BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: July 2010

Saturday, July 24, 2010

"Rutgers University delivers strong uppercut to Governor Christie," or "The New York Times' Newspeak"

Saturday's New York Times ran a story that crystallizes into a little pill-size dose large volumes of the conceptual chaos called "drug control policy."

The title of the article is "New Jersey’s Medical Marijuana Law Loses Planned Grower and Dispensers." That is utter nonsense.
It is the famed Newspeak of Orwell's "1984." The headline is a complete mischaracterization of the story which the article tells.

Question: Why did I title this post with the aggressive and dramatic imagery of the chief executive of the State of New Jersey sustaining a very dangerous blow to the head - in contrast to NYT's bland characterization?

Answer: I recognize that it is really a war - a "Drug War" - in the sense of absolute war. It is a war in which everyone is a combatant, because it is an economic war - a war over whether cannabis may enter the free market in which we are all consumers. It is a war over whether cannabis may compete simultaneously with both (a) "medicines" and (b) mood-altering psychoactive substances such as alcohol and, more subtly, tobacco and caffeine. It is a war over whether a new legal industry may come into being - a legal cannabis industry. It is a form of anticompetitive restraint of trade created and maintained by the United States Government.

Prohibition of psychedelic therapeutics, including "medical marijuana," is a war, and Christie was doing his duty as a dedicated drug warrior faced with an unpleasant reality: he had just become governor of a state that had legalized the sale and purchase [note the free market concept] of cannabis under very narrow circumstances. The New Jersey statute contemplates that nonprofit dispensaries may grow cannabis and sell it to patients. Those are the "alternative treatment centers" to which I referred in my last post.

Private enterprise. Outrageous.

Christie decided to destroy the incipient medical marijuana program by announcing that he wanted a drastic revision to the statute - a statute which the legislature had already passed and which the previous governor had already signed into law.

First, of course, he declined to comply with the statutory requirement that his branch of government, i.e. the executive branch as represented by the Department of Health and Senior Services, draft regulations that would allow the program to come into being. Then, when the activists and patient advocates knocked on his door to ask him to explain his malfeasance, he announced that he really just intended to kill the program. How did he do that? He announced his intent to create a government monopoly on the supply of cannabis, and not only would he take supply out of the hands of the private sector but he would put it in the hands of bureaucracies that cannot in practice implement the program because of federal law.

Under Christie's plan, Rutgers University would be the sole entity that could cultivate cannabis and only hospitals could dispense it. I said, as did Chris Goldstein of Philadelphia NORML, that this plan was dead on arrival because in no way, shape. or form could universities or hospitals, as creatures hopelessly dependent on federal funding, engage in such brazen defiance of federal law and survive financially.

And thus today's NYT article reports: "But on Thursday, Rutgers announced that it would not participate for fear of losing grants from the federal government. State officials said the hospitals had the same concern." And again: Robert Goodman, the executive dean of agriculture and natural resources at Rutgers said "'it just puts too much at risk,' jeopardizing research grants, contracts, student aid or other funds from Washington." And again: "The New Jersey Council of Teaching Hospitals declined to comment, but several people briefed on the discussions said the hospitals wanted some kind of guarantee that they would not be jeopardizing federal money."

Of course they want a guarantee. And of course Christie cannot make that guarantee. And that's why the proposal was a plan to abort the medical marijuana program. Along the lines of what I have argued previously, anyone who makes that kind of proposal without reaching an informed conclusion that it is viable under federal law is either grossly incompetent and should not be allowed to remain in a position of authority or understands the consequences and seeks them.

When Rutgers University came forward and said to the media that it cannot do what the Governor wants out of a healthy fear and sense of self-preservation, it shouted that the Governor Wears No Clothes - because it was a no-brainer that the proposal was a bad joke. I assume that Rutgers needed to come forward and make the statement because no one in the Governor's Office had the common decency to come forward and admit the obvious.

NYT reports that the governor is angry about the university's decision - and of course he should be: they didn't continue to run interference for him.

Now, the more interesting comment is the report that one of the sponsors of the bill, Assemblyman Reed Gusciora, thinks that Rutgers is "'chickening out'" by not testing federal authorities' willingness to grant a waiver. That is an interesting idea - the university should enlist in the medical marijuana movement, jeopardizing its financial well-being in the name of ending federal cannabis Prohibition. That would be very valorous and self-destructive, but I sense from the article that Gusciora may not be up on the issue: the university would be violating the Controlled Substances Act by manufacturing a federally-controlled substance without being first licensed by the Drug Enforcement Administration. See 21 U.S.C. 823(a). What Gusciora seems to say is that the DEA should allow Rutgers to manufacture cannabis without going through the licensing process.

