BLOGGER HTML TEMPLATE AS OF 4/15/16 BEFORE REDIRECTION TO WORDPRESS New Amsterdam Psychedelic Law Blog: February 2012

Sunday, February 19, 2012

New York City Council to vote on resolution calling on New York State to pass medical cannabis law

According to a recent story in a local paper, on Wednesday February 29 the New York City Council will vote on the resolution I described in a previous post calling upon the state legislature to pass the medical cannabis bill which Assembly Member Richard Gottfried and Senator Thomas Duane (both Manhattan Democrats) have introduced.

Gottfried has introduced a medical cannabis bill every year since the 1990s. Since then states such as Arizona, Delaware, Michigan, Montana New Jersey and Rhode Island have passed their own laws. And New Yorkers think they are progressive....

NOTE: The next Council hearing is scheduled for 1:30 pm on Wednesday, February 29. The Council website currently does not show what is on the agenda. I will confirm that the issue will be on the agenda when I find out.

If you are interested in seeing a medical cannabis law pass in New York State, you should come to the hearing at which the City Council will vote on the resolution. The resolution does not actually determine anything in the state legislature, but it is a public statement of the City Council's position and keeps the topic current in the press. If there were 50 citizens appearing to support a medical cannabis bill it would be a bigger news story. All the more if there were 100, 500, 1,000, etc.

Comments on the themes in the story

The reporter's hook in the story seems to be the NYPD campaign of dragnetting the City for black and brown men with small amounts of cannabis on their persons, which in Orwellian Newsspeak is "crime prevention." The reporter seems to be see some irony in the City Council proposing that there should be a medical cannabis bill when at the same time the police department acknowledged it has a policy of arresting 50,000 or so men after tricking into incriminating themselves, promised to end the policy and then [surprise - not] decided not to stop.

However I don't see that issue as particularly relevant to the medical cannabis bill. In the real world, race, culture, nationality, sexual identity and self-definition, and mental health models may drive drug policy, but in legal world there is a different source of causation. In the legal world, decriminalization of cannabis is not part of this conversation. Since the subject at hand is calling upon the state to pass a medical cannabis bill, we are dealing with an arcane discussion of federalism and administrative procedure, not with policing procedure and individual rights.

The article quotes statements by a spokesman for the Office of National Drug Control Policy (ONDCP) which is like the President's designated office expressing his position on drug control. There is more than enough Newspeak in these statements to last for a much longer blog post.

“We look at this as a public health issue,” explained Rafael Lemaitre, a spokesman for the ONDCP. “We believe it should go through the FDA process, because politics and ideology should be removed from decisions about medicine.”

The reality, I believe I may say plausibly, is that no one in the federal government expects ever to see anyone sponsor clinical trials of cannabis that would demonstrate to the FDA that cannabis is safe and effective, and therefore this argument is meant to say that cannabis will never be legal under federal law due to clever manipulations of that law no matter what real humans may experience subjectively.

It is an audacious statement since the federal Executive branch's own position has always been political and ideological, consistently resorting to more and more fantastic pretextual arguments as to why cannabis can never be a medicine.

Then again - have politics and ideology EVER been removed from decisions about medicine? Um, what? Abortion, assisted suicide, immunization, sterilization, quarantine, tobacco, contraception [Tuskegee experiment, anyone?].... Am I missing something here? The topic of psychoactive substances is inherently as political and ideological as any of those issues and has been since, for our purposes, the federal government between regulating them in 1914. (Considering that psychoactive implicates basic building blocks of the purpose, such as ego structure, perception, awareness, volition, and so on, I believe it is the most important of all of them, which is why I write this blog). In effect, the federal government is saying "I'm not the one with a problem - you're the one with a problem!" Has anyone here been in a bad relationship? I think it's time to break up with the federal government: the federal government has some big political and ideological problems with the idea that the unprocessed cannabis plant could be therapeutic - and it's in denial.

Further: "In a 2009 statement, ONDCP Director R. Gil Kerlikowske wrote, “The [FDA], which studies and approves all medicines in the United States, has made very clear that the raw marijuana plant is not medicine, and any state considering medical marijuana should look very carefully at what has happened in California.”

