Marijuana: To Legalize or Not to Legalize?

Federal, state and local governments can't seem to agree whether to legalize cannabis.
August 2010
Open canister of marijuana on prescription paper
By Donald F. Kettl  |  Columnist
The Sid Richardson Professor at the LBJ School of Public Affairs at the University of Texas at Austin

Business had taken some strange turns for Stewart Hauptman: He found himself in Norco, Calif., making sales from his motor home -- until police ticketed him, that is. The crime? Selling $10 marijuana cookies from his roving dispensary -- legal in California, but not in Norco, where city officials tried to trump state policy with a local ordinance banning the sale of medicinal marijuana within the jurisdiction.

Hauptman's journey highlights the bizarre legal and policy tangles surrounding the spread of marijuana as a medical drug. California is one of 14 states -- and the District of Columbia -- that allow selling marijuana for medical conditions. No one really knows whether local restrictions can pre-empt state permissions, or how states' legalization of medical marijuana will affect the federal war on drugs -- or if medical marijuana even works.

Medical marijuana is in a legal and political twilight zone, caught between the ongoing policy battles on drugs and the pleas of patients suffering from painful, debilitating diseases. In fall 2009, U.S. Attorney General Eric Holder announced that in the 14 states permitting the sale of medical marijuana, the feds would focus only on big drug traffickers and money launderers. Republicans fired back that Holder was undermining federal laws and fueling the drug wars on the Mexican border. The House Judiciary Committee's ranking Republican, Rep. Lamar Smith, countered: "We cannot hope to eradicate the drug trade if we do not first address the cash cow for most drug-trafficking organizations -- marijuana." The Cato Institute's Tim Lynch countered yet again, saying the drug war had proven a "grand failure," while advocates of legalizing marijuana quietly applauded.

The feds signaled they wouldn't prosecute; more states joined the medical marijuana bandwagon; libertarians wanted the government to back off; and opponents tried banning sales through local ordinances. State laws on what could be sold, how it could be sold and the medical conditions for which marijuana could be prescribed varied widely. As the Mexican drug wars heated up, American marijuana policy fell into legal chaos.

This battle has played out against a background of surprising scientific uncertainty. Researchers think there's evidence that marijuana might help those with long-term pain, glaucoma, multiple sclerosis and seizures. They've found that some human cells have receptors wired to respond to the drug's active chemicals. Conducting research to prove these claims, however, is a tall order. The U.S. Food and Drug Administration (FDA) doesn't recognize marijuana as a medical drug, and classifies it as a Schedule 1 controlled substance, along with Phencyclidine (commonly known as PCP) and Ecstasy. To research its effects, investigators need a license from the Justice Department's Drug Enforcement Administration. There's little incentive for scientists to jump through those hoops to check on something peddled on the street, whether illegally in plastic bags or legally in cookies.

It's hard to think of a policy battle full of so much heat but backed by so little research. The drive for medical marijuana comes from two sources: the underground campaign to make marijuana legal, where advocates have long argued that the drug is a harmless recreation, and the desperate plight of patients suffering from chronic diseases, where traditional medicine has provided little relief. For these patients, the argument goes, what can it hurt to try something that's been peddled for decades, albeit illegally, and that might give help for people where nothing else has worked?

That's just what 60-year-old grandmother Ellen Lenox Smith thought. She's struggling with two horrendous diseases, one plaguing her lungs and the other destroying the connective tissue in her joints. The pain made it impossible for her to sleep, and she couldn't tolerate prescription painkillers like OxyContin that are typically used to treat the problem.

Her doctor suggested she try marijuana. Her lung disease made it impossible for her to smoke it, so she soaked some marijuana in oil and mixed it with applesauce. For the first time in months, she said, she slept through the night. She took her applesauce, "and the next thing I know, it was morning," she told a National Public Radio reporter. And because she lived in Rhode Island, which recently had legalized medical marijuana, her laced applesauce was legal.

Tales like this grandmother's are driving the medical marijuana experiment forward. Even the American Medical Association is intrigued, suggesting that more research would be useful and that the FDA ought to consider changing marijuana's Schedule 1 designation to make that possible.

But the debate has taken on a truly bizarre character. Amid the ongoing federal war on drugs, the states are leading a noisy revolution to legalize marijuana, at least for medical use. The Obama administration said it will back off prosecuting drug laws in the states permitting medical marijuana, but in some local governments, opponents are fighting back to restrict where state-sanctioned marijuana can be sold. The state laws themselves are all over the map, from California's permissive statute to New Jersey's tough government regulation of the chain from plant to user.

Somewhere between Hauptman's marijuana-mobile and Smith's tough struggle with two incurable diseases, we're clumsily drawing new lines on drug use as only American federalism can.