although none of these programs has been operational since 1985,
due in large part to federal opposition. Other state laws allow doctors to prescribe
marijuana or allow patients to possess marijuana if it has been obtained through a
prescription, but the federal Controlled Substances Act prevents these laws from
being implemented. Several states have placed marijuana in a controlled drug
schedule that recognizes its medical value. State legislatures continue to consider
medical marijuana bills, some favorable to its use by patients, others not. In
Michigan, a medical marijuana initiative will be presented to the voters on the
November 2008 ballot.
District of Columbia (1998). In the nation’s capital, 69% of voters approved
a medical cannabis initiative to allow patients a “sufficient quantity” of marijuana to
treat illness and to permit nonprofit marijuana suppliers. Congress, however, has
blocked the initiative from taking effect.72
Local Measures. Medical cannabis measures have been adopted in several
localities throughout the country. San Diego is the country’s largest city to do so.
One day after the Supreme Court’s anti-marijuana ruling in Gonzales v. Raich was
issued, Alameda County in California approved an ordinance to regulate medical
marijuana dispensaries, becoming the 17th locality in the state to do so. Localities in
nonmedical marijuana states have also acted. In November 2004, for example, voters
in Columbia, MO, and Ann Arbor, MI, approved medical cannabis measures. Since
then, four other Michigan cities, including Detroit, have done the same. Although
largely symbolic, such local laws can influence the priorities of local law
enforcement officers and prosecutors.
70 Md. Crim.Code Ann. §5-601.
71 State-by-State Medical Marijuana Laws: How to Remove the Threat of Arrest, Marijuana
Policy Project, July 2004, p. 3. The laws in some of these states have expired or been
72 For more information on the situation in the District of Columbia, see CRS Report
RL33563, District of Columbia: Appropriations for 2007, by Eugene Boyd and David P.
Public Opinion on Medical Marijuana
Voters in eight states have approved medical marijuana initiatives to protect
patients from arrest under state law. Likewise, American public opinion has
consistently favored access to medical marijuana by seriously ill patients.
ProCon.org, a nonprofit and nonpartisan public education foundation, has identified
21 national public opinion polls that asked questions about medical marijuana from
1995 to the present. Respondents in every poll were in favor of medical marijuana
by substantial margins, ranging from 60% to 85%.73
The Journal of the American Medical Association analyzed public opinion on
the War on Drugs in a 1998 article. The authors’ observations concerning public
attitudes toward medical marijuana remain true today:
While opposing the use or legalization of marijuana for recreational purposes,
the public apparently does not want to deny very ill patients access to a
potentially helpful drug therapy if prescribed by their physicians. The public’s
support of marijuana for medical purposes is conditioned by their belief that74
marijuana would be used only in the treatment of serious medical conditions.
In public opinion polls, then, the majority of Americans appear to hold that
seriously ill or terminal patients should be able to use marijuana if recommended by
their doctors. Thirteen state governments have created medical marijuana programs,
either through ballot initiatives or the legislative process. Many other state
governments, however, along with the federal government, remain opposed to the
national majority in favor of medical marijuana.
Analysis of Arguments For and Against
In the ongoing debate over cannabis as medicine, certain arguments are
frequently made on both sides of the issue. These arguments are briefly stated below
and are analyzed in turn. Equal weight is not given to both sides of every argument.
Instead, the analysis is weighted according to the preponderance of evidence as
currently understood. CRS takes no position on the claims or counterclaims in this
What follows is an attempt to analyze objectively the claims frequently made
about the role that herbal cannabis might or might not play in the treatment of certain
diseases and about the possible societal consequences should its role in the practice
of modern medicine be expanded beyond the places where it is now permitted under
73 The questions asked and the results obtained can be viewed at
[ h t t p : / / www.me di cal ma r i j u anapr o con.or g/ pop/ vo t e sNat .ht m] .
74 Robert J. Blend on and John T. Young, “The Public and the War on Illicit Drugs,” Journal
of the American Medical Association, vol. 279, no. 11 (March 18, 1998), p. 831.
For those interested in learning more about medical marijuana research findings,
the Internet offers two useful websites. The International Association for Cannabis
as Medicine (IACM), based in Germany, provides abundant information on the
results of controlled clinical trials at [http://www.cannabis-med.org]. Information on
peer-reviewed, double-blind studies on both animals and human subjects conducted
since 1990 has been compiled by ProCon.org and is available at [http://www.medical
Marijuana Is Harmful and Has No Medical Value
Suitable and superior medicines are currently available for treatment of
all symptoms alleged to be treatable by crude marijuana.
— Brief of the Drug Free America Foundation, et al., 200475
The federal government — along with many state governments and private
antidrug organizations — staunchly maintains that botanical marijuana is a dangerous
drug without any legitimate medical use. Marijuana intoxication can impair a
person’s coordination and decision-making skills and alter behavior. Chronic
marijuana smoking can adversely affect the lungs, the cardiovascular system, and
possibly the immune and reproductive systems.76
Of course, FDA’s 1985 approval of Marinol proves that the principal
psychoactive ingredient of marijuana — THC — has therapeutic value. But that is
not the issue in the medical marijuana debate. Botanical marijuana remains a plant
substance, an herb, and its opponents say it cannot substitute for legitimate
pharmaceuticals. Just because certain molecules found in marijuana might have
become approved medicines, they argue, does not make the unpollinated bud of the
female Cannabis sativa plant a safe and effective medicine. The Drug Free America
Foundation calls the medical use of crude marijuana “a step backward to the times
of potions and herbal remedies.”77
The federal government’s argument that marijuana has no medical value is
straightforward. A drug, in order to meet the standard of the Controlled Substances
Act as having a “currently accepted medical use in treatment in the United States,”
must meet a five-part test:
(1) The drug’s chemistry must be known and reproducible,
(2) there must be adequate safety studies,
(3) there must be adequate and well-controlled studies proving efficacy,
(4) the drug must be accepted by qualified experts, and
75 Brief for the Drug Free America Foundation, Inc. et al. as Amici Curiae Supporting
Petitioners at 13, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454). The amici curiae
briefs filed in Raich contain a wealth of information and arguments on both sides of the
medical marijuana debate. They are available online at [http://www.angeljustice.org].
76 See, for example, “Exposing the Myth of Medical Marijuana,” on the DEA website at
[http://www.usdoj .gov/dea/ongoing/marij uanap.html ].
77 Ibid., at 25.
(5) the scientific evidence must be widely available.78
According to the DEA, botanical marijuana meets none of these requirements.
First, marijuana’s chemistry is neither fully known nor reproducible. Second,
adequate safety studies have not been done. Third, there are no adequate, well-
controlled scientific studies proving marijuana is effective for any medical condition.
Fourth, marijuana is not accepted by even a significant minority of experts qualified
to evaluate drugs. Fifth, published scientific evidence concluding that marijuana is
safe and effective for use in humans does not exist.79
The same DEA Final Order that set forth the five requirements for currently
accepted medical use also outlined scientific evidence that would be considered
irrelevant by the DEA in establishing currently accepted medical use. These include
individual case reports, clinical data collected by practitioners, studies conducted by
persons not qualified by scientific training and experience to evaluate the safety and
effectiveness of the substance at issue, and studies or reports so lacking in detail as
to preclude responsible scientific evaluation. Such information is inadequate for
experts to conclude responsibly and fairly that marijuana is safe and effective for use
as medicine.80 The DEA and other federal drug control agencies can thereby
disregard medical literature and opinion that claim to show the therapeutic value of
marijuana because they do not meet the government’s standards of proof.
The official view of medical marijuana is complicated by the wider War on
Drugs. It is difficult to disentangle the medical use of locally grown marijuana for
personal use from the overall policy of marijuana prohibition, as the Supreme Court
made clear in Raich. To make an exemption for medical marijuana, the Court
decided, “would undermine the orderly enforcement of the entire regulatory scheme
... The notion that California law has surgically excised a discrete activity that is
hermetically sealed off from the larger interstate marijuana market is a dubious
It remains the position of the federal government, then, that the Schedule I
substance marijuana is harmful — not beneficial — to human health. Its use for any
reason, including medicinal, should continue to be prohibited and punished. Despite
signs of a more tolerant public attitude toward medical marijuana, its therapeutic
benefits, if any, will continue to be officially unacknowledged and largely unrealized
in the United States so long as this position prevails at the federal level.
