Order Code RL33211
CRS Report for Congress
Received through the CRS Web
Medical Marijuana:
Review and Analysis
of Federal and State Policies
December 29, 2005
Mark Eddy
Specialist in Social Legislation
Domestic Social Policy Division
Congressional Research Service ˜ The Library of Congress

Medical Marijuana: Review and Analysis
of Federal and State Policies
Summary
The issue before Congress is whether to continue to support the executive
branch’s prosecution of medical marijuana patients and their providers, in accordance
with marijuana’s status as a Schedule I drug under the Controlled Substances Act, or
whether to relax federal marijuana prohibition enough to permit the medical use of
botanical cannabis products by seriously ill persons, especially in states that have
created medical marijuana programs under state law.
Bills have been introduced in recent Congresses to allow patients who appear
to benefit from medical cannabis to use it in accordance with the various regulatory
schemes that have been approved, since 1996, by the voters and legislatures of 11
states. In the current Congress, the States’ Rights to Medical Marijuana Act (H.R.
2087, Frank) would move marijuana from Schedule I to Schedule II of the Controlled
Substances Act and make it available under federal law for medical use in states with
medical marijuana programs. The Steve McWilliams Truth in Trials Act (H.R. 4272,
Farr) would make it possible for defendants in federal court to reveal to juries that
their marijuana activity was medically related and legal under state law.
In June 2005, the House defeated, for the third time, the Hinchey-Rohrabacher
amendment to prevent federal enforcement of the Controlled Substances Act against
medical marijuana patients in states that have approved such use. The amendment
is expected to be offered again in the 2nd session of the 109th Congress.
Eleven states, mostly in the West, have enacted laws allowing the use of
marijuana for medical purposes, and many thousands of patients, having registered
in their state programs, are seeking relief from a variety of serious illnesses by
smoking marijuana or using other herbal cannabis preparations. Meanwhile, the
federal Drug Enforcement Administration (DEA) continues to investigate and arrest
medical marijuana providers in those states as elsewhere.
Claims and counterclaims about medical marijuana — much debated by
journalists and academics, policymakers at all levels of government, and interested
citizens — include the following: Marijuana is harmful and has no medical value;
marijuana effectively treats the symptoms of certain diseases; smoking is an improper
route of drug administration; marijuana should be rescheduled to permit medical use;
state medical marijuana laws send the wrong message and lead to increased illicit
drug use; the medical marijuana movement undermines the war on drugs; patients
should not be arrested for using medical marijuana; the federal government should
allow the states to experiment and should not interfere with state medical marijuana
programs; medical marijuana laws harm the drug approval process; the medical
cannabis movement is a cynical ploy to legalize marijuana and other drugs. With
strong opinions being expressed on all sides of these complex issues, the debate over
medical marijuana does not appear to be approaching resolution.
This report will be updated as legislative activity and other developments occur.

Contents
Introduction: The Issue Before Congress . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background: Medical Marijuana Prior to 1937 . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Federal Medical Marijuana Policy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Congressional Actions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
The Marihuana Tax Act of 1937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Controlled Substances Act (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Medical Marijuana Legislation in the 105th Congress (1998) . . . . . . . . 4
The Hinchey-Rohrabacher Amendment (2003-2005) . . . . . . . . . . . . . . 4
Medical Marijuana Bills in the 109th Congress (2005) . . . . . . . . . . . . . 5
Executive Branch Actions and Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
IND Compassionate Access Program (1978) . . . . . . . . . . . . . . . . . . . . 6
Approval of Marinol (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
DEA’s Administrative Law Judge Ruling (1988) . . . . . . . . . . . . . . . . . 7
NIH-Sponsored Workshop (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Institute of Medicine Report (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
DEA Enforcement Actions Against Cannabis Buyers’ Clubs . . . . . . . . 9
Medical Cannabis in the Courts: Major Cases . . . . . . . . . . . . . . . . . . . . . . . 9
U.S. v. Oakland Cannabis Buyers’ Cooperative (2001) . . . . . . . . . . . 10
Conant v. Walters (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Gonzalez v. Raich (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
State and Local Referenda and Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
States Allowing the Use of Medical Marijuana . . . . . . . . . . . . . . . . . . . . . . 12
Statistics on medical marijuana users . . . . . . . . . . . . . . . . . . . . . . . . . 13
California (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Arizona (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Oregon (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Alaska (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Washington (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Maine (1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Hawaii (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Colorado (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Nevada (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Vermont (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Montana (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Other State and Local Medical Marijuana Laws . . . . . . . . . . . . . . . . . . . . . 15
Maryland (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Other state laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
District of Columbia (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Local Measures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Public Opinion on Medical Marijuana . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Analysis of Arguments For and Against Medical Marijuana . . . . . . . . . . . . . . . 17
Marijuana Is Harmful and Has No Medical Value . . . . . . . . . . . . . . . . . . . 17

Marijuana Effectively Treats the Symptoms of Some Diseases . . . . . . . . . 19
Smoking Is an Improper Route of Drug Administration . . . . . . . . . . . . . . . 21
Marijuana Should Be Rescheduled to Permit Medical Use . . . . . . . . . . . . . 24
State Medical Marijuana Laws Increase Illicit Drug Use . . . . . . . . . . . . . . 25
Medical Marijuana Undermines the War on Drugs . . . . . . . . . . . . . . . . . . . 30
Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Changed state and local law enforcement priorities . . . . . . . . . . . . . . 31
Distinguishing between legal and illegal providers and users . . . . . . . 31
Patients Should Not Be Arrested for Using Medical Marijuana . . . . . . . . . 33
The States Should Be Allowed To Experiment . . . . . . . . . . . . . . . . . . . . . . 34
Medical Marijuana Laws Harm the Drug Approval Process . . . . . . . . . . . . 36
The Medical Marijuana Movement Is Politically Inspired . . . . . . . . . . . . . 38
List of Figures
Figure 1. States That Have Legalized Medical Marijuana . . . . . . . . . . . . . . . . . 13
List of Tables
Tables 1 and 2. States Ranked by Percentage of Youth Age
12-17 Reporting Past-Month Marijuana Use, 1999 and 2002-2003 . . . . . . 28
Tables 3 and 4. States Ranked by Percentage of Persons 12 or
Older Reporting Past-Month Marijuana Use, 1999 and 2003-2004 . . . . . . 29

Medical Marijuana: Review and Analysis
of Federal and State Policies
Introduction: The Issue Before Congress
The issue before Congress is whether to continue to support the executive
branch’s prosecution of medical marijuana1 patients and their providers, in
accordance with marijuana’s status as a Schedule I drug under the Controlled
Substances Act, or whether to relax federal marijuana prohibition enough to permit
the medical use of botanical cannabis products by seriously ill persons, especially in
those states that have created medical marijuana programs under state law.
Bills have been introduced in recent Congresses to allow patients who appear
to benefit from medical cannabis to use it in accordance with the various regulatory
schemes that have been approved, since 1996, by the voters and legislatures of 11
states. In the current Congress, the States’ Rights to Medical Marijuana Act (H.R.
2087, Frank) would move marijuana from Schedule I to Schedule II of the Controlled
Substances Act and make it available under federal law for medical use in states with
medical marijuana programs. The bill has not advanced beyond the committee
referral stage.
In June 2005, the House of Representatives expressed its opposition to medical
marijuana by rejecting an amendment that would have prevented the Department of
Justice from arresting and prosecuting patients in states with medical marijuana laws.
This and other congressional actions relating to the issue of medical marijuana are
discussed below in greater detail.2
Background: Medical Marijuana Prior to 1937
The Cannabis sativa plant has been used for healing purposes throughout
history. According to written records from China and India, the use of marijuana to
treat a wide range of ailments goes back more than 2,000 years. Ancient texts from
Africa, the Middle East, classical Greece, and the Roman Empire also describe the
use of cannabis to treat disease.
1 The term medical marijuana, as used in this report, refers to marijuana (Cannabis sativa)
and to marijuana use that qualifies for a medical use exception under the laws of certain
states and under the federal Investigational New Drug Compassionate Access Program.
2 The author would like to acknowledge the assistance of summer intern Broocks Andrew
Meade in preparing this report.

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For most of American history, growing and using marijuana was legal under
federal law and the laws of the individual states. By the 1840s, some U.S. physicians
began to recognize marijuana’s therapeutic potential. From 1850 to the early 1940s,
cannabis was included in the United States Pharmacopoeia as a recognized
medicinal.3 By the end of 1936, however, all 48 states had enacted laws to regulate
marijuana.4 Its decline in medicine was hastened by the development of aspirin,
morphine, and then other opium-derived drugs, all of which helped to replace
marijuana in the treatment of pain and other medical conditions in Western
medicine.5
Federal Medical Marijuana Policy
All three branches of the federal government play an important role in
formulating federal policy on medical marijuana. Significant actions of each branch
are highlighted here, beginning with the legislative branch.
Congressional Actions
The Marihuana Tax Act of 1937. Spurred by spectacular accounts of
marijuana’s harmful effects on its users, the drug’s alleged connection to violent
crime, and a perception that state and local efforts to bring use of the drug under
control were not working, Congress enacted the Marihuana Tax Act of 1937.6
Promoted by Harry Anslinger, Commissioner of the recently established Federal
Bureau of Narcotics, the act imposed registration and reporting requirements and a
tax on the growers, sellers, and buyers of marijuana. Although the act did not
prohibit marijuana outright, its effect was the same. Because marijuana was not
included in the Harrison Narcotics Act in 1914,7 the Marihuana Tax Act of 1937 was
the federal government’s first attempt to regulate marijuana.
Dr. William C. Woodward, legislative counsel of the American Medical
Association (AMA), opposed the measure. In oral testimony before the House Ways
and Means Committee, he stated that “there are evidently potentialities in the drug
that should not be shut off by adverse legislation. The medical profession and
3 Gregg A. Bliz, “The Medical Use of Marijuana: The Politics of Medicine,” Hamline
Journal of Public Law and Policy
, vol. 13, spring 1992, p. 118.
4 Oakley Ray and Charles Ksir, Drugs, Society, and Human Behavior, 10th ed. (New York:
McGraw-Hill, 2004), p. 456.
5 Bill Zimmerman, Is Marijuana the Right Medicine for You? A Factual Guide to Medical
Uses of Marijuana
(New Canaan, CT: Keats Publishing, 1998), p. 19.
6 [P.L. 75-]238, 50 Stat. 551, Aug. 2, 1937. In Leary v. United States (395 U.S. 6 [1968]),
the Supreme Court ruled the Marihuana Tax Act unconstitutional because it compelled self-
incrimination, in violation of the Fifth Amendment.
7 [P.L. 63-]223, December 17, 1914, 38 Stat. 785. This law was passed to implement the
Hague Convention of 1912 and created a federal tax on opium and coca leaves and their
derivatives.

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pharmacologists should be left to develop the use of this drug as they see fit.”8 Two
months later, in a letter to the Senate Finance Committee, he again argued against the
act:
There is no evidence, however, that the medicinal use of these drugs [“cannabis
and its preparations and derivatives”] has caused or is causing cannabis
addiction. As remedial agents they are used to an inconsiderable extent, and the
obvious purpose and effect of this bill is to impose so many restrictions on their
medicinal use as to prevent such use altogether. Since the medicinal use of
cannabis has not caused and is not causing addiction, the prevention of the use
of the drug for medicinal purposes can accomplish no good end whatsoever.
How far it may serve to deprive the public of the benefits of a drug that on
further research may prove to be of substantial value, it is impossible to foresee.9
Despite the AMA’s opposition, the Marihuana Tax Act was approved, causing
all medicinal products containing marijuana to be withdrawn from the market and
leading to marijuana’s removal, in 1941, from The National Formulary and the
United States Pharmacopoeia, in which it had been listed for almost a century.
Controlled Substances Act (1970). In response to the increased use of
marijuana and other street drugs during the 1960s, notably by college and high school
students, federal drug-control laws came under scrutiny. In July 1969, President
Nixon asked Congress to enact legislation to combat rising levels of drug use.10
Hearings were held, different proposals were considered, and House and Senate
conferees filed a conference report in October 1970.11 The report was quickly
adopted by voice vote in both chambers and was signed into law as the
Comprehensive Drug Abuse Prevention and Control Act of 1970 (P.L. 91-513).
Included in the new law was the Controlled Substances Act (CSA),12 which
placed marijuana and its derivatives in Schedule I, the most restrictive of five
categories. Schedule I substances have a high potential for abuse, no currently
accepted medical use in treatment in the United States, and a lack of accepted safety
standards for use of the drug under medical supervision.13 Other recreational drugs
also became Schedule I substances at that time, including heroin, amphetamine,
methamphetamine, LSD, mescaline, peyote, and psilocybin. Drugs with recognized
8 U.S. Congress, House Committee on Ways and Means, Taxation of Marihuana, hearings
on H.R. 6385, 75th Cong., 1st sess., May 4, 1937 (Washington: GPO, 1937), p. 114.
9 U.S. Congress, Senate Committee on Finance, Taxation of Marihuana, hearing on H.R.
6906, 75th Cong., 1st sess., July 12, 1937 (Washington: GPO, 1937), p. 33.
10 U.S. President, 1969-1974 (Nixon), “Special Message to the Congress on Control of
Narcotics and Dangerous Drugs,” July 14, 1969, Public Papers of the Presidents of the
United States 1969
(Washington: GPO, 1971), pp. 513-518.
11 U.S. Congress, Conference Committees, Comprehensive Drug Abuse Prevention and
Control Act of 1970
, conference report to accompany H.R. 18583, 91st Cong., 2d sess.,
H.Rept. 91-1603 (Washington: GPO, 1970).
12 Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, P.L. 91-
513, October 27, 1970, 84 Stat. 1242, 21 U.S.C. §801, et seq.
13 Ibid., Sec. 202, 84 Stat. 1247, 21 U.S.C. §812.

