The Truth About Medical Marijuana
October 2, 2003
Ed Rosenthal, Donald I. Abrams, Edwin Dobb, Robert J. MacCoun
- David Theroux
- Ed Rosenthal, Activist, co-author, Why Marijuana Should Be Legal
- Donald I. Abrams, Professor of Clinical Medicine, UCSF Medical Center
- Edwin Dobb, Contributing Editor, Harpers Magazine
- Robert J. MacCoun, Professor of Law, Boalt Hall School of Law; Professor of Public Policy, Goldman School of Public Policy; co-author, Drug War Heresies
- Questions and Answers
David Theroux Contents
President, the Independent Institute
Good evening, ladies and gentlemen. My name is David Theroux and Im the president of The Independent Institute. Im delighted to welcome all of you to our program this evening. As you know, its title is The Truth about Medical Marijuana.
Were delighted that our program tonight is also co-sponsored by our friends at Harpers Magazine, the Drug Policy Alliance, and the Richard and Rhoda Goldman School of Public Policy at the University of California in Berkeley.
The Independent Institute regularly sponsors the Independent Policy Forum, a series of lectures, seminars, and debates held here in the San Francisco Bay Area. In all of our programs, we seek to get beyond the stereotypes of left and right and feature speakers that will present their own views so that we all have a better opportunity to make up our own minds.
For those of you who are new to the Independent Institute, The Institute is a non-profit public policy research organization. We sponsor and publish many books and other publications, and conduct many conference and media programs like our program tonight.
We also invite you to visit us at our website, which is at Independent.org, where you will find further information about our many publications, including our journal called The Independent Review. Its a quarterly journal, and there are copies out in front if you would like to pick up one or get an idea what its about.
Youre also welcome to receive our free weekly e-mail newsletter, which is called The Lighthouse. The Lighthouse will keep you up to date on many policy issues as well as advise you of upcoming Institute events and other programs. To receive it, please be sure to leave your contact information, including your e-mail address, before you leave after our program tonight.
Our next event is going to be held on November 13th. It will be held at the Independent Institutes conference center, which is located in Oakland just off of Route 880 by the Oakland airport. The topic will be the USA Patriot Act and the assault on civil liberties. The program is being organized by our Center on Peace & Liberty and will feature Margaret Russell, who is chairman of the ACLU of Northern California and professor of law at Santa Clara University, David Cole from Georgetown University Law Center, and best-selling author James Bovard. We hope that all of you will be able to join with us.
Also in the program handout that hopefully everyone got, you will find information about the institute itself; and we hope that each of you will join as an institute associate member and become more directly involved in the battle over issues such as what well be addressing this evening.
To set the stage for tonights discussion, I want to mention a few developments that are worth noting. Articles today in Reuters, the New York Daily News, and USA Today now corroborate a major new National Enquirer story that Rush Limbaugh [Laughter], the influential talk show host and highly vocal supporter of the War on Drugs, is under criminal investigation by the state attorney general of Florida for his buying and maybe consuming thousands of addictive pain killers from a black market drug ring over the past four years. [Laughter and applause.] If true, how again do you spell hypocrisy?
In 1996, California voters passed Proposition 215, allowing physicians to recommend marijuana for medical purposes. To date, as I understand, 10 states have enacted medical marijuana legislation that is actually being implemented, and a total of 36 states and the District of Columbia have formally recognized, in various ways, the value of medical marijuana. A year ago the 9th US Circuit Court of Appeals ruled that doctors have a constitutional right to discuss marijuana with their patients, but in refusing to accept the role of the electorate, the federal government has been fighting back.
Earlier this year, Oakland resident Ed Rosenthal was the target of the federal governments campaign to destroy legal medical marijuana in California. The case and subsequent verdict against Rosenthal was based on withholding key information from the jury, including the fact that Mr. Rosenthal had been deputized by the City of Oakland, under California law, specifically to attend to the seriously ill. In the case, Mr. Rosenthal faced a sentence of 60 years in federal prison. However, facing subsequent public outrage about the case, including a public protest by the jurors themselves, the presiding judge handed down a sentence of only one day in jail and a nominal fine. But Ed Rosenthal remains a convicted felon and is currently seeking to have his sentence overturned in a state with three strikes and youre out.