78 This test was first formulated by the DEA in 1992 in response to a marijuana rescheduling
petition. See U.S. Department of Justice, Drug Enforcement Administration, “Marijuana
Scheduling Petition; Denial of Petition; Remand,” 57 Federal Register 10499, March 26,
79 Ibid., p. 10507.
80 Ibid., pp. 10506-10507.
81 Gonzales v. Raich, 125 S.Ct. 2195, at 2212 and 2213 (2005).
Marijuana Effectively Treats the Symptoms of Some Diseases
[I]t cannot seriously be contested that there exists a small but significant
class of individuals who suffer from painful chronic, degenerative, and
terminal conditions, for whom marijuana provides uniquely effective relief.
— Brief of the Leukemia & Lymphoma Society, et al., 200482
Proponents of medical marijuana point to a large body of studies from around
the world that support the therapeutic value of marijuana in treating a variety of
disease-related problems, including:
!reducing muscle spasms and spasticity,
!relieving chronic pain,
!reducing intraocular pressure, and
Given these properties, marijuana has been used successfully to treat the
debilitating symptoms of cancer and cancer chemotherapy,84 AIDS, multiple
sclerosis, epilepsy, glaucoma, anxiety, and other serious illnesses.85 As opponents
of medical marijuana assert, existing FDA-approved pharmaceuticals for these
conditions are generally more effective than marijuana. Nevertheless, as the IOM
Report acknowledged, the approved medicines do not work for everyone.86 Many
medical marijuana users report trying cannabis only reluctantly and as a last resort
after exhausting all other treatment modalities. A distinct subpopulation of patients
now relies on whole cannabis for a degree of relief that FDA-approved synthetic
drugs do not provide.
Medical cannabis proponents claim that single-cannabinoid, synthetic
pharmaceuticals like Marinol are poor substitutes for the whole marijuana plant,
which contains more than 400 known chemical compounds, including about 60
active cannabinoids in addition to THC. They say that scientists are a long way from
82 Brief for the Leukemia & Lymphoma Society, et al. as Amici Curiae Supporting
Respondents at 4, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
83 Ibid., at 1-2.
84 A 1990 survey of oncologists found that 54% of those with an opinion on medical
marijuana favored the controlled medical availability of marijuana and 44% had already
broken the law by suggesting at least once that a patient obtain marijuana illegally. R.
Doblin and M. Kleiman, “Marijuana as Antiemetic Medicine,” Journal of Clinical
Oncology, vol. 9 (1991), pp. 1314-1319.
85 There is evidence that marijuana might also be useful in treating arthritis, migraine,
menstrual cramps, alcohol and opiate addiction, and depression and other mood disorders.
86 IOM Report, pp. 3-4: “The effects of cannabinoids on the symptoms studied are generally
modest, and in most cases there are more effective medications. However, people vary in
their responses to medications, and there will likely always be a subpopulation of patients
who do not respond well to other medications.”
knowing for sure which ones, singly or in combination, provide which therapeutic
effects. Many patients have found that they benefit more from the whole plant than
from any synthetically produced chemical derivative.87 Furthermore, the natural plant
can be grown easily and inexpensively, whereas Marinol and any other cannabis-
based pharmaceuticals that might be developed in the future will likely be expensive
— prohibitively so for some patients.88
In recognition of the therapeutic benefits of botanical marijuana products,
various associations of health professionals have passed resolutions in support of
medical cannabis. These include the American Public Health Association, the
American Nurses Association, and the California Pharmacists Association. The New
England Journal of Medicine has editorialized in favor of patient access to
marijuana.89 Other groups, such as the American Medical Association, are more
cautious. Their position is that not enough is known about botanical marijuana and
that more research is needed.90
The recent discovery of cannabinoid receptors in the human brain and immune
system provides a biological explanation for the claimed effectiveness of marijuana
in relieving multiple disease symptoms. The human body produces its own cannabis-
like compounds, called endocannabinoids, that react with the body’s cannabinoid
receptors. Like the better known opiate receptors, the cannabinoid receptors in the
brain stem and spinal cord play a role in pain control. Cannabinoid receptors, which
are abundant in various parts of the human brain, also play a role in controlling the
vomiting reflex, appetite, emotional responses, motor skills, and memory formation.
It is the presence of these natural, endogenous cannabinoids in the human nervous
and immune systems that provides the basis for the therapeutic value of marijuana
and that holds the key, some scientists believe, to many promising drugs of the
The federal government’s own IND Compassionate Access Program, which has
provided government-grown medical marijuana to a select group of patients since
1978, provides important evidence that marijuana has medicinal value and can be
used safely. A scientist and organizer of the California medical marijuana initiative,
along with two medical-doctor colleagues, has written:
87 Brief for the Leukemia & Lymphoma Society et al. as Amici Curiae Supporting
Respondents at 18, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
88 Marinol currently sells at retail for about $17 per pill.
89 “Federal Foolishness and Marijuana,” New England Journal of Medicine, vol. 336, no.
90 The website “Medical Marijuana ProCon” [http://www.medicalmarijuanaprocon.org]
contains information on organizations that both support and oppose medical marijuana.
91 For a summary of the growing body of research on endocannabinoids, see Roger A. Nicoll
and Bradley N. Alger, “The Brain’s Own Marijuana,” Scientific American, December 2004,
pp. 68-75, and Jean Marx, “Drugs Inspired by a Drug,” Science, January 20, 2006, pp. 322-
Nothing reveals the contradictions in federal policy toward marijuana more
clearly than the fact that there are still eight patients in the United States who
receive a tin of marijuana ‘joints’ (cigarettes) every month from the federal
government.... These eight people can legally possess and use marijuana, at
government expense and with government permission. Yet hundreds of
thousands of other patients can be fined and jailed under federal law for doing92
exactly the same thing.
Smoking Is an Improper Route of Drug Administration
Can you think of any other untested, home-made, mind-altering medicine
that you self-dose, and that uses a burning carcinogen as a delivery
— General Barry McCaffrey, U.S. Drug Czar, 1996-200093
That medical marijuana is smoked is probably the biggest obstacle preventing
its wider acceptance. Opponents of medical marijuana argue that smoking is a poor
way to take a drug, that inhaling smoke is an unprecedented drug delivery system,
even though many approved medications are marketed as inhalants. DEA
Administrator Karen Tandy writes:
The scientific and medical communities have determined that smoked
marijuana is a health danger, not a cure. There is no medical evidence that
smoking marijuana helps patients. In fact, the Food and Drug Administration
(FDA) has approved no medications that are smoked, primarily because smoking
is a poor way to deliver medicine. Morphine, for example has proven to be a
medically valuable drug, but the FDA does not endorse smoking opium or94
Medical marijuana opponents argue that chronic marijuana smoking is harmful
to the lungs, the cardiovascular system, and possibly the immune and reproductive
systems. These claims may be overstated to help preserve marijuana prohibition.
For example, neither epidemiological nor aggregate clinical data show higher rates95
of lung cancer in people who smoke marijuana. The other alleged harms also
remain unproven. Even if smoking marijuana is proven harmful, however, the
immediate benefits of smoked marijuana could still outweigh the potential long-term
harms — especially for terminally ill patients.96
92 Bill Zimmerman, Is Marijuana the Right Medicine For You? A Factual Guide to Medical
Uses of Marijuana (Keats Publishing, New Canaan, CT: 1998), p. 25.
93 Barry R. McCaffrey, “We’re on a Perilous Path,” Newsweek, February 3, 1997, p. 27.
94 Karen Tandy, “Marijuana: The Myths Are Killing Us,” Police Chief Magazine, March
95 Lynn Zimmer and John P. Morgan, Marijuana Myths Marijuana Facts (New York:
Lindesmith Center, 1997), p. 115.
