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Non-enforcement of Controlled Substances Act leaves medical marijuana issue unresolved

Mark Kleiman [Professor of Public Policy, UCLA]: "The Justice Department will not pursue people using or selling cannabis in compliance with state "medical marijuana" laws, even though those activities remain forbidden by the Controlled Substances Act. That policy ends more than a decade of federal efforts to overturn state efforts to make cannabis available to patients. In effect, the Attorney General has decided that although the Federal government has the power (affirmed by the Supreme Court in Gonzales v. Raich) to enforce the CSA in such cases, prudence and comity argue that it should not use that power.

In states such as New Mexico and Rhode Island, which are attempting to establish well-controlled processes to get cannabis to patients, the announcement removes the specter of Federal intervention, and may even allow providers there to establish overt growing operations rather than buying supplies from what remains a completely illegal growing industry.

In California, where the legal status of the more than 1,000 "dispensaries" remains in dispute, it may be hard to figure out which activities are actually in full compliance with state law and therefore exempt from Federal enforcement actions under the new policy.

Neither "medical marijuana" advocates nor Federal officials seem to have any interest in handling this problem correctly, by doing the clinical research required to establish the safety and efficacy of some standardized cannabis product for some specified medical condition, thus making it a prescription drug and a Schedule II controlled substance, available by prescription and sold through pharmacies. The National Institute on Drug Abuse continues to use its legal monopoly on research cannabis to obstruct the necessary studies, and the advocates so far have not been willing to spend any fraction of the millions of dollars spent on litigation and the promotion of ballot initiatives to performing research abroad, where research cannabis is easily available.

Ironically, cannabis as a prescription drug would be much less available in California than it is today. If medical need could be met though ordinary pharmacies, there would be no justification for the proliferation of retail cannabis outlets. Actual prescriptions for the drug would be much harder to obtain than the transparently pretextual "recommendations" now being issued by the bushel to any "patient" with $75 and willing to say he is "anxious" and therefore needs cannabis for the treatment of anxiety."

Mark Kleiman is the author of When Brute Force Fails: How to Have Less Crime and Less Punishment.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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