Interestingly enough, in the current recall election in California all of the major candidates from across the political spectrum, including those that dropped out, have endorsed the legality of medical marijuana. How times change. Clearly, this is a reflection of the fact that over 70 percent of the public supports medical marijuana. Not to be discouraged, however, the Department of Justice has since asked the US Supreme Court to allow it to punish medical doctors who recommend marijuana, and the DEA continues to raid and close down clinics. Meanwhile, Congressmen Barney Frank and Sam Farr have each submitted bills to reduce the federal classification of marijuana, to decriminalize its medicinal use, and to allow defendants in federal cases to claim compliance with state laws. Unfortunately, neither bill probably has much chance yet of passage.
There are many questions to ask about federal policies, state policies, who benefits, who loses. Is California leading the nation? What kind of views are actually being presented and based on what? And what about the lives of people who are suffering from cancer, AIDS, MS, and many other serious ailments? What happens to them in the meantime? Our Independent Policy Forum this evening has assembled several of the foremost experts to discuss the past, present, and future of medical marijuana.
So I would like to introduce our speakers. Please hold your applause until I complete the introduction. First, to my left, your right, is Ed Rosenthal, the noted activist and best-selling author who has been a pioneer, as you all know, of the movement for medical marijuana. In 30 years of study, writing, and activism, hes become a trusted expert on medic marijuana use and social policy. Hes also the co-author of an important book that we are featuring this evening called, Why Marijuana Should Be Legal, and there are copies on the front table. Hes written over a dozen other books on the subject.
To his left, again your right, is Rob MacCoun. Rob is professor of law and public policy of the Goldman School of Public Policy at the University of California Berkley and co-author of the other book that we are featuring this evening, Drug War Heresies from Cambridge University Press. He was formerly a behavioral scientist at the Institute for Civil Justice and the Drug Policy Research Center at RAND Corporation. Hes one of the worlds foremost authorities on drug policy.
To my right is Edwin Dobb. Edwin is contributing editor to Harpers Magazine. His writings on civil liberties have been published in Harpers, Amnesty Now, and San Francisco Magazine. He was formerly senior editor of The Sciences. He writes for New York Times Magazine and is a visiting lecturer at the Graduate School of Journalism also at UC Berkeley.
Finally, I want to introduce, to his right, your left, again, Donald Abrams. Don is professor of clinical medicine at the University of California here in San Francisco and one of the leading researchers in the world on medical marijuana. Hes also assistant director of the AIDS program at San Francisco General Hospital, and since 1981, has been involved in several landmark studies on HIV and AIDS. Hes conducted clinical trials of marijuana since 1997, including trials with grants from the National Institutes of Health.
So, please join with me in welcoming the speakers. [Applause.]
Before we begin, a couple of quick program matters I want to mention. After our discussion, we will have questions from the audience, and in the program that each of you have there should be a question card. Please just jot down your question during the presentations and there will be people circulating the aisles to pick up the cards for the Q&A period. In addition, after the Q&A period well adjourn, and Mr. Rosenthal and Mr. MacCoun will be available to autograph copies of their books in the front lobby where you registered. So without further ado, Im very pleased to introduce Ed Rosenthal. [Applause.]
Ed Rosenthal Contents
Activist, Author: Why Marijuana Should Be Legal
The first thing, Id like to thank The Independent Institute for sponsoring this forum and creating itI think that this is pretty incredibleand especially you, David, and also Bill Selover who is here. Theyve just done so much work in getting this together. Its inspiring. And Id like to thank everybody whos here and, in fact, the entire community, because the reason why I am here and can be here tonight is because I was only given a one-day sentence, and that is because of you. It wasnt because of the judge. It wasnt because of any of the legal things. It was because of the pressure that the community and the media placed on the court system. So Id like to give you a hearty thanks for that. [Applause.]
The issue of medical marijuana is of prime importance to perhaps 100,000 Californians who use marijuana in one way or another for their health, who have been given recommendations by doctors because it may improve the quality of their life. It may maintain their health or it may actually keep them alive. And so this is not just a loose issue or something like that. And this issue not only affects Californians but also people throughout the nation. There are probably somewhere between half a million and a million people who use marijuana medically whether or not they have a recommendation for it.