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medical uses were assigned to Schedules II through V, depending on their potential
for abuse.14 Despite its placement in Schedule I, marijuana use increased, as did the
number of health-care professionals and their patients who believed in the plant’s
therapeutic value.
The CSA does not distinguish between the medical and recreational use of
marijuana. Under federal statute, simple possession of marijuana for personal use,
a misdemeanor, can bring up to one year in federal prison and up to a $100,000 fine
for a first offense.15 Growing marijuana is considered manufacturing a controlled
substance, a felony.16 A single plant can bring an individual up to five years in
federal prison and up to a $250,000 fine for a first offense.17
Under the U.S. system of government, the CSA is not preempted by state
medical marijuana laws, nor are state medical marijuana laws preempted by the CSA.
States can statutorily create a medical use exception for botanical cannabis and its
derivatives under their own, state-level controlled substance laws. At the same time,
federal agents can investigate, arrest, and prosecute medical marijuana patients,
caregivers, and providers in accordance with the federal Controlled Substances Act,
even in those states where medical marijuana programs operate in accordance with
state law.
Medical Marijuana Legislation in the 105th Congress (1998). In
September 1998, the House debated and passed a resolution (H.J.Res. 117) declaring
that Congress supports the existing federal drug approval process for determining
whether any drug, including marijuana, is safe and effective and opposes efforts to
circumvent this process by legalizing marijuana, or any other Schedule I drug, for
medicinal use without valid scientific evidence and without approval of the Food and
Drug Administration (FDA). With the Senate not acting on the resolution and
adjournment approaching, this language was incorporated into the FY1999 omnibus
appropriations act.18 In a separate amendment to the same act, Congress prevented
the District of Columbia government from spending any appropriated funds on a
medical marijuana ballot initiative.19
The Hinchey-Rohrabacher Amendment (2003-2005). In the 1st session
of the 108th Congress, in response to federal Drug Enforcement Administration
14 Amphetamine and methamphetamine have since been moved to Schedule II, in
recognition of their accepted medical use in treatment. Cocaine was put in Schedule II in
1970 and remains there today.
15 Sec. 404 of the CSA (21 U.S.C. §844) and 18 U.S.C. §3571. Sec. 404 also calls for a
minimum fine of $1,000, and Sec. 405 (21 U.S.C. §844a) permits a civil penalty of up to
$10,000.
16 Sec. 102(15), (22) of the CSA (21 U.S.C. §802[15], [22]).
17 Sec. 401(b)(1)(D) of the CSA (21 U.S.C. §841[b][1][D]).
18 Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, P.L. 105-
277, Oct. 21, 1998, 112 Stat. 2681-760.
19 Ibid., District of Columbia Appropriations Act, 1999, Sec. 171, 112 Stat. 2681-150. This
recurring provision of D.C. appropriations acts is known as the Barr Amendment.

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(DEA) raids on medical cannabis users and providers in California and other states
that had approved the medical use of marijuana under a doctor’s supervision,
Representatives Hinchey and Rohrabacher introduced a bipartisan amendment to the
Commerce, Justice, State appropriations bill for FY2004 (H.R. 2799). The
amendment would have prevented the Justice Department from using appropriated
funds to interfere with the implementation of medical cannabis laws in the nine states
that had approved such use. The amendment was debated on the floor of the House
on July 22, 2003. When brought to a vote on the following day, it was defeated 152
to 273 (66 votes short of passage).20
The amendment was offered again in the 2nd session of the 108th Congress. It
was debated on the House floor on July 7, 2004, during consideration of H.R. 4754,
the Commerce, Justice, State appropriations bill for FY2005, and would have applied
to 10 states, with the recent addition of Vermont to the list of states that had approved
the use of medical cannabis. It was again defeated by a similar margin, 148 to 268.21
The amendment was voted on again in the 1st session of the 109th Congress and
was again defeated, 161-264, on June 15, 2005. During floor debate, a Member
stated in support of the amendment that her now-deceased mother had used
marijuana to treat her glaucoma. Opponents of the amendment argued, among other
things, that its passage would undermine efforts to convince young people that
marijuana is a dangerous drug.22
The amendment is expected to be offered again as an ongoing measure of
sentiment in the House for marijuana law reform.
Medical Marijuana Bills in the 109th Congress (2005). The States’
Rights to Medical Marijuana Act (H.R. 2087, Frank) would transfer marijuana from
Schedule I to Schedule II of the Controlled Substances Act. It would also provide
that, in states in which marijuana may legally be prescribed or recommended by a
physician for medical use, under state law, no provisions of the Controlled
Substances Act or the Federal Food, Drug, and Cosmetic Act could prohibit or
otherwise restrict (1) a physician from prescribing or recommending marijuana for
medical use, (2) an individual from obtaining and using marijuana if prescribed or
recommended by a physician for medical use, (3) a pharmacy from obtaining and
holding marijuana for such a prescription or recommendation, or (4) an entity
established by a state from producing and distributing marijuana for such a
prescription or recommendation. (Versions of this bill have been introduced in every
Congress since the 105th in 1997 but have not seen action beyond the committee
referral process.)
20 “Amendment No. 1 offered by Mr. Hinchey,” Congressional Record, daily edition, vol.
149 (July 22, 2003), pp. H7302-H7311. Ibid., vol. 149, (July 23, 2003), pp. H7354-H7355.
21 “Amendment No. 6 Offered by Mr. Farr,” Congressional Record, daily edition, vol. 150
(July 7, 2004), pp. H5300-H5306, H5320.
22 “Amendment Offered by Mr. Hinchey,” Congressional Record, daily edition, vol. 151
(July 15, 2005), pp. H4519-H4524, H4529.

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The Steve McWilliams Truth in Trials Act (H.R. 4272, Farr) would amend the
Controlled Substances Act to provide an affirmative defense for the medical use of
marijuana in accordance with the laws of the various states. At the present time,
medical marijuana defendants in federal court are not permitted to introduce evidence
that their marijuana-related activity was undertaken for a valid medical purpose under
state law. First introduced in the 108th Congress, this version of the bill was named
for a California medical marijuana provider who took his own life while awaiting
federal sentencing for providing medical marijuana to seriously ill patients in San
Diego. He had been unable to present jurors with accurate information about his
activities; this bill seeks to change that restriction.
Neither bill has seen action beyond the committee referral process.
Executive Branch Actions and Policies
IND Compassionate Access Program (1978). In 1975, a Washington,
DC, resident was arrested for growing marijuana to treat his glaucoma. He won his
case by using the medical necessity defense,23 forcing the government to find a way
to provide him with his medicine. In 1978, the Investigational New Drug (IND)
Compassionate Access Program24 was established by the FDA, allowing patients
whose serious medical conditions could be relieved only by marijuana to apply for
and receive marijuana from the federal government. Over the next 14 years, other
patients, less than 100 in total, were admitted to the program for conditions including
chemotherapy-induced nausea and vomiting (emesis), glaucoma, spasticity, and
weight loss. Then, in 1992, in response to a large number of applications from AIDS
patients who sought to use medical cannabis to increase appetite and reverse wasting
disease, the George H.W. Bush Administration closed the program to all new
applicants. Previously approved patients, who remain in the program today, continue
to be provided with their monthly supply of government-grown medical marijuana.
Approval of Marinol (1985). Marinol is the only cannabis-based drug
approved by the FDA for use in the United States. Made by Unimed, Marinol is the
trade name for dronabinol, a synthetic form of delta-9-tetrahydrocannabinol (THC),
one of the principal psychoactive components of botanical marijuana. Marinol was
approved in May 1985 for nausea and vomiting associated with cancer chemotherapy
in patients who fail to respond to conventional antiemetic treatments. In December
1992, it was approved by the FDA for the treatment of anorexia associated with
weight loss in patients with AIDS. Marketed as a capsule, Marinol was originally
placed in Schedule II.25 In July 1999, in response to a rescheduling petition from
23 The necessity defense argues that the illegal act committed (in this case, growing
marijuana) was necessary to avert a greater harm (blindness).
24 Despite the program’s name, it was not a clinical trial to test the drug for eventual
approval, but a means for the government to provide medical marijuana to patients
demonstrating necessity. Some have criticized the government for its failure to study the
safety and efficacy of the medical-grade marijuana it grew and distributed to this patient
population.
25 U.S. Dept. of Justice, Drug Enforcement Administration, “Schedules of Controlled
(continued...)

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Unimed, DEA moved it to Schedule III to make it more widely available to patients.26
The rescheduling was granted after a DEA and Department of Health and Human
Services (HHS) review found little evidence of illicit abuse of the drug. In Schedule
III, Marinol is now subject to fewer regulatory controls and lesser criminal sanctions
for illicit use.
DEA’s Administrative Law Judge Ruling (1988). Congressional passage
of the Controlled Substances Act in 1970 and its placement of marijuana in Schedule
I provoked controversy at the time because it strengthened the federal policy of
marijuana prohibition and forced medical marijuana users to buy marijuana of
uncertain quality on the black market at inflated prices, subjecting them to fines,
arrest, court costs, property forfeiture, incarceration, probation, and criminal records.
The new bureaucratic controls on Schedule I substances were also criticized because
they would impede research on marijuana’s therapeutic potential, making its
evaluation and rescheduling through the normal drug approval process unlikely.
These concerns prompted a citizens’ petition to the Bureau of Narcotics and
Dangerous Drugs (BNDD) in 1972 to reschedule marijuana and make it available by
prescription. The petition was summarily rejected.27 This rejection led to a long
succession of appeals, hearing requests, and various court proceedings. Finally, in
1988, after extensive public hearings on marijuana’s medicinal value, the chief
administrative law judge of the Drug Enforcement Administration (the BNDD’s
successor agency) ruled on the petition, stating that “Marijuana, in its natural form,
is one of the safest therapeutically active substances known to man.”28 Judge Francis
L. Young also wrote:
The evidence in this record clearly shows that marijuana has been accepted as
capable of relieving the distress of great numbers of very ill people, and doing
so with safety under medical supervision. It would be unreasonable, arbitrary
and capricious for DEA to continue to stand between those sufferers and the
benefits of this substance in light of the evidence in this record.
25 (...continued)
Substances: Rescheduling of Synthetic Dronobinol in Sesame Oil and Encapsulation in Soft
Gelatin Capsules From Schedule I to Schedule II; Statement of Policy,” 51 Federal Register
17476, May 13, 1986.
26 Ibid., “Schedules of Controlled Substances: Rescheduling of the Food and Drug
Administration Approved Product Containing Synthetic Dronabinol [(-)-delta nine-(trans)-
Tetrahydrocannabinol] in Sesame Oil and Encapsulated in Soft Gelatin Capsules From
Schedule II to Schedule III,” 64 Federal Register 35928, July 2, 1999.
27 Ibid., Bureau of Narcotics and Dangerous Drugs, “Schedule of Controlled Substances:
Petition to Remove Marijuana or in the Alternative to Control Marijuana in Schedule V of
the Controlled Substances Act,” 37 Federal Register 18097, Sept. 7, 1972.
28 Ibid., Drug Enforcement Administration, “In the Matter of Marijuana Rescheduling
Petition, Docket No. 86-22, Opinion and Recommended Ruling, Findings of Fact,
Conclusions of Law and Decision of Administrative Law Judge,” Francis L. Young,
Administrative Law Judge, Sept. 6, 1988. Hereinafter cited as “the Young Opinion.” This
quote and the following two quotes are at pp. 58-59, p. 68, and p. 67, respectively. This
opinion is online at [http://www.druglibrary.org/olsen/MEDICAL/YOUNG/young.html].

CRS-8
Judge Young found that “the provisions of the [Controlled Substances] Act
permit and require the transfer of marijuana from schedule I to schedule II,” which
would recognize its medicinal value and permit doctors to prescribe it. The Judge’s
findings and recommendation were soon rejected by the DEA Administrator because
“marijuana has not been demonstrated as suitable for use as a medicine.”29
Subsequent rescheduling petitions were also rejected, and marijuana remains a
Schedule I substance.
NIH-Sponsored Workshop (1997). NIH convened a scientific panel on
medical marijuana composed of eight nonfederal experts in fields such as cancer
treatment, infectious diseases, neurology, and ophthalmology. Over a two-day period
in February, they analyzed available scientific information on the medical uses of
marijuana and concluded that “in order to evaluate various hypotheses concerning the
potential utility of marijuana in various therapeutic areas, more and better studies
would be needed.” Research would be justified, according to the panel, into certain
conditions or diseases such as pain, neurological and movement disorders, nausea of
patients undergoing chemotherapy for cancer, loss of appetite and weight related to
AIDS, and glaucoma.30
Institute of Medicine Report (1999). In January 1997, shortly after passage
of the California and Arizona medical marijuana initiatives, the Director of the Office
of National Drug Control Policy (the federal drug czar) commissioned the National
Institute of Medicine (IOM) of the National Academy of Sciences to review the
scientific evidence on the potential health benefits and risks of marijuana and its
constituent cannabinoids. Begun in August 1997, IOM’s 257-page report, Marijuana
and Medicine: Assessing the Science Base,
was released in March 1999.31 A meta-
analysis of all existing studies of the therapeutic value of cannabis, the IOM Report
was also based on public hearings and consultations with biomedical and social
scientists and concerned citizens from across the country.
For the most part, the IOM Report straddled the issue, providing sound bites
for both sides of the medical marijuana debate. For example: “Until a nonsmoked
rapid-onset cannabinoid drug delivery system becomes available, we acknowledge
that there is no clear alternative for people suffering from chronic conditions that
might be relieved by smoking marijuana, such as pain or AIDS-wasting” (p. 179) and
“Smoked marijuana is unlikely to be a safe medication for any chronic medical
condition” (p. 126). The report also stated, “There is no conclusive evidence that
marijuana causes cancer in humans, including cancers usually related to tobacco use”
29 Ibid., “Marijuana Scheduling Petition; Denial of Petition,” 54 Federal Register 53767 at
53768, Dec. 29, 1989. The petition denial was appealed, eventually resulting in yet another
DEA denial to reschedule. See Ibid., “Marijuana Scheduling Petition; Denial of Petition;
Remand,” 57 Federal Register 10499, Mar. 26, 1992.
30 National Institutes of Health. The Ad Hoc Group of Experts. Workshop on the Medical
Utility of Marijuana: Report to the Director
, August 1997. Hereinafter cited as NIH
Workshop. [http://www.nih.gov/news/medmarijuana/MedicalMarijuana.htm]
31 Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., eds., Marijuana and
Medicine: Assessing the Science Base
(Washington: National Academy Press, 1999).
[http://www.nap.edu/books/0309071550/html/] Hereinafter cited as “the IOM Report.”

