In 1974 the U.S. Court of Appeals for the District of Columbia Circuit ordered the DEA to act, and to separately consider each category of marijuana constituents identified by NORML.[71] Twenty months later the DEA published an order in the Federal Register denying the petition "in all aspects," even though the DEA acknowledged that all of the marijuana components covered by the NORML petition could be rescheduled from Schedule I consistent with U.S. treaty obligations.[72] Ruling in NORML's appeal, the District of Columbia Circuit was critical of the DEA's failure to obtain the scientific and medical evaluation by the Department of Health, Education and Welfare (DHEW) of the NORML petition required by the Controlled Substances Act.[73] The NORML petition was referred to the DHEW Controlled Substances Advisory Committee which considered the petition in March 1978 and recommended that two marijuana components be rescheduled from Schedule I. But no formal action was taken on the committee recommendation. On March 28, 1979, NORML filed suit in the U.S. District Court for the District of Columbia against the Department of Health, Education and Welfare, but the DHEW quickly acted and a joint stipulation of dismissal was accepted by the court on June 21, 1979. The DHEW had concluded that all the marijuana components covered by the NORML petition could be classified in Schedule I or Schedule II, but recommended that they be retained in Schedule I.[74] Ten days after receiving the DHEW evaluation, the DEA denied NORML's petition again.[75] NORML again appealed. On October 16, 1980, the U.S. Court of Appeals issued its third decision remanding the matter, ordering that the NORML petition be reconsidered "in its entirety" and ordering the Department of Health and Human Services (HHS) to make "scientific and medical findings" on "all substances at issue ... consistent with this order and prior orders of this Court."[76] The Court also reprimanded the agency respondents.

The agencies took no action. On June 22, 1981, NORML filed a petition to compel compliance with the previous orders of the court. The agencies claimed they were taking action, and three days later filed a New Drug Application for synthetic THC. The FDA responded to the court that it planned a "legislative-type hearing" concerning natural marijuana. Nine months later (and seventeen months after the last court order) an FDA spokesperson told NORML's attorneys he had no idea of the timing of a proposed rule. In March 1982, the FDA published a proposed recommendation regarding THC.[77] The FDA insisted that THC remain in schedule I until a New Drug Application (NDA) was approved. However, the Court of Appeals in 1977 had ruled that the NDA was not necessary to precede the rescheduling matter.[78] This was another stalling tactic. In April 1982, NORML filed another petition to compel compliance. The Court of Appeals then ordered the DEA and the Department of Health and Human Services to submit a report to the court every ninety days on the progress of the NORML petition.[79] In May 1983 HHS recommended to DEA that natural marijuana remain in Schedule I. On April 1, 1986, the DEA Administrator sent a letter to DEA Administrative Law Judge Francis L. Young to conduct hearings on marijuana's rescheduling. This letter resulted from NORML's threat to request hearings on DEA's plans to reschedule synthetic THC. The hearings on natural marijuana were announced in the Federal Register.[80]

Prehearing conferences with the filing of written testimony took place on August 21, 1986, December 5, 1986, February 20, 1987, and October 16, 1987. Hearings for the purpose of cross-examination were held in New Orleans on November 18 and 19, 1987, in San Francisco on December 8 and 9, 1987, and in Washington on January 5, 6, 7, 26, 27, 28, and 29, and February 2, 4, and 5, 1988. Oral arguments were held on June 10, 1988 in Washington.

The government had insisted that the testimony of patients as to the efficacy of marijuana was not relevant. DEA's attorney Charlotte Mapes insisted there was nothing "in the legislative history, in the Statute, in any of the background that would support acceptance by the public as determining medical use. ... It is not the patients that determine the drugs that they are going to take. It is not the patients that practice medicine."[81]

On September 6, 1988, Administrative Law Judge Francis L. Young ruled. The ultimate issue was whether the drug "has a currently accepted medical use in treatment in the United States." [82] The record that was established demonstrated scores of published studies establishing that marijuana had medical efficacy. It included the testimony of many doctors and patients. Judge Young ruled that:

The overwhelming preponderance of the evidence in this record establishes that marijuana has a currently accepted medical use in treatment in the United States for nausea and vomiting resulting from chemotherapy treatments in some cancer patients. To conclude otherwise, on this record, would be unreasonable, arbitrary and capricious.[83]

The preponderance of the evidence here ... does not establish that a respectable minority of physicians has accepted marijuana for glaucoma treatment.[84]

[T]he administrative law judge concludes that, within the meaning of the Act, 21 U.S.C. 812(b)(2)(B), marijuana "has a currently accepted medical use in treatment in the United States" for spasticity resulting from MS and other causes. It would be unreasonable, arbitrary and capricious to find otherwise. The facts ... uncontroverted by the Agency, establish beyond question that some doctors in the United States accept marijuana as helpful in such treatment for some patients. ... Nothing more can reasonably be required. That some doctors would have more studies and test results in hand before accepting marijuana's usefulness here is irrelevant.

