The Obama Justice Department made news today by codifying a previously-announced policy of ending raids on medical marijuana dispensaries which comply with state laws. Even though medical marijuana is legal in fourteen states -- over one-fourth of the country -- it is still illegal under federal law (the Controlled Substances Act). Since federal law always trumps state law, this has led to continuing raids on dispensaries which state and local governments have explicitly allowed to operate. When President Obama took office, he announced that these raids by the feds would cease, as long as the dispensaries weren't breaking applicable state laws in their operation. A few raids subsequently took place in California, leading to some distrust and skepticism, but today Attorney General Eric Holder sent out guidelines to federal attorneys to halt these raids. This is good news for medical marijuana advocates, but even though this is a historic shift in the War on Drugs, it simply does not go far enough -- because it does not adequately resolve the illogic of the underlying legal issue. At best, it should be seen as only a good first (baby) step on the road towards a rational and cohesive federal medical marijuana policy.

The underlying problem is the fact that the federal government, via the Controlled Substances Act, refuses to admit that marijuana can ever be used medically. This leads to some serious doublethink on the federal level, and also leads to some serious injustice in the courtroom. And nothing the Department of Justice said today changes any of that.

I've written before about the issue of what "schedule" marijuana falls into under the Controlled Substances Act. Schedule I -- which includes marijuana -- differs from Schedule II in only one regard. From the Schedule I language: "The drug or other substance has no currently accepted medical use in treatment in the United States." Schedule II drugs are just as illegal as Schedule I, but have "a currently accepted medical use with severe restrictions." Schedule II drugs include: cocaine, opium, amphetamine, methamphetamine, PCP, and secobarbital. Possessing any of these without a prescription will get you locked up, but the possibility for a doctor to prescribe them exists within the law. Marijuana is not included in this list.

The doublethink occurs when you consider that, since the 1970s, there have been patients who were prescribed marijuana (not the synthetic Marinol, but actual smokable marijuana) to treat their glaucoma. They received prescription joints from their pharmacy, directly from the federal government. At the very same time that marijuana had "no currently accepted medical use." So federal law stated, in essence, that no medical use existed -- except for the patients we're supplying marijuana to.

But the true injustice is the federal gag rule. From the article in today's Washington Post on the new Department of Justice memo:

...the document, posted on the department Web site... makes clear that the department is not "legalizing" marijuana or creating a new legal defense for people who may have violated the Controlled Substances Act.

. . .

Representatives of the group also raised questions about the Justice Department policy shift Monday, wondering, for instance, whether federal prosecutors might allow defendants to introduce medical evidence in criminal cases brought in federal courts. Federal prosecutors have more than two dozen active cases in which defendants have been barred from using evidence of their medical problems.

The actual text of the memo makes this clear, too:

Nor does clear and unambiguous compliance with state law... create a legal defense to a violation of the Controlled Substances Act.

What this all means is that defendants are prohibited from attempting what is known as a "medical necessity defense" in federal courtrooms. In other words, it does not matter whether your doctor tells you that if you don't ingest marijuana you will likely die -- because you cannot tell the jury this during your trial.

In one of the earliest of these federal cases (after Proposition 215 passed in California, legalizing medical marijuana at the state level), Ed Rosenthal had actually been deputized by the city of Oakland, but could not even mention this fact during his trial. The jury heard all the evidence against him, as if he were some street dealer -- but they were precluded by federal law from hearing him attempt to adequately defend himself. He was not allowed to say "I was growing marijuana for medical patients," or to even bring up the fact that the city and state approved what he was doing, and had given the strongest possible stamp of approval to him. The city had thought that deputizing Rosenthal would immunize him, because there is a loophole in the drug laws for undercover police to handle and possess illegal drugs in the performance of their duties. It didn't work, because the jury never heard about it. Nor did they hear his "medical necessity" defense, because his lawyer was not allowed to say one word about it. When informed of the true facts of the case, after they had convicted him, several members of the jury apologized profusely to Rosenthal for the travesty of justice they had just played a part in. One said, of the conviction: "It's the most horrible mistake I've ever made in my entire life."