96 Medicines do not have to be completely safe to be approved. In fact, no medicine is
completely safe; every drug has toxicity concerns. All pharmaceuticals have potentially
harmful side effects, and it would be startling, indeed, if botanical marijuana were found to
The therapeutic value of smoked marijuana is supported by existing research and
experience. For example, the following statements appeared in the American
Medical Association’s “Council on Scientific Affairs Report 10 — Medicinal
Marijuana,”97 adopted by the AMA House of delegates on December 9, 1997:
!“Smoked marijuana was comparable to or more effective than oral
THC [Marinol], and considerably more effective than
prochlorperazine or other previous antiemetics in reducing nausea
and emesis.” (p. 10)
!“Anecdotal, survey, and clinical data support the view that smoked
marijuana and oral THC provide symptomatic relief in some patients
with spasticity associated with multiple sclerosis (MS) or trauma.”
!“Smoked marijuana may benefit individual patients suffering from
intermittent or chronic pain.” (p. 15)
The IOM Report expressed concerns about smoking (p. 126): “Smoked
marijuana is unlikely to be a safe medication for any chronic medical condition.”
Despite this concern, the IOM Report’s authors were willing to recommend smoked
marijuana under certain limited circumstances. For example, the report states (p.
Until the development of rapid-onset antiemetic drug delivery systems,
there will likely remain a subpopulation of patients for whom standard antiemetic
therapy is ineffective and who suffer from debilitating emesis. It is possible that
the harmful effects of smoking marijuana for a limited period of time might be
outweighed by the antiemetic benefits of marijuana, at least for patients for
whom standard antiemetic therapy is ineffective and who suffer from debilitating
emesis. Such patients should be evaluated on a case-by-case basis and treated
under close medical supervision.
The IOM Report makes another exception for terminal cancer patients (p. 159):
Terminal cancer patients pose different issues. For those patients the
medical harm associated with smoking is of little consequence. For terminal
patients suffering debilitating pain or nausea and for whom all indicated
medications have failed to provide relief, the medical benefits of smoked
marijuana might outweigh the harm.
be an exception. The IOM Report states that “except for the harms associated with smoking,
the adverse effects of marijuana use are within the range of effects tolerated for other
medications.” (p. 5)
97 American Medical Association, Council on Scientific Affairs Report: Medical Marijuana
(A-01), June 2001. An unpaginated version of this document can be found on the Web at
[ ht t p: / / www.mf i l e s.or g/ Mar i j uana/ me di ci nal _use/ b2_ama _csa_r epor t .ht ml ] .
Smoking can actually be a preferred drug delivery system for patients whose
nausea prevents them from taking anything orally. Such patients need to inhale their
antiemitic drug. Other patients prefer inhaling because the drug is absorbed much
more quickly through the lungs, so that the beneficial effects of the drug are felt
almost at once. This rapid onset also gives patients more control over dosage. For
a certain patient subpopulation, then, these advantages of inhalation may prevail over
both edible marijuana preparations and pharmaceutical drugs in pill form, such as
Moreover, medical marijuana advocates argue that there are ways to lessen the
risks of smoking. Any potential problems associated with smoking, they argue, can
be reduced by using higher potency marijuana, which means that less has to be
inhaled to achieve the desired therapeutic effect. Furthermore, marijuana does not
have to be smoked to be used as medicine. It can be cooked in various ways and
eaten.98 Like Marinol, however, taking marijuana orally can be difficult for patients
suffering from nausea. Many patients are turning to vaporizers, which offer the
benefits of smoking — rapid action, ease of dose titration — without having to inhale
smoke. Vaporizers are devices that take advantage of the fact that cannabinoids
vaporize at a lower temperature than that required for marijuana to burn. Vaporizers
heat the plant matter enough for the cannabinoids to be released as vapor without
having to burn the marijuana preparation. Patients can thereby inhale the beneficial
cannabinoids without also having to inhale the potentially harmful by-products of
Marijuana Should Be Rescheduled To Permit Medical Use
[T]he administrative law judge concludes that the provisions of the
[Controlled Substances] Act permit and require the transfer of marijuana
from Schedule I to Schedule II. The Judge realizes that strong emotions
are aroused on both sides of any discussion concerning the use of
marijuana. Nonetheless it is essential for this Agency [DEA], and its
Administrator, calmly and dispassionately to review the evidence of
record, correctly apply the law, and act accordingly.
— Francis L. Young, DEA Administrative Law Judge, 1988100
98 Cannabis preparations are also used topically as oils and balms to soothe muscles,
tendons, and joints.
99 Several companies offer vaporizers for sale in the United States, but their marketing is
complicated by marijuana prohibition and by laws prohibiting drug paraphernalia. The
advantages of the vaporizer were brought to the attention of the IOM panel. The IOM
Report, however, devoted only one sentence to such devices, despite its recommendation
for research into safe delivery systems. The IOM Report said, “Vaporization devices that
permit inhalation of plant cannabinoids without the carcinogenic combustion products found
in smoke are under development by several groups; such devices would also require
regulatory review by the FDA.” (p. 216)
100 U.S. Dept. of Justice, Drug Enforcement Administration, “In the Matter of Marijuana
Rescheduling Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of
Fact, Conclusions of Law and Decision of Administrative Law Judge,” Francis L. Young,
Proponents of medical marijuana believe its placement in Schedule I of the CSA
was an error from the beginning. Cannabis is one of the safest therapeutically active
substances known.101 No one has ever died of an overdose.102 Petitions to reschedule
marijuana have been received by the federal government, and rejected, ever since the
original passage of the Controlled Substances Act in 1970.
Rescheduling can be accomplished administratively or it can be done by an act
of Congress. Administratively, the federal Department of Health and Human
Services (HHS) could find that marijuana meets sufficient standards of safety and
efficacy to warrant rescheduling. Even though THC, the most prevalent cannabinoid
in marijuana, was administratively moved to Schedule III in 1999, no signs exist that
botanical marijuana will similarly be rescheduled by federal agency ruling anytime
An act of Congress to reschedule marijuana is only slightly less likely, although
such legislation has been introduced in recent Congresses including the 109th.103 The
States’ Rights to Medical Marijuana Act (H.R. 2087/Frank), which would move
marijuana from Schedule I to Schedule II of the Controlled Substances Act, has seen
no action beyond committee referral.104
Schedule II substances have a high potential for abuse and may lead to severe
psychological or physical dependence but have a currently accepted medical use in
treatment in the United States. Cocaine, methamphetamine, morphine, and
methadone are classified as Schedule II substances. Many drug policy experts and
laypersons alike believe that marijuana should also reside in Schedule II.
Others think marijuana should be properly classified as a Schedule III substance,
along with THC and its synthetic version, Marinol. Substances in Schedule III have
less potential for abuse than the drugs in Schedules I and II, their abuse may lead to
moderate or low physical dependence or high psychological dependence, and they
have a currently accepted medical use in treatment in the United States.
Administrative Law Judge, September 6, 1988, p. 67. This opinion is online at
[ h t t p : / / www.dr ugl i b r a r y.net / o l s en/ M EDICAL/ YOUNG/ young.ht ml ] .
101 Ibid., pp. 58-59.
102 Ibid., p. 56.
103 When Congress directly schedules a drug, as it did marijuana in 1970, it is not bound by
the criteria in section 202(b) of the CSA (21 U.S.C. 812(b)).
104 Congress could also follow the lead of some states that have a dual scheduling scheme
for botanical marijuana whereby its recreational use is prohibited (Schedule I) but it is
permitted when used for medicinal purposes (Schedules II or III). Congress could achieve
the same effect by leaving marijuana in Schedule I but removing criminal penalties for the
medical use of marijuana, commonly called decriminalization. Congress could also opt for
legalization by removing marijuana from the CSA entirely and subjecting it to federal and
state controls based on the tobacco or alcohol regulatory models or by devising a regulatory
scheme unique to marijuana. None of these options seem likely given the current political
climate in which both political parties support marijuana prohibition.