[H]yperparathyroidism [sic] from which Irvin Rosenfeld suffers[85] ... is so rare, and so few physicians appear to be familiar with it, that acceptance by one doctor of marijuana as being useful in treating it ought to satisfy the requirement for a significant minority. ... Refusal to acknowledge acceptance by a significant minority. ...[86]

Based upon the facts established in this record and set out above one must reasonably conclude that there is accepted safety for use of marijuana under medical supervision. To conclude otherwise, on this record, would be unreasonable, arbitrary and capricious.[87]

There are those who, in all sincerity, argue that the transfer of marijuana to Schedule II will "send a signal" that marijuana is "OK" generally for recreational use. This argument is specious. It presents no valid reason for refraining from taking an action required by law in light of the evidence. If marijuana should be placed in Schedule II, in obedience to the law, then that is where marijuana should be placed, regardless of misinterpretation of the placement by some. The reason for the placement can, and should, be clearly explained at the time the action is taken. The fear of sending such a signal cannot be permitted to override the legitimate need, amply demonstrated in this record, of countless sufferers for the relief marijuana can provide when provided by a physician in a legitimate case.[88]

Four plants in the natural state are currently used as drugs in the United States: Digitalis purpurea, Rauwolfia serpentina, Rhamnus purshiana, and Atropa belladonna. Three other plant materials, provided they meet the standards for potency and purity of the United States Pharmacopeia, are used as drugs as well: Datura stramonium, ipecac extract and opium extract.

B. Recent Medical Marijuana Research Programs

Throughout the 1980s, research was undertaken regarding the medical use of marijuana. Six states -- New Mexico[89], California[90], Georgia[91], Tennessee[92], Michigan[93] and New York[94] -- conducted human trials under the supervision of the Food and Drug Administration. Smoked marijuana was found to be superior to prescription drugs such as Torecan and Compazine in the control of nausea and vomiting in two of the studies.

The Food and Drug Administration also operated a research program involving single patients (an n = 1 study) called the Compassionate Investigational New Drug (IND) program which allowed physicians to apply to prescribe smoked marijuana to their patients. Early patients were Robert Randall and Elvy Musikka who used the marijuana to treat their glaucoma. Other patients were admitted to the program: Irvin Rosenfeld for the treatment of pseudo pseudo hypoparathyroidism which results in bone spurs growing all over the body which could become malignant at any time; Barbara Douglass for the treatment of multiple sclerosis; George McMahon for the treatment of nail-patella syndrome; and Kenny and Barbara Jenks for the treatment of AIDS wasting syndrome.

By the time the Jenks were admitted to the program following their criminal prosecution and reversed conviction,[95] the medical benefits of marijuana were becoming well-known to the AIDS community. The Compassionate IND program was deluged with new applications beginning in 1989. In June 1991, the Public Health Service announced that it was suspending the program. The principal justification was that providing marijuana to sick people would send the wrong message about the dangers of marijuana.[96] The belief that making marijuana available as medicine would send the wrong message also underlay the Clinton Administration's refusal to re-open the compassionate IND program in 1994.

C. Medical Marijuana Initiatives of 1996

The California legislature twice sent bills to Governor Pete Wilson to create a system for controlling the medical use of marijuana, including a proposed affirmative defense to a criminal prosecution. Governor Wilson vetoed both bills.[97] In 1996, pursuant to the California constitution, citizens circulated petitions to place an initiative on the general election ballot that came to be known as Proposition 215, to provide for a medical use defense to a prosecution of marijuana possession, distribution or cultivation. During the fall election season, General Barry McCaffrey, Director of the Office of National Drug Control Policy, twice traveled to California to speak out against the initiative, and to rally opposition to it[98]. The Attorney General of California, Dan Lungren, also campaigned against the measure. He even called a press conference to attack the Doonesbury comic strip by Garry Trudeau, which mocked his opposition to the initiative, and mocked a raid Lungren instigated against a San Francisco "club" that was distributing marijuana, ostensibly to medical patients.[99] Despite the opposition, the measure passed by a 55% margin on November 5, 1996 and became law on 12:01 am, Wednesday, November 6, 1996, adding section 11362.5 to California's Health and Safety Code.[100]