Again, I doubt that anyone has really thought the issue that much, because if they had done so they would have run across the administrative proceeding in which the Multidisciplinary Association for Psychedelic Studies has attempted to obtain DEA's permission for Dr. Lyle Craker at the University of Massachusetts to manufacture cannabis - so that MAPS can conduct the clinical trial of cannabis which the DEA says is lacking. The short version is that MAPS wanted to obtain a legal source of cannabis for use in a clinical trial. The only way for MAPS to obtain cannabis under federal law is to deal with a manufacturer of cannabis licensed by the DEA. There is only one such manufacturer, the National Institute on Drug Abuse (NIDA), a federal administrative agency in the Department of Health and Human Services; NIDA has contracted with the University of Mississippi to grow its cannabis since the 70s. NIDA won't let MAPS have any cannabis to do a clinical trial. Also, MAPS has explained that it is ultimately pointless to conduct FDA-compliant clinical trials of cannabis: MAPS cannot demonstrate that the final product brought to market will correspond to the substance tested - because the supply is in the hands of a government monopoly. The DEA administrator rejected the determination by the agency's Administrative Law Judge in 2007 that the agency should license Dr. Craker to manufacture cannabis. The government monopoly remains protected. A government monopoly on the supply of the substance. Sound familiar? Sound like Christie's plan?

That's a large part of why I think the NYT article is so disingenuous. It says "The Obama administration has stopped the practice of raiding medical marijuana dispensaries in [states that have 'medical marijuana' laws] but the Drug Enforcement Administration remains reluctant to grant permission to grow the plants, even for medical research." "Reluctant"? The DEA refuses to break the government monopoly on the supply of cannabis. That's not reluctance. That is a blockade - an act of war.

I come back to my point from earlier posts. The state medical marijuana laws are a populist uprising against federal Prohibition as embodied in the Controlled Substances Act. It is absolutely essential to avoid the federal government at all costs - you should definitely not designate only entities that depend on federal funding as the sole suppliers to the market. Someone who is going to violate the Controlled Substances Act by growing cannabis without a DEA license should at least be someone willing to assume the risk. Maybe the DEA would not want the bad press of arresting private citizens who create a corporation and get licensed by their state to grow cannabis: presumably those people are militant activists who are in the struggle because it is just, they hate tyranny, and they are ready for the fight. However, it should be much, much easier to intimidate a large institution that has depends on federal funding and has other business besides overthrowing the criminal ban on psychedelic therapy.

The NYT article closes with the statement "the plan to use Rutgers and the teaching hospitals would have given the state far more direct control over the program than the Legislature intended." Well, that's really the issue, isn't it? The statute expressly provides for the operation of not for profit corporations as growers and sellers of cannabis; the officers and directors of those corporations will assume the risk of growing cannabis without a DEA license - a risk which we can assume no sane hospital administrator or university president will take. Those corporations will be the prototype of retail sale to customers. Christie has attempted to prevent those corporations from coming into existence - first by ignoring the deadline for the state to promulgate regulations for the program and then by attempting to chain the program to the federal government, as described above. Now that Rutgers has exposed his proposal for what it is - ludicrous - the question is whether he will continue trying to impair the program or whether he will allow cannabis to be integrated into a legal market in New Jersey.

Sunday, July 18, 2010

Cannabis as alternative medicine

I have been turning over in my head recently the whole phenomenon of the "medical marijuana" movement and I conclude that it is time to discard a pernicious dichotomy.

I believe that the irony of the struggle in New Jersey resides in the statutory name of the not-for-profit corporate dispensaries which the medical marijuana statute creates and which Governor Christie seeks to destroy. The funny thing is that the statute refers to the dispensaries as "Alternate Treatment Centers." Note the language with its clear reference to the field of complementary and alternative medicine (CAM).

Those Alternative Treatment Centers are what Christie seeks to destroy through his proposal to undo the enacted statute and place all control over supply in the hands of entities that cannot possibly participate in this market for fear of losing their federal funding. It is just so funny: the legislature devised a scheme to let cannabis slip through federal prohibition by making into an alternate treatment and, in order to thwart this plan, Christie is trying to stick it back into the federal regulatory scheme that effectively governs the practice of medicine.