Rescheduling seems to be supported by public opinion. A nationwide Gallup
Poll conducted in March 1999 found that 73% of American adults favor “making
marijuana legally available for doctors to prescribe in order to reduce pain and
suffering.” An AARP poll of American adults age 45 and older conducted in mid-
November 2004 found that 72% agree that adults should be allowed to legally use
marijuana for medical purposes if recommended by a physician.105
Few Members of Congress, however, publicly support the rescheduling option.
The States’ Rights to Medical Marijuana Act (H.R. 2087/Frank), which would move
marijuana from Schedule I to Schedule II of the Controlled Substances Act, currently
has 37 cosponsors.
State Medical Marijuana Laws Increase Illicit Drug Use
The natural extension of this myth [that marijuana is good medicine] is
that, if marijuana is medicine, it must also be safe for recreational use.
— Karen P. Tandy, DEA Administrator, 2005106
It is the position of the federal government that to permit the use of medical
marijuana affords the drug a degree of legitimacy it does not deserve. America’s
youth are especially vulnerable, it is said, and state medical marijuana programs send
the wrong message to our youth, many of whom do not recognize the very real
dangers of marijuana.
Studies show that the use of an illicit drug is inversely proportional to the
perceived harm of that drug. That is, the more harmful a drug is perceived to be, the
fewer the number of people who will try it.107 Opponents of medical marijuana argue
that “surveys show that perception of harm with respect to marijuana has been
dropping off annually since the renewal of the drive to legalize marijuana as
medicine, which began in the early 1990s when legalization advocates first gained
a significant increase in funding and began planning the state ballot initiative drive
to legalize crude marijuana as medicine.”108 They point to the 1999 National
Household Survey on Drug Abuse (NHSDA), which “reveals that those states which
have passed medical marijuana laws have among the highest levels of past-month
105 These and other poll results can be consulted at
[http://www.medicalmarijuanaprocon.org/ pop/votes.htm]. This website states: “Because
towards the medical use of marijuana, we contacted several organizations decidedly ‘con’
to medical marijuana — two of which were federal government agencies — and none knew
of any voter initiatives or polls that were ‘con’ (50.01% or more con) to medical marijuana.”
106 Karen Tandy, “Marijuana: The Myths Are Killing Us,” Police Chief Magazine, March
107 See, for example, J.G. Bachman et al., “Explaining Recent Increases in Students’
Marijuana Use: Impacts of Perceived Risks and Disapproval, 1976 through 1996,” American
Journal of Public Health, vol. 88 (1998), pp. 887-892.
108 Brief for the Drug Free America Foundation, Inc. et al. as Amici Curiae Supporting
Petitioners at 26, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
marijuana use, of past-month other drug use, of drug addiction, and of drug and
Indeed, all 11 states that have passed medical marijuana laws ranked above the
national average in the percentage of persons 12 or older reporting past-month use
of marijuana in 1999, as shown in Table 3. It is at least possible, however, that this
analysis confuses cause with effect. It is logical to assume that the states with the
highest prevalence of marijuana usage would be more likely to approve medical
marijuana programs, because the populations of those states would be more
knowledgeable of marijuana’s effects and more tolerant of its use.
It is also the case that California, the state with the largest and longest-runningth
medical marijuana program, ranked 34 in the percentage of persons age 12-17
reporting marijuana use in the past month during the period 2002-2003, as shown in
Table 2. In fact, between 1999 and 2002-2003, of the 10 states with active medical
marijuana programs, five states (AK, HI, ME, MT, VT) rose in the state rankings of
past-month marijuana use by 12- to 17-year-olds and five states fell (CA, CO, NV,
OR, WA).110 Of the five states that had approved medical marijuana laws before
2003, from 7th to 4th, with 11.08% of youth reporting past-month marijuana use in
level data. Clearly, more important factors are at work in determining a state’s
prevalence of recreational marijuana use than whether the state has a medical
The IOM Report found no evidence for the supposition that state medical
marijuana programs lead to increased use of marijuana or other drugs (pp. 6-7):
Finally, there is a broad social concern that sanctioning the medical use of
marijuana might increase its use among the general population. At this point
there are no convincing data to support this concern. The existing data are
consistent with the idea that this would not be a problem if the medical use of
marijuana were as closely regulated as other medications with abuse potential....
[T]his question is beyond the issues normally considered for medical uses of
drugs and should not be a factor in evaluating the therapeutic potential of
marijuana or cannabinoids.
109 Ibid., at 27. The 1999 NHSDA was the first to include state-level estimates for various
measures of drug use. Unfortunately, comprehensive state-level data prior to 1999 are not
available from other sources.
110 Care should be taken in comparing NHSDA data for 1999 with NSDUH data for 2002
and after, due to changes in survey methodology made in 2002. The trend observations
drawn here from these data should therefore be considered suggestive rather than definitive.
Tables 1 and 2. States Ranked by Percentage of Youth Age 12-
17 Reporting Past-Month Marijuana Use, 1999 and 2002-2003
Table 1. 1999Table 2. 2002-2003
Rank S t ate % Rank S t ate %
1 D el aware 1 3 . 9 1 Vermont 13.32
2 Massachusetts 11.9 2 Montana 12.07
4 Montana 11.4 4 Alaska 11.08
5Rhode Island10.85Rhode Island10.86
7 Alaska 10.4 7 Massachusetts 10.53
9 Minneso ta 9.9 9 Haw ai i 10.23
9 Wa s h i n g t o n 9.9 1 0 Colorado 9.82
11 Oreg on 9.6 1 1 Nevada 9.58
District of Columbia9.612South Dakota9.57
12 Illinois 9 .2 13 Delaware 9.41
14 Maryland 8.8 1 5 Michigan 9 .23
15 Indian a 8 .7 16 Connecticut 9.22
16 Connecticut 8.6 1 7 Neb raska 9 .13
17 Vermont 8.4 1 8 Wa s h i n g t o n 9.11
18 Haw ai i 8.3 1 9 Minneso ta 8.92
20 Mich igan 7.8 2 1 Ohio 8 .74
22 Californi a 7.7 2 3 Florida 8.52
23North Dakota7.624North Carolina8.44
Na tional 7.4 2 5 V irginia 8 .43
27 Arizona 7 . 3 2 7 K en t u cky 8 . 1 6
27 Arkansas 7.3 2 8 Oklahoma 8 .13
28 Maine 7.2 2 9 Arkan sas 7 .97
31 Oh io 6.9 3 1 Marylan d 7 .87
34 Mississippi 6.7 3 5 Illinois 7 .61
37 Louisian a 6 .6 37 Missouri 7 .43
37Missouri6.6District of Columbia7.43
38 Georgia 6 .4 38 Kansas 7.39
40 Oklahoma 6 .3 39 Indian a 7 .37
43 Nebraska 6.1 4 2 Wyo ming 7.14
43 Utah 6.1 4 3 Iowa 7 .10
45 Id ah o 5 .9 44 Louisian a 6 .92
45 Virginia 5.9 4 5 Geo rgia 6.87
46 Texas 5 .7 46 Texas 6 .38
4 7 Al ab ama 5 . 6 4 7 Al ab ama 6 . 3 7
48 Kentucky 5.3 4 7 Tennessee 6 .37
50 Io wa 5.2 4 9 Mississippi 6.04
50 Tennessee 5 .2 50 Utah 5.30
Source: SAMHSA, Office of Applied Studies,Source: SAMHSA, Office of Applied Studies,
National Household Survey on Drug Abuse, 1999,National Survey on Drug Use and Health, 2002
Table 3B, at [http://www.oas.samhsa.gov/ NHSDA/99and 2003, Table B.3, at [http://www.oas.
StateTabs/tables2.htm]. Rankings calculated by CRS.samhsa.gov/2k3State/appB.htm#tabB.3].
Rankings calculated by CRS.