In Arizona, a group of leading citizens successfully placed a more comprehensive measure on the ballot. The sponsors obtained the endorsements of former U.S. Senators Barry Goldwater (Republican) and Dennis DeConcini (Democrat), and the support of other leading citizens in the state. Proposition 200 passed by a vote of more than 65% of the voters in that state.[101] Section 7 of Proposition 200 would authorize Arizona physicians to prescribe marijuana, and other drugs controlled in schedule I of the Arizona Controlled Substances Act, to a "seriously ill patient" or a "terminally ill patient."[102]

Other provisions in the Arizona initiative attacked the prevailing drug policy paradigm more broadly. In the early 1990s, Phoenix police chief Ruben Ortega had been an advocate of a policy called "do drugs, do time." This initiative rejected that approach. Persons convicted of simple possession of drugs would now be sentenced to probation and treatment or education.[103] They cannot be imprisoned. Instead of a mandatory minimum sentence of imprisonment, this provision was a mandatory maximum sentence of probation. Persons currently serving sentences for "personal possession or use" of a controlled substance would be paroled.[104] The initiative also created an Arizona Parents Commission on Drug Education and Prevention to "increase and enhance parental involvement" to address the problems of substance abuse.[105] A key provision denied parole to any person convicted of a crime of violence committed while under the influence of a controlled substance.[106]

D. The Government's Rhetorical Attack on the Arizona and California Propositions

The morning after Thanksgiving weekend, on December 2, 1996, the U.S. Senate Committee on the Judiciary held a hearing to attack the passage of these initiatives.[107] The lead witness was General McCaffrey, and his statement opened:

Having worked with the Congress and members of this committee for nine months to reduce drug use and its consequences in America, I share your concern that these two measures threaten to undermine our efforts to protect our children from dangerous psychoactive drugs. It would not be an exaggeration to say that the very essence of our National Drug Control Strategy -- our resolve to prevent the 68 million Americans under the age of 18 from becoming a new generation of drug addicts -- could be undone by these imprudent, unscientific, and flawed initiatives.[108]

He later said, "no clinical evidence demonstrates that smoked marijuana is good medicine," and "alternative therapies are adequate."[109]

On December 30, 1996, General McCaffrey held a news conference with Attorney General Janet Reno and Secretary of Health and Human Services Donna Shalala to unveil the Administration's legal response to the two propositions. It focused on the fact that teenage drug use has been rising since 1991. Secretary Shalala said, "in California and Arizona, voters sent very confusing messages to the teenagers in those states and to young people all across the country. ..."[110]

E. The Rise in Teenage Drug Use and Its Causes

Teenage drug use has been rising since 1991. Of eighth graders, 6.2% reported use of marijuana at least once in the last year in 1991. [111] This percentage increased to 18.3% in 1996. Of tenth graders, 16.5% reported use of marijuana in the past year in 1991.[112] This percentage increased to 33.6% in 1996.[113] Use at least once in the past thirty days is considered "current use," and the number of high school students who are "current users" of marijuana has shown very significant increases as well. Of eighth graders, 3.2% reported marijuana use in the past 30 days in 1991 -- this figure increased to 9.1% in 1995 and 11.3% in 1996.[114] For tenth graders the percentages were 8.7% in 1991, 17.2% in 1995, and 20.4% in 1996.[115] It should be noted that past year and current use of tobacco increased markedly during the same periods, growing about 50% among eighth and tenth graders from 1991 to 1996.[116] Daily cigarette smoking among tenth graders grew by 25% from 1991 to 1995 to a rate of one in six.[117] Daily cigarette smoking is five to ten times more prevalent than daily marijuana smoking.