The tension in cannabis control is the dichotomy between "medical use" and non-medical use. Opponents of the concept of "medical marijuana" state that it is simply a front for non-medical use. However, they don't say "non-medical use." They say "recreational use." Or they say "abuse."

The inner meaning of this language is the dichotomy between medicine and intoxication. The medical/non-medical dichotomy posits what I will call an "alcohol" model of drugs - or an "intoxication" model. The image of use other than for utilitarian purposes, i.e. use that is not intended to solve an acute health problem, is visualized as a form of illicit sensation - a potentially dangerous foray into hedonism. It is a model of unjustified euphoria - a sensation not sanctioned by the authorities. But then, why should non-medical euphoria be justified when society has experienced so much of the intoxicant model, whether as exemplified by alcohol or through unsafe use of other drugs. The intoxicant model is one in which the user seeks oblivion - by consuming to excess, by consuming with the desire for stimulation or impairment to the extent of endangering self and others. The intoxicant model of use is difficult to justify to anyone entrusted with protecting the safety, health and welfare of society.

Enter the model of "alternative treatment." Instead of being a "medicine," which cannabis can't be legally because (a) it is in Schedule I of the Control Substances Act and (b) the FDA has not approved its sale in interstate commerce, or a recreational intoxicant, it is a form of alternative medicine.

This formulation opens the door to the re-characterization of cannabis as something that simply makes a person feel better. Like a painkiller. It relieves pain. Maybe it relieves stress. It could be characterized not as a medicine nor as an intoxicant but as a therapeutic agent if used under the right circumstances i.e a conducive societal context.

The therapeutic use model must contend with two dueling models: the medical model, which is the premise for drug prohibition (since any use other than medical use is criminal), and the intoxicant model, which remains the dominant model of drugs in popular culture - and remains the nightmare image of self-impairment and destruction that justifies drug prohibition. The task at hand then may be to retire the intoxicant model. This approach may be unpopular with the population that projects the model of cannabis 'inebriation,' e.g stoner culture, as a viable option, but it may be the necessary compromise with the surrounding bureaucratic culture of accounting that is charged with assessing risk and figuring out who pays for the mess caused by intoxicated people.

I would like to think that this analysis discloses a deeper stream in the Christie administration's attempt to subvert New Jersey's medical marijuana statute. It is ironic that the Governor of New Jersey has launched an attack on a statute that explicitly describes cannabis as an alternative medicine, a term that implicates an alternative paradigm of psychoactive substance use - a "third way" out of the intoxicant-prohibition impasse. This model of "therapeutic use" as an alternative to both drug prohibition and to intoxication is the real, if perhaps unintended, target of the Christie administration.

How to kill a medical marijuana system, Part II

It's a little late, I know, but the following article, published July 13, continues to illustrate the point I made earlier. New Jersey Governor Christie's proposal to revise the medical marijuana system devised by the legislature is in essence a plan to kill the system through federalism.

According to this article, the association of teaching hospitals in New Jersey has expressed a strong desire that its members should be the sole dispensers of cannabis to patients - as Christie proposed. Leaving aside the question of whether or not that characterization is true, the most fascinating aspect of this article is the assertion, about three quarters of the way down the article, that the statement by the association in favor of this arrangement admits that the association has not fully analyzed the potential problems with the federal government that the arrangement could cause.

What? No analysis as to the problems this arrangement could cause with federal regulators? Like - the DEA? Like - the Department of Health and Human Services? How could the association possibly make a statement that it would like to participate in this program without conducting such a legal analysis? Is that - what? - gross dereliction of duty by the legal counsel, officers, and directors of the association?

If this statement is true, it tells us that the State of New Jersey has no real concern with creating a functional medical marijuana program - it is proceeding without having conducted the most fundamental consideration in marijuana law: what can the federal government do to you? It instead contemplates allowing the creation of a program that could very well be inoperable from the outset - a program that cannot function since the state government has run its program right back into the grip of the federal government, a sovereign that tolerates no medical use of cannabis. Christie's plan negates the entire logic of a state medical marijuana system, which is that medical marijuana can only function when pried loose from federal control - due to the refusal of the federal government to allow it out of Schedule I of the Controlled Substances Act.

Am I missing something?

