Controversy over medical marijuana? Or, just an excuse to talk?

Posted on January 9, 2012 by Carl Olsen

Over the week­end, there was quite a ruckus over whether folks should sup­port legal­iza­tion or med­ical use of mar­i­juana, as if there was some prob­lem with folks sup­port­ing one or the other, or both.  You can fol­low the dis­cus­sion at CelebStoner.com and TokeOfTheTown.com if you’d like to fol­low along.  I’m post­ing my com­ments here to memo­ri­al­ize my thoughts.

I’m won­der­ing why Cal­i­for­nia hasn’t sued Eric Holder for main­tain­ing mar­i­juana in a cat­e­gory that says it has no accepted med­ical use in the United States.  It has accepted med­ical use in Cal­i­for­nia and Cal­i­for­nia is a state and Cal­i­for­nia is in the United States.  I think the state offi­cials in Cal­i­for­nia are respon­si­ble for the mess there and they need to be sued for fail­ure to defend the state med­ical mar­i­juana law at the fed­eral level.  Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), says med­ical use is deter­mined by state law­mak­ers, not by the U.S. Depart­ment of Justice.

I would say that gov­ern­ment offi­cials don’t do any­thing vol­un­tar­ily, par­tic­u­larly if there might be some dif­fi­culty involved.  Since the case I’m refer­ring to, Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), took a fed­eral law suit and law suits costs money, I don’t think you have to look any fur­ther for a the­ory as to why Cal­i­for­nia has not done this.  That’s why it will take a cit­i­zen to file a law suit in state court against the state for fail­ure to do every­thing within its power to pro­tect med­ical use by the cit­i­zens.  Cer­tainly, demand­ing mar­i­juana be removed from fed­eral sched­ule I is within the state’s power and right as a state in the United States (since the cri­te­ria for keep­ing it in sched­ule I is that it must have no accepted med­ical use in the United States).  I don’t see this hap­pen­ing with­out a peti­tion for writ of man­damus filed by Cal­i­for­ni­ans in state court against state offi­cials.  The title of the case would be John Doe v. Cal­i­for­nia (John Doe being who­ever files the case).  The ACLU should do this for the cit­i­zens, but I’m sure they won’t.

Just to give you an exam­ple, I filed a peti­tion with the Iowa Board of Phar­macy to remove mar­i­juana from sched­ule I and they rejected it with­out even con­sid­er­ing it. I sued them and won. After I won, they held months of pub­lic hear­ings and ruled unan­i­mously that mar­i­juana should be removed from sched­ule I. The money for the hear­ings came out of their own oper­at­ing bud­get. They won’t do some­thing like that vol­un­tar­ily. You have to sue them. In Cal­i­for­nia, your phar­macy board has no author­ity to reclas­sify, so you would have to sue the state directly as I am cur­rently doing here in Iowa.

All 16 states that have accepted the med­ical use of mar­i­juana accept it in it’s nat­ural plant form, not as a phar­ma­ceu­ti­cal pre­scrip­tion drug.  The trend is not going toward a takeover by cor­po­rate phar­ma­ceu­ti­cal com­pa­nies.  This is a good thing.  Any­one who doesn’t sup­port this trend is no friend of legalization.

Yes, NORML, legal­iza­tion would be good for patients.  Why don’t you go do that for them?

The amaz­ing this is that while NORML blast the med­ical mar­i­juana com­mu­nity, NORML is cur­rently work­ing to have mar­i­juana trans­ferred to sched­ule III, IV, or V of the fed­eral Con­trolled Sub­stances Act.  What is that all about?

Make Mar­i­juana Legal For Med­ical Pur­poses: Help Put Mar­i­juana Resched­ule Peti­tion Before Pres­i­dent Obama by Allen St. Pierre, NORML Exec­u­tive Direc­tor Octo­ber 4, 2011

What NORML never tells you is that all 16 states that have accepted the med­ical use of mar­i­juana have failed to sue Eric Holder for keep­ing mar­i­juana clas­si­fied as a sub­stance with no accepted med­ical use in the United States. The United States Supreme Court made it abun­dantly clear in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006) that states decide what is and is not accepted for med­ical use, not the fed­eral gov­ern­ment. NORML’s legal com­mit­tee just doesn’t get it, or is hid­ing it for some reason.