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(p. 119) and “Numerous studies suggest that marijuana smoke is an important risk
factor in the development of respiratory disease” (p. 127).
The IOM Report did find more potential promise in synthetic cannabinoid drugs
than in smoked marijuana (p. 177):
The accumulated data suggest a variety of indications, particularly for pain relief,
antiemesis, and appetite stimulation. For patients such as those with AIDS or
who are undergoing chemotherapy, and who suffer simultaneously from severe
pain, nausea, and appetite loss, cannabinoid drugs might offer broad-spectrum
relief not found in any other single medication.
In general, the report emphasized the need for well-formulated, scientific
research into the therapeutic effects of marijuana and its cannabinoid components on
patients with specific disease conditions. To this end, the report recommended that
clinical trials be conducted to develop safe delivery systems.
DEA Enforcement Actions Against Cannabis Buyers’ Clubs. Most
arrests in the United States for marijuana possession are made by state and local
police, not the DEA. This means that patients and their caregivers in states that
permit medical marijuana are largely protected from prosecution, because their own
state’s marijuana laws do not apply to them and because federal law is not usually
enforced against them.
Federal agents do, however, move against medical cannabis growers and
distributors in states with medical marijuana programs. In recent years, more than
20 large-scale raids of cannabis buyers’ clubs have occurred in California and a
handful of raids have taken place in other states.
DEA’s actions to shut down medical marijuana growing and distribution
operations have provoked lawsuits and other responses. In April 2003, for example,
the city and county of Santa Cruz, CA, along with seven medical marijuana patients,
filed a lawsuit in San Jose federal district court in response to the DEA’s earlier raid
on the Wo/Men’s Alliance for Medical Marijuana (WAMM). The court granted the
plaintiffs’ motion for a preliminary injunction, thereby allowing WAMM to resume
growing and producing marijuana medications for its approximately 250
member-patients with serious illnesses, pending the final outcome of the case.32 The
suit is reportedly the first court challenge brought by a local government against the
federal war on drugs.
Medical Cannabis in the Courts: Major Cases
Because Congress and the executive branch have not acted to permit seriously
ill Americans to use botanical marijuana medicinally, the issue has been considered
32 County of Santa Cruz v. Ashcroft, 314 F.Supp.2d 1000 (N.D.Cal. 2004); the decision,
however, rests on the 9th Circuit’s ruling in Raich, subsequently overthrown by the Supreme
Court.

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by the judicial branch, with mixed results. Three significant cases have been decided
so far, and other court challenges are moving through the judicial pipeline.33
U.S. v. Oakland Cannabis Buyers’ Cooperative (2001). The U.S.
Department of Justice filed a civil suit in January 1998 to close six medical
marijuana distribution centers in northern California. A U.S. district court judge
issued a temporary injunction to close the centers, pending the outcome of the case.
The Oakland Cannabis Buyers’ Cooperative fought the injunction but was eventually
forced to cease operations and appealed to the Ninth Circuit Court of Appeals. At
issue was whether a medical marijuana distributor can use a medical necessity
defense against federal marijuana distribution charges.34
The Ninth Circuit’s decision found in September 1999 that “medical necessity”
is a valid defense against federal marijuana trafficking charges if a trial court finds
that the patients to whom the marijuana was distributed are seriously ill, face
imminent harm without marijuana, and have no effective legal alternatives.35 The
Justice Department appealed to the Supreme Court.
The Supreme Court held, 8-0, that “a medical necessity exception for marijuana
is at odds with the terms of the Controlled Substances Act” because “its provisions
leave no doubt that the defense is unavailable.”36 This decision had no effect on state
medical marijuana laws, which continued to protect patients and primary caregivers
from arrest by state and local law enforcement agents in the states with medical
marijuana programs.
Conant v. Walters (2002). After the 1996 passage of California’s medical
marijuana initiative, the Clinton Administration threatened to investigate doctors and
revoke their licenses to prescribe controlled substances and to participate in Medicaid
and Medicare if they recommended medical marijuana to patients under the new state
law. A group of California physicians and patients filed suit in federal court, early
in 1997, claiming a constitutional free-speech right, in the context of the doctor-
patient relationship, to discuss the potential risks and benefits of the medical use of
cannabis. A preliminary injunction, issued in April 1997, prohibited federal officials
from threatening or punishing physicians for recommending marijuana to patients
suffering from HIV/AIDS, cancer, glaucoma, or seizures or muscle spasms associated
with a chronic, debilitating condition.37 The court subsequently made the injunction
permanent in an unpublished opinion.
33 For a legal analysis of all three cases mentioned here, see CRS Report RL31100,
Marijuana for Medical Purposes: The Supreme Court’s Decision in United States v.
Oakland Cannabis Buyers’ Cooperative and Related Legal Issues
, by Charles Doyle.
34 The necessity defense argues that the illegal act committed (distribution of marijuana in
this instance) was necessary to avert a greater harm (withholding a helpful drug from
seriously ill patients ).
35 523 U.S. 483 (2001).
36 Ibid. at 494 n. 7.
37 Conant v. McCaffrey, 172 F.R.D. 681 (N.D. Cal. 1997).

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On appeal, the Ninth Circuit affirmed the district court’s order entering a
permanent injunction. The federal government, the opinion states, “may not initiate
an investigation of a physician solely on the basis of a recommendation of marijuana
within a bona fide doctor-patient relationship, unless the government in good faith
believes that it has substantial evidence of criminal conduct.”38 The first Bush
Administration appealed, but the Supreme Court refused to take the case.
Gonzalez v. Raich (2005). In response to DEA agents’ destruction of their
medical marijuana plants, two patients and two caregivers in California brought suit.
They argued that applying the Controlled Substances Act (CSA) to a situation in
which medical marijuana was being grown locally for no remuneration in accordance
with state law exceeded Congress’s authority under the Commerce Clause. In
December 2003, the Ninth Circuit Court of Appeals in San Francisco agreed, ruling
that states are free to adopt medical marijuana laws so long as the marijuana is not
sold, transported across state lines, or used for nonmedical purposes.39 Federal
appeal sent the case to the Supreme Court.
The issue before the Supreme Court was whether the CSA, when applied to the
intrastate cultivation and possession of marijuana for personal use under state law,
exceeds Congress’s power under the Commerce Clause. The Supreme Court, in June
2005, reversed the Ninth Circuit’s decision and held, in a 6-3 decision, that
Congress’s power to regulate commerce extends to purely local activities that are
“part of an economic class of activities that have a substantial effect on interstate
commerce.”40
Raich does not invalidate state medical marijuana laws. The decision does
mean, however, that DEA may continue to enforce the CSA against medical
marijuana patients and their caregivers, even in states with medical marijuana
programs.
Although Raich did not address the efficacy of medical marijuana or its listing
in Schedule I, the majority opinion stated in a footnote: “We acknowledge that
evidence proffered by respondents in this case regarding the effective medical uses
for marijuana, if found credible after trial, would cast serious doubt on the accuracy
of the findings that require marijuana to be listed in Schedule I.”41 The majority
opinion, in closing, notes that in the absence of judicial relief for medical marijuana
users there remains “the democratic process, in which the voices of voters allied with
these respondents may one day be heard in the halls of Congress.”42
38 Conant v. Walters, 309 F.3d 629, 636 (9th Cir. 2002); the parties agreed that “a doctor who
actually prescribes or dispenses marijuana violates federal law,” ibid. at 634.
39 Raich v. Ashcroft, 352 F.3d 1222 (9th Cir. 2003).
40 Gonzalez v. Raich, 125 S.Ct. 2195, 2205 (2005).
41 Ibid. at 2211 n. 37. For a legal analysis of this case, see Gonzales v. Raich: Congress’s
Power Under the Commerce Clause to Regulate Medical Marijuana
, by Todd B. Tatelman.
42 Ibid. at 2215.

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Thus, the Supreme Court reminds that Congress has the power to reschedule
marijuana, thereby making it available to patients. Congress, however, does not
appear likely to do so. Neither does the executive branch, which could reschedule
marijuana through regulatory procedures authorized by the CSA. In the meantime,
actions taken by state and local governments continue to raise the issue.
State and Local Referenda and Legislation
In the face of federal intransigence on the issue, advocates of medical marijuana
have turned to state and local governments in a mostly successful effort, as outlined
below, to pass laws and establish programs that enable patients to obtain and use
botanical marijuana therapeutically in a legal and regulated manner.
States Allowing the Use of Medical Marijuana43
Eleven states, covering about 22% of the U.S. population, have enacted laws
allowing the use of cannabis for medical purposes.44 These states have removed
state-level criminal penalties for the cultivation, possession, and use of medical
marijuana, if such use has been recommended by a medical doctor. All of these
states (except Arizona) have in place, or are developing, programs to regulate the use
of medical marijuana by approved patients. Patients in state programs may be
assisted by caregivers, persons who are authorized to help patients grow, acquire, and
use the drug. Physicians in these states are immune from liability and prosecution
for discussing or recommending medical cannabis to their patients in accordance with
the law.
Nine of the 11 states that have legalized medical marijuana are in the West.
Among the 37 nonwestern states, only two — Maine and Vermont — have adopted
medical cannabis statutes. Hawaii and Vermont have the only programs initiated by
an act of the state legislature. The medical marijuana programs in the other nine
states were approved by the voters in statewide referenda or ballot initiatives,
beginning in 1996 with California and Arizona. Since then, voters have approved
medical marijuana initiatives in every state where they have appeared on the ballot.
Bills have been introduced in the legislatures of additional states and have received
varying levels of consideration but have so far not been enacted.
43 The information in this and the following section is drawn largely from: State-by-State
Medical Marijuana Laws: How to Remove the Threat of Arrest
, Marijuana Policy Project,
July 2004, available at [http://www.mpp.org/statelaw/index.html]. More recent information
is from press reports.
44 Alaska (Stat. §11.71.090); Arizona (Ariz.Rev.Stat.Ann. §13-3412.01[A]); California
(Cal.Health & Safety Code Ann. §11362.5); Colorado (Colo.Const. Art. XVIII §4); Hawaii
(Rev.Stat. §§329-121 to 329-128); Maine (Me.Rev.Stat.Ann. tit.22 §1102 or 2382-B[5]);
Montana (Mont.Code Ann. §§50-46-101 to 50-46-210); Nevada (Nev.Rev.Stat.Ann.
§§453A.010 to 453A.400); Oregon (Ore.Rev.Stat. §§475.300 to 475.346); Vermont
(Vt.Stat.Ann. tit. 18, §§4472-4474d); Washington (Wash.Rev.Code Ann. §§69.51A.005 to
69.51A.902).


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Figure 1. States That Have Legalized
Medical Marijuana
State medical marijuana laws do not attempt to overturn or otherwise violate
federal laws that prohibit doctors from writing prescriptions for marijuana and
pharmacies from distributing it. In the 10 states with medical marijuana programs,
doctors do not actually prescribe marijuana, and the marijuana products used by
patients are not distributed through pharmacies. Rather, doctors recommend
marijuana to their patients, and the cannabis products are grown by patients or their
caregivers, or they are obtained from cooperatives or other alternative dispensaries.
The state medical marijuana programs do, however, contravene the federal
prohibition of marijuana. Medical marijuana patients, their caregivers, and other
marijuana providers can, therefore, be arrested by federal law enforcement agents,
and they can be prosecuted under federal law.
Statistics on medical marijuana users. Determining exactly how many
patients use medical marijuana with state approval is difficult. According to a 2002
study published in the Journal of Cannabis Therapeutics, an estimated 30,000
California patients and another 5,000 patients in eight other states possessed a
physician’s recommendation to use cannabis medically.45 Recent estimates are much
higher. The New England Journal of Medicine reported in August 2005 that an
estimated 115,000 people have obtained marijuana recommendations from doctors
in the states with programs.46
Although 115,000 people may be approved medical marijuana users, the number
of patients who have actually registered is much lower. A July 2005 CRS telephone
survey of the state programs revealed a total of 14,758 registered medical marijuana
users in eight states. (Maine and Washington do not maintain state registries.) This
45 Dale Gieringer, “The Acceptance of Medical Marijuana in the U.S.,” Journal of Cannabis
Therapeutics
, vol. 3, no. 1 (2003), pp. 53-67. The author later estimated that there were
more than 100,000 medical marijuana patients in California alone (personal communication
dated April 30, 2004).
46 Susan Okie, “Medical Marijuana and the Supreme Court,” New England Journal of
Medicine
, vol. 353, no. 7 (Aug. 18, 2005), p. 649.