Associated Press reports cannabis shortages in New Mexico's program

My news source does not run many news stories about the situation in New Mexico, but the Associated Press just ran a story quoting a licensed cannabis producer and a patient as saying that New Mexico's licensing system is too cautious and is not adequately supplying the market. This article states that New Mexico is a national model for the state-licensed dispensary system - e.g the model for the Rhode Island, New Jersey, and New York laws; indeed, one of the first stories that ran after the first showdown with NJ Governor Chris Christie stated that the NM Department of Health confirmed that the NJ Department of Health and Senior Services had contacted it regarding NM's program. Accordingly, if there is a problem with the operation of the state that is the model for the other second-generation states, the viability of that state's model requires contemplation.

I have been saying that the trend seems to be onerous over-regulation as a means of preventing medical marijuana systems from functioning. This tactic is, at best, unfortunate since it negates what would have been a workable compromise. If the situation in California and Colorado frightens the states and localities, then the alternative is to require that suppliers get licensed before they open for business. However, if states adopt medical marijuana systems that do permit them to license suppliers, and ostensibly manage an orderly medical marijuana market, and then utilize this licensing power to prevent the effective functioning of the market, they effectively discredit further government regulation and demonstrate again why the citizenry first rose up in California against the drug war.

The next option may be to return medical marijuana entirely to the local, i.e. county, level, such that sympathetic localities permit the de facto operation of medical marijuana cultivation and dispensing. Perhaps the next step is for the citizenry of towns and counties to push their representatives to make declarations in support of workable medical marijuana supply programs.

Tuesday, July 13, 2010

More New York prosecutors grossly mischaracterize the proposed law

A new piece on ynn reports that upstate prosecutors have come out against the medical marijuana law.

There is nothing new in their arguments; indeed the recurrence of the identical arguments in every statement of opposition to the therapeutic use of cannabis [or any use, of course] ever more strongly suggests that the opposition derives its position statements, that is to say its lines, from one source. (I can only speculate it is the DEA.) There is the nonsense about the cannabis, grown in dispensaries licensed by the Department of Health, being laced with pesticides or PCP - why do we think that the cannabis grown in such facilities will be laced? Is that, like, the top shelf version of the product - the one that costs the dispensary its license and sends the operators to jail? Then there is the nonsense about more research is necessary before anyone should be allowed to use the drug because... well maybe it's so dangerous that terminal patients should not be allowed to use it... not until someone wants to come forward and put out $800 million for a clinical trial of cannabis. Perhaps there is an intrepid reporter who would like to ask why anyone would attempt to test the therapeutic uses of cannabis when the DEA has refused to license a new legal cannabis cultivator (which would break the federal government's monopoly on the legal cultivation of cannabis) that could supply cannabis for use in the clinical trial of cannabis which the Multidisciplinary Association for Psychedelic Studies attempted to conduct until it was forced to sue the DEA.

Again, when they say that more research is needed, they mean more research into the risks in allowing anyone to use cannabis ever for any purpose, not that the federal government should do the honorable thing and affirmatively FUND clinical trials of cannabis to evaluate its therapeutic utility.

The prosecutors have pumped up strongly this time the completely vacuous, nay - specious, nay - simply untrue argument that the bill will create an unregulated system. From where could they possibly have gone that idea? I addressed the essential logic of this article in an earlier post,("Save us from the doctors.") It's criminal drug prohibition at its atomic, bureaucratic level, so fascinating for us political science students: it is domination of the drug control bureaucracy, budget, and thought process by law enforcement. Don't let the doctors have control of drugs; societal collapse lurks.

You can see that position exemplified in the remarks of Mr. Fitzpatrick of Onondoga County (AKA Syracuse) when he says that the legislature failed to consult the DA's association about the bill - "the people most knowledgeable about the pros and cons of such a move." Fascinating. Why are the PROSECUTORS the people most knowledgeable about the medical utility of cannabis? Why are they the ones most knowledgeable about how to determine whether a patient is using cannabis responsibly or irresponsibly? Perhaps he means that the prosecutors are the ones most familiar with the problem of diversion. Fair enough, so on to my next question: how do licensed dispensaries, whose premises and records are open to inspection and which, under the bill, must document all their sales and report on them to the Department of Health, pose a threat to the public order by allowing seepage of legal marijuana into the illegal drug markets that is anything more than negligible?

Ultimately, all of the criticisms of the bill are just boring. It's the same set of vacuous arguments over and over. We know them all by heart now. They bear no relationship to the proposed law.