There’s a rea­son the fed­eral gov­ern­ment is crack­ing down on large-scale man­u­fac­ture and dis­tri­b­u­tion — because the state offi­cials have com­mit­ted trea­son by fail­ing to rep­re­sent the peo­ple who elected them to enforce the state laws.

Col­orado is ask­ing the DEA to put mar­i­juana in Sched­ule II with­out a shred of evi­dence to back it up. The let­ter was one page. The let­ter says the Col­orado Leg­is­la­ture thinks mar­i­juana “may have poten­tial” med­ical use. The Col­orado Con­sti­tu­tion says mar­i­juana “is” med­i­cine. It’s trea­son for any state offi­cial to say mar­i­juana “may have” when the con­sti­tu­tion says “does have.” How the cit­i­zens of Col­orado are let­ting these state offi­cials com­mit trea­son is beyond belief.

Your con­sti­tu­tion in Col­orado does not say “may have.” It says mar­i­juana is med­i­cine. Your leg­is­la­ture has enacted an uncon­sti­tu­tional law that says “may have” and you’ve just con­sented to it. You’re free to give up your rights, but not all of us play that way.

Med­ical mar­i­juana is not a pre­scrip­tion drug. It isn’t pre­scribed in any state where it’s legal for med­ical use. Peo­ple who make the argu­ment that it’s just a pre­tense for cor­po­rate con­trol by the phar­ma­ceu­ti­cal com­pa­nies aren’t look­ing at the facts. The fact is the plant is most use­ful in its nat­ural form and the laws in 16 states that have legal­ized it for med­ical use all reflect that fact. Mar­i­juana does not belong in Sched­ule I, but it also does not belong in Sched­ules II, III, IV, or V because those sched­ules all con­tain pre­scrip­tion drugs. So, med­ical use does lead to legal­iza­tion. The fact that mar­i­juana is cur­rently clas­si­fied as “good for noth­ing” is the prob­lem and med­ical mar­i­juana is the solu­tion because it proves mar­i­juana is “good for some­thing.” The fact that NORML and its friends are unable to have fun, or what­ever “recre­ational” use means, is just not a com­pelling argument.

Now, the real ques­tion is why the large scale man­u­fac­tur­ers and dis­trib­u­tors haven’t sued their state offi­cials for fail­ure to rep­re­sent the will of the peo­ple and sue Eric Holder for fail­ing to remove mar­i­juana from it’s cur­rent clas­si­fi­ca­tion as hav­ing no accepted med­ical use in the United States.  It’s like they want the fed­eral gov­ern­ment to keep mar­i­juana clas­si­fied as hav­ing no accepted med­ical use in the United States.  The doc­u­men­tary on the National Geo­graphic chan­nel last month “Mar­i­juana Gold Rush” actu­ally made this argu­ment that as long as it remains ille­gal under fed­eral law, high risk investors can make a lot of money from it.  What a shame.

This lat­est round by NORML reminds me of com­ments Scott Imler made sev­eral years ago that got quoted over and over again by the drug war­riors. My prob­lem with Cal­i­for­nia is that the state offi­cials have not filed against the U.S. Attor­ney Gen­eral for main­tain­ing mar­i­juana in a clas­si­fi­ca­tion that says it has no accepted med­ical use in the United States.  Cal­i­for­nia is a state and it’s in the United States. When I read the deci­sion in Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), it became clear to me that accepted med­ical use is defined by state law, not by the 8 fac­tors in 21 U.S.C. 811©. The DEA can not put mar­i­juana into any of the other four sched­ules, because it isn’t being sold inter­state and it isn’t being pre­scribed. That would leave it com­pletely unsched­uled, which is exactly where it should be.

I think NORML’s com­ments have stim­u­lated an impor­tant dis­cus­sion.  On the one hand, the med­ical cannabis indus­try could pro­vide much needed resources to get the states to demand fed­eral reclas­si­fi­ca­tion.  On the other hand, they prob­a­bly won’t if they’re just in it for the money.  We cer­tainly need to expand pro­duc­tion and dis­tri­b­u­tion, but it can’t be done by sim­ply chang­ing state law.  Fed­eral law also has to be changed before it will work.  So, NORML has a point worth con­sid­er­ing, even it wasn’t artic­u­lated very well.