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number vastly understates the number of medical marijuana users, however, because
California’s state registry was in pilot status, with only 70 patients so far registered.
A brief description of the state medical marijuana programs appears below. The
programs are discussed in the order in which they were approved by voters or passed
by the state legislature.
California (1996). Proposition 215, approved by 56% of the voters in
November, removed the state’s criminal penalties for medical marijuana use,
possession, and cultivation by patients with the “written or oral recommendation or
approval of a physician” who has determined that the patient’s “health would benefit
from medical marijuana.” Called the Compassionate Use Act, it legalized cannabis
for “the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma,
arthritis, migraine, or any other illness for which marijuana provides relief.” The law
permits possession of an amount sufficient for the patient’s “personal medical
purposes.”
Arizona (1996). Arizona’s law, approved by 65% of the voters in November,
permits marijuana prescriptions, but there is no active program in the state because
federal law prohibits doctors from prescribing marijuana. Patients cannot, therefore,
obtain a valid prescription. (Other states’ laws allow doctors to recommend rather
than prescribe.)
Oregon (1998). Voters in November removed the state’s criminal penalties
for medical marijuana use, possession, and cultivation by patients whose physicians
advise that marijuana “may mitigate the symptoms or effects” of a debilitating
condition. The law, approved by 55% of Oregon voters, does not provide for
distribution of cannabis but allows up to seven plants per patient (changed to 24
plants by act of the state legislature in 2005). The state registry program is supported
by patient fees. (In the November 2004 election, Oregon voters rejected a measure
that would have expanded the state’s existing program.)
Alaska (1998). Voters in November approved a ballot measure to remove
state-level criminal penalties for patients diagnosed by a physician as having a
debilitating medical condition for which other approved medications were
considered. The measure was approved by 58% of the voters. In 1999, the state
legislature created a mandatory state registry for medical cannabis users and limited
the amount a patient can legally possess to 1 ounce and six plants.
Washington (1998). Approved in November by 59% of the voters, the ballot
initiative exempts from prosecution patients who meet all qualifying criteria, possess
no more marijuana than is necessary for their own personal medical use (but no more
than a 60-day supply), and present valid documentation to investigating law
enforcement officers. The state does not issue identification cards to patients.
Maine (1999). Maine’s ballot initiative, passed in November by 61% of the
voters, puts the burden on the state to prove that a patient’s medical use or possession
is not authorized by statute. Patients with a qualifying condition, authenticated by
a physician, who have been “advised” by the physician that they “might benefit” from

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medical cannabis, are permitted 1¼ ounces and six plants. There is no state registry
of patients.
Hawaii (2000). In June 2000, the Hawaii legislature approved a bill removing
state-level criminal penalties for medical cannabis use, possession, and cultivation
of up to seven plants. A physician must certify that the patient has a debilitating
condition for which “the potential benefits of the medical use of marijuana would
likely outweigh the health risks.” This was the first state law permitting medical
cannabis use that was enacted by a legislature instead of by ballot initiative.
Colorado (2000). A ballot initiative to amend the state constitution was
approved by 54% of the voters in November. The amendment provides that lawful
medical cannabis users must be diagnosed by a physician as having a debilitating
condition and be “advised” by the physician that the patient “might benefit” from
using the drug. A patient and the patient’s caregiver may possess 2 usable ounces
and six plants.
Nevada (2000). To amend the state constitution by ballot initiative, a
proposed amendment must be approved by the voters in two separate elections. In
November 2000, 65% of Nevada voters passed for the second time an amendment
to exempt medical cannabis users from prosecution. The amendment requires the
state legislature to develop a program that allows qualified patients to use, possess,
and grow marijuana for medicinal purposes.
Vermont (2004). In May, Vermont became the second state to legalize
medical cannabis by legislative action instead of ballot initiative. Vermont patients
are allowed to grow up to three marijuana plants in a locked room and to possess two
ounces of manicured cannabis under the supervision of the Department of Public
Safety, which maintains a patient registry. The law went into effect without the
signature of the governor, who declined to sign it but also refused to veto it, despite
pressure from Washington.
Montana (2004). In November 2004, 62% of state voters made Montana the
11th state in the country to allow medical cannabis and the 10th to establish a program
for patients. The public health department has begun accepting applications for the
state medical marijuana registry and is issuing ID cards to qualifying patients.
Other State and Local Medical Marijuana Laws
Maryland (2003). Maryland’s General Assembly became the second state
legislature to protect medical cannabis patients from the threat of jail in March 2003
when it approved a bill, later signed by the governor, providing that patients using
marijuana preparations to treat the symptoms of illnesses such as cancer, AIDS, and
Cohn’s disease would be subject to no more than a $100 fine.47 Falling short of full
legalization, patients in Maryland can still be arrested and forced to prove in court
that they use cannabis for legitimate medical needs, but the law does create a medical
47 Md. Crim. Code Ann. §5-601.

CRS-16
necessity defense in court for people who use marijuana on their own for medical
purposes.
Other state laws. Laws favorable to medical marijuana have been enacted
in 36 states since 1978.48 Except for the state laws mentioned above, however, the
laws do not currently protect medical marijuana users from state prosecution. For
example, some states have laws that allow patients to acquire and use cannabis
through therapeutic research programs, although none of these programs has been
operational since 1985, due in large part to federal opposition. Other states have
enacted laws that allow doctors to prescribe marijuana or that allow patients to
possess marijuana if it has been obtained through a prescription, but the federal
Controlled Substances Act prevents these laws from being implemented. Several
states have placed marijuana in a controlled drug schedule that recognizes its medical
value. State legislatures continue to consider medical marijuana bills, some
favorable to its use by patients, others not.
District of Columbia (1998). In the nation’s capitol, 69% of voters approved
a medical cannabis initiative to allow patients a “sufficient quantity” of marijuana to
treat illness and to permit nonprofit marijuana suppliers. Congress, however, has
blocked the initiative from taking effect.
Local Measures. Medical cannabis measures have been adopted in several
localities throughout the country. San Diego is the country’s largest city to do so.
One day after the Supreme Court’s antimarijuana ruling in Gonzalez v. Raich was
issued, Alameda County in California approved an ordinance to regulate medical
marijuana dispensaries, becoming the 17th locality in the state to do so. Localities in
nonmedical marijuana states have also acted. In November 2004, for example, voters
in Ann Arbor, MI, and Columbia, MO, approved medical cannabis measures.
Although largely symbolic, such local laws can influence the priorities of local law
enforcement officers and prosecutors.
Public Opinion on Medical Marijuana
Voters have approved every medical marijuana initiative that has appeared on
state ballots. Likewise, American public opinion has consistently favored access to
medical marijuana by seriously ill patients. ProCon.org, a nonprofit and nonpartisan
public education foundation, has identified 21 national public opinion polls that
asked questions about medical marijuana from 1995 to the present. Respondents in
every poll were in favor of medical marijuana by substantial margins, ranging from
60% to 80%.49
48 State-by-State Medical Marijuana Laws: How to Remove the Threat of Arrest, Marijuana
Policy Project, July 2004, p. 3. The laws in some of these states have expired or been
repealed.
49 The questions asked and the results obtained can be viewed at
[http://www.medicalmarijuanaprocon.org/pop/votesNat.htm].

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The Journal of the American Medical Association analyzed public opinion on
the War on Drugs in a 1998 article. The authors’ observations concerning public
attitudes toward medical marijuana remain true today:
While opposing the use or legalization of marijuana for recreational purposes,
the public apparently does not want to deny very ill patients access to a
potentially helpful drug therapy if prescribed by their physicians. The public’s
support of marijuana for medical purposes is conditioned by their belief that
marijuana would be used only in the treatment of serious medical conditions.50
Analysis of Arguments For and Against
Medical Marijuana
At least in public opinion polls, the majority of Americans appear to hold that
seriously ill or terminal patients should be able to use marijuana if recommended by
their doctors. In 9 of the 11 states with medical marijuana laws, a majority has
supported that belief in the voting booth. The federal government and most state
governments, however, remain strongly opposed to medical marijuana.
In the ongoing debate over cannabis as medicine, certain arguments are
frequently made on both sides of the issue. These arguments are briefly stated below
and analyzed in turn. Equal weight is not given to both sides of every argument.
Instead, the analysis is weighted according to the preponderance of evidence as
currently understood. CRS takes no position on the claims or counterclaims in this
debate.
What follows, then, is an attempt to analyze objectively the arguments
frequently made about the role that herbal cannabis might play in the symptomatic
treatment of certain diseases and about the possible societal consequences should its
role in the practice of modern medicine be expanded beyond the handful of states
where it is now permitted.
Marijuana Is Harmful and Has No Medical Value
Suitable and superior medicines are currently available for treatment of all
symptoms alleged to be treatable by crude marijuana. (Brief of the Drug Free
America Foundation et al., 200451)
The federal government — along with many state governments and private
antidrug organizations — staunchly maintains that botanical marijuana is a dangerous
drug without any legitimate medical use. Marijuana intoxication can impair a
50 Robert J. Blend on and John T. Young, “The Public and the War on Illicit Drugs,” Journal
of the American Medical Association
, vol. 279, no. 11 (Mar. 18, 1998), p. 831.
51 Brief for the Drug Free America Foundation, Inc., et al. as Amici Curiae Supporting
Petitioners at 13, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454). The amicus
curiae
briefs filed in Raich contain a wealth of information and arguments on both sides of
the medical marijuana debate. They are available online at [http://www.angeljustice.org].

CRS-18
person’s coordination and decision-making skills and alter behavior. Chronic
marijuana smoking can adversely affect the lungs, the cardiovascular system, and
possibly the immune and reproductive systems.52
Of course, the FDA’s 1985 approval of Marinol proves that the principal
psychoactive ingredient of marijuana — THC — has therapeutic value. But that is
not the issue in the medical marijuana debate. Botanical marijuana remains a plant
substance, an herb, and its opponents say it cannot substitute for legitimate
pharmaceuticals. Just because one molecule found in marijuana has become an
approved medicine, they argue, does not make crude marijuana a medicine. The
Drug Free America Foundation calls medical marijuana “a step backward to the
times of potions and herbal remedies.”53
The federal government’s argument that marijuana has no medical value is
straightforward. A drug, in order to meet the standard of the Controlled Substances
Act as having a “currently accepted medical use in treatment in the United States,”
must meet a five-part test:
(1) The drug’s chemistry must be known and reproducible,
(2) there must be adequate safety studies,
(3) there must be adequate and well-controlled studies proving efficacy,
(4) the drug must be accepted by qualified experts, and
(5) the scientific evidence must be widely available.54
According to the DEA, botanical marijuana meets none of these requirements.
First, marijuana’s chemistry is neither fully known nor reproducible. Second,
adequate safety studies have not been done. Third, there are no adequate, well-
controlled scientific studies proving marijuana is effective for any medical condition.
Fourth, marijuana is not accepted by even a significant minority of experts qualified
to evaluate drugs. Fifth, published scientific evidence concluding that marijuana is
safe and effective for use in humans does not exist.55
The same DEA Final Order that set forth the five requirements for currently
accepted medical use also outlined scientific evidence that would be considered
irrelevant by the DEA in establishing currently accepted medical use. These include
individual case reports, clinical data collected by practitioners, studies conducted by
persons not qualified by scientific training and experience to evaluate the safety and
effectiveness of the substance at issue, and studies or reports so lacking in detail as
to preclude responsible scientific evaluation. Such information is inadequate for
52 See, for example, “Exposing the Myth of Medical Marijuana,” on the DEA Web site at
[http://www.usdoj.gov/dea/ongoing/marijuanap.html].
53 Ibid at 25.
54 This test was first formulated by the DEA in 1992 in response to a marijuana rescheduling
petition. See U.S. Department of Justice, Drug Enforcement Administration, “Marijuana
Scheduling Petition; Denial of Petition; Remand,” 57 Federal Register 10499, March 26,
1992, at 10506.
55 Ibid., p. 10507.

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experts to conclude responsibly and fairly that marijuana is safe and effective for use
as medicine.56 The DEA and other federal drug control agencies can thereby
disregard medical literature and opinion that claim to show the therapeutic value of
marijuana because they do not meet the government’s standards of proof.
The official view of medical marijuana is complicated by the wider War on
Drugs. It is difficult to disentangle the medical use of locally grown marijuana for
personal use from the overall policy of marijuana prohibition, as the Supreme Court
made clear in Raich. To make an exemption for medical marijuana, the Court
decided, “would undermine the orderly enforcement of the entire regulatory scheme
... The notion that California law has surgically excised a discrete activity that is
hermetically sealed off from the larger interstate marijuana market is a dubious
proposition....”57
The federal government maintains the position, then, that the Schedule I
substance marijuana is harmful — not beneficial — to human health. Its use for any
reason, including medicinal, should continue to be prohibited and punished. Despite
possible signs of a more tolerant public attitude toward medical marijuana, its
therapeutic benefits, if any, will continue to be officially unacknowledged and largely
unrealized in the United States so long as this position prevails at the federal level.
Marijuana Effectively Treats the Symptoms of Some Diseases
[I]t cannot seriously be contested that there exists a small but significant class of
individuals who suffer from painful chronic, degenerative, and terminal
conditions, for whom marijuana provides uniquely effective relief. (Brief of the
Leukemia & Lymphoma Society et al., 200458)
Proponents of medical marijuana point to a large body of reports and journal
articles from around the world that support the therapeutic value of marijuana in
treating a variety of disease-related problems, including
! relieving nausea,
! increasing appetite,
! reducing muscle spasms and spasticity,
! relieving chronic pain,
! reducing intraocular pressure, and
! relieving anxiety.59
56 Ibid., pp. 10506-10507.
57 Gonzalez v. Raich, 125 S.Ct. 2195, at 2212 and 2213 (2005).
58 Brief for the Leukemia & Lymphoma Society, et al. as Amici Curiae Supporting
Respondents at 4, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
59 Ibid., at 1-2.