Monday, July 5, 2010

Changes to the proposed New York law

The medical marijuana bill which I described in my first post has changed as the legislative year draws to a close.

As I read the revised bill, I reach one paramount conclusion: someone in Albany is taking seriously what is happening with medical marijuana in other states.

Why do I say that? I detect in the amendments references to the statutory transformation of Colorado and to the recent controversy in New Jersey.

Fundamentally the bill is tracking the evolution of the system in Colorado (by statute) into a revenue-raising measure. In addition I believe that one of the changes may enable the state to preclude the emergence of any private sector in the supply-side of the market, as we see the Governor has attempted (will still attempt to do?) in New Jersey.

Assessment

The really big thing that stands out in the amended bill is the revenue-raising function that appears in new Section 3368. This section provides that a supplier (other than a governmental entity) pays 7.5% of gross sales to the Department of Health (DOH).

This new provision suggests to me a reference to the new Colorado statute which, in addition to placing application requirements on Colorado dispensaries and allowing local governments to ban them, provides for payments by Colorado dispensaries to the state department of revenue, which itself looks to me like a hybrid revenue-raising/medical-use bill.

Special status for entity that contracts to supply cannabis to the Department of Health

Section 3364(1-A) provides that DOH can contract with another "entity" through a "request for proposals process" to manufacture medical marijuana to sell to DOH in connection with DOH's operation as a marijuana supplier. (DOH, an administrative agency in the state government, is one of the six types of corporate entities that can operate in the supply side of the market.) It says that "an entity contracting with the department ... shall be deemed to be a registered producer when acting under that contract."

Why does this section catch my attention? Right away it contemplates that the DOH could actually function as a participant in the supply side. In my May post I opined (subtly and in other words) that that scenario was practically impossible due to the low likelihood that the state government would itself cultivate and distribute a Schedule I substance. (I actually wondered internally why that provision would be in the statute given the unlikelihood that the executive branch of the state government would secede from federal cannabis prohibition so extremely.) However, the fact that someone cared enough to add this provision suggests that someone is considering the possibility.

Next and even more interesting is the language that allows everyone and his brother to avoid the standard application process and enter the supply side of the market - they just need to apply to supply DOH with cannabis. You see, this section says that an "entity" can submit proposals to DOH for the terms on which it will manufacture for DOH. I am thinking very much of the scenario which New Jersey Governor Chris Christie proposed for his state: whereas there the governor proposed changing the regulatory scheme to make a university the sole authorized producer of cannabis and allow only hospitals to distribute, here I see the potential for the executive branch to allow only a single large corporate entity, e.g. a university, to operate as a producer and to allow only DOH to dispense to patients.

Under the standard application process as contemplated in the bill, you apply to DOH for a license to participate in the supply side of the market, i.e. manufacturing or otherwise acquiring cannabis and distributing it to the public. The process is somewhat burdensome in that you need to demonstrate a lot of things to DOH, for example that your directors are all of good moral character and not, e.g., convicted drug felons and that you have the actual capacity to keep people from stealing the cannabis and selling on the black market. (There are others; see the May article for a fuller treatment.)

However, this scheme now allows anyone to propose directly to DOH to supply cannabis to DOH - and that person will be deemed retroactively to be a registered producer (one of the six types of supply-side participants). Why does the amended bill allow an express lane to registration for an entity that contracts to supply DOH with cannabis - except to move DOH to the head of the line for dispensing? NJ Governor Christie called for the elimination of the centerpiece of that state's law: the creation of the six "Alternative Treatment Centers" i.e. corporate entities that will function analogously to retail (i.e. direct-to-consumer) distributors. Instead Christie wanted (wants?) to give the job of supplying the market exclusively to hospitals. To date, legislative sponsors of the NJ law have rebuffed Christie's efforts. I see in the proposed change to the NY bill the potential for DOH to monopolize the supply side - simply by determining that it is no longer in the public interest to register retail dispensaries when DOH can dispense and instead operate as the sole source.

Of course, that scenario was always potentially feasible under the old bill. However, the fact that someone took the trouble to spell it out in an amendment catches my attention, especially in light of what Christie tried to do to the NJ statute.