The concept of a "necessity" defense is a simple one in common law. Its purpose is to explain lawbreaking due to a necessity to prevent a greater evil than the breaking of the law. Say you were walking down a sidewalk and saw a blind man wandering in the street in the path of a bus. If you jumped out and dragged him to safety, you could technically be cited for jaywalking. But the evil of not acting to save the man's life is far greater than the evil of breaking the jaywalking law, so if a cop was insane enough to cite you, you could argue in court the reason you had for breaking the law in the first place, in your defense.

But if you try to argue a "medical" necessity in your defense against breaking federal drug law, all you will get in federal court is a mistrial or even contempt of court conviction (as happened to the Oakland Cannabis Buyers' Cooperative -- a different case from Rosenthal's -- where a medical necessity defense was specifically disallowed by the U.S. Supreme Court).

What this all means is that today's news, while good for the medical marijuana movement, is simply not good enough, because it changes no underlying federal law. Meaning that, if President Obama -- and Attorney General Holder, and the local Drug Enforcement Agency, and the local federal prosecutor -- all deem a particular medical marijuana dispensary acceptable, then it won't be raided. But if anyone in that chain of command decides you're outside the state law in any way, then you cannot even mention the words "medical marijuana" in your court case after they arrest you. You will simply be prosecuted as a "dealer" or "trafficker" and will be gagged so you cannot explain who you were really selling marijuana to.

This is still unacceptable. The citizens of fourteen states have determined that medical marijuana should be allowable. At the very least, you should be able to present this defense to a jury in a federal courtroom. Because without this change, all it would take is one D.E.A. office or one federal attorney to take a dislike to your operation, and you won't even be allowed to adequately defend yourself in court. And even if everyone in that chain of authority behaves themselves for the next four (or eight) years, Obama won't always be president. Meaning that all it would take is another memo by another attorney general, and the policy will go right back to where it was previously.

Being able to mount an adequate legal defense is a bedrock of the American justice system. Gagging a valid defense in such a fashion is nothing more than a travesty within this system. It is not justice -- it is rank injustice.

Of course, the real answer is to move marijuana to Schedule II. This would not only allow a legal defense in a courtroom, but it would make it much harder to overturn later on (under a different president). And, while Congress is capable of doing this, it doesn't seem likely any time soon (Barney Frank introduced such a bill, H.R. 2835, in the House this earlier this year -- but it has less than 30 cosponsors, and will likely get quietly buried in the Energy and Commerce committee without even getting a committee vote). But Congress doesn't even have to act in order to reschedule marijuana under the Controlled Substances Act. Right there in the text of the law is the following: "the Attorney General may by rule … transfer between such schedules any drug or other substance…."

Meaning that, while today's news is indeed a positive step towards legal acceptance of medical marijuana, it is a baby step at best. Because Attorney General Holder could have solved the problem once and for all. Instead, while limiting raids by federal agents, he retains the federal government's doublethink on the issue. Fourteen states have legalized medical marijuana. The practice of medicine is supposed to be regulated by the states. And yet, even after one-fourth of the states have said that there is a medical use for the cannabis plant, the federal government refuses to recognize this reality, and continues its position that marijuana is more dangerous to the public than cocaine, methamphetamine, opium, and PCP.

One almost wonders what they've been smoking, to come up with such a ridiculous legal stance.

[Legal Note: Anyone wishing to look into the court cases mentioned in this article should check out United States v. Ed Rosenthal and United States v. Oakland Cannabis Buyers' Cooperative. The Rosenthal link is a collection of articles (best link I could find with a limited search), but the O.C.B.C. link is the full legal record of the trial, in original documents. Another Supreme Court case worth looking at, where a slightly different defense was unsuccessfully used, is Gonzales v. Raich (was originally Ashcroft v. Raich).]

Cross-posted at The Huffington Post

-- Chris Weigant