Tables 3 and 4. States Ranked by Percentage of Persons 12 or
Older Reporting Past-Month Marijuana Use, 1999 and 2003-2004
Table 3. 1999 Table 4. 2003-2004
2 Colorado 7.7 2 Alaska 9.78
3 Massachusetts 7.5 3 Vermont 9.77
4Rhode Island7.4District of Columbia9.60
District of Columbia7.15Montana9.17
6 Wa s h i n g t o n 6.8 6 Oreg on 8.88
7 Oreg on 6.6 7 Colorado 8.49
8 D el aware 6 . 5 8 Maine 7.95
10 Californi a 6.0 1 0 Nevada 7.62
11 Montana 5.9 1 1 Wa s h i n g t o n 7.41
11New Hampshire5.912New Mexico7.37
13 Maine 5.8 1 4 M ichigan 7 .20
15 Nevada 5.6 1 5 Haw ai i 6.95
15 Wyoming 5 .6 16 Connecticut 9.94
17 Vermont 5 . 4 1 7 D el aware 6 . 8 9
18 Mich igan 5.3 1 8 Missouri 6 .76
18 Minneso ta 5.3 1 9 Florida 6.58
20 Arizona 5.2 2 0 Californi a 6.50
21 Wisconsin 5.1 2 1 Ohio 6 .49
22 Connecticut 5.0 2 2 Minneso ta 6.37
22 Florida 5 .0 Na tional 6.18
25 Utah 4.9 2 5 V irginia 5 .96
27 Illinois 4 .8 27 Louisian a 5 .77
29 Missouri 4 .7 28 Maryland 5.73
31 P ennsylvania 4 .5 31 P ennsylvania 5 .64
32 Oh io 4.3 3 2 Arkan sas 5 .63
34 Georgia 4 .2 33 Kentucky 5.62
34 Id ah o 4 .2 34 Illinois 5 .60
36 Virginia 4.0 3 6 Wyo ming 5.45
38 Nebraska 3.9 3 7 Wisconsin 5.40
38North Dakota3.938North Dakota5.35
39South Carolina3.839South Dakota5.24
43 Kentucky 3.6 4 1 Idaho 5.09
47 Arkansas 3.5 4 4 Kan sas 4 .91
47 Louisian a 3 .5 45 Io wa 4.90
47 Oklahoma 3 .5 46 Texas 4 .79
47 Texas 3 .5 47 Mississippi 4.64
50 Alab ama 3 .3 48 Tennessee 4 .59
50 Io wa 3.3 4 9 Alabama 4.32
50 Mississippi 3.3 5 0 Utah 4 .00
Source: SAMHSA, Office of Applied Studies,National Household Survey on Drug Abuse,Source: SAMHSA, Office of Applied Studies,National Survey on Drug Use and Health, 2002 and
1999, Table 3B, at 2003, Table B.3, at
[ h t t p : / / www. o a s . s a m h s a . gov/ NHSDA/ 9 9 S t a t eTa [ h t t p : / / www. o a s . s a m h s a . gov/ 2k3State/appB.htm#tab
bs/tables2.htm]. Rankings calculated by CRS.B.3]. Rankings calculated by CRS.
The IOM Report further states (p. 126):
Even if there were evidence that the medical use of marijuana would
decrease the perception that it can be a harmful substance, this is beyond
the scope of laws regulating the approval of therapeutic drugs. Those laws
concern scientific data related to the safety and efficacy of drugs for
individual use; they do not address perceptions or beliefs of the general
The IOM Report also found (p. 102): “No evidence suggests that the use of
opiates or cocaine for medical purposes has increased the perception that their illicit
use is safe or acceptable.” Doctors can prescribe cocaine, morphine, amphetamine,
and methamphetamine, but this is not seen as weakening the War on Drugs. Why
would doctors recommending medical marijuana to their patients be any different?
The so-called “Gateway Theory” of marijuana use is also cited to explain how
medical marijuana could increase illicit drug use. With respect to the rationale
behind the argument that marijuana serves as a “gateway” drug, the IOM Report
offered the following (p. 6):
In the sense that marijuana use typically precedes rather than
follows initiation of other illicit drug use, it is indeed a “gateway” drug.
But because underage smoking and alcohol use typically precede marijuana
use, marijuana is not the most common, and is rarely the first, “gateway”
to illicit drug use. There is no conclusive evidence that the drug effects of
marijuana are causally linked to the subsequent abuse of other illicit drugs.
A statistical analysis of marijuana use by emergency room patients and
arrestees in four states with medical marijuana programs — California, Colorado,
Oregon, and Washington — found no statistically significant increase in recreational
marijuana use among these two population subgroups after medical marijuana was111
approved for use. Another study looked at adolescent marijuana use and found
decreases in youth usage in every state with a medical marijuana law. Declines112
exceeding 50% were found in some age groups.
These studies are consistent with the findings of a 2002 report by the
Government Accountability Office that concluded that state medical marijuana laws
were operating as voters and legislators intended and did not encourage drug use
among the wider population.113 Concerns that medical cannabis laws send the wrong
message to vulnerable groups such as adolescents seem to be unfounded.
111 Dennis M. Gorman and J. Charles Huber, Jr., “Do Medical Cannabis Laws Encourage
Cannabis Use?” International Journal of Drug Policy, vol. 18, no. 3 (May 2007), pp. 160-
112 Karen O’Keefe, et al., “Marijuana Use by Young People: The Impact of State Medical
Marijuana Laws,” updated June 2008, available at [http://www.mpp.org/teens]. (New
Mexico was excluded from the study because it passed its law too recently.)
113 U.S. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws
That Allow Use for Medical Purposes, GAO-03-189, November 2002.
Medical Marijuana Undermines the War on Drugs
The DEA and its local and state counterparts routinely report
that large-scale drug traffickers hide behind and invoke Proposition
many large-scale marijuana cultivators and traffickers escape state
prosecution because of bogus medical marijuana claims.
Prosecutors are reluctant to charge these individuals because of the
state of confusion that exists in California. Therefore, high-level
traffickers posing as ‘care-givers’ are able to sell illegal drugs with
— “California Medical Marijuana Information,” DEA Web page
It is argued by many that state medical marijuana laws weaken the fight
against drug abuse by making the work of police officers more difficult. This
undermining of law enforcement can occur in at least three ways: by diverting
medical marijuana into the recreational drug market, by causing state and local law
enforcement priorities to diverge from federal priorities, and by complicating the job
of law enforcement by forcing officers to distinguish medical users from recreational
Diversion. Marijuana grown for medical purposes, according to DEA and
other federal drug control agencies, can be diverted into the larger, illegal marijuana
market, thereby undermining law enforcement efforts to eliminate the marijuana
market altogether. This point was emphasized by the Department of Justice (DOJ)
in its prepublication review of a report by the Government Accountability Office
(GAO) on medical marijuana. DOJ criticized the GAO draft report on the grounds
that the “report did not mention that state medical marijuana laws are routinely
abused to facilitate traditional illegal trafficking.”115
GAO responded that in their interviews with federal officials regarding the
impact of state medical marijuana laws on their law enforcement efforts, “none of the
federal officials we spoke with provided information that abuse of medical marijuana
laws was routinely occurring in any of the states, including California.”116 The
government also failed to establish this in the Raich case. (It is of course possible
that significant diversion is taking place yet remains undetected.)
Just as with many pharmaceuticals, some diversion is inevitable. Some
would view this as an acceptable cost of implementing a medical marijuana program.
Every public policy has its costs and benefits. Depriving seriously ill patients of their
medical marijuana is seen by some as a small price to pay if doing so will help to
protect America’s youth from marijuana. Others balance the harms and benefits of
medical marijuana in the opposite direction. Legal analyst Stuart Taylor Jr. recently
114 Available at [http://www.usdoj.gov/dea/ongoing/calimarijuanap.html].
115 U.S. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws
That Allow Use for Medical Purposes, GAO-03-189, November 2002, p. 36.
116 Ibid., p. 37.
wrote, “As a matter of policy, Congress as well as the states should legalize medical
marijuana, with strict regulatory controls. The proven benefits to some suffering117
patients outweigh the potential costs of marijuana being diverted to illicit uses.”