CRS-20
Given these properties, marijuana has been used successfully to treat the
debilitating symptoms of cancer and cancer chemotherapy,60 AIDS, multiple
sclerosis, epilepsy, glaucoma, anxiety, and other serious illnesses.61 As opponents
to medical marijuana assert, existing FDA-approved pharmaceuticals for these
conditions are generally more effective than marijuana. Nevertheless, as the IOM
Report acknowledged, the approved medicines do not work for everyone.62 Many
medical marijuana users report trying the drug only reluctantly and as a last resort
after exhausting all other treatment modalities. A distinct subpopulation of patients
now relies on whole cannabis for a degree of relief that FDA-approved synthetic
drugs do not provide.
Medical cannabis proponents claim that single-cannabinoid, synthetic
pharmaceuticals like Marinol are poor substitutes for the whole marijuana plant,
which contains more than 400 known chemical compounds, including about 60
active cannabinoids in addition to THC. They say that scientists are a long way from
knowing for sure which ones, singly or in combination, provide which therapeutic
effects. Many patients have found that they benefit more from the whole plant than
from any synthetically produced chemical derivative.63 Furthermore, the natural plant
is easily grown, whereas Marinol and any other cannabis-based pharmaceuticals that
might be developed in the future will likely be expensive — prohibitively so for
some patients.64
In recognition of the therapeutic benefits of botanical marijuana products,
various associations of health professionals have passed resolutions in support of
medical cannabis. These include the American Public Health Association, the
American Nurses Association, and the California Pharmacists Association. The New
England Journal of Medicine
has editorialized in favor of patient access to
marijuana.65 Other groups, such as the American Medical Association, are more
60 A 1990 survey of oncologists found that 54% of those with an opinion on medical
marijuana favored the controlled medical availability of marijuana and 44% had already
broken the law by suggesting at least once that a patient obtain marijuana illegally. R.
Doblin and M. Kleiman, “Marijuana as Antiemetic Medicine,” Journal of Clinical
Oncology
, vol. 9 (1991), pp. 1314-1319.
61 There is evidence that marijuana might also be useful in treating arthritis, migraine,
menstrual cramps, alcohol and opiate addiction, and depression and other mood disorders.
62 IOM Report, pp. 3-4: “The effects of cannabinoids on the symptoms studied are generally
modest, and in most cases there are more effective medications. However, people vary in
their responses to medications, and there will likely always be a subpopulation of patients
who do not respond well to other medications.”
63 Brief for the Leukemia & Lymphoma Society et al. as Amici Curiae Supporting
Respondents at 18, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
64 Marinol currently sells at retail for about $17 per pill.
65 “Federal Foolishness and Marijuana,” New England Journal of Medicine, vol. 336, no.
5 (Jan. 30, 1997), pp. 366-367.

CRS-21
cautious. Their position is that not enough is known about botanical marijuana and
that more research is needed.66
The recent discovery of cannabinoid receptors in the human brain and immune
system provides a biological explanation for the claimed effectiveness of marijuana
in relieving multiple disease symptoms. The human body produces its own cannabis-
like compounds, called endocannabinoids, that react with the body’s cannabinoid
receptors. Like the better known opiate receptors, the cannabinoid receptors in the
brain stem and spinal cord play a role in pain control. Cannabinoid receptors, which
are abundant in various parts of the human brain, also play a role in controlling the
vomiting reflex, appetite, emotional responses, motor skills, and memory formation.
The presence of endogenous cannabinoids in the human nervous system and immune
system, which some scientists believe holds the key to many promising drugs in the
future,67 provides the basis for the therapeutic value of marijuana.
The federal government’s own IND Compassionate Access Program, which has
provided government-grown medical marijuana to a select group of patients since
1978, would seem to affirm that marijuana has medicinal value and can be used
safely. A scientist and organizer of the California medical marijuana initiative, along
with two medical-doctor colleagues, has written:
Nothing reveals the contradictions in federal policy toward marijuana more
clearly than the fact that there are still eight patients in the United States who
receive a tin of marijuana ‘joints’ (cigarettes) every month from the federal
government. ... These eight people can legally possess and use marijuana, at
government expense and with government permission. Yet hundreds of
thousands of other patients can be fined and jailed under federal law for doing
exactly the same thing.68
Smoking Is an Improper Route of Drug Administration
Can you think of any other untested, home-made, mind-altering medicine that
you self-dose, and that uses a burning carcinogen as a delivery vehicle?”69
(General Barry McCaffrey, U.S. Drug Czar, 1996-2000)
That medical marijuana is smoked is probably the biggest obstacle preventing
its acceptance. Opponents of medical marijuana argue that smoking is a poor way
to take a drug, that inhaling smoke is an unprecedented drug delivery system. DEA
Administrator Karen Tandy writes:
66 The Web site “Medical Marijuana ProCon” [http://www.medicalmarijuanaprocon.org]
contains information on organizations that both support and oppose medical marijuana.
67 For a summary of the growing body of research on endocannabinoids, see Roger A. Nicoll
and Bradley N. Alger, “The Brain’s Own Marijuana,” Scientific American, Dec. 2004, pp.
68-75.
68 Bill Zimmerman, Is Marijuana the Right Medicine For You? A Factual guide to Medical
Uses of Marijuana
(Keats Publishing, New Canaan, CT: 1998), p. 25.
69 Barry R. McCaffrey, “We’re on a Perilous Path,” Newsweek, Feb. 3, 1997, p. 27.

CRS-22
The scientific and medical communities have determined that smoked marijuana
is a health danger, not a cure. There is no medical evidence that smoking
marijuana helps patients. In fact, the Food and Drug Administration (FDA) has
approved no medications that are smoked, primarily because smoking is a poor
way to deliver medicine. Morphine, for example has proven to be a medically
valuable drug, but the FDA does not endorse smoking opium or heroin.70
Medical marijuana opponents argue that chronic marijuana smoking is harmful
to the lungs, the cardiovascular system, and possibly the immune and reproductive
systems. These claims may be overstated to preserve marijuana prohibition. For
example, neither epidemiological nor aggregate clinical data show higher rates of
lung cancer in people who smoke marijuana.71 The other alleged harms also remain
unproven. However, even if smoking marijuana is proven harmful, the immediate
benefits of smoked marijuana could outweigh the potential long-term harms for
terminally ill patients.72
The therapeutic value of smoked marijuana is supported by existing research and
experience. For example, the following statements appeared in the American
Medical Association’s (AMA’s) “Council on Scientific Affairs Report 10 —
Medicinal Marijuana,”73 adopted by the AMA House of delegates on December 9,
1997:
! “Smoked marijuana was comparable to or more effective than oral
THC [Marinol], and considerably more effective than
prochlorperazine or other previous antiemetics in reducing nausea
and emesis.” (p. 10)
! “Anecdotal, survey, and clinical data support the view that smoked
marijuana and oral THC provide symptomatic relief in some patients
with spasticity associated with multiple sclerosis (MS) or trauma.”
(p. 13)
! “Smoked marijuana may benefit individual patients suffering from
intermittent or chronic pain.” (p. 15)
70 Karen Tandy, “Marijuana: The Myths Are Killing Us,” Police Chief Magazine, Mar.
2005, available at [http://www.usdoj.gov/dea/pubs/pressrel/pr042605p.html].
71 Lynn Zimmer and John P. Morgan, Marijuana Myths Marijuana Facts (New York:
Lindesmith Center, 1997), p. 115.
72 Medicines do not have to be completely safe to be approved. In fact, no medicine is
completely safe; every drug has toxicity concerns. All pharmaceuticals have potentially
harmful side effects, and it would be startling, indeed, if botanical marijuana were found to
be an exception. The IOM Report states that “[E]xcept for the harms associated with
smoking, the adverse effects of marijuana use are within the range of effects tolerated for
other medications.” (p. 5)
73 American Medical Association, Council on Scientific Affairs Report: Medical Marijuana
(A-01)
, June 2001. An unpaginated version of this document can be found on the Web at
[http://www.mfiles.org/Marijuana/medicinal_use/b2_ama_csa_report.html].

CRS-23
The IOM Report, however, expressed concerns about smoking (p. 126):
“Smoked marijuana is unlikely to be a safe medication for any chronic medical
condition.” Despite this concern, the IOM Report’s authors, were willing to
recommend smoked marijuana under certain limited circumstances. For example,
the report states (p. 154):
Until the development of rapid-onset antiemetic drug delivery systems, there will
likely remain a subpopulation of patients for whom standard antiemetic therapy
is ineffective and who suffer from debilitating emesis. It is possible that the
harmful effects of smoking marijuana for a limited period of time might be
outweighed by the antiemetic benefits of marijuana, at least for patients for
whom standard antiemetic therapy is ineffective and who suffer from debilitating
emesis. Such patients should be evaluated on a case-by-case basis and treated
under close medical supervision.
The IOM Report makes another exception for terminal cancer patients (p. 159):
Terminal cancer patients pose different issues. For those patients the medical
harm associated with smoking is of little consequence. For terminal patients
suffering debilitating pain or nausea and for whom all indicated medications
have failed to provide relief, the medical benefits of smoked marijuana might
outweigh the harm.
Smoking can actually be a preferred drug delivery system for patients whose
nausea prevents them from taking anything orally. Such patients need to inhale their
antiemitic drug. Other patients prefer inhaling because the drug is absorbed much
more quickly through the lungs, so that the beneficial effects of the drug are felt
almost at once. This rapid onset also gives patients more control over dosage. For
a certain patient subpopulation, then, the advantages of inhalation may prevail over
both edible marijuana preparations and pharmaceutical drugs in pill form, such as
Marinol.
Moreover, medical marijuana advocates argue that there are ways to lessen the
risks of smoking. Any potential problems associated with smoking, they argue, can
be reduced by using higher potency marijuana, which means that less has to be
inhaled to achieve the desired therapeutic effect. Furthermore, marijuana does not
have to be smoked to be used as medicine. It can be cooked in various ways and
eaten.74 Like Marinol, however, taking marijuana orally can be difficult for patients
suffering from nausea. Many patients are turning to vaporizers, which offer the
benefits of smoking — rapid action, ease of dose titration — without having to inhale
smoke. Vaporizers are devices that take advantage of the fact that cannabinoids
vaporize at a lower temperature than that required for marijuana to burn. Vaporizers
heat the plant matter enough for the cannabinoids to be released as vapor without
having to burn the marijuana preparation. Patients can thereby inhale the beneficial
74 Cannabis preparations are also used topically as oils and balms to soothe muscles,
tendons, and joints.

CRS-24
cannabinoids without also having to inhale the potentially harmful by-products of
marijuana combustion.75
Marijuana Should Be Rescheduled to Permit Medical Use
[T]he administrative law judge concludes that the provisions of the [Controlled
Substances] Act permit and require the transfer of marijuana from Schedule I to
Schedule II. The Judge realizes that strong emotions are aroused on both sides
of any discussion concerning the use of marijuana. Nonetheless it is essential for
this Agency [DEA], and its Administrator, calmly and dispassionately to review
the evidence of record, correctly apply the law, and act accordingly. (Francis L.
Young, DEA Administrative Law Judge, 198876)
Proponents of medical marijuana believe its placement in Schedule I of the CSA
was an error from the beginning. Cannabis is one of the safest therapeutically active
substances known.77 No one has ever died of an overdose.78 Petitions to reschedule
marijuana have been received by the federal government, and rejected, ever since the
original passage of the Controlled Substances Act in 1970.
Rescheduling can be accomplished administratively or it can be done by an act
of Congress. Administratively, the federal Department of Health and Human
Services (HHS) could find that marijuana meets sufficient standards of safety and
efficacy to warrant rescheduling. Even though THC, the most prevalent cannabinoid
in marijuana, was administratively moved to Schedule III in 1999, no signs exist that
botanical marijuana will similarly be rescheduled by federal agency ruling anytime
soon.
An act of Congress to reschedule marijuana is only slightly less likely, although
such legislation has been introduced in recent Congresses, including the 109th.79 The
States’ Rights to Medical Marijuana Act (H.R. 2087, Frank), which would move
marijuana from Schedule I to Schedule II of the Controlled Substances Act, has seen
no action beyond committee referral.80
75 Several companies offer vaporizers for sale in the United States, but their marketing is
complicated by marijuana prohibition and by laws prohibiting drug paraphernalia. The
advantages of the vaporizer were brought to the attention of the IOM panel. The IOM
Report, however, devoted only a single sentence to such devices, despite its
recommendation for research into safe delivery systems. The IOM Report said,
“Vaporization devices that permit inhalation of plant cannabinoids without the carcinogenic
combustion products found in smoke are under development by several groups; such devices
would also require regulatory review by the FDA.” (p. 216)
76 The Young Opinion, p. 67.
77 Ibid., pp. 58-59.
78 Ibid., p. 56.
79 When Congress directly schedules a drug, as it did marijuana in 1970, it is not bound by
the criteria in section 202(b) of the CSA (21 U.S.C. 812[b]).
80 Congress could also follow the lead of some states that have a dual scheduling scheme for
(continued...)