The rates of teenage alcohol use have remained relatively steady increasing slightly in some age groups and decreasing slightly in others, but the rates themselves are shockingly high. Teenage binge drinking -- that is drinking more than five drinks at one time -- is very high. In 1996, one in four tenth graders and almost one in three twelfth graders reported binge drinking in the past two weeks.[118] One in three high school seniors reported they were drunk in the last month, and one in five tenth graders report the same.[119] Teenage drunkenness is a major factor in automobile accidents, in the spread of sexually transmitted disease, and in acts of violence. One thing that is striking is the emphasis on the marijuana use rates among public officials and the news media.[120] While practitioners of substance abuse prevention and scholars in the field note the inter-relationships in the use of tobacco, alcohol and marijuana, public officials speaking about this often have blinders regarding tobacco and alcohol.

There are numerous explanations offered for the increases in teen drug, alcohol and tobacco use. During the past five years, we have heard the many explanations from political figures, and they are empty and dishonest. The Republicans blamed President Clinton in 1995,[121] and again when the 1996 Household Survey on Drug Use was released in August, 1996,[122] even though the upswing started in 1991 during the Bush Administration. The President does not make enough speeches against drugs they say, and his policies are flawed, his Republican critics argue.[123] If Presidential speeches were the key ingredient for stopping teenage drug use, they would be a uniquely effective and inexpensive government program. But there is no evidence that this is the case.

Frequently the motion picture, television, and music industries are blamed  -- "Hollywood's glamorization of drugs." But there is no evidence of causation or association between entertainment and drug use nor is there any year to year comparison of the volume or content of "pro-drug messages" one year's movies or music with another year's that might be linked to changes in teen drug use. There are, of course, as always, simply anecdotes. Parents recognize that the cultural "glamorization" is much greater for cigarettes and alcohol than for illegal drugs.[124]

Dr. Eric Voth, Chairman of the International Drug Strategy Institute, and Stephanie Haynes, President of Drug Watch International, argue that a major factor in the rise of marijuana use by youth is a public relations campaign financed by advocates of drug legalization.[125]

Another explanation that was offered in 1996 is that "baby boomer" parents are at fault. Parents either are failing to talk with their children about drugs, or when they do talk to their children, they are ambivalent and resigned to the use of drugs by their children.[126] These typical explanations of the increase in teenage drug use offered by public figures do not stand up to analysis. None of the public figures attempting to explain the increase in teen drug use suggested that the effectiveness of the government funded prevention programs should be questioned. None of the public figures expressed any awareness that such programs had in fact been evaluated.

Since teenage drug and alcohol use are rising, any responsible approach to that problem ought to include an inquiry into the effectiveness of programs specifically designed to prevent such behavior. In fact, U.S. taxpayers have paid for such evaluations. But listening to the Administration and professional anti-drug spokespersons, one would never know it. In fact, the most logical explanation of the rise in teen drug and alcohol use is that our most popular teenage drug education programs are failures. The nation's number one teenage drug prevention program, Drug Abuse Resistance Education (D.A.R.E.), has been studied repeatedly and recently all of these studies were reviewed and analyzed pursuant to a U.S. Department of Justice contract. In September 1994 the reviewers found conclusively that D.A.R.E. was ineffective. This was the conclusion of independent research contractors at Research Triangle Institute who examined all the methodologically sound D.A.R.E. studies. D.A.R.E. does not reduce teenage drug use.[127] However, D.A.R.E. costs about $400 million in Federal funds annually, and has been estimated to cost another $300 million in state, local and private funds. However, D.A.R.E. is a sacred cow -- no public official will criticize it.

Why is D.A.R.E. so popular? First, D.A.R.E. is a police-sponsored and operated program, and public officials are loath to criticize the police. Police work is hard, dangerous, and often heroic. Public officials are eager to associate with such persons and professions. Police are crime fighters, and most public officials are eager to associate themselves with crime fighting. Recognizing the hazards of police work, most of us would not do it, and most of us have been trained not criticize those who do a job we would not do. Historically, the police have been generally respected. Unless one has been the relatively rare victim of police misconduct, most citizens do not want to criticize the police.