My concern is that the proposal, explicit in New Jersey and implicit in New York, that the supply side of the market be reserved to a university, a hospital, or a government agency ("Institutional suppliers" for the purposes of this post) will effectively negate the bill for as many months or years as it takes to determine whether that arrangement actually works. If only Instutions are allowed to function, and relatively nimble private sector not-for-profit corporations and for-profit wholesalers are not permitted to begin operating as soon as their applications can be improved, the market will be subject to the vagaries of the Institutions, whether intentional lethargy or timidity if they are subjected to threat from the federal government. At that point, it will be necessary to renew the debate about the proper operation of the statute and propose and negotiate statutory or regulatory revisions.
It appears to be a delay tactic to forestall the appearance of the not-for-profit corporate suppliers described in Section 3364(1)(C) of the proposed statute. I think it obvious that these "retail dispensaries" are the key element in the proposed system: they will the actors in the supply-side most likely to facilitate a viable market - and the actors that are most threatening to the people who see a threat in a legal, above-ground medical marijuana market. (See, e.g., the uninformed warnings issued by Bloomberg and Brennan forecasting the uncontrolled spread of dispensaries throughout New York City.)

I could be wrong. I just see a potential problem.

No requirement that DOH act timely on application for registration by supplier

I had not noted previously that the bill does not set any time limit within which DOH must act on an application for registration by a supplier but it requires that DOH act on an application for registration by a patient within thirty days from DOH's receipt of a complete application. See Section 3363(6). I find this provision more interesting in light of the new section discussing DOH's prospective operation as a medical marijuana distributor to patients.

Further, I don't see any date by which DOH must promulgate regulations and application forms for the patients and suppliers. Hmmm.

Circumscribing the "public interest" factor

I commented previously on the far-reaching potential of allowing DOH to consider the completely undefined "public interest" in deciding whether to deny an application for registration by a not-for-profit dispensary. New Section 3365(2)((V) specifically states that in evaluating whether granting an application would be in the "public interest," DOH may "consider whether the number of registered organizations in an area will be adequate or excessive to reasonably serve the area...." That seems to me a potentially useful clarification or, at a minimum, suggestion.

Thursday, July 1, 2010

Save us from the doctors

A recent op-ed in the Times Union (Albany) demonstrates the essential logic of the camp arrayed against therapeutic uses of psychedelics: society must be protected from the doctors. Keep control over psychedelics in the hands of the police.

The op-ed calls for all reasonable men to oppose the proposed medical marijuana law because of the clear and present dangers which it poses to society. Again, as stated in previous posts, a minimal familiarity with the law reveals that the arguments presented are utterly irrelevant to the proposed regulatory scheme.

The op-ed recites the standard litany of reasons to make sure that no one ever uses cannabis for any reason under any circumstances - it is simply too dangerous for society to withstand. Witness Los Angeles - everyone knows that Los Angeles has descended into chaos due to the onslaught of medical marijuana dispensaries. The Los Angeles city government is finally taking action to protect the citizenry. New York should avoid that horrific experience entirely.

The op-ed is most perplexing in its disregard for the actual mechanism of the proposed law because the author, Mr. Turetzky wrote as a representative of the Respect for Law Alliance, which is composed of extremely distinguished personages, including some very distinguished members of the judiciary. I would be extremely disappointed to believe that they, as accomplished jurists, could in good conscience have approved the legal reasoning which the Alliance has taken publicly.

There are the standard arguments that appear everywhere: marijuana is a gateway drug, it is dangerous to the lungs and brain, it is more potent than in the past, and it needs to be studied more before anyone should be allowed to use it. [Incidentally, the 'needs more study' position does not necessarily mean 'assess whether it has therapeutic potential and, if so, what kind' - if the federal government had wanted to do such studies, it would have appropriated money to conduct them long ago; the studies in question presumably focus on addictive potential and toxicity.]

However, there are some truly fascinating and revealing arguments that appear in the context of the op-ed's total ignorance of the actual elements of the proposed law. This author believes that the most telling complaint is that:
"Contrary to the allure of a potential huge new source of tax revenue from the legal sale of cannabis, legalizing medical marijuana will shift the burden of monitoring its safe manufacture and distribution to the state Health Department."

Shift the burden to the state Health Department? YES! EUREKA! THAT'S THE WHOLE POINT OF THESE LAWS. The fundamental point of the state medical marijuana laws is to shift oversight away from the police - or at least to distribute the wealth of regulatory authority and its attendant funding.