So, yes, we need a med­ical cannabis indus­try, but, no, the model we are see­ing develop is severely flawed. The main point I would take issue with NORML over is the idea that cannabis con­sumers just can’t have any fun unless mar­i­juana is legal. Who is going to get all teary-eyed about that? Med­ical cannabis is going to result in full legal­iza­tion, not the other way around. NORML needs to get its pri­or­i­ties in order.

Let’s just take Har­bor­side Health Cen­ter for an exam­ple.  They gross over $20 mil­lion per year.  They just got hit with a $2.5 mil­lion IRS tax levy because mar­i­juana is fed­er­ally clas­si­fied as a sub­stance with no med­ical use in the United States.  But, it has accepted med­ical use in Cal­i­for­nia, which is a state in the United States.  Has Cal­i­for­nia ever sued the U.S. Attor­ney Gen­eral, like Ore­gon sued John Ashcroft for try­ing to inter­fere with it’s state assisted sui­cide law?  No.  Has Har­bor­side sued Cal­i­for­nia for fail­ure to sue Eric Holder?  No.  What’s going on is some kind of rela­tion­ship between Cal­i­for­nia and Har­bor­side that makes it incon­ve­nient for Har­bor­side to sue Cal­i­for­nia, so the prob­lem just doesn’t get fixed.  Cal­i­for­nia should be pay­ing that $2.5 mil­lion IRS tax levy for Har­bor­side, but Har­bor­side is com­pro­mised because Cal­i­for­nia allows it to exist in the first place.

With the health ben­e­fits of juic­ing cannabis being revealed, we need large scale pro­duc­tion and dis­tri­b­u­tion, and the cur­rent dis­pen­sary model just isn’t going to fill that need.

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15 Responses to Controversy over medical marijuana? Or, just an excuse to talk?

  1. hoam rogh says:
    January 9, 2012 at 8:11 pm

    nice new web­site, carl. How much is the fil­ing fee in CA? Maybe we should host a webathon for the patient. A raf­fle to gin up legal fees for it. Pass­ing the plate if you will.

    Reply
  2. Carl Olsen says:
    January 9, 2012 at 8:18 pm

    It’s eas­ier get­ting the money than it is find­ing some­one who is com­pe­tent to do it. I have some folks work­ing on this in other states and it’s not easy. I’ve been study­ing this issue for the past 30 years and it’s dif­fi­cult for peo­ple to under­stand how it works when they haven’t been look­ing at the whole thing that long. I started fil­ing civil cases and admin­is­tra­tive peti­tions back in 1983 and I spent about 4 years study­ing law prior to that. I lived at 43 Star Island in Miami Beach and talked to all the lawyers we had pass­ing through that yard. After the lawyers would leave, I’d run down to the Dade County Law Library or the Uni­ver­sity of Miami Law Library and read the cases they were cit­ing in their briefs. While I was in prison in Tal­la­has­see, my job was run­ning the prison law library. When I got out in 1986, I got a para­le­gal degree from the local com­mu­nity college.

    Reply
  3. hoam rogh says:
    January 9, 2012 at 11:12 pm

    Do you think a forums style web­site could coor­di­nate would be fil­ers with the nec­es­sary infor­ma­tion? Pro se lit­i­gants could have access to crowd sourced theories.

    I wrote books in law school and was told to go to class and study, or else I would fail. Then I learned about the whole mar­i­juana law thing and thought it fascinating.

    Reply
    • Carl Olsen says:
      January 10, 2012 at 6:05 am

      I have friend build­ing a forums style web­site right now. I think he’s call­ing it descheduling.com. If I thought that was use­ful, I would have done it myself. On the other hand, it might be use­ful if he has time to run it and not so use­ful if I tried to do it with­out hav­ing time to do it. I’ve got sev­eral web sites and most of them don’t have any place for peo­ple to leave replies. They just have moun­tains of infor­ma­tion on them, which is where peo­ple can go to do the research. So, the research comes first and then the dis­cus­sion on it. The one thing I’ve found from mod­er­at­ing group lists is that you get peo­ple with unin­formed opin­ions call­ing you names and it just turns into a mess. I’m not look­ing for answers any more. I have them.