Second, D.A.R.E. does not cost cash-strapped school districts any money. The police departments pay the salaries, and obtain the funds for the distributed materials. School systems do not need to purchase or evaluate curricula, and teachers do not need to be paid. Effective programs such as Project STAR designed at the University of Southern California (taught in Kansas City and Indianapolis), or Life Skills Training (LST) designed at Cornell University Medical College, cost money and they require the involvement of parents, community leaders, the news media, teachers and the students. They require a greater commitment of a school system's time and effort than does D.A.R.E. Most importantly, they require skilled and well trained teachers.[128]

Unfortunately, however, a great many students simply do not believe the content of current anti-drug programs, according to the findings of Dr. Joel Brown and his colleagues. [129]

Health and Human Services Secretary Donna Shalala has repeatedly said we must provide a "consistent" message to our children about drugs[130]. She is saying in effect that our education about drugs must be "politically correct." Unsurprisingly, the truth is rarely politically correct. The latest Monitoring the Future report provides more evidence that "politically correct" anti-drug education is a failure. To many of our youth, anti-drug education fails the test of truth-telling that children detect and demand. To be credible with children, anti-drug education must report accurately about drugs. Teachers must be able to give honest answers to hard questions. Anti-drug education must conform to the general standards of education. We teach children how to discriminate, when to draw distinctions, and what are accurate similarities. D.A.R.E. and similar types of anti-drug education blur real and important differences between drugs and behaviors. In effect, anti-drug education blurs reality, and what does that sound like?

When important programs seem to be so profoundly ineffective, they must be subject to very careful review. When they are found to be ineffective, they must not be funded. The taxpayers have paid to have these programs studied. Now they are paying for anti-drug programs that have been proven to be ineffective and leave their children more vulnerable to using drugs, alcohol and tobacco.

F. Does Teenage Marijuana Use Increase Because of Medical Marijuana Programs or Debate?

It is a tenet of government anti-drug officials that providing marijuana for the sick and dying will increase teenage marijuana use.[131] Upon a moment's reflection, the claim that teenage marijuana use has risen or will rise because sick people are permitted to use marijuana is absurd. In the public "debate" about why teenage marijuana use has risen between 1991 and 1996, almost no observer attributed the increase to claims or experience regarding medical marijuana.[132] The historical record completely contradicts the claim. From 1979 until 1991, teenage marijuana use steadily declined. Yet during that period of time, there were numerous medical marijuana programs in place. On the order of thirty-six states enacted laws that either set up state therapeutic marijuana research programs, or that permitted doctors to prescribe marijuana. Almost all of these laws were enacted in 1978, 1979, 1980 or 1981 -- that is at the very time that teenage marijuana use started its steady decline.[133] A half dozen states were engaged in clinical research using marijuana.[134]

From 1976 to 1986, the National Institute on Drug Abuse shipped a total of 160,700 marijuana cigarettes for human studies,[135] and teenage marijuana use continued downward. In 1987 and 1988 public hearings were held in which the evidence regarding medical marijuana was publicly presented.[136] In 1988, the DEA Administrative Law Judge ruled that marijuana should be rescheduled as a Schedule II controlled substance on the ground that it had a medically accepted use in treatment.[137] And still teenage marijuana use continued to decline. It was 1991 when the Bush Administration announced that it was suspending the medical marijuana compassionate IND program, in order to stop "sending the wrong message" to teenagers about marijuana -- and teenage marijuana use started to increase. The program was permanently closed in 1992, and the Clinton Administration refused to reopen it in 1994 -- and teenage marijuana use continued to increase.

There is no evidence that shows that teenagers start smoking marijuana because it is provided to seriously ill or terminally ill medical patients. The Monitoring the Future survey shows that there is an association between the perception of harmfulness of marijuana and its use -- the less harmful it is perceived, the more youth use the drug.[138] By keeping marijuana outside the category of medicines, it is therefore in the category of "recreational" drugs like alcohol and tobacco. If marijuana is not a medicine, then what is it? "It's a party drug!" our youth will respond. The authors of the Monitoring the Future study in their discussion of the erosion of peer norms against drug use noted several explanations, but the medical use of marijuana was not one.[139]

If a close association is created by news accounts, public service advertisements, and anti-drug education between marijuana and people dying of fearful diseases such as cancer and AIDS, or people in great pain or with limited mobility such as paraplegics and multiple sclerosis patients, it would almost inevitably be "deglamorized." Let the Partnership for a Drug-Free America broadcast and publish images and messages that create a close association between marijuana and the people who are the least athletic, the least "attractive" (in the Madison Avenue sense), and measure the effect upon teenage marijuana use.