I would re-characterize what is colloquially called "Drug Prohibition" as an expression of a fundamental distrust for the healing professions. Students of drug control history know that federal drug prohibition in 1914 commenced a war against physicians over their prescription practices with regard to opiates. The federal Controlled Substances Act vests authority over psychoactive substances in the Department of Justice, i.e. the federal police, not the federal doctors in the Department of Health and Human Services. Marijuana resides in the police part of The State.

The op-ed in its totality, as did NYC Special Narcotics Prosecutor Bridget Brennan's recent statement, reduces to the implicit claim that the New York State Department of Health is incompetent and cannot administer a medical marijuana program.
It states explicitly that the bill will shift the "burden" (i.e. budget and authority) of regulation to the Department of Health; since there is no expressly-stated reason why this shift would be bad we must assume that there is some inherent evil in this shift in authority. (The immediately following statement that "The federal Food and Drug Administration will not participate in testing and monitoring the safety of an illegal drug" deserves its own extended treatment, but suffice it to say for the moment that obviously if the law passes then cannabis will not be an "illegal" drug for purposes of state law, and the federal government has always been free to move cannabis out of Schedule I of the Controlled Substances Act, at which point, when and if the US government will allow someone to sponsor randomized double-blind clinical trials of cannabis, the FDA will be able to regulate away to its heart's content.)

i get a certain thrill in seeing the recurrence of complete mischaracterizations of the mechanism of the law and inappropriate comparisons with the laws of a different state - and understanding that the Emperor Wears No Clothes: there really is no substantive argument on the other side. Complete and presumably knowing mischaracterization is the sole weapon of the opposition.

Perhaps the most interesting aspect of the op-ed is the multifaceted complaint about the practice of medicine: (a) cannabis will not be dispensed pursuant to a valid prescription, (b) there will not be any examinations of patients by physicians in good standing, and (c) there will be no guidance as to what constitutes a valid medical condition.

(1) Obviously there will be no dispensing of cannabis with a valid prescription - that's the whole point of Schedule I: no physician may write a prescription for a Schedule I substance and no pharmacist could fill such a prescription. That's why there are STATE medical marijuana laws, folks. Federal law prohibits prescriptions for cannabis, so the states need to sneak around the federal prohibition.

(2) The assertion that there will be no examination of patients by physicians in good standing must rely on some sort of prophecy. Why will there be no examination of patients by physicians in good standing? Even if many or all of the physician examinations of patients [not preparatory to writing a prescription, of course, but only to "certify" the physician's professional option as to the utility of cannabis for that patient] do not comport with the standards for the legitimate practice of medicine, why is the Department of Health incompetent to intervene and take appropriate disciplinary action, as it does in any other case of physician misconduct? Because the health care bureaucracy is fundamentally incompetent and cannot be entrusted with managing this threat to the public safety and welfare? Maybe the Department will just need more funding in order to administer the program.

(3) The best, the absolute best one of them all, is the complaint that there is no guidance as to what is a valid medical condition - i.e. one which cannabis can legitimately treat. Let us leave aside the clear implication of this position that there is in fact some medical condition for which cannabis is a valid treatment. Let us turn to the bigger question: is this not why we have doctors? Do we not trust doctors to assess what would be an appropriate therapeutic intervention for a given condition?

No, we don't. That's the root of the "War on Drugs," AKA "Drug Prohibition," AKA zero tolerance for illegal drug use - what makes drug use "illegal" is a decision by the police as to what constitutes a valid medical use of a drug.

The op-ed continues to misconstrue the proposed law entirely, by claiming that dispensaries will spring up out of control, like in Los Angeles - when actually the law is a conservative approach that requires licensing of distributors before they open for business, like a pharmacy or a liquor store. The Department of Health will be the gatekeeper that grants or denies an application for a license. This regulatory scheme is the exact opposite of the scheme that exists in California. As with the comments by Bloomberg and Brennan, this position expresses either complete ignorance of the terms of the proposed law or a willful mischaracterization - but there is one other possibility. It may be that this position does not express ignorance. Instead it expresses an opinion - the Department of Health will issue licenses inappropriately. The obvious implication is that the Department of Health is incompetent to administer the statute and control over cannabis must remain exclusively in the hands of the police.

It is a sad situation if the directors of and advisors to the Respect for Law Alliance have indeed endorsed a position that operates by completely misrepresenting the operation of the proposed law. It is an even sadder situation if these distinguished persons, including state and federal judges, are saying that the medical profession cannot properly assess and regulate the medical use of drugs and so drug control should be in the hands of police so that they can save the populace from the doctors.