A little more than a decade after California voters passed Proposition 215 in 1996, making it the first state to approve the use of medical marijuana, the movement continues its slow spread across the country. Now, medical marijuana is legal in 12 states (with varying degrees of protection), and roughly 50 million people -- or about one out of six Americans -- live in those states.
federally-approved patient Irv Rosenfeld hands his empty federal medical marijuana canister to Montel Williams, while Reps. Sam Farr, Maurice Hinchey and Ron Paul observe
On the Pacific Coast, medical marijuana is legal from the Canadian border to the Mexican border (Washington, Oregon, California), as well as in Alaska and Hawaii. In the intermountain West, Colorado, Montana, and Nevada were joined this year by New Mexico as states where medical marijuana is legal. The other regional medical marijuana hotbed is the Northeast, where Maine, Rhode Island, and Vermont allow its use, and only a veto from Republican Gov. Jodi Rell kept Connecticut from joining those ranks this year.
While it may be a bit of an exaggeration to speak of a pincer movement aimed at the heartland, medical marijuana is on the move. In addition to the 12 states where it is legal, a number of other states, including Illinois, Minnesota, Missouri, New Jersey, and New York have seen progress in state legislatures and are inching closer to approving medical marijuana. Meanwhile, a medical marijuana initiative is getting underway in Michigan, and activists are eyeing similar initiative campaigns in a handful of other states.
But at the same time, the federal government remains staunchly opposed to medical marijuana. The Justice Department and the DEA continue to harass patients and providers, especially in California, where a loosely-written Prop. 215 has led to the most wide-open medical marijuana scene in the country. While the DEA, sometimes working with recalcitrant state and local law enforcement officials, has been raiding dispensaries for years, this week the agency unveiled a new tactic against them: It sent letters to dozens of Los Angeles area landlords who rent to dispensaries, threatening them with civil forfeiture and possible criminal action if they continue to rent to what the DEA considers criminal drug trafficking organizations.
Americans for Safe Access demonstration
Similarly, the Office of National Drug Control Policy (ONDCP) regularly sends out its shock troops to attempt to defeat medical marijuana legislation and initiatives at the state level. The DEA, the Food and Drug Administration (FDA), and the Department of Health and Human Services (HHS) all attempt to block independent research on the therapeutic uses of cannabis and throw whatever obstacles they can imagine in the path of medical marijuana.
But the federal government is under attack by medical marijuana advocates coming from several different angles. In Congress, the most significant piece of medical marijuana-related legislation is the Hinchey-Rohrabacher amendment, which would bar the use of federal funds to persecute patients and providers in states where it is legal. Hearings and a vote in the House on Hinchey-Rohrabacher are expected in the next week or two. While approval appears unlikely this year, supporters, including the group spearheading the effort, the Marijuana Policy Project (MPP), expect to pick up votes and edge ever closer to the needed majority.
In the meantime, there are three legal challenges to the federal hard line on medical marijuana:
Dr. Ethan Russo addresses Patients Out of Time medical marijuana conference
Clearly, the medical marijuana movement is trying to advance on many fronts, and while the disparate groups that make up the movement may be on the same page, they aren't always reading the same paragraphs. With a movement that includes groups like MPP, the National Organization for the Reform of Marijuana Laws
(NORML), which seek an end to marijuana prohibition outright, and groups like the Drug Policy Alliance
(DPA), which seeks broader drug policy reform, as well as organizations like ASA and Patients Out of Time
(POT), which focus exclusively on medical marijuana, it is little surprise that while there is broad strategic agreement, there are tactical differences.
Groups differ on the utility of acting at the state versus the federal level, over whether initiatives or legislative action is preferable, and over who should be the public face of the movement, among other issues. For some, even winning more victories at the state level is not as important as changing the parameters of the debate.
For MPP, which is hard at work in the states as well as on Capitol Hill, meaningful change will result from continuing to hammer away at the federal level, said Dan Bernath, MPP assistant director of communications. "There will probably be a vote on Hinchey-Rohrabacher within a week or two, and we think we will pick up at least 20 votes," he said.
But with the amendment having garnered 163 votes last year, an additional couple of dozen votes would still leave it well short of the 218 votes needed to ensure passage in the House. "It is not likely to happen this year," Bernath conceded, "but it is important that we continue to build momentum for the future. The safer it looks for politicians, the easier it is for them to vote for it."
While passage of Hinchey-Rohrabacher would not change the federal marijuana laws, it would effectively protect patients, Bernath said. "If the Department of Justice loses funding to go after medical marijuana in the states, that would be 100% protection for patients."