G. What the Medical Marijuana Propositions Do

The California proposition is not well-drafted. Regarding the provisions in the California Health and Safety Code prohibiting the possession and cultivation of marijuana, the proposition provides that the state prohibitions "shall not apply to a patient, or to a patient's primary caregiver, who possesses or cultivates marijuana for the personal medical purposes of the patient upon the written or oral recommendation or approval of a physician."[140] At a minimum, this provision permits persons being tried for violating the prohibitions to offer evidence that they are a seriously ill patient (or the caregiver of such a patient) and that a physician recommended or approved the patient's use of marijuana to treat the patient's disease. If such evidence is credible, it should result in a dismissal of the charges in state court. Section 11362.5(b)(1)(B) provides that:

The people of California hereby find and declare that the purposes of the Compassionate Use Act of 1996 are as follows: ... To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.

This provision might be understood as a bar to prosecution, but it is not a bar to an investigation. It may well be construed to authorize police officers and district attorneys to make inquiries following an arrest but before trial to satisfy themselves that the suspect marijuana possessor or cultivator is a patient with a physician's approval or recommendation. This was recently the case in Santa Clara County. For example, the police in Mountain View, California arrested a 43-year-old electrician who was using marijuana to treat AIDS-related symptoms with the recommendation of his physician and seized marijuana plants and growing equipment from his home. After five hours, and discussion with the Santa Clara County District Attorney's office, the police released the man, and returned the plants and growing equipment.[141]

Proposition 200 in Arizona authorizes the prescription only (not the "recommendation" or "approval" of the use) of Schedule I controlled substances "to treat a disease, or to relieve the pan and suffering of a seriously ill patient or terminally ill patient ... [by a medical doctor in compliance] with professional medical standards."[142] This proposition has been attacked by the Office of National Drug Control Policy at the White House and DEA because Schedule I controlled substances in addition to marijuana, include heroin and LSD.[143] Heroin is lawfully used to treat pain in the United Kingdom [144] and Canada.[145] Legislation to permit the use of heroin in the treatment of intractable pain was considered in the U.S. House of Representatives in 1984.[146] Prior to being outlawed, research into the therapeutic uses of LSD was reported in a number of papers to be useful as an adjunct to psychotherapy and in the treatment of alcoholism.[147] Whether a psychiatric patient (who must be "seriously ill" to qualify for treatment under Proposition 200) ought to get LSD therapy is certain to be highly controversial. Whether an alcoholic who has remained uncured by conventional treatments is a "seriously ill patient" within the meaning of this law would need to be determined before LSD therapy for such patients could be undertaken in Arizona.

The most important point is that none of the Schedule I substances are available at a pharmacy, thus there is no lawful way that a prescription can be filled. Proposition 200 does not, on its face, permit a physician to "dispense" a Schedule I controlled substance. Drugs, if they are introduced into interstate commerce, are regulated by the Federal Food, Drug and Cosmetic Act of 1938[148] Essentially, all drugs are so regulated. Therefore, until the Federal controls on schedule I drugs that exist under the authority of the Federal Food, Drug and Cosmetic Act of 1938 (notwithstanding the controls of the Controlled Substances Act of 1970), are modified or struck down as applied, the Arizona proposition in this regard is likely to have little effect.

H. The Administration's Legal Attack on the Propositions

The key to the utility of Proposition 215 is that physicians recommend the use of marijuana to their patients. If physicians are constrained from doing so, the proposition will have no consequence. The Administration formally responded to the propositions by convening an interagency working group and publishing a response in the Federal Register.[149] The first point in the Administration's response is to threaten physicians with the loss of their Federal license to prescribe controlled substances.

I. Physicians Registration, and the Authority to Suspend or Revoke

Almost every physician needs to be able to write prescriptions for pain-relieving medication in order to remain in business. In 1984, to prevent the diversion of controlled substances from legitimate medical uses to those who abuse drugs, Congress strengthened the authority of DEA to suspend or revoke the federal controlled substance prescription license, known as a "registration," if the DEA found that the registrant "has committed such acts ... inconsistent with the public interest as determined " under Section 823.[150] The concern was that the "retail level is believed to be the principal source from which drugs are 'diverted' from legitimate medical uses to drug abusers."[151] Legal prescription drugs -- whether pain killers, psychiatric medications, weight loss medications, tranquilizers, et cetera -- were "the predominant source of the drug used that brought a person to a hospital emergency room."[152] The concern was that criminal syndicates financed the establishment of "clinics" for the purposes of distributing prescription drugs or issuing prescriptions for such drugs under the cover of a legitimate medical practice. A report from the Judiciary Committee stated:

The physicians employed by such syndicates are instructed to conduct examinations and compile records to create the artifacts of a bona fide medical practice. These clinics have been difficult to investigate on the part of either Federal or State authorities. Often, 'patients' will be directed to a pharmacy that is controlled by the operators of the scheme. Typically, between one and five million dosage units of drugs can be diverted through such an operation. ... Another major source of diversion are physicians who prescribe excessively or carelessly because of their own problems (e.g., alcoholism, drug abuse, mental illness, senility) or because of lack of adequate knowledge concerning the effects of the drugs, or of the law.[153]

The Administration had wanted broad power to deny, suspend or revoke registrations. The Administration wanted simply to consider, "such other factors as may be relevant to and consistent with the public safety."[154] But the American Medical Association, the American Pharmaceutical Association and the American Veterinary Medical Association expressed concern at such a broad formulation. The Judiciary Committee agreed and limited the factor to apply to "such other conduct which may threaten the public health and safety."[155] Revocation or suspension of registration of a practitioner may be made upon a finding that the registrant "has committed such acts as would render his [sic] registration under section 823 [(f)of the Controlled Substances Act] inconsistent with the public interest as determined under such section."[156]

J. Administration published policy

After the 1996 medical marijuana initiatives passed, the Administration declared that,

Department of Justice's (DOJ) position is that a practitioner's action of recommending or prescribing Schedule I controlled substances is not consistent with the 'public interest' (as that phrase is used in the federal Controlled Substances Act) and will lead to administrative action by the Drug Enforcement Administration (DEA) to revoke the practitioner's registration.

DOJ and Department of Health and Human Services (HHS) will send a letter to national, state, and local practitioner associations and licensing boards which states unequivocally that DEA will seek to revoke the DEA registrations of physicians who recommend or prescribe Schedule I controlled substances. This letter will outline the authority of the Inspector General for HHS to exclude specified individuals or entities from participation in the Medicare and Medicaid programs.[157]

The Clinton Administration is now in the anomalous position of insisting that the laws adopted by majorities of the Arizona and California voters in th 1996 general election are contrary to the "public interest." If the voters decide the public interest, the term has no intelligible meaning.

In addition "Treasury will recommend that the IRS issue a revenue ruling, to the extent permissible under existing law, that would deny a medical expense deduction for amounts expended for illegal operations or treatments and for drugs, including Schedule I controlled substances, that are illegal procured under federal or state law.[158]

Regarding drug testing of "safety-sensitive transportation workers," those who test positive "may not under any circumstances use state law as a legitimate medical explanation for the presence of prohibited drugs. DOT [Department of Transportation] is encouraging private employers to follow its example."[159]

All general contractors and grantees of the Federal government must maintain drug-free workplaces. "Each Federal agency will issue a notice to its grantees and contractors to remind them...that any use of marijuana or other schedule I controlled substances remains a prohibited activity; and ... failure to comply with this prohibition" will make the grantees or contractors ineligible for Federal grants or contracts. "Further, Federal agencies will increase their efforts to monitor compliance with the Act ...with special priority given to states enacting drug medicalization measures." [160]

Federal civilian workplace rules will be reinforced, the Department of Defense will specially notify its contractors, the Nuclear Regulatory Commission "will continue to demand drug-free employees ..."[161] The Occupational Safety and Health Administration "will send letters" to California and Arizona agencies "reiterating the dangers of drugs in the workplace."[162]

To protect children from marijuana availability and use, HHS and the Department of Education will "educate the public in both Arizona and California about the real and proven dangers of smoking marijuana."[163] The Department of Education will reiterate to all "local education agencies" that they must continue to "ensure that programs supported by and with Federal Safe and Drug Free Schools funds convey the message that the illegal use of alcohol and other drugs, including marijuana, is wrong and harmful."[164] Also:

[The Department of] Education will develop a model policy to confront 'medical marijuana' in schools ..."

ONDCP, HHS and DOJ will work with Congress to consider changes to the Federal Food, Drug, and Cosmetic Act and the Controlled Substances Act, as appropriate, to limit the states' ability to rely on these and similar medical use provisions. ...We will also consider additional steps, including conditioning Federal funds on compliance with the Controlled Substances Act and the National Drug Control Strategy.[165]

The Administration is looking to every conceivable device to coerce doctors to disregard these changes in state law, and to coerce the states to abandon or reject these approaches, even though they were adopted by substantial majorities.