CRS-25
Schedule II substances have a high potential for abuse and may lead to severe
psychological or physical dependence but have a currently accepted medical use in
treatment in the United States. Cocaine, methamphetamine, morphine, and
methadone are classified as Schedule II substances. Many drug policy experts and
laypersons alike believe that marijuana should also reside in Schedule II.
Others think marijuana should be properly classified as a Schedule III substance,
along with THC and its synthetic version, Marinol. Substances in Schedule III have
less potential for abuse than the drugs in Schedules I and II, their abuse may lead to
moderate or low physical dependence or high psychological dependence, and they
have a currently accepted medical use in treatment in the United States.
Rescheduling seems to be supported by public opinion. A nationwide Gallup
Poll conducted in March 1999 found that 73% of American adults favor “making
marijuana legally available for doctors to prescribe in order to reduce pain and
suffering.” An AARP poll of American adults age 45 and older conducted in mid-
November 2004 found that 72% agree that adults should be allowed to legally use
marijuana for medical purposes if recommended by a physician.81
Few Members of Congress, however, publicly support the rescheduling option.
The States’ Rights to Medical Marijuana Act (H.R. 2087, Frank), which would move
marijuana from Schedule I to Schedule II of the Controlled Substances Act, currently
has 37 cosponsors.
State Medical Marijuana Laws Increase Illicit Drug Use
The natural extension of this myth [that marijuana is good medicine] is that, if
marijuana is medicine, it must also be safe for recreational use. (Karen P. Tandy,
DEA Administrator, 200582)
It is the position of the federal government that to permit the use of medical
marijuana affords the drug a degree of legitimacy it does not deserve. America’s
80 (...continued)
botanical marijuana, whereby its recreational use is prohibited (Schedule I) but permitted
when used for medicinal purposes (Schedules II or III). Congress could achieve the same
effect by leaving marijuana in Schedule I but removing criminal penalties for the medical
use of marijuana, commonly called decriminalization. Congress could also opt for
legalization by removing marijuana from the CSA entirely and subjecting it to federal and
state controls based on the tobacco or alcohol regulatory models or by devising a regulatory
scheme unique to marijuana. None of these options seem likely given the current political
climate in which both political parties support marijuana prohibition.
81 These and other poll results can be consulted at [http://www.medicalmarijuanaprocon.org/
pop/votes.htm]. This Web site states: “Because 100% of the voter initiatives and polls we
located were favorable (50.01% or more pro) towards the medical use of marijuana, we
contacted several organizations decidedly “con” to medical marijuana — two of which were
federal government agencies — and none knew of any voter initiatives or polls that were
‘con’ (50.01% or more con) to medical marijuana.”
82 Karen Tandy, “Marijuana: The Myths Are Killing Us,” Police Chief Magazine, March
2005, available at [http://www.usdoj.gov/dea/pubs/pressrel/pr042605p.html].

CRS-26
youth are especially vulnerable, it is said, and state medical marijuana programs send
the wrong message to our youth, many of whom do not recognize the very real
dangers of marijuana.
Studies show that the use of an illicit drug is inversely proportional to the
perceived harm of that drug. That is, the more harmful a drug is perceived to be, the
fewer the number of people who will try it.83 Opponents of medical marijuana argue
that “surveys show that perception of harm with respect to marijuana has been
dropping off annually since the renewal of the drive to legalize marijuana as
medicine, which began in the early 1990s when legalization advocates first gained
a significant increase in funding and began planning the state ballot initiative drive
to legalize crude marijuana as medicine.”84 They point to the 1999 National
Household Survey on Drug Abuse (NHSDA), which “reveals that those states which
have passed medical marijuana laws have among the highest levels of past-month
marijuana use, of past-month other drug use, of drug addiction, and of drug and
alcohol addiction.”85
Indeed, all eleven states that have passed medical marijuana laws ranked above
the national average in the percentage of persons 12 or older reporting past-month
use of marijuana in 1999, as shown in Table 3. It is at least possible, however, that
this analysis confuses cause with effect. It is logical to assume that the states with
the highest prevalence of marijuana usage would be more likely to approve medical
marijuana programs, because the populations of those states would be more
knowledgeable of marijuana’s effects and more tolerant of its use.
It is also the case that California, the state with the largest and longest-running
medical marijuana program, ranked 34th in the percentage of persons age 12-17
reporting marijuana use in the past month during the period 2002-2003, as shown in
Table 2. In fact, between 1999 and 2002-2003, of the 10 states with active medical
marijuana programs, 5 states (AK, HI, ME, MT, VT) rose in the state rankings of
past-month marijuana use by 12- to 17-year-olds and 5 states fell (CA, CO, NV, OR,
WA).86 Of the five states that had approved medical marijuana laws before 1999
(AK, AZ, CA, OR, WA), only Alaska’s ranking rose between 1999 and 2002-2003,
from 7th to 4th, with 11.08% of youth reporting past-month marijuana use in 2002-
2003, compared with 10.4% in 1999. No clear patterns are apparent in the state-level
data. Clearly, more important factors are at work in determining a state’s prevalence
83 See, for example, J.G. Bachman et al. “Explaining Recent Increases in Students’
Marijuana Use: Impacts of Perceived Risks and Disapproval, 1976 through 1996,” American
Journal of Public Health
, vol. 88 (1998), pp. 887-892.
84 Brief for the Drug Free America Foundation, Inc., et al. as Amici Curiae Supporting
Petitioners at 26, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
85 Ibid. at 27. The 1999 NHSDA was the first to include state-level estimates for various
measures of drug use. Unfortunately, comprehensive state-level data prior to 1999 are not
available from other sources.
86 Care should be taken in comparing NHSDA data for 1999 with NSDUH data for 2002 and
after, due to changes in survey methodology made in 2002. The trend observations drawn
here from these data should therefore be considered suggestive rather than definitive.

CRS-27
of recreational marijuana use than whether the state has a medical marijuana
program.
The IOM Report found no evidence for the supposition that state medical
marijuana programs lead to increased use of marijuana or other drugs (pp. 6-7):
Finally, there is a broad social concern that sanctioning the medical use of
marijuana might increase its use among the general population. At this point
there are no convincing data to support this concern. The existing data are
consistent with the idea that this would not be a problem if the medical use of
marijuana were as closely regulated as other medications with abuse potential.
[T]his question is beyond the issues normally considered for medical uses of
drugs and should not be a factor in evaluating the therapeutic potential of
marijuana or cannabinoids.
The IOM Report further states (p. 126):
Even if there were evidence that the medical use of marijuana would decrease the
perception that it can be a harmful substance, this is beyond the scope of laws
regulating the approval of therapeutic drugs. Those laws concern scientific data
related to the safety and efficacy of drugs for individual use; they do not address
perceptions or beliefs of the general population.
The IOM Report also found that “No evidence suggests that the use of opiates
or cocaine for medical purposes has increased the perception that their illicit use is
safe or acceptable”(p. 102). Doctors can prescribe cocaine, morphine, amphetamine,
and methamphetamine, but this is not seen as weakening the war on drugs. Why is
doctors’ recommending medical marijuana to their patients any different?
A June 2005 editorial in the Washington Examiner had a slightly different take
on this issue:
Studies show higher increases in overall marijuana use in states that have passed
medical marijuana initiatives. The solution is to go after the estimated 15 million
people who smoke marijuana for recreation, not the sick people these laws were
intended to help.87
The so-called “Gateway Theory” of marijuana use is also cited to explain how
medical marijuana will increase illicit drug use. With respect to the rationale behind
the argument that marijuana serves as a “gateway” drug, the IOM Report offered the
following (p. 6):
In the sense that marijuana use typically precedes rather than follows initiation
of other illicit drug use, it is indeed a “gateway” drug. But because underage
smoking and alcohol use typically precede marijuana use, marijuana is not the
most common, and is rarely the first, “gateway” to illicit drug use. There is no
conclusive evidence that the drug effects of marijuana are causally linked to the
subsequent abuse of other illicit drugs.
87 “Congress Should Amend Drug Laws,” Washington Examiner editorial, June 16, 2005.

CRS-28
Tables 1 and 2. States Ranked by Percentage of Youth Age
12-17 Reporting Past-Month Marijuana Use, 1999 and 2002-2003
Table 1. 1999
Table 2. 2002-2003
Rank
State
%
Rank
State
%
1
Delaware
13.9
1
Vermont
13.32
2
Massachusetts
11.9
2
Montana
12.07
3
Nevada
11.6
3
New Hampshire
11.79
4
Montana
11.4
4
Alaska
11.08
5
Rhode Island
10.8
5
Rhode Island
10.86
6
New Hampshire
10.7
6
Maine
10.56
7
Alaska
10.4
7
Massachusetts
10.53
8
Colorado
10.3
8
New Mexico
10.35
9
Minnesota
9.9
9
Hawaii
10.23
9
Washington
9.9
10
Colorado
9.82
11
Oregon
9.6
11
Nevada
9.58
District of Columbia
9.6
12
South Dakota
9.57
12
Illinois
9.2
13
Delaware
9.41
12
New Mexico
9.2
14
Oregon
9.31
14
Maryland
8.8
15
Michigan
9.23
15
Indiana
8.7
16
Connecticut
9.22
16
Connecticut
8.6
17
Nebraska
9.13
17
Vermont
8.4
18
Washington
9.11
18
Hawaii
8.3
19
Minnesota
8.92
18
Wisconsin
8.3
20
New York
8.76
20
Michigan
7.8
21
Ohio
8.74
20
Wyoming
7.8
22
West Virginia
8.62
22
California
7.7
23
Florida
8.52
23
North Dakota
7.6
24
North Carolina
8.44
National
7.4
25
Virginia
8.43
24
South Carolina
7.4
26
Pennsylvania
8.18
27
Arizona
7.3
27
Kentucky
8.16
27
Arkansas
7.3
28
Oklahoma
8.13
27
New Jersey
7.3
National
8.03
28
Maine
7.2
29
Arkansas
7.97
29
West Virginia
7.1
30
Idaho
7.92
31
Ohio
6.9
31
Maryland
7.87
31
South Dakota
6.9
32
Arizona
7.74
33
New York
6.8
33
Wisconsin
7.71
33
North Carolina
6.8
34
California
7.66
34
Mississippi
6.7
35
Illinois
7.61
37
Kansas
6.6
36
North Dakota
7.58
37
Louisiana
6.6
37
Missouri
7.43
37
Missouri
6.6
District of Columbia
7.43
38
Georgia
6.4
38
Kansas
7.39
40
Oklahoma
6.3
39
Indiana
7.37
40
Pennsylvania
6.3
40
New Jersey
7.33
41
Florida
6.2
41
South Carolina
7.25
43
Nebraska
6.1
42
Wyoming
7.14
43
Utah
6.1
43
Iowa
7.10
45
Idaho
5.9
44
Louisiana
6.92
45
Virginia
5.9
45
Georgia
6.87
46
Texas
5.7
46
Texas
6.38
47
Alabama
5.6
47
Alabama
6.37
48
Kentucky
5.3
47
Tennessee
6.37
50
Iowa
5.2
49
Mississippi
6.04
50
Tennessee
5.2
50
Utah
5.30
Source: SAMHSA, Office of Applied Studies,
Source: SAMHSA, Office of Applied Studies,
National Household Survey on Drug Abuse, 1999,
National Survey on Drug Use and Health, 2002
Table 3B, at [http://www.oas.
and 2003, Table B.3, at
samhsa.gov/NHSDA/99StateTabs/tables2.htm].
[http://www.oas.samhsa.gov/2k3State/
Rankings calculated by CRS.
appB.htm#tabB.3]. Rankings calculated by CRS.

CRS-29
Tables 3 and 4. States Ranked by Percentage of Persons 12 or
Older Reporting Past-Month Marijuana Use, 1999 and 2003-2004
Table 3. 1999
Table 4. 2003-2004
Rank
State
%
Rank
State
%
1
Maryland
7.9
1
New Hampshire
10.23
2
Colorado
7.7
2
Alaska
9.78
3
Massachusetts
7.5
3
Vermont
9.77
4
Rhode Island
7.4
District of Columbia
9.60
5
Alaska
7.1
4
Rhode Island
9.56
District of Columbia
7.1
5
Montana
9.17
6
Washington
6.8
6
Oregon
8.88
7
Oregon
6.6
7
Colorado
8.49
8
Delaware
6.5
8
Maine
7.95
8
New Mexico
6.5
9
Massachusetts
7.80
10
California
6.0
10
Nevada
7.62
11
Montana
5.9
11
Washington
7.41
11
New Hampshire
5.9
12
New Mexico
7.37
13
Hawaii
5.8
13
New York
7.34
13
Maine
5.8
14
Michigan
7.20
15
Nevada
5.6
15
Hawaii
6.95
15
Wyoming
5.6
16
Connecticut
9.94
17
Vermont
5.4
17
Delaware
6.89
18
Michigan
5.3
18
Missouri
6.76
18
Minnesota
5.3
19
Florida
6.58
20
Arizona
5.2
20
California
6.50
21
Wisconsin
5.1
21
Ohio
6.49
22
Connecticut
5.0
22
Minnesota
6.37
22
Florida
5.0
National
6.18
22
New Jersey
5.0
23
Indiana
6.12
25
New York
4.9
24
Nebraska
5.97
25
Utah
4.9
25
Virginia
5.96
National
4.9
26
North Carolina
5.89
27
Illinois
4.8
27
Louisiana
5.77
29
Missouri
4.7
28
Maryland
5.73
29
North Carolina
4.7
29
Arizona
5.68
30
Indiana
4.6
30
South Carolina
5.65
31
Pennsylvania
4.5
31
Pennsylvania
5.64
32
Ohio
4.3
32
Arkansas
5.63
34
Georgia
4.2
33
Kentucky
5.62
34
Idaho
4.2
34
Illinois
5.60
35
South Dakota
4.1
35
Oklahoma
5.58
36
Virginia
4.0
36
Wyoming
5.45
38
Nebraska
3.9
37
Wisconsin
5.40
38
North Dakota
3.9
38
North Dakota
5.35
39
South Carolina
3.8
39
South Dakota
5.24
40
Kansas
3.7
40
West Virginia
5.12
43
Kentucky
3.6
41
Idaho
5.09
43
Tennessee
3.6
42
New Jersey
5.05
43
West Virginia
3.6
43
Georgia
4.93
47
Arkansas
3.5
44
Kansas
4.91
47
Louisiana
3.5
45
Iowa
4.90
47
Oklahoma
3.5
46
Texas
4.79
47
Texas
3.5
47
Mississippi
4.64
50
Alabama
3.3
48
Tennessee
4.59
50
Iowa
3.3
49
Alabama
4.32
50
Mississippi
3.3
50
Utah
4.00
Source: SAMHSA, Office of Applied Studies,
Source: SAMHSA, Office of Applied Studies,
National Household Survey on Drug Abuse,
National Survey on Drug Use and Health, 2002 and
1999, Table 3B, at [http://www.oas.samhsa.gov/
2003, Table B.3, at [http://www.oas.samhsa.gov/
NHSDA/99StateTabs/tables2.htm]. Rankings
2k3State/appB.htm#tabB.3]. Rankings calculated by
calculated by CRS.
CRS.