Changed State and Local Law Enforcement Priorities. Following
the passage of the California and Arizona medical marijuana initiatives in 1996,
federal officials expressed concern that the measures would seriously affect the
federal government’s drug enforcement effort because federal drug policies rely
heavily on the state’s enforcement of their own drug laws to achieve federal
objectives. For instance, in hearings before the Senate Judiciary Committee, the head
of the Drug Enforcement Administration stated:
I have always felt ... that the federalization of crime is very difficult to carry
out; that crime, just in essence, is for the most part a local problem and
addressed very well locally, in my experience. We now have a situation
where local law enforcement is unsure.... The numbers of investigations
that you would talk about that might be presently being conducted by the
[Arizona state police] at the gram level would be beyond our capacity to
conduct those types of individual investigations without abandoning the118
major organized crime investigations.
State medical marijuana laws arguably feed into the deprioritization
movement, by which drug reform advocates seek to influence state and local law
enforcement to give a low priority to the enforcement of marijuana laws. This
movement to make simple marijuana possession the lowest law enforcement priority
has made inroads in such cities as San Francisco, Seattle, and Oakland, but it extends
beyond the medical marijuana states to college towns such as Ann Arbor, MI,
Madison, WI, Columbia, MO, and Lawrence, KS.119 Federal officials fear that
jurisdictions that “opt out” of marijuana enforcement “will quickly become a haven
for drug traffickers.”120
Distinguishing Between Legal and Illegal Providers and Users.
Police officers in medical marijuana states have complained about the difficulty of
distinguishing between legitimate patients and recreational marijuana smokers.
According to the DEA:
Local and state law enforcement counterparts cannot distinguish
between illegal marijuana grows and grows that qualify as medical
117 Stuart Taylor, Jr., “Liberal Drug Warriors! Conservative Pot-Coddlers!,” National
Journal, June 11, 2005, p. 1738.
118 Testimony of Thomas A. Constantine in U.S. Congress, Senate Committee on the
Judiciary, Prescription for Addiction? The Arizona and California Medical Drug Usethnd
Initiatives, hearing, 104 Cong., 2 sess., December 2, 1996 (Washington: GPO, 1997), pp.
119 “Marijuana: Lawrence, Kansas, Ponders City Marijuana Ordinance — Impact of HEA
Cited,” available at [http://stopthedrugwar.org/chronicle/401/lawrence.shtml].
120 Brief for U.S. Representative Mark E. Souder et al. as Amici Curiae Supporting
Petitioners at 20, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
exemptions. Many self-designated medical marijuana growers are, in fact,121
growing marijuana for illegal, “recreational” use.
This reasoning is echoed in the Raich amici brief of Community Rights Counsel (p.
Creating an exception for medical use [of marijuana] could undermine
enforcement efforts by imposing an often difficult burden on prosecutors
of establishing the violator’s subjective motivation and intent beyond a
reasonable doubt. Given that marijuana used in response to medical
ailments is not readily distinguishable from marijuana used for other
reasons, Congress rationally concluded that the control of all use is
necessary to address the national market for controlled substances.
Patients and caregivers, on the other hand, have complained that their
marijuana that is lawful under state statute has been seized by police and not
returned. In some cases, patients and caregivers have been unexpectedly arrested by
state or local police officers. A November 2002 GAO report on medical marijuana
stated that “Several law enforcement officials in California and Oregon cited the
inconsistency between federal and state law as a significant problem, particularly
regarding how seized marijuana is handled.”122
The failure of state and local law enforcement officers to observe state
medical marijuana laws has especially been a problem in California. The California
Highway Patrol (CHP) has, on numerous occasions, arrested patients or confiscated
their medical marijuana during routine traffic stops. “Although voters legalized
medical marijuana in California nearly nine years ago,” reports the Los Angeles
Times, “police statewide have wrangled with activists over how to enforce the
As a result of a lawsuit brought against the CHP by a patient advocacy group,
CHP officers will no longer seize patients’ marijuana as long as they possess no more
than 8 ounces and can show a certified-user identification card or their physician’s
written recommendation. The CHP’s new policy, announced in August 2005, will
likely influence the behavior of other California law enforcement agencies.
The Committee on Drugs and the Law of the Bar of the City of New York
concluded its 1997 report “Marijuana Should be Medically Available” with this
statement: “The government can effectively differentiate medical marijuana and
recreational marijuana, as it has done with cocaine. The image of the Federal
121 “California Medical Marijuana Information,” available on DEA’s website at
[http://www.usdoj .gov/dea/ongoing/calimarij uanap.html ].
122 U.S. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws
That Allow Use for Medical Purposes, GAO-03-189, November 2002, p. 64. GAO
interviewed 37 law enforcement agencies and found that the majority indicated that
“medical-marijuana laws had not greatly affected their law enforcement activities.” (p. 4)
123 Eric Bailey, “CHP Revises Policy on Pot Seizures,” Los Angeles Times (national edition),
August 28, 2005, p. A12.
authorities suppressing a valuable medicine to maintain the rationale of the war on
drugs only serves to discredit the government’s effort.”124
Patients Should Not Be Arrested for Using Medical Marijuana
Centuries of Anglo-American law stand against the imposition of
criminal liability on individuals for pursuing their own lifesaving
pain relief and treatment.... Because the experience of pain can be so
subversive of dignity — and even of the will to live — ethics and legal
tradition recognize that individuals pursuing pain relief have special
claims to non-interference.125
— Brief of the Leukemia & Lymphoma Society, et al., 2004
Medical marijuana advocates believe that seriously ill people should not be
punished for acting in accordance with the opinion of their physicians in a bona fide
attempt to relieve their suffering, especially when acting in accordance with state law.
Even if marijuana were proven to be more harmful than now appears, prison for
severely ill patients is believed to be a worse alternative. Patients have enough
problems without having to fear the emotional and financial cost of arrest, legal fees,
prosecution, and a possible prison sentence.
The American public appears to agree. The Institute of Medicine found that
“public support for patient access to marijuana for medical use appears substantial;
public opinion polls taken during 1997 and 1998 generally reported 60-70 percent of
respondents in favor of allowing medical uses of marijuana.”126
The federal penalty for possessing one marijuana cigarette — even for127
medical use — is up to one year in prison and up to a $100,000 fine, and the
penalty for growing a cannabis plant is up to five years and up to a $250,000 fine.128
That patients are willing to risk these severe penalties to obtain the relief that
marijuana provides appears to present strong evidence for the substance’s therapeutic
Although the Supreme Court ruled differently in Raich, the argument persists
that medical marijuana providers and patients are engaging in a class of activity
totally different from those persons trafficking in marijuana for recreational use and
that patients should not be arrested for using medical marijuana in accordance with
the laws of the states in which they reside.
124 Committee on Drugs and the Law, “Marijuana Should be Medically Available,” Record
of the Association of the Bar of the City of New York, vol. 52, no. 2 (March 1997), p. 238.
125 Brief for the Leukemia & Lymphoma Society et al. as Amici Curiae Supporting
Respondents at 1,2, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
126 IOM Report, p. 18.
127 21 U.S.C. §844 and 18 U.S.C. §3571. 21 U.S.C. §844 also calls for a minimum fine of
$1,000, and 21 U.S.C. §844a permits a civil penalty of up to $10,000.
128 21 U.S.C. §841(b)(1)(D).
With its position affirmed by Raich, however, DEA continues to investigate
— and sometimes raid and shut down — medical marijuana distribution operations
in California and other medical marijuana states. DEA’s position is that:
[F]ederal law does not distinguish between crimes involving marijuana for
claimed “medical” purposes and crimes involving marijuana for any other
purpose. DEA likewise does not so distinguish in carrying out its duty to
enforce the CSA and investigate possible violations of the Act. Rather,
consistent with the agency’s mandate, DEA focuses on large-scale
trafficking organizations and other criminal enterprises that warrant federal
scrutiny. If investigating CSA violations in this manner leads the agency
to encounter persons engaged in criminal activities involving marijuana,
DEA does not alter its approach if such persons claim at some point their
crimes are “medically” justified. To do so would be to give legal effect to
an excuse considered by the text of federal law and the United States129
Supreme Court to be of no moment.
