October 19, 2009 – The Justice Department announced today that federal drug agents will no longer arrest or prosecute people who are legally using, selling or supplying medical marijuana in the states that allow it.

“It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana,” Attorney General Eric Holder said in a statement when he released the new guidelines. But, Mr. Holder said, “we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal.”

How significant is the change in federal drug policy? What will the new guidelines mean for local and state law enforcement?

A Muddier Federal Role
Picture 29Tom Riley-Tom Riley was associate director of the White House Office of National Drug Control Policy from 2001 to 2009.

The new policy announced on medical marijuana can be broken down into two parts. The first of these is not really “new” and the second is not really “policy.”

First, Attorney General Holder announced that it would no longer be a “priority” for the federalPicture 31 government to prosecute patients with serious illnesses. But that has never been a priority of federal law enforcement, which has been focused on people engaged in the cultivation and trafficking of significant quantities of illegal drugs. Let’s not be conned here: The average quantity of marijuana that someone is in federal prison for marijuana possession is over 100 lbs.

That is not “personal use,” nor is it Granny getting locked in the slammer for puffing a few joints for “medical” purposes. Leaving aside the wisdom of determining medical policy by ballot measure rather than by science, keeping the federal law enforcement focus on drug trafficking is nothing new — it is a continuation of the Bush and Clinton administration policies.

Second, the memo itself is internally conflicted to the point of incoherence. While ostensibly encouraging prosecutors to defer to state and local laws on marijuana, it also recognizes that federal “interest” can still allow the feds, at their discretion, to step in and prosecute. In fact, federal law remains completely unchanged.

The memo specifically states that the new policy should not be interpreted to mean that medical marijuana has been legalized, and that it does not provide a legal defense against federal prosecution. Moreover, it states that even if an individual scrupulously complies with state laws, they still may be subject to federal prosecution.

The gap between the headlines and the reality can only lead to further confusion. California municipalities are struggling with an explosion of store-front pot shops and grow operations. The new federal “guidelines” make the federal role muddier, and may send a green light to cultivators and traffickers who have been cynically using the “medical” label.

A Victory for Common Sense
Picture 30Richard N. Van Wickler-Richard N. Van Wickler is the Cheshire County superintendent of New Hampshire Department of Corrections and a member of Law Enforcement Against Prohibition.

The announcement by the Obama administration to not use limited resources to target states that allow the use of medicinal marijuana, and the citizens who use them, is a significant victory for common sense.

One case in point is California, which has built 21 new penitentiaries in a five-year period. Picture 32
The state should get some relief from the no fewer than 200 raids by federal officers on state-approved medicinal marijuana cooperatives — a significant acknowledgment of compassion for the sick and respect for the autonomy of our individual states. The change shines a new light on the horribly failed drug war.

Citing limited federal resources as a principal reason not to pursue state-approved medicinal marijuana cooperatives is only one of many excellent reasons why our country must change course. Considering that 83 percent of property crimes and as much as 40 percent of violent crimes are unsolved in our country, it seems that what resources we do have could be much better utilized. If preventing crime, reducing disease and addiction rates, and reducing violence and needless death are goals of this administration with respect to the drug war, then an exit strategy is urgently needed on this failed war.

But Is It Effective?
Picture 34Henry I. Miller-Henry I. Miller, a medical doctor, is a senior fellow at the Hoover Institution. He was an official at the Food and Drug Administration from 1979 to 1994.

As an “exercise of investigative and prosecutorial discretion,” in the words of the Department of Justice, this decision is understandable — and even welcome — but it is not altogether satisfactory. Arguably, if marijuana has therapeutic potential, it should be required to pass scientific and regulatory muster like any other medicine.

We have considerable experience with making drugs from the opium poppy, for example, butPicture 33 we don’t authorize patients to smoke opium for medical purposes; rather, we require that opiate products, including morphine for analgesia and paregoric for diarrhea, be standardized and quality-controlled by composition and dose, fully tested, delivered in an appropriate manner, and shown to be safe and effective. Why should marijuana be any different?

A promising and rational alternative to smoked marijuana is a marijuana-derived drug called Sativex, formulated as a mouth spray, which has been approved in Canada for the treatment of neuropathic pain associated with multiple sclerosis and is in advanced clinical trials for muscle spasticity, intractable pain and other uses. Unlike crude marijuana, its purity and potency can be standardized.

Patients who are genuinely in need deserve safe and effective medicines, and rigorous testing and oversight are the best ways to provide them.

Hypocritical Foolishness
Picture 36Joseph McNamara-Joseph D. McNamara, a retired deputy inspector of the New York Police Department and former police chief of San Jose, Calif., is a research fellow at the Hoover Institution, Stanford University.

I never smoked a cigarette in my life, let alone a reefer. It’s not that I was a puritan. Like the overwhelming majority of my fellow cops, I thought it manly and cool to consume my share of beer and booze.

But as a veteran of more than 30 years in law enforcement, I always thought it hypocritical Picture 35foolishness to bust 700,000 to 800,000 Americans a year for pot, and especially ridiculous to get excited about sick people smoking marijuana because they believed accurately or mistakenly, that it helped ease their pain.

I’m not inclined to enter the endless debates between crusading zealots against marijuana and those who cite contrary evidence that marijuana is a relatively harmless drug. I am convinced, however, that if you must be a heavy drug user, you’re far better off smoking pot than, say, playing the dangerous, insane drinking games common among our high school and college kids, and excessive alcohol consumption by older heavy boozers.

In my mind, the question should focus on the societal costs of arresting someone for using certain substances we disapprove of, and consequently giving them a criminal record that can damage their lives and turn them into career criminals. If Misters Clinton, Bush, or Obama, and countless other successful people had been busted for their youthful flirtation with drugs most would have been stigmatized and suffered irreparable career harm. The learning moment here is that there is a terrible human cost to arresting someone, which must be balanced against the harm it supposedly prevents.

Additional costs of the violence, corruption, and other crimes associated with prohibition never seem to be included in estimated costs of drug war policies. For example, the use of scarce police, court, and correctional resources, and the disproportional mischief that aggressive arrest tactics impose on minorities tilt the already out of balance price tag for our irrational policy of unnecessarily criminalizing widespread conduct. Why is a free society so terrified of trusting adults to make responsible decisions?

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