ASA, while supporting Hinchey-Rohrabacher, was quick to point out that the protection provided by Hinchey-Rohrabacher would only apply to patients in states where medical marijuana is legal. "Hinchey has been something for certain drug reform organizations and proponents to rally around to help turn the tide on medical marijuana," said ASA spokesman Kris Hermes, "but it is certainly not the be all and end all. It would unfortunately only protect patients and providers in those 12 states, but does little to address the concerns of doctors, patients, and caregivers in the rest of the country."
More promising for ASA, Hermes said, are the federal lawsuits. "The ruling by the DEA judge in the Craker case certainly adds to the growing chorus in support of doing further research on the subject," he argued. "And if we can win our case against HHS and the FDA, that would only build pressure on the government's position that marijuana has no medicinal value."
Some patient-oriented groups would rather concentrate on medium-term movement-building than short-term political victories. "While we accept the strategy of most people working within the movement, which is to change the law and get the patients their medicine, we don't always agree with the tactics," said Al Byrne, spokesman for Patients Out of Time, which has concentrated on educating the public and especially the medical profession about medical marijuana. "We need to let educators lead the movement into the future, not lobbyists, lawyers, and legislators," he argued. "Picking up the states one by one is worthwhile, but after a while it's sort of redundant. We don't think we will see real meaningful change until the medical community accepts marijuana as medicine."
Patients Out of Time has for the past several years worked to bring the medical community on board through its series of conferences on cannabis therapeutics, which bring together scientists, researchers, and medical professionals from around the country and the world to discuss the latest advances. POT's Fifth National Clinical Conference on Cannabis Therapeutics is set for next April in California.
Winning more medical marijuana victories at the state level is not redundant for MPP. To get change at the federal level will require more states getting aboard the medical marijuana bandwagon, said Bernath. "The way change will happen is that when enough states adopt their own medical marijuana laws, the federal government will no longer be able to ignore this."
To that end, MPP will continue to push for passage of state medical marijuana laws, sometimes through the initiative and referendum process and sometimes through the legislative process. In Illinois, Minnesota, New Hampshire, and New York, medical marijuana legislation got some traction this year. "We can pick up next year where we left off," said Bernath.
DPA executive director Ethan Nadelmann, whose organization is working on medical marijuana bills legislation in Connecticut and New Jersey, was quick to add those states to the list. DPA sees more bang for the buck in legislative efforts than initiatives, he said. "Legislative campaigns cost money, but not as much as ballot initiatives, and they have the advantage of generating enormous amounts of free media," he said. "Since a major part of the medical marijuana effort is about public education, the more hearings you have and the more media they generate, the better."
Bernath also pointed to MPP involvement in a Michigan medical marijuana initiative campaign that is just getting underway and suggested there may be more initiatives in other states. "The polls are looking pretty good in Arizona, Idaho, and Ohio," he said.
"This is where MPP and DPA have a slightly different philosophy," said Nadelmann. "I hope the Michigan initiative wins, and it would be helpful if it did, but as a matter of resource allocation, I'm skeptical about the value added of spending all that money to win one more state. But that's a judgment call," he added.
NORML executive director Allen St. Pierre drew a distinction between states that accepted medical marijuana through the initiative process and those that accepted it through the legislative process. "The initiatives covered a greater number of stakeholders and are more functional than the ensuing laws, which are very narrow in scope, serve fewer stakeholders, and haven't changed the federal dynamic of those states' representation in Washington," he argued. "If you look at who is supporting Hinchey-Rohrabacher, it is the delegations from the Western and Rocky Mountain states where support is strongest -- the states where medical marijuana came about through the initiative process."
On the other hand, St. Pierre acknowledged, states that have legalized medical marijuana through the legislative process have fewer problems with recalcitrant law enforcement. "In large parts of initiative states like California, Washington, and Oregon, the police simply ignore the law," he pointed out. "But when a medical marijuana bill goes through the legislature, law enforcement is part of the process. The police got to have their say. They lost, but at least they were sitting at the table."
Eleven years ago, no patients were protected by state medical marijuana laws. Now, some 50 million Americans live in states where they could be, and that's progress. But it also means that some 250 million Americans continue without the protection of state medical marijuana laws, and despite tentative advances in the South and the Midwest, today those areas remain without any such laws. In the last few years, progress has been made, but at a painfully slow pace. Perhaps that will change next year, with a number of states well into legislative consideration of medical marijuana bills.
And perhaps things will change at the federal level the year after that, especially if the Democrats extend and deepen their control of Congress. But at this juncture, the only likely federal changes will come if one of the lawsuits turns out victorious, and that means going back to the states and whittling away at medical marijuana prohibition one statehouse or one popular vote at a time.