CRS-30
Medical Marijuana Undermines the War on Drugs
The DEA and its local and state counterparts routinely report that large-
scale drug traffickers hide behind and invoke Proposition 215, even when
there is no evidence of any medical claim. In fact, many large-scale
marijuana cultivators and traffickers escape state prosecution because of
bogus medical marijuana claims. Prosecutors are reluctant to charge these
individuals because of the state of confusion that exists in California.
Therefore, high-level traffickers posing as ‘care-givers’ are able to sell
illegal drugs with impunity. (California Medical Marijuana Information,
DEA Web page88)
Many opponents to medical marijuana argue that state laws related to this
issue weaken the fight against drug abuse by making the work of police officers more
difficult. This undermining of law enforcement can occur in at least three ways: by
diverting medical marijuana into the recreational drug market, by causing state and
local law enforcement priorities to diverge from federal priorities, and by
complicating the job of law enforcement by forcing officers to distinguish medical
users from recreational users.
Diversion. Marijuana grown for medical purposes, according to DEA and
other federal drug control agencies, can be diverted into the larger, illegal marijuana
market, thereby undermining law enforcement efforts to eliminate the marijuana
market altogether. This point was emphasized by the Department of Justice (DOJ)
in its prepublication review of a report by the Government Accountability Office
(GAO) on medical marijuana. DOJ criticized the GAO draft report on the grounds
that the “report did not mention that state medical marijuana laws are routinely
abused to facilitate traditional illegal trafficking.”89
GAO responded that in their interviews with federal officials regarding the
impact of state medical marijuana laws on their law enforcement efforts, “none of the
federal officials we spoke with provided information that abuse of medical marijuana
laws was routinely occurring in any of the states, including California.”90 The
government also failed to establish this in the Raich case. (It is of course possible
that significant diversion is taking place yet remains undetected.)
Just as with many pharmaceuticals, some diversion is inevitable. Some
would view this as an acceptable cost of implementing a medical marijuana program.
Every public policy has its costs and benefits. Depriving seriously ill patients of their
medical marijuana is seen by some as a small price to pay if doing so will help to
protect America’s youth from marijuana. Others balance the harms and benefits of
medical marijuana in the opposite direction. Legal analyst Stuart Taylor Jr. recently
wrote, “As a matter of policy, Congress as well as the states should legalize medical
88 Available at [http://www.usdoj.gov/dea/ongoing/calimarijuanap.html].
89 U.S. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws
That Allow Use for Medical Purposes
, GAO-03-189, Nov. 2002, p. 36.
90 Ibid., p. 37.

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marijuana, with strict regulatory controls. The proven benefits to some suffering
patients outweigh the potential costs of marijuana being diverted to illicit uses.”91
Changed state and local law enforcement priorities. Following the
passage of California’s and Arizona’s medical marijuana initiatives, federal officials
expressed concern that the measures would seriously affect the federal government’s
drug enforcement effort because federal drug policies rely heavily on the state’s
enforcement of their own drug laws to achieve federal objectives. For instance, in
hearings before the Senate Judiciary Committee, the head of the Drug Enforcement
Administration stated
I have always felt ... that the federalization of crime is very difficult to carry
out; that crime, just in essence, is for the most part a local problem and
addressed very well locally, in my experience. We now have a situation
where local law enforcement is unsure.... The numbers of investigations
that you would talk about that might be presently being conducted by the
[Arizona state police] at the gram level would be beyond our capacity to
conduct those types of individual investigations without abandoning the
major organized crime investigations.92
State medical marijuana laws arguably feed into the deprioritization
movement, by which drug reform advocates seek to influence state and local law
enforcement to give a low priority to the enforcement of marijuana laws. This
movement to make simple marijuana possession the lowest law enforcement priority
has made inroads in such cities as San Francisco, Seattle, and Oakland, but it extends
beyond the medical marijuana states to college towns such as Ann Arbor, MI,
Madison, WI, Columbia, MO, and Lawrence, KS.93 Federal officials fear that
jurisdictions that “opt out” of marijuana enforcement “will quickly become a haven
for drug traffickers.”94
Distinguishing between legal and illegal providers and users.
Police officers in medical marijuana states have complained about the difficulty of
distinguishing between legitimate patients and recreational marijuana smokers.
According to the DEA
Local and state law enforcement counterparts cannot distinguish between
illegal marijuana grows and grows that qualify as medical exemptions.
91 Stuart Taylor, Jr., “Liberal Drug Warriors! Conservative Pot-Coddlers!,” National
Journal
, June 11, 2005, p. 1738.
92 Testimony of Thomas A. Constantine in U.S. Congress, Senate Committee on the
Judiciary, Prescription for Addiction? The Arizona and California Medical Drug Use
Initiatives
, hearing, 104th Cong., 2nd sess., Dec. 2, 1996 (Washington: GPO, 1997), pp. 42-
43, 45.
93 “Marijuana: Lawrence, Kansas, Ponders City Marijuana Ordinance — Impact of HEA
Cited,” available at [http://stopthedrugwar.org/chronicle/401/lawrence.shtml].
94 Brief for U.S. Representative Mark E. Souder et al., as Amici Curiae Supporting
Petitioners at 20, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).

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Many self-designated medical marijuana growers are, in fact, growing
marijuana for illegal, “recreational” use.95
This reasoning is echoed in the Raich amicus brief of Community Rights Counsel (p.
12):
Creating an exception for medical use [of marijuana] could undermine
enforcement efforts by imposing an often difficult burden on prosecutors
of establishing the violator’s subjective motivation and intent beyond a
reasonable doubt. Given that marijuana used in response to medical
ailments is not readily distinguishable from marijuana used for other
reasons, Congress rationally concluded that the control of all use is
necessary to address the national market for controlled substances.
Patients and caregivers, on the other hand, have complained that their
marijuana, which is lawful under state statute, has been seized by police and not
returned. In some cases, patients and caregivers have been unexpectedly arrested by
state or local police officers. A November 2002 GAO report on medical marijuana
stated that “Several law enforcement officials in California and Oregon cited the
inconsistency between federal and state law as a significant problem, particularly
regarding how seized marijuana is handled.”96
This inconsistency has especially been a problem in California where the
California Highway Patrol (CHP) has, on numerous occasions, arrested patients or
confiscated their medical marijuana during routine traffic stops. “Although voters
legalized medical marijuana in California nearly nine years ago,” reports the Los
Angeles Times
, “police statewide have wrangled with activists over how to enforce
the law.”97
As a result of a lawsuit brought against the CHP by a patient advocacy group,
CHP officers will no longer seize patients’ marijuana as long as they possess no more
than 8 ounces and can show a certified user identification card or their physician’s
written recommendation. The CHP’s new policy, announced in August 2005, will
likely also influence the behavior of other California law enforcement agencies.
The Committee on Drugs and the Law of the Bar of the City of New York
concluded its 1997 report “Marijuana Should be Medically Available” with this
statement: “The government can effectively differentiate medical marijuana and
recreational marijuana, as it has done with cocaine. The image of the Federal
95 “California Medical Marijuana Information,” available on DEA’s Web site at
[http://www.usdoj.gov/dea/ongoing/calimarijuanap.html].
96 U.S. General Accounting Office, Marijuana: Early Experiences with Four States’ Laws
That Allow Use for Medical Purposes
, GAO-03-189, Nov. 2002, p. 64. GAO interviewed
37 law enforcement agencies and found that the majority indicated that “medical-marijuana
laws had not greatly affected their law enforcement activities” (p. 4).
97 Eric Bailey, “CHP Revises Policy on Pot Seizures,” Los Angeles Times (national edition),
August 28, 2005, p. A12.

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authorities suppressing a valuable medicine to maintain the rationale of the war on
drugs only serves to discredit the government’s effort.”98
Patients Should Not Be Arrested for Using Medical Marijuana
Centuries of Anglo-American law stand against the imposition of criminal
liability on individuals for pursuing their own lifesaving pain relief and
treatment ... Because the experience of pain can be so subversive of dignity
— and even of the will to live — ethics and legal tradition recognize that
individuals pursuing pain relief have special claims to non-interference.
(Brief of the Leukemia & Lymphoma Society et al., 200499)
Medical marijuana advocates believe that seriously ill people should not be
punished for acting in accordance with the opinion of their physicians in a bona fide
attempt to relieve their suffering, especially when acting in accordance with state law.
Even if marijuana were proven to be more harmful than now appears, prison for
severely ill patients is believed to be a worse alternative. Patients have enough
problems without having to fear the emotional and financial cost of arrest, legal fees,
prosecution, and a possible prison sentence.
The American public appears to agree. The Institute of Medicine found that
“public support for patient access to marijuana for medical use appears substantial;
public opinion polls taken during 1997 and 1998 generally reported 60-70 percent of
respondents in favor of allowing medical uses of marijuana.”100
The federal penalty for possessing one marijuana cigarette — even for
medical use — is up to one year in prison and up to a $100,000 fine,101 and the
penalty for growing a cannabis plant is up to five years and up to a $250,000 fine.102
That patients are willing to risk these severe penalties to obtain the relief that
marijuana provides appears to present strong evidence for both the substance’s
therapeutic effectiveness and their urgent need for relief.
Although the Supreme Court ruled differently in Raich, the argument persists
that medical marijuana providers and patients are engaging in a class of activity
totally different from those persons trafficking in marijuana for recreational use and
that patients should not be arrested for using medical marijuana in accordance with
the laws of the states in which they reside.
98 Committee on Drugs and the Law, “Marijuana Should be Medically Available,” Record
of the Association of the Bar of the City of New York
, vol. 52, no. 2 (March 1997), p. 238.
99 Brief for the Leukemia & Lymphoma Society et al., as Amici Curiae Supporting
Respondents at 1,2, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
100 IOM report, p. 18.
101 21 U.S.C. §844 and 18 U.S.C. §3571. 21 U.S.C. §844 also calls for a minimum fine of
$1,000, and 21 U.S.C. §844a permits a civil penalty of up to $10,000.
102 21 U.S.C. §841(b)(1)(D)

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With its position affirmed by Raich, however, the DEA continues to
investigate — and sometimes raid and shut down — medical marijuana distribution
operations in California and other medical marijuana states. DEA’s position is that
[F]ederal law does not distinguish between crimes involving marijuana for
claimed “medical” purposes and crimes involving marijuana for any other
purpose. DEA likewise does not so distinguish in carrying out its duty to
enforce the CSA and investigate possible violations of the Act. Rather,
consistent with the agency’s mandate, DEA focuses on large-scale
trafficking organizations and other criminal enterprises that warrant federal
scrutiny. If investigating CSA violations in this manner leads the agency
to encounter persons engaged in criminal activities involving marijuana,
DEA does not alter its approach if such persons claim at some point their
crimes are “medically” justified. To do so would be to give legal effect to
an excuse considered by the text of federal law and the United States
Supreme Court to be of no moment.103
Because nearly all arrests and prosecutions for marijuana possession are
handled by state and local law enforcement officers, patients and caregivers in the
medical marijuana states can, as a practical matter, possess medical marijuana
without fear of arrest and imprisonment. DEA enforcement actions against medical
marijuana dispensaries — as occurred in San Francisco shortly after the Raich
decision was announced104 — can, however, make it more difficult for patients to
obtain the drug. The situation that Grinspoon and Bakalar described in 1995 in the
Journal of the American Medical Association persists a decade later: “At present, the
greatest danger in medical use of marihuana is its illegality, which imposes much
anxiety and expense on suffering people, forces them to bargain with illicit drug
dealers, and exposes them to the threat of criminal prosecution.”105
The States Should Be Allowed To Experiment
Doctors, not the federal government, know what’s best for their patients.
If a state decides to allow doctors to recommend proven treatments for their
patients, then the federal government has no rightful place in the doctor’s
office. (Attorney Randy Barnett, 2004106)
Three States — California, Maryland, and Washington — filed an amicus
curiae brief supporting the right of states to institute medical marijuana programs.
103 Communication from DEA Congressional Affairs to author dated September 27, 2005.
104 Stacy Finz, “19 Named in Medicinal Pot Indictment, More than 9,300 Plants Were Seized
in Raids,” San Francisco Chronicle, June 24, 2005, p. B4.
105 Lester Grinspoon and James B. Bakalar, “Marihuana as Medicine: A Plea for
Reconsideration,” Journal of the American Medical Association, vol. 273, no. 23 (June 21,
1995), p. 1876.
106 Angel Wings Patient OutReach press release, Nov. 29, 2004. Barnett represented Raich
et al., in Supreme Court oral argument on this date.