The foregoing is actually a condensed set of perversions of the truth. The first perversion is the position that the FDA can determine what is and is not a medicine. The FDA can conclude on the basis of evidence presented to it that a particular substance may be "safe" and "effective" for treating a particular condition and so may be lawfully advertised and sold in interstate commerce, but it does not decide what is and is not a medicine. I cited to Buford Terrell's description of this distinction in an earlier post. (It is the key to cannabis prohibition and features in the current lawsuit by Americans for Safe Access in the Court of Appeals for the Federal Circuit, described below.)

The next perversion is the implication that the federal drug control agencies have sat patiently and indulgently for forty years waiting for the potheads to get it together to present a coherent explanation as to why sick and dying people who want to use cannabis to help themselves should be allowed to do so. In 1972 Nixon rejected the expert report saying that cannabis should be decriminalized. In 1988 the DEA rejected its administrative law judge's conclusion that cannabis should be made medically available. In 2007 the DEA rejected its administrative law judge's conclusion that the DEA should license a second source of cannabis in the US in order to allow a clinical trial of cannabis to proceed. The most current cannabis rescheduling petition was filed by the Coalition to Reschedule Cannabis in 2002. The DEA did not issue any decision until the petitioners in April of 2011 started a lawsuit in federal court asking the court to force the DEA to issue a decision. The DEA said there was no need to hold a hearing and rejected the petition in July of 2011, after having held held the petition for eleven years and requiring that the petitioners ask for judicial assistance. Americans for Safe Access is fighting the DEA's decision in the Court of Appeals for the Federal Circuit. The foregoing is not the good-faith conduct of public servants but the desperate efforts of tyranny to retain power.

The last truth-perversion and the one that is most relevant to the City Council vote is Kerlikowske's suggestion that the the California experience is relevant to the proposed New York law. Beginning in June of 2010 I began describing the incredible and sickening depths of untruth to which New York City and State political officials were sinking in recklessly or willfully mischaracterizing the Duane/Gottfried bill. The New York bill is so far removed from California's law that the only things that they have in common is that (a) they are both written in English and (b) they both refer to cannabis ("marihuana" in New York and "marijuana" in California). It is a foregone conclusion that the argument will keep coming out in the press if the NY bill looks like it could move.

We might ask, then, what is it about the "California experience" that is relevant to New York? The experience of California and the other medical cannabis states that have been allowed to go live (remember that the New Jersey governor has prevented the opening of any dispensary for as long as possible and the US Attorney General has frightened three other states into suspending their programs) shows perhaps the opposite of what the Prohibitionists want to show: those states have survived, people are treating themselves with cannabis which they acquired in the light of day as permitted under state law, and some of the municipalities are making money.

Monday, February 13, 2012

Occupy the DEA - Trenton NJ, Thursday February 16 - while CRC storms the citadel

Apparently, this is "Medical Marijuana Week."

I didn't get the memo but I did see an announcement on the Coalition for Medical Marijuana in NJ site that there will be a protest this coming Thursday outside the Trenton NJ federal building focusing on the DEA's ruling in July of 2011 that cannabis must stay in Schedule I of the Controlled Substances Act.

There is an interesting history behind that ruling. It appears to have been prompted by the most recent petition to reschedule cannabis brought, appropriately enough, by "the Coalition for Rescheduling Cannabis" in 2002. Yes, 2002.

CRC filed its petition in 2002. In April 2011 CRC applied to a US District Court to force the DEA to issue a decision on the petition. Until there is a decision, there is nothing for CRC to challenge in court; the petition just sits there in limbo...forever. Wouldn't you know.... three months after CRC commenced an action to force DEA to issue a decision - eight years after CRC applied for a decision - the DEA issued its July 8, 2011 decision, holding (of course - this is "Permanent Prohibition" after all) that cannabis has no medical use. Now that there is a decision there is a challenge to the decision in the Court of Appeals for the Federal Circuit.

I consider this proceeding to be the key legal event of contemporary cannabis legal control. This one is where the action is.

I read CRC's brief, which is available along with the July 8, 2011, decision (published in the Federal Register) at the website of Americans for Safe Access. ASA's general counsel, Joe Elford, is identified as the author of the brief, which I consider excellent. I am waiting to see DEA's response.