K. Litigation filed against McCaffrey and Others

On January 13, 1997, thirteen physicians, five patients, and several medical organizations sued General McCaffrey, DEA Administrator Thomas Constantine, Attorney General Janet Reno and HHS Secretary Donna Shalala in San Francisco arguing that the Administration's threat interfered with the ability of doctors and patients to discuss medical treatments in violation of the First Amendment.[166] This suit was a major news story. [167] The physicians are very well-known and very respected practitioners in California.

A challenge by persons associated with the Life Extension Foundation and the American Preventive Medical Association, making broader claims of the unlawfulness of the Administration's position, was filed on March 6, 1997. The plaintiffs allege not only a violation of the First Amendment, but that the Federal policy violates the Ninth Amendment, the Tenth Amendment, and the Commerce Clause.[168] The plaintiffs allege that the state laws authorizing physician prescription or recommendation of marijuana create statutory rights retained by the plaintiff physicians and plaintiff patients, that Congress has not authorized preemption of state law permitting physician prescription and recommendation of marijuana or patient use or home cultivation for personal medical use in accordance with state law, thus the Federal policy violates the Ninth Amendment. They allege that the policy preempts state law without a specific congressional mandate and attempts to regulate the conduct of state law enforcement officials. Also that the Federal policy invades state police powers and health and safety regulation, and supplants them in violation of the Tenth Amendment. The plaintiffs also allege that the intrastate medical recommendation and prescription of marijuana and the intrastate cultivation and consumption of marijuana for medically recommended and prescribed use is not "commerce" within the meaning of the Commerce Clause.

L. Legislation to punish doctors for recommending medical marijuana

United States Senator Lauch Faircloth (R-NC), joined by Senators Jesse Helms (R-NC) and James Inhofe (R-Okla.), introduced a bill to prohibit physician registrants with the Drug Enforcement Administration from offering advice, or responding to a request for advice, that suggests the use of marijuana, while acting in the course of his or her professional capacity. Current offenses by registrants carry a maximum sentence of four-years imprisonment.[169] This bill would authorize a 8-year term of imprisonment for making this recommendation. It would require mandatory revocation of the physicians registration with DEA. This would be the only ground for mandatory revocation of registration. It is called the "Drug Use Prevention Act of 1997," and was recently co-sponsored by Rep. Robert C. Smith (R-NH).[170]

K. Conclusions regarding medical marijuana

The intense controversy over the medical uses of marijuana will continue at a highly energized level. On February 19 and 20, 1997, the National Institutes on Health convened a two-day scientific workshop to review current knowledge regarding the medical uses of marijuana. The scientific advisory panel recognized that there was significant potential for medical benefit but that smoking the drug was highly problematic. The panel also observed that the nature of marijuana is such that conducting research with it will be particularly difficult. The active ingredients are not water soluble. Finding placebos and developing controls will be very challenging.

The convener of the conference, Dr. Alan Leshner, stressed repeatedly that NIH welcomes proposals for well-designed research. It was unclear whether NIH would cooperate with privately-funded research programs in making available research grade marijuana from the stocks that it controls.

As a measure to expedite this research, marijuana should be rescheduled to Schedule II. Since there is no FDA approval of marijuana, rescheduling would not open up every corner drug store to become a distributor of marijuana. Rescheduling would permit well-designed research to go forward without the near-crippling bureaucratic obstacles posed by the Drug Enforcement Administration.[171]

The compassionate IND program for n=1 studies should be reopened to physicians willing to do such research. The greatest need for marijuana medically is for those who have very rare disorders, such as nail-patella syndrome, or pseudo pseudo hypoparathyroidism, or those who do not respond to conventional medications.

Members of the Bar, concerned about the nature of justice, and the due administration of justice, should insist that sick people not be arrested if they use marijuana as a treatment for a serious medical condition. Together with the nation's physicians, they should insist upon a moratorium on the prosecution of all persons who have good faith claims that they are using marijuana medically.

Members of the Bar, concerned about the nature of justice, and the due administration of justice, should insist that sick people not be arrested if they use marijuana as a treatment for a serious medical condition. Together with the nation's physicians, they should insist upon a moratorium on the prosecution of all persons who have good faith claims that they are using marijuana medically. Lawyers, doctors and educators should unite to make clear that permitting marijuana to be used medically is not an endorsement of its use recreationally, or a rejection of the scientific evidence that its abuse can be harmful, especially to children.