Because nearly all arrests and prosecutions for marijuana possession are
handled by state and local law enforcement officers, patients and caregivers in the
medical marijuana states can, as a practical matter, possess medical marijuana
without fear of arrest and imprisonment. DEA enforcement actions against medical
marijuana dispensaries — as occurred in San Francisco shortly after the Raich
decision was announced130 — can, however, make it more difficult for patients to
obtain the drug. The situation that Grinspoon and Bakalar described in 1995 in the
Journal of the American Medical Association persists a decade later: “At present, the
greatest danger in medical use of marihuana is its illegality, which imposes much
anxiety and expense on suffering people, forces them to bargain with illicit drug131
dealers, and exposes them to the threat of criminal prosecution.”
The States Should Be Allowed to Experiment
Doctors, not the federal government, know what’s best for their
patients. If a state decides to allow doctors to recommend proven
treatments for their patients, then the federal government has no
rightful place in the doctor’s office.
— Attorney Randy Barnett, 2004132
Three States — California, Maryland, and Washington — filed an amici
curiae brief supporting the right of states to institute medical marijuana programs.
129 Communication from DEA Congressional Affairs to author dated September 27, 2005.
130 Stacy Finz, “19 Named in Medicinal Pot Indictment, More than 9,300 Plants Were Seized
in Raids,” San Francisco Chronicle, June 24, 2005, p. B4.
131 Lester Grinspoon and James B. Bakalar, “Marihuana as Medicine: A Plea for
Reconsideration,” Journal of the American Medical Association, vol. 273, no. 23 (June 21,
132 Angel Wings Patient OutReach press release, November 29, 2004. Barnett represented
Raich et al. in Supreme Court oral argument on this date.
Their brief argued, “In our federal system States often serve as democracy’s
laboratories, trying out new, or innovative solutions to society’s ills.”133
The Raich case shows that the federal government has zero tolerance for state
medical marijuana programs. The Bush Administration appealed the decision of the
Ninth Circuit Court of Appeals to the Supreme Court, which reversed the Ninth
Circuit and upheld the federal position against the states. Framed as a Commerce
Clause issue, the case became a battle for states’ rights against the federal
The Raich case created unusual political alliances. Three southern states that
are strongly opposed to any marijuana use, medical or otherwise — Alabama,
Louisiana, and Mississippi — filed an amici curiae brief supporting California’s
medical marijuana users on the grounds of states’ rights. Their brief argued
As Justice Brandeis famously remarked, “[i]t is one of the happy incidents
of the federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic134
experiments without risk to the rest of the country.” Whether California
and the other compassionate-use States are “courageous — or instead
profoundly misguided — is not the point. The point is that, as a sovereign
member of the federal union, California is entitled to make for itself the135
tough policy choices that affect its citizens.
States’ rights advocates argue that authority to define criminal law and the
power to make and enforce laws protecting the health, safety, welfare, and morals
reside at the state level and that a state has the right to set these policies free of
For Justice O’Connor, the Raich case exemplified “the role of States as
laboratories.”136 She wrote in her dissenting opinion:
If I were a California citizen, I would not have voted for the medical
marijuana ballot initiative; if I were a California legislator I would not have
supported the Compassionate Use Act. But whatever the wisdom of
California’s experiment with medical marijuana, the federalism principles
that have driven our Commerce Clause cases require that room for137
experiment be protected in this case.
133 Brief for the States of California, Maryland, and Washington et al. as Amici Curiae
Supporting Respondents at 3, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
134 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
135 Brief for the States of Alabama, Louisiana, and Mississippi et al. as Amici Curiae
Supporting Respondents at 3, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
136 Gonzales v. Raich, 125 S.Ct. 2195, 2220 (2005) (O’Connor, J., dissenting).
137 Ibid. at 2229.
Medical Marijuana Laws Harm the Drug Approval Process
The current efforts to gain legal status of marijuana through ballot
initiatives seriously threaten the Food and Drug Administration
statutorily authorized process of proving safety and efficacy.138
— Brief of the Drug Free America Foundation, et al., 2004
Although the individual states regulate the practice of medicine, the federal
government has taken primary responsibility for the regulation of medical products,
especially those containing controlled substances. Pharmaceutical drugs must be
approved for use in the United States by the Food and Drug Administration, an
agency of the Department of Health and Human Services. The Federal Food, Drug,
and Cosmetics Act gives HHS and FDA the responsibility for determining that drugs
are safe and effective, a requirement that all medicines must meet before they can
enter interstate commerce and be made available for general medical use.139 Clinical
evaluation is required regardless of whether the drug is synthetically produced or
originates from a natural botanical or animal source.
Opponents of medical marijuana say that the FDA’s drug approval process
should not be circumvented. To permit states to decide which medical products can
be made available for therapeutic use, they say, would undercut this regulatory
system. State medical marijuana initiatives are seen as inconsistent with the federal
government’s responsibility to protect the public from unsafe, ineffective drugs.
The Bush Administration argued in its brief in the Raich case that “excepting
drug activity for personal use or free distribution from the sweep of [federal drug
laws] would discourage the consumption of lawful controlled substances and would
undermine Congress’s intent to regulate the drug market comprehensively to protect
public health and safety.”140
Three prominent drug abuse experts argued in their amici brief:
This action by the state of California did not create a “novel social
and economic experiment,” but rather chaos in the scientific and medical
communities. Furthermore, under Court of Appeals ruling, such informal
State systems could be replicated, and even expanded, in a manner that puts
at risk the critical protections so carefully crafted under the national foodth141
and drug legislation of the 20 century.
The Food and Drug Administration itself has stated that
138 Brief for the Drug Free America Foundation, Inc. et al. as Amici Curiae Supporting
Petitioners at 12, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
139 21 U.S.C. §351-360
140 Brief for Petitioners at 11, Gonzales v. Raich, 125 S.Ct. 2195 (2002) (No. 03-1454).
141 Brief for Robert L. DuPont, M.D. et al. as Amici Curiae Supporting Petitioners at 19,
Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
FDA is the sole Federal agency that approves drug products as safe
and effective for intended indications.... FDA’s drug approval process
requires well-controlled clinical trials that provide the necessary scientific
data upon which FDA makes its approval and labeling decisions.... Efforts
that seek to bypass the FDA drug approval process would not serve the
interests of public health because they might expose patients to unsafe and
ineffective drug products. FDA has not approved smoked marijuana for any142
condition or disease indication.
The Drug Free America Raich brief elaborates further (pp. 12-13):
The ballot initiative-led laws create an atmosphere of medicine by
popular vote, rather than the rigorous scientific and medical process that all
medicines must undergo. Before the development of modern
pharmaceutical science, the field of medicine was fraught with potions and
herbal remedies. Many of those were absolutely useless, or conversely
were harmful to unsuspecting subjects. Thus evolved our current Food and
Drug Administration and drug scheduling processes, which Congress has
authorized in order to create a uniform and reliable system of drug approval
and regulation. This system is being intentionally undermined by the
legalization proponents through use of medical marijuana initiatives.
The organizers of the medical marijuana state initiatives deny that it was their
intent to undermine the federal drug approval process. Rather, in their view, it
became necessary for them to bypass the FDA and go to the states because of the
federal government’s resistance to marijuana research requests and rescheduling
As for the charge that politics should not play a role in the drug approval and
controlled substance scheduling processes, medical marijuana supporters point out
that marijuana’s original listing as a Schedule I substance in 1970 was itself a
political act on the part of Congress.
Scientists on both sides of the issue say more research needs to be done, yet
some researchers charge that the federal government has all but shut down marijuana143
clinical trials for reasons based on politics and ideology rather than science.
In any case, as the IOM Report pointed out, “although a drug is normally
approved for medical use only on proof of its ‘safety and efficacy,’ patients with life-
threatening conditions are sometimes (under protocols for ‘compassionate use’)
allowed access to unapproved drugs whose benefits and risks are uncertain.”144 This
was the case with the FDA’s IND Compassionate Access Program under which a
limited number of patients are provided government-grown medical marijuana to
treat their serious medical conditions.