Thursday, February 9, 2012

Cannabis must be radioactive or at least highly toxic

Is cannabis a medicine or a toxin?

The question is the problem. It's a false dichotomy.

The struggle at the local level

I was at Camden City Hall on Monday night for a hearing before the Zoning Board of Adjustment. The subject was the application by two property owners (under common control and owning adjacent properties) to lease space to one of two entities licensed by the State of New Jersey to operate an Alternative Treatment Center ("ATC"), i.e. a cannabis dispensary.

I couldn't stay past 8 since I needed to get back to New York at a reasonable hour and my only option was the 9 p.m. bus, so I missed testimony by opponents of the proposed dispensary. Even so, what I saw was very informative.

The narrow issue before the Board, as far I understand, was whether the Board should grant a variance for a non-conforming use in the zone in which the adjacent properties are located so that a dispensary can operate there. I know next to nothing about zoning law but as far as I could understand from the presentation by the property owners' attorney and his witnesses, a City officer had denied the initial application for approval of the lease on the grounds that he could not determine whether use of the space for a cannabis dispensary was permitted under the area's zoning. It was therefore necessary that the issue go the Board for interpretation.

As you might expect however, the case was not about a specific question of land use law. It was a referendum on the medical use of cannabis.

Camden is a small city directly across the Delaware River from Philadelphia. I had never been to Camden before Monday night but in my years of living in Philadelphia as a teenager (too) many decades ago, I understood that Camden was and is a low-income community with significant social problems. Camden's identity came out front and center during the hearing. Three of the Board members were outright hostile and dismissive to the property owners' lawyer and his witnesses. Their questions or, more commonly, their comments, indicated that they saw the proposed medical cannabis dispensary as a scheme to exploit Camden by placing a drug-dealing operation in a community that has too many drug problems already and other real problems that need real solutions, and needs a cannabis dispensary - and the attendant resale of "medicine" by "patients" to the street market - like it needs a hole in the head.

That was my first-ever land use hearing, so I was only picking things up on the fly, but I understand that there are certain factors which a zoning board must consider when evaluating an application for a variance, those being primarily the projected positive and negative impacts on the area. I assume that these factors drove the testimony presented and the questions asked, which frequently focused on proximity to transportation and the ideal nature of the location as well as whether the proposed dispensary would fit other proposed uses of the surrounding area.

What came up again and again was the point that the New Jersey medical cannabis statute is the strictest in the USA. I haven't looked at the statute for a long time because it is huge nor have I looked at the implementing regulations, which I understand are about 100 pages long - but I will go with the consensus that it is the strictest. Certification as a patient requires determination by the treating physician that no other therapy has been effective for the patient's condition. There is a cap on the THC strength in the cannabis that can be dispensed. An ATC must be a fortress, with outdoor lighting, 24-hour presence, and video cameras linked to monitors in the state capital.

Revelation: cannabis is radioactive

As I sat in the Council Chambers, I had a flash. Cannabis must be radioactive or at least highly toxic. That's the only explanation for the extreme safety precautions which medical cannabis proponents must accept.

The medical cannabis model accepts - concedes - the prohibitionist argument that cannabis is dangerous, so dangerous that it must be guarded like radioactive material lest it escape and contaminate people. It is the ludicrous image of people in white Chemical/Biological/Radiological suits handling the fissionable cannabis material through thick gloves.

This concession is fatal.

One of the angry challenges that came from Board members on Monday night was that the suburban communities in New Jersey have all denied applications to locate ATCs there and now, since they couldn't get a space anywhere else, an ATC wanted to come and take advantage of Camden. I believe that I have seen that argument expressed in the form of "environmental racism" critiques: poor communities of color are where society puts toxic materials and industries that would not be permitted to operate in more affluent locales. This may be a valid critique of land use practices in the US but - does it apply to cannabis dispensaries? Are they toxic?

Back in the summer of 2010 I offered my analysis that the great irony in the medical cannabis fiasco is that as state medical laws have become restrictive - in order to create order and stability by allowing greater participation by the state in the licensing of producers and consumers in the medical cannabis market - there has been no recognition that the market participants seek greater regulation in order to cooperate with the state and local authorities.