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Their brief argued, “In our federal system States often serve as democracy’s
laboratories, trying out new, or innovative solutions to society’s ills.”107
The Raich case shows that the federal government has zero tolerance for state
medical marijuana programs. The Bush Administration appealed the decision of the
Ninth Circuit Court of Appeals to the Supreme Court, which reversed the Ninth
Circuit and upheld the federal position against the states. Framed as a Commerce
Clause issue, the case became a battle for states’ rights against the federal
government.
The Raich case created unusual political alliances. Three southern states that
are strongly opposed to any marijuana use, medical or otherwise — Alabama,
Louisiana, and Mississippi — filed an amici curiae brief supporting California’s
medical marijuana users on the grounds of states’ rights. Their brief argued
As Justice Brandeis famously remarked, “[i]t is one of the happy incidents
of the federal system that a single courageous State may, if its citizens
choose, serve as a laboratory; and try novel social and economic
experiments without risk to the rest of the country.”108 Whether California
and the other compassionate-use States are “courageous — or instead
profoundly misguided — is not the point. The point is that, as a sovereign
member of the federal union, California is entitled to make for itself the
tough policy choices that affect its citizens.109
States’ rights advocates argue that authority to define criminal law and the
power to make and enforce laws protecting the health, safety, welfare, and morals
reside at the state level and that a state has the right to set these policies free of
congressional interference.
For Justice O’Connor, the Raich case exemplified “the role of States as
laboratories.”110 She wrote in her dissenting opinion that
If I were a California citizen, I would not have voted for the medical
marijuana ballot initiative; if I were a California legislator I would not have
supported the Compassionate Use Act. But whatever the wisdom of
California’s experiment with medical marijuana, the federalism principles
that have driven our Commerce Clause cases require that room for
experiment be protected in this case.111
107 Brief for the States of California, Maryland, and Washington et al., as Amici Curiae
Supporting Respondents at 3, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
108 New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting)
109 Brief for the States of Alabama, Louisiana, and Mississippi et al., as Amici Curiae
Supporting Respondents at 3, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
110 Gonzales v. Raich, 125 S.Ct. 2195, 2220 (2005) (O’Connor, J., dissenting)
111 Ibid. at 2229

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Medical Marijuana Laws Harm the Drug Approval Process
The current efforts to gain legal status of marijuana through ballot
initiatives seriously threaten the Food and Drug Administration statutorily
authorized process of proving safety and efficacy. (Brief of the Drug Free
America Foundation et al., 2004112)
Although the individual states regulate the practice of medicine, the federal
government has taken primary responsibility for the regulation of medical products,
especially those containing controlled substances. Pharmaceutical drugs must be
approved for use in the United States by the Food and Drug Administration (FDA),
an agency of the Department of Health and Human Services (HHS). The Federal
Food, Drug, and Cosmetics Act gives HHS and FDA the responsibility for
determining that drugs are safe and effective, a requirement that all medicines must
meet before they can enter interstate commerce and be made available for general
medical use.113 Clinical evaluation is required regardless of whether the drug is
synthetically produced or originates from a natural botanical or animal source.
Opponents of medical marijuana say that the FDA’s drug approval process
should not be circumvented. To permit states to decide which medical products can
be made available for therapeutic use, they say, would undercut this regulatory
system. State medical marijuana initiatives are seen as inconsistent with the federal
government’s responsibility to protect the public from unsafe, ineffective drugs.
The Bush Administration argued in its brief in the Raich case that “excepting
drug activity for personal use or free distribution from the sweep of [federal drug
laws] would discourage the consumption of lawful controlled substances and would
undermine Congress’s intent to regulate the drug market comprehensively to protect
public health and safety.”114
Three prominent drug abuse experts argued the following in their Amici brief:
This action by the state of California did not create a “novel social and
economic experiment,” but rather chaos in the scientific and medical
communities. Furthermore, under Court of Appeals ruling, such informal
State systems could be replicated, and even expanded, in a manner that puts
at risk the critical protections so carefully crafted under the national food
and drug legislation of the 20th century.115
The FDA itself has stated that
112 Brief for the Drug Free America Foundation, Inc., et al. as Amici Curiae Supporting
Petitioners at 12, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).
113 21 U.S.C. §351-360
114 Brief for Petitioners at 11, Gonzales v. Raich, 125 S.Ct. 2195 (2002) (No. 03-1454).
115 Brief for Robert L. DuPont, M.D., et al. as Amici Curiae Supporting Petitioners at 19,
Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).

CRS-37
FDA is the sole Federal agency that approves drug products as safe and
effective for particular indications, and efforts that seek to bypass the FDA
drug approval process would not serve the interests of public health. FDA
has not approved marijuana for any indication. Only the disciplined,
systematic, scientific conduct of clinical trials can establish whether there
is any medicinal value to marijuana, smoked or otherwise.116
The Drug Free America Raich brief elaborates further (pp. 12-13):
The ballot initiative-led laws create an atmosphere of medicine by popular
vote, rather than the rigorous scientific and medical process that all
medicines must undergo. Before the development of modern
pharmaceutical science, the field of medicine was fraught with potions and
herbal remedies. Many of those were absolutely useless, or conversely
were harmful to unsuspecting subjects. Thus evolved our current Food and
Drug Administration and drug scheduling processes, which Congress has
authorized in order to create a uniform and reliable system of drug approval
and regulation. This system is being intentionally undermined by the
legalization proponents through use of medical marijuana initiatives.
The organizers of the medical marijuana state initiatives deny that it was their
intent to undermine the federal drug approval process. Rather, in their view, it
became necessary for them to bypass the FDA and go to the states because of the
federal government’s resistance to marijuana research requests and rescheduling
petitions.
As for the charge that politics should not play a role in the drug approval and
controlled substance scheduling processes, medical marijuana supporters point out
that marijuana’s original listing as a Schedule I substance in 1970 was itself a
political act on the part of Congress.
Scientists on both sides of the issue say more research needs to be done, yet
some researchers charge that the federal government has all but shut down marijuana
clinical trials for reasons based on politics and ideology rather than science.117
In any case, as the IOM Report pointed out, “although a drug is normally
approved for medical use only on proof of its ‘safety and efficacy,’ patients with life-
threatening conditions are sometimes (under protocols for ‘compassionate use’)
allowed access to unapproved drugs whose benefits and risks are uncertain.”118 This
was the case with the IND Compassionate Access Program established by the FDA
in 1978, under which a limited number of patients are provided government-grown
medical marijuana to treat their serious medical conditions.
116 FDA, “FDA Statement Re: Marijuana Legislation,” provided to Rep. Mark E. Souder on
July 7, 2004, available at[http://reform.house.gov/UploadedFiles/Medical%20Marijuana%
20Statement.pdf].
117 See, for example, Lila Guterman, “The Dope on Medical Marijuana,” Chronicle of
Higher Education
, June 2, 2000, p. A21.
118 IOM Report, p. 14.

CRS-38
Some observers believe the pharmaceutical industry and many politicians
oppose medical marijuana to protect pharmaceutical industry profits. Because the
whole marijuana plant cannot be patented, research efforts must be focused on the
development of synthetic cannabinoids such as Marinol. But even if additional
cannabinoid drugs are developed and marketed, some believe that doctors and
patients should still not be criminalized for recommending and using the natural
substance.
The New England Journal of Medicine has editorialized that
[A] federal policy that prohibits physicians from alleviating suffering by
prescribing marijuana for seriously ill patients is misguided, heavy-handed,
and inhumane. Marijuana may have long-term adverse effects and its use
may presage serious addictions, but neither long-term side effects nor
addiction is a relevant issue in such patients. It is also hypocritical to
forbid physicians to prescribe marijuana while permitting them to use
morphine and meperidine to relieve extreme dyspnea and pain. With both
of these drugs the difference between the dose that relieves symptoms and
the dose that hastens death is very narrow; by contrast, there is no risk of
death from smoking marijuana. To demand evidence of therapeutic
efficacy is equally hypocritical. The noxious sensations that patients
experience are extremely difficult to quantify in controlled experiments.
What really counts for a therapy with this kind of safety margin is whether
a seriously ill patient feels relief as a result of the intervention, not whether
a controlled trial “proves” its efficacy.119
Some observers suggest that until the federal government relents and becomes
more hospitable to marijuana research proposals and more willing to consider
moving marijuana to a less restrictive schedule, the medical marijuana issue will
continue to be fought at state and local levels of governance. As one patient advocate
has stated, “As the months tick away, it will become more and more obvious that we
need to continue changing state laws until the federal government has no choice but
to change its inhumane medicinal marijuana laws.”120
The Medical Marijuana Movement Is Politically Inspired
Advocates have tried to legalize marijuana in one form or another for three
decades, and the “medical marijuana” concept is a Trojan Horse tactic
towards the goal of legalization. (Brief of the Drug Free America
Foundation et al., 2004121)
Medical marijuana opponents see the movement to promote the use of
medical marijuana as a cynical attempt to subvert the Controlled Substances Act and
119 “Federal Foolishness and Marijuana,” New England Journal of Medicine, vol. 336, no.
5 (Jan. 30, 1997), p. 366.
120 Chuck Thomas, Marijuana Policy Project press release dated Apr. 20, 1999. Available
at [http://www.mpp.org/releases/nr042099.html].
121 Brief for the Drug Free America Foundation, Inc., et al. as Amici Curiae Supporting
Petitioners at 9, Gonzalez v. Raich, 125 S.Ct. 2195 (2005) (No. 03-1454).

CRS-39
legalize the recreational use of marijuana for all. They see it as a devious tactic in the
more than 30-year effort by marijuana proponents to bring an end to marijuana
prohibition in the United States and elsewhere.
They point out that between 1972 and 1978, the National Organization for the
Reform of Marijuana Laws (NORML) successfully lobbied 11 state legislatures to
decriminalize the drug, reducing penalties for possession in most cases to that of a
traffic ticket. Also, in 1972, NORML began the first of several unsuccessful attempts
to petition the DEA to reschedule marijuana from Schedule I to Schedule II on the
grounds that crude marijuana had use in medicine.122
Later, beginning with California in 1996, “drug legalizers” pushed
successfully for passage of medical marijuana voter initiatives in several states,
prompting then-Drug Czar Barry McCaffrey, writing in Newsweek, to warn that
“We’re on a Perilous Path.” “I think it’s clear,” he wrote, “that a lot of the people
arguing for the California proposition and others like it are pushing the legalization
of drugs, plain and simple.”123
Is it cynical or smart for NORML and other drug reform organizations to
simultaneously pursue the separate goals of marijuana decriminalization for all, on
the one hand, and marijuana rescheduling for the seriously ill, on the other? It is not
unusual for political activists tactically to press for — and accept — half-measures
in pursuit of a larger strategic goal. Pro-life activists work to prohibit partial-birth
abortions and to pass parental notification laws. Gay rights activists seek limited
domestic partner benefits as a stepping stone to full marriage equality. The tactic is
used on both sides of the cultural divide in America, to the alarm of those opposed.
It is certainly true that the medical cannabis movement is an offshoot of the
marijuana legalization movement. Many individuals and organizations that support
medical marijuana also support a broader program of drug law reform. It is also true,
however, that many health professionals and other individuals who advocate medical
access to marijuana do not support any other changes in U.S. drug control policy. In
the same way, not everyone in favor of parental notification laws supports banning
abortions for everyone. And not every supporter of domestic partner benefits
believes in same-sex marriage.
In these hot-button issues, ideology and emotion often rule. Marijuana users
in general, and medical marijuana users in particular, are demonized by some
elements of American society. The ideology of the “Drug Warriors” intrudes on the
122 For example, the Amici Curiae Brief of the Drug Free America Foundation et al., reveals
this history to discredit the medical marijuana movement (pp. 9-11). Actually, NORML and
some other drug reform organizations are open in acknowledging that they support patient
access to marijuana as a first step toward decriminalizing or legalizing marijuana for use by
adults in general. See, for example, Joab Jackson, “Medical Marijuana: From the Fringe to
the Forefront,” Baltimore City Paper, March 28, 2002[http://www.alternet.org/print.html?
StoryID=12714].
123 Barry R. McCaffrey, “We’re on a Perilous Path,” Newsweek, Feb. 3, 1997, p. 27.

CRS-40
science of medical marijuana, as pointed out by Grinspoon and Bakalar in the
Journal of the American Medical Association:
Advocates of medical use of marihuana are sometimes charged with using
medicine as a wedge to open a way for “recreational” use. The accusation
is false as applied to its target, but expresses in a distorted form a truth
about some opponents of medical marihuana: they will not admit that it can
be a safe and effective medicine largely because they are stubbornly
committed to exaggerating its dangers when used for nonmedical
purposes.124
The authors of the IOM Report were aware of the possibility that larger
ideological positions could influence one’s stand on the specific issue of patient
access to medical marijuana when they wrote that
[I]t is not relevant to scientific validity whether an argument is put forth by
someone who believes that all marijuana use should be legal or by someone
who believes that any marijuana use is highly damaging to individual users
and to society as a whole. (p. 14)
In other words, it is widely believed that science should rule when it comes
to medical issues. Both sides in the medical marijuana debate claim adherence to this
principle. The House Government Reform Committee’s April 2004 hearing on
medical marijuana was titled “Marijuana and Medicine: The Need for a
Science-Based Approach.” And medical marijuana advocates plead with the federal
government to permit scientific research on medical marijuana to proceed.
Rescheduling marijuana and making it available for medical use and research
is not necessarily a step toward legalizing its recreational use. Such a move would
put it on a par with cocaine, methamphetamine, morphine, and methadone, all of
which are Schedule II substances that are not close to becoming legal for recreational
use. Proponents of medical marijuana ask why marijuana should be considered
differently than these other scheduled substances.
It is also arguable that marijuana should indeed be considered differently than
cocaine, methamphetamine, morphine, and methadone. Scientists note that marijuana
is less harmful and less addictive than these other Schedule II substances. Acceptance
of medical marijuana could in fact pave the way for its more generalized use. Ethan
Nadelmann, head of the Drug Policy Alliance, has observed, “As medical marijuana
becomes more regulated and institutionalized in the West, that may provide a model
for how we ultimately make marijuana legal for all adults.”125 Medical marijuana
opponents have trumpeted his candor as proof of the hypocrisy of those on the other
side of the issue. Others note, however, that his comment may be less hypocritical
than astute.
124 Lester Grinspoon and James B. Bakalar, “Marihuana as Medicine: A Plea for
Reconsideration,” Journal of the American Medical Association, vol. 273, no. 23 (June 21,
1995), p. 1876.
125 Quoted in MSNBC.com story, “Western States Back Medical Marijuana,” Nov. 4, 2004,
available at [http://msnbc.msn.com/id/6406453].