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A Quick Look: Marijuana Law, Then and Now March 25, 2015

Exaggeration, misinformation, and ignorance have been at the heart of federal policy on medical marijuana since the start. In 1937, Harry Anslinger, the head of the Federal Bureau of Narcotics, testified in a congressional hearing that marijuana caused “criminal insanity” and could create a “homicidal mania” in a single use. Of course, Mr. Anslinger had no scientific evidence to back up these claims. Unfortunately, this lack of emphasis on scientific evidence was to become characteristic of the federal government’s policy on medical marijuana.

The first major federal regulation of marijuana was the Marihuana Tax Act of 1937, which was passed in large part due to the exaggerated and sensationalist testimony of Mr. Anslinger. Although Mr. Anslinger’s testimony focused on the dangers of marijuana consumption, the Marihuana Tax Act did not mention any such dangers, nor did it make it illegal to possess, sell, or prescribe marijuana, either medically or recreationally. Instead, it put such a high tax on marijuana that it became effectively too expensive for doctors to prescribe marijuana as a medicine or for people to buy or sell it for recreation. Violating the act by failing to properly pay the tax was also punished harshly: violators were subject to imprisonment for five years, a fine of up to $2,000, or both. It seems likely that such a harsh penalty was meant to deter citizens from using and doctors from prescribing marijuana.

The American Medical Association opposed the Marihuana Tax Act: besides an incredibly high tax, doctors who wanted to prescribe marijuana were also required by the Act to maintain extensive records of such prescriptions, including patients’ names and addresses and the amount of marijuana that was prescribed. These records were required to be maintained for two years and must be made available for government inspection. These provisions carried an ominous threat of government surveillance and seriously encroached on doctor-patient confidentiality. Neither doctors nor patients were likely to be enthusiastic about medical marijuana when faced with such scrutiny from the federal government. Dr. William Woodward of the American Medical Association testified in a congressional hearing that preventing the use of marijuana by a “prohibitive tax” was a bad idea because “future investigation may show that there are substantial medical uses” of marijuana. Dr. Woodward also criticized Mr. Ansliger’s testimony, noting that Mr. Anslinger did not cite any scientific evidence that supported his statements. Despite these objections, the Marijuana Tax Act became law.

Current federal regulation on marijuana is governed by the Controlled Substances Act (CSA). CSA regulates the manufacture, distribution, and possession of certain “controlled” substances, which include everything from illegal recreational drugs such as ecstasy to drugs administered as medicine, such as codeine. These substances are assigned to one of five categories, or “schedules,” according to the following criteria: (1) the drug’s potential for abuse, (2) the drug’s currently accepted medical use in treatment in the United States, and (3) the safety for the use of the drug under medical supervision. Schedule I drugs are the most heavily regulated because the federal government has deemed that: (1) they have a high potential for abuse; (2) they have no current medical use in the United States; and (3) they are unsafe for use even under medical supervision.

Marijuana is a Schedule I drug. This means that, by federal law, it cannot be possessed, bought, sold, prescribed, or used for any purpose—medical or recreational. This is in spite of the fact that there is not a single known instance of “marijuana overdose.” This is in spite of the fact that—unlike alcohol or tobacco—marijuana has never been conclusively linked to any type of cancer or long-term disease. This is in spite of the fact that there is a substantial amount of scientific research that shows that marijuana has the potential to treat numerous medical conditions, including seizure disorders, glaucoma, nausea and vomiting in cancer patients, and severe weight loss in AIDS patients. In spite of all these things, in the eyes of the federal government, marijuana is the equivalent of heroin, LSD, and peyote. The federal government’s current policy is not based on scientific evidence any more than it was over seventy years ago, when Harry Anslinger warned that “the harmful effect of [marijuana] cannot be measured.”

Thirty-five states and the District of Columbia have recognized the potential of marijuana as a medical treatment: they have enacted laws that provide for some form of medical marijuana. But they do so in defiance of federal law, and the citizens who purchase and use medical marijuana in accordance with their state laws do so at risk of federal prosecution. It is long past time to allow science to influence federal policy, which is why Chad West, PLLC supports the efforts of Senators Cory Booker, Kirsten Gillibrand, and Rand Paul to reclassify marijuana as a “Schedule II” drug. This would allow marijuana to be used medically and would also allow states to create their own policies on marijuana, without fear of federal interference.

- Authored by Katherine Blakely

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