Instead, severe mischaracterization of these conservative laws has continued and perhaps increased. I have said before and will say again that there are only two explanations for the mischaracterizations which I have seen, for example that by New York City Special Narcotics Prosecutor Bridget Brennan and New York City Mayor Michael Bloomberg. In those cases they either (a) did not read the proposed New York medical cannabis law before they made public statements or (b) they did read the law and deliberately decided to mischaracterize it. Either of (a) and (b) should disqualify the speaker from public office but somehow no journalist challenged Brennan or Bloomberg on their obvious mischaracterizations. The attempts by medical cannabis to create more restrictive laws to allay fears seem only to encourage the opposition.

The proponents of medical cannabis have attempted to demonstrate that the cannabis will be so securely guarded that none of it can get out and fall into the wrong hands.

In doing so they have handed the argument back to prohibitionists.

A different future

The argument should be that "medical" and "non-medical" uses of cannabis are not opposites. Instead they are points on a continuum.
Some people may have acute conditions for which they need cannabis as an immediate life-saving or health-protecting intervention. Other people may need it for pain relief. Other people may use it to help relax. Other people may treat it like an intoxicant - as if it were alcohol.

The issue then is not how to ensure that cannabis, like a radioactive or highly toxic substance, only be permitted to contact people in cases of last resort; the question is how to ensure that health care providers are sufficiently familiar with cannabis and that the market of suppliers is sufficiently sophisticated that they can provide appropriate relief to people who could benefit from cannabis but might not consider using it. These considerations are not relevant to healthy adults who wish to ingest cannabis and do not need to do so for medical purposes - their use does not necessarily require medical supervision and, since cannabis is not dangerous, there is no other reason for medical supervision and controls that are stricter than those for alcohol and tobacco. There is then no longer an obsession with keeping cannabis out of the hands of healthy people and restricting its use to being a treatment of last resort.

Not every environment is appropriate for making that argument, including the Camden Zoning Board of Adjustments. However it is necessary to address head on the relationship between cannabis-as-medicine and cannabis-as-something-else, because it is fear of the latter that is interfering with the former.

As essential part of this program is discussing the safety issues in cannabis.
There is no way to advance as long as the states continue to operate on the premise that cannabis is a supremely dangerous substance, like uranium, that cannot be allowed to come in contact with anyone except in an extreme case.

In order to do all of the foregoing, it is necessary to turn the discussion around.
In response to assurances that the New Jersey Department of Health and Senior Services would monitor the ATC once it set up in Camden, Zoning Board members spoke bitterly about the State's neglect of Camden and failure to act on, for example, actual toxins in the Camden environment. Distrust of the government runs deep, especially in Camden and similarly-situated communities. US drug control should be identified as exactly the same of kind of misconduct by the government: a policy of lies, deception, willful mischaracterizations, and threats and actual acts of violence by a government bureaucracy that has assigned itself the job (supported by an equally-determined prohibitionist constituency - more on that later) of determining which truths are inconvenient and which are sufficiently ideologically correct. It should not be so difficult to take off the gloves and explain that cannabis prohibition rests on seventy-five years of propaganda. In order to do so, it is necessary to state that cannabis is actually a relatively benign substance - the Fort Knox precautions that are appearing in the state medical cannabis bills do not reflect the actual nature of cannabis and its risks but instead are concessions to the residual fears in the public and their representatives generated by those seventy-five years of propaganda and the attendant repressive mental health ideologies that both nurture and derive support from such propaganda.

I have said before that the Obama administration is looking like the Carter administration on drug policy: positive words by the administrative encouraged activists to believe that official drug policy would change, but there was no change in laws or regulations and so the tide swept back and smashed the movement. I think it is safe to say that what is happening is the result of a failure to clear out the old prohibitionist bureaucracy in 2009 (witness the appointment of Michele Leonhart as DEA Administrator) and so it continues on in its mission to prohibit cannabis forever as a permanent government-within-the-government.

If you do not pull up this weed by the roots, it will continue to grow, spread, and choke out all the other plants. Advancing state laws that account for the fear of the populace and local government by treating cannabis like uranium may have been a good idea at one time, but I believe that failing to challenge the DEA characterizations of cannabis has imperiled the survival of the medical cannabis movement and the broader cannabis law reform movement.