      Reply
  4. Josh Schimberg says:
    January 10, 2012 at 9:38 pm

    NORML has filed suit against the Fed­eral Gov­ern­ment many times over the years:

    NORML files suit against Feds in response to Med­ical Mar­i­juana Crack­down:
    http://norml.org/pdf_files/brief_bank/El_Camino_v_Holder_PR.pdf

    Coali­tion of groups, includ­ing NORML, file suit seek­ing to force the DEA to act on resched­ul­ing peti­tion:
    http://blog.norml.org/2011/05/23/advocates-file-lawsuit-demanding-federal-government-assess-medical-value-of-cannabis/

    NORML filed a sim­i­lar resched­ul­ing peti­tion with the DEA in 1972, but was not granted a fed­eral hear­ing on the issue until 1986. In 1988, DEA Admin­is­tra­tive Law Judge Fran­cis Young ruled that mar­i­juana did not meet the legal cri­te­ria of a Sched­ule I pro­hib­ited drug and should be reclas­si­fied. Then-DEA Admin­is­tra­tor John Lawn rejected Young’s deter­mi­na­tion, a deci­sion the D.C. Court of Appeals even­tu­ally affirmed in 1994.

    A sub­se­quent peti­tion was filed by for­mer NORML Direc­tor in 1995, but was rejected by the DEA in 2001.
    http://americansforsafeaccess.org/downloads/CRC_Writ.pdf

    So, what pri­or­i­ties are you say­ing they need to “get in order”??
    Please respond, and regards,.

    Reply
    • Carl Olsen says:
      January 10, 2012 at 10:32 pm

      NORML needs to read Gon­za­les v. Ore­gon, 546 U.S. 243 (2006). That case explains “med­ical use” is deter­mined by state law, not by the U.S. Depart­ment of Jus­tice. Since med­ical use is deter­mined by state law, then a state has to sue the U.S. Depart­ment of Jus­tice, which is exactly what Ore­gon did when it sued John Ashcroft. It’s just that simple.

      In every case you’ve cited, NORML is suing the fed­eral gov­ern­ment instead of a state. The right to use mar­i­juana as med­i­cine is cre­ated by the state. The state is a state in the United States. In order to chal­lenge marijuana’s clas­si­fi­ca­tion as hav­ing no accepted med­ical use in the United States, a state must make the argu­ment, not NORML. NORML can­not skip the state and go directly into fed­eral court with­out suing the state first. The state should be suing the fed­eral gov­ern­ment. That’s what Gon­za­les v. Ore­gon, 546 U.S. 243 (2006), is about. There are other cases like it. The state has to defend the state law at the fed­eral level. That’s how this par­tic­u­lar law was written.

      Reply
  5. Joe says:
    January 11, 2012 at 5:29 pm

    Carl,
    great stuff! Though I have no legal (and very lit­tle his­tor­i­cal) sense of the conun­drum, it sounds like you’re on to some­thing here.
    As a CO res­i­dent, I have sus­pected the type of “rela­tion­ship” you describe (between the dis­pen­saries and the state) from the get go, and sus­pect that it’s mostly about $money$
    *I espe­cially like your pho­to­graph on the header… Iowa Cap­i­tal reflected on the glass…
    Peace

    Reply
  6. David L. Marsh Sr. says:
    January 12, 2012 at 9:38 am

    Carl,

    Why is it so dif­fi­cult for the cannabis com­mu­nity to under­stand this? Great arti­cle and new website!

    Reply
    • Carl Olsen says:
      January 12, 2012 at 9:49 am

      There are two rea­sons I can think of. First, the argu­ment sounds too sim­ple. Mar­i­juana has accepted med­ical use in the United States because it has accepted med­ical use in 16 states. Peo­ple can’t fig­ure out why that hasn’t already trig­gered rescheduling/descheduling, so they just assume it (the phrase “in the United States”) doesn’t mean what it says or say what it means. Sec­ond, peo­ple think elected offi­cials will spend money with­out the money being specif­i­cally appro­pri­ated for that pur­pose. Sim­ply enact­ing a state law that says mar­i­juana is med­i­cine doesn’t cover the cost of mov­ing it for­ward at the fed­eral level. Some gov­ern­ment bureau­crat is going to have to file the paper­work, and that per­son gets paid a salary.