142 U.S. Food and Drug Administration, “Inter-Agency Advisory Regarding Claims That
Smoked Marijuana Is a Medicine,” press release, April 20, 2006, p. 1.
143 See, for example, Lila Guterman, “The Dope on Medical Marijuana,” Chronicle of
Higher Education, June 2, 2000, p. A21.
144 IOM Report, p. 14.
Some observers believe the pharmaceutical industry and some politicians
oppose medical marijuana to protect pharmaceutical industry profits. Because the
whole marijuana plant cannot be patented, research efforts must be focused on the
development of synthetic cannabinoids such as Marinol. But even if additional
cannabinoid drugs are developed and marketed, some believe that doctors and
patients should still not be criminalized for recommending and using the natural
The New England Journal of Medicine has editorialized that
[A] federal policy that prohibits physicians from alleviating suffering by
prescribing marijuana for seriously ill patients is misguided, heavy-handed,
and inhumane. Marijuana may have long-term adverse effects and its use
may presage serious addictions, but neither long-term side effects nor
addiction is a relevant issue in such patients. It is also hypocritical to
forbid physicians to prescribe marijuana while permitting them to use
morphine and meperidine to relieve extreme dyspnea and pain. With both
of these drugs the difference between the dose that relieves symptoms and
the dose that hastens death is very narrow; by contrast, there is no risk of
death from smoking marijuana. To demand evidence of therapeutic
efficacy is equally hypocritical. The noxious sensations that patients
experience are extremely difficult to quantify in controlled experiments.
What really counts for a therapy with this kind of safety margin is whether
a seriously ill patient feels relief as a result of the intervention, not whether145
a controlled trial “proves” its efficacy.
Some observers suggest that until the federal government relents and becomes
more hospitable to marijuana research proposals and more willing to consider
moving marijuana to a less restrictive schedule, the medical marijuana issue will
continue to be fought at state and local levels of governance. As one patient advocate
has stated, “As the months tick away, it will become more and more obvious that we
need to continue changing state laws until the federal government has no choice but146
to change its inhumane medicinal marijuana laws.”
The Medical Marijuana Movement Is Politically Inspired
Advocates have tried to legalize marijuana in one form or another for
three decades, and the “medical marijuana” concept is a Trojan
Horse tactic towards the goal of legalization.147
— Brief of the Drug Free America Foundation, et al., 2004
Medical marijuana opponents see the movement to promote the use of
medical marijuana as a cynical attempt to subvert the Controlled Substances Act and
145 “Federal Foolishness and Marijuana,” New England Journal of Medicine, vol. 336, no.
146 Chuck Thomas, Marijuana Policy Project press release dated April 20, 1999, available
147 Brief for the Drug Free America Foundation, Inc. et al. as Amici Curiae Supporting
Petitioners at 9, Gonzales v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
legalize the recreational use of marijuana for all. They see it as a devious tactic in the
more than 30-year effort by marijuana proponents to bring an end to marijuana
prohibition in the United States and elsewhere.
They point out that between 1972 and 1978, the National Organization for the
Reform of Marijuana Laws (NORML) successfully lobbied 11 state legislatures to
decriminalize the drug, reducing penalties for possession in most cases to that of a
traffic ticket. Also, in 1972, NORML began the first of several unsuccessful attempts
to petition DEA to reschedule marijuana from Schedule I to Schedule II on the
grounds that crude marijuana had use in medicine.148
Later, beginning with California in 1996, “drug legalizers” pushed
successfully for passage of medical marijuana voter initiatives in several states,
prompting then-Drug Czar Barry McCaffrey, writing in Newsweek, to warn that
“We’re on a Perilous Path.” “I think it’s clear,” he wrote, “that a lot of the people
arguing for the California proposition and others like it are pushing the legalization149
of drugs, plain and simple.”
Is it cynical or smart for NORML and other drug reform organizations to
simultaneously pursue the separate goals of marijuana decriminalization for all, on
the one hand, and marijuana rescheduling for the seriously ill, on the other? It is not
unusual for political activists tactically to press for — and accept — half-measures
in pursuit of a larger strategic goal. Pro-life activists work to prohibit partial-birth
abortions and to pass parental notification laws. Gay rights activists seek limited
domestic partner benefits as a stepping stone to full marriage equality. Thus is the
tactic used on both sides of the cultural divide in America, to the alarm of those
It is certainly true that the medical cannabis movement is an offshoot of the
marijuana legalization movement. Many individuals and organizations that support
medical marijuana also support a broader program of drug law reform. It is also true,
however, that many health professionals and other individuals who advocate medical
access to marijuana do not support any other changes in U.S. drug control policy. In
the same way, not everyone in favor of parental notification laws supports banning
abortions for everyone. And not every supporter of domestic partner benefits
believes in same-sex marriage.
In these hot-button issues, ideology and emotion often rule. Marijuana users
in general, and medical marijuana users in particular, are demonized by some
elements of American society. The ideology of the “Drug Warriors” intrudes on the
148 For example, the amici curiae brief of the Drug Free America Foundation et al. reveals
this history to discredit the medical marijuana movement (pp. 9-11). Actually, NORML and
some other drug reform organizations are open in acknowledging that they support patient
access to marijuana as a first step toward decriminalizing or legalizing marijuana for use by
adults in general. See, for example, Joab Jackson, “Medical Marijuana: From the Fringe to
the Forefront,” Baltimore City Paper, March 28, 2002,
[ h t t p : / / www.al t e r n et .or g/ dr ugr e por t e r / 12714] .
149 Barry R. McCaffrey, “We’re on a Perilous Path,” Newsweek, February 3, 1997, p. 27.
science of medical marijuana, as pointed out by Grinspoon and Bakalar in the
Journal of the American Medical Association:
Advocates of medical use of marihuana are sometimes charged with using
medicine as a wedge to open a way for “recreational” use. The accusation
is false as applied to its target, but expresses in a distorted form a truth
about some opponents of medical marihuana: they will not admit that it can
be a safe and effective medicine largely because they are stubbornly
committed to exaggerating its dangers when used for nonmedical150
The authors of the IOM Report were aware of the possibility that larger
ideological positions could influence one’s stand on the specific issue of patient
access to medical marijuana when they wrote that
[I]t is not relevant to scientific validity whether an argument is put forth by
someone who believes that all marijuana use should be legal or by someone
who believes that any marijuana use is highly damaging to individual users
and to society as a whole. (p. 14)
In other words, it is widely believed that science should rule when it comes
to medical issues. Both sides in the medical marijuana debate claim adherence to this
principle. The House Government Reform Committee’s April 2004 hearing on
medical marijuana was titled “Marijuana and Medicine: The Need for a
Science-Based Approach.” And medical marijuana advocates plead with the federal
government to permit scientific research on medical marijuana to proceed.
Rescheduling marijuana and making it available for medical use and research
is not necessarily a step toward legalizing its recreational use. Such a move would
put it on a par with cocaine, methamphetamine, morphine, and methadone, all of
which are Schedule II substances that are not close to becoming legal for recreational
use. Proponents of medical marijuana ask why marijuana should be considered
differently than these other scheduled substances.
It is also arguable that marijuana should indeed be considered differently than
cocaine, methamphetamine, morphine, and methadone. Scientists note that
marijuana is less harmful and less addictive than these Schedule II substances.
Acceptance of medical marijuana could in fact pave the way for its more generalized
use. Ethan Nadelmann, head of the Drug Policy Alliance, has observed, “As medical
marijuana becomes more regulated and institutionalized in the West, that may
provide a model for how we ultimately make marijuana legal for all adults.”151
Medical marijuana opponents have trumpeted his candor as proof of the hypocrisy
of those on the other side of the issue. Others note, however, that his comment may
be less hypocritical than astute
150 Lester Grinspoon and James B. Bakalar, “Marihuana as Medicine: A Plea for
Reconsideration,” Journal of the American Medical Association, vol. 273, no. 23 (June 21,
151 Quoted in MSNBC.com story, “Western States Back Medical Marijuana,” November 4,