      I could go even deeper and talk about the mar­i­juana user cul­ture which really has no respect for the law to begin with. That cul­ture seems to think the law will change if enough peo­ple break it, which may have some valid­ity but the cost to users and their fam­i­lies is just too high for me to pro­mote that strat­egy. It’s seems like it’s okay as long as it’s the other guy, but when one of them gets popped, they think some­one should come to their res­cue. I can’t tell you how often my phone rings with some­one ask­ing me for legal assis­tance because they or a fam­ily mem­ber has been arrested. Its always frus­trat­ing. I tell them to have their lawyer or pub­lic defender con­tact me, but I never hear back from the attorney.

      I’ll blog about this in more detail soon when I write about the U.S. Attorney’s Jan. 10, 2012, response to NORML’s request for a fed­eral injunc­tion in Oak­land, CA. My case in U.S. Dis­trict Court here in Iowa is cited on page 16 of that response.

      Reply
  7. Rx Mary Jane says:
    January 12, 2012 at 12:41 pm

    Excel­lent arti­cle. Thanks for the fresh per­spec­tive. I under­stand your point, but am weak on the details. Could this be han­dled as a class action suit by patients? Or is it bet­ter to come from within the industry?

    Reply
    • Carl Olsen says:
      January 12, 2012 at 12:46 pm

      I’m guess­ing the indus­try doesn’t set aside any fund­ing for it, or they don’t want to make it legal at the fed­eral level because it would increase com­pe­ti­tion from busi­nesses that won’t touch it now. So, yes, I think a class action on behalf of patients would be appro­pri­ate. I’m not sure where the fund­ing would come from, so that’s prob­a­bly a big obstacle.

      Reply
  8. Luke says:
    February 2, 2012 at 1:23 pm

    I’ve been lis­ten­ing to your videos for a while. I think you are really on to some­thing. Thanks for all you do. I think it strange that the lat­est med­ical bill in Mary­land, HR 15, doesn’t have any men­tion of remov­ing it from sched­ule 1. I would guess other pro med­ical bills in other states are the same way. If it passes, how is that con­flict resolved? It doesn’t make sense to leave resched­ul­ing out of state med­ical bills.

    Mary­land has much the same sched­ule 1 clas­si­fi­ca­tion as the fed­eral. I looked it up. But I’m not a lawyer or para­le­gal. The Depart­ment of Health and Men­tal Hygiene admin­is­trates it. Sub­stances can be added after the Admin­is­tra­tive Pro­ce­dures Act. Any­thing added at the fed­eral level is added at the state level unless the Depart­ment objects. It doesn’t say any­thing about how to remove something.

    What about a strat­egy where the peo­ple con­tact their state con­gress per­sons ask­ing that mar­i­juana be removed from sched­ule 1? It seems to me, in my lim­ited under­stand­ing, that the state con­gress has the power to over­rule any admin­is­tra­tive pro­ce­dure and just do it. By pass­ing a law, that is signed by the gov­er­nor or over­rules his veto.

    Reply
    • Carl Olsen says:
      February 2, 2012 at 5:26 pm

      The bot­tle­neck is state offi­cials. State offi­cials in 16 states that have accepted the med­ical use of mar­i­juana should be demand­ing that U.S. Attor­ney Gen­eral Eric Holder remove mar­i­juana from its cur­rent clas­si­fi­ca­tion as a sub­stance with no accepted med­ical use in the United States. Because not one state has state offi­cials mak­ing this demand, patients and care­givers are in vio­la­tion of fed­eral law. The sim­ple solu­tion is to sue the state offi­cials for fail­ure to stand up for the peo­ple. A state leg­is­la­ture could do it, but that seems harder than fil­ing a civil case in state court. I’m suing the state I live in. I’d be dead and buried before the Iowa Leg­is­la­ture did any­thing about this.

      Reply
  9. Mike Wiley says:
    May 2, 2012 at 9:35 pm

    Inter­est­ing con­ver­sa­tion with you today. Appre­ci­ate your tak­ing the time to chat. Just came across this site and some­how knew after the first 2 para­graphs I would find your name at the top when I scrolled back up. New ques­tion. Is there any way I can help you in any way, shape or form? Your argu­ments are so sim­ple and so clear on point its amaz­ing. My cell is 712–450-0156. Best way to catch me is email or text as away from phone alot.
    I would like to for­ward your infor­ma­tion to my sons pub­lic defender and if she does not con­tact you. I will prob­a­bly hire some­one who will. Mike Wiley

    Reply

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