Now, Id like to go into a little bit about my case. As you know, I was convicted on three counts and those are cultivating marijuana, maintaining a place where marijuana is cultivated, and also conspiracy to cultivate marijuana. And, as you know, this was the result of a jury that was kept ignorant of the facts of the casethat I was deputized by the City of Oakland, I was providing medical marijuana, that I was told by the city that I was immune from prosecution. And once the jury found this outwhen they went home and read the newspapers that they hadnt been reading while they were jurorswithin hours they got back to the media and repudiated their sentence. And, of course, that did not have a judicial meaning, but it certainly had a meaning to the media and it certainly had a meaning to the public, because this case was not fought just on one level. It was fought on two levels. It was fought in the courtand so far were losing the court casebut in the court of public opinion were the winners.
And I want to mention something. Most of us, when we vote, we realize were minority voters in one way or another. We vote for all these candidates that dont win quite a bit of the time, and we vote for causes that seem to be lost causes, but were the majority. When it comes to medical marijuana, we are the majority. Anybody whos opposed to it, theyre in the minority. Its a very unusual position to be in for most of us, I think. [Laughter.]
But we have to realize that were not trying to convince people that medical marijuana is efficacious, or that it works, or that it should be legal. Were just trying to convince a few politicians of it who are being wagged by the tail and Ill get into that.
Actually, eight of the jurors repudiated the verdict, two of the alternates. This had never happened before in American history.
Now, I notice that its heating up because six members of the jury in the Oakland caseIm talking about the Riders casehave just complained about what happened in their jury.
So, four days after the jury convicted me, they were back in the courtroom, in the audience section, for the judge to look at while he was deciding whether I was going to be remanded into custody immediately.
Now, I know that most of you were very relieved that I was given only a one-day sentence six months later, but I was more ambivalent about it. Because, its pretty good getting a one-day sentence, and actually the government owes me 12 hours because I served 36 hours. But lets say they had given me five years and remanded me to prison right then and there. It would have been a lot more headlines. I would have had a book sold by now. [Laughter.] And I think it would have moved the laws. And I think that the government and the judge realized that, if he had done that, that it would have caused quite a bit more controversy. Im going to just use the word controversy.
Right now, the government is appealing my sentence and theyve wanted me to do the 21 months, or five years, or whatever, and Im appealing the conviction both on technical and on constitutional grounds. And I wanted to go through them because theyre of importance.
And the first is that the judge, in pre-trial, was looking at the search warrant, and he realized that the DEA agent, Pickett, had lied on the search warrant. So instead of allowing a withering cross examination, he said, Well, Im just going to excise certain parts of the search warrant, and what was left, after he excised everything, was that I had a high electric bill. And then my attorney said, Well, lets compare it with other electric bills in the area, and the judge said, Im not going to allow it, because there are industrial users in the area, and then the search warrant might not be good. So were appealing on that basis.
Then were appealing because the judge found that the prosecutor had actually lied to the grand jury, and the judge found that he had misled the grand jury. But the judge said that no harm was done. And I dont know. If one of you had lied to the grand jury, you would be up for perjury, and here the prosecutor is lying to the grand jury, and he shouldnt have even been testifying.
So those are the two technical grounds that were appealing on, and we may very well win on those grounds. If we win, for instance, on the first one, it would mean that the way that search warrants are looked at would change, and the change would have court precedent there. But there are other, more important, issues that were covering, and Im going to go through these very quickly.
The first is the 9th Amendment. Now, you know, the 9th Amendment has never been used in court record, or its been used very little. Even the Griswold decision, which was for birth control, and the abortion decisions, did not rely on the 9th Amendment. And what the 9th Amendment says is that those rights of the people that are not enumerated in the Constitution, remain with the people and shall not be denigrated.
That means, for instance, you have the right to eat strawberries. Theres nothing in the Constitution that says that you have an inherent right to eat strawberries, but you have it because its in there. Those are some of your natural rights.
And there are two natural rights that the 9th Amendment covers in this case, and the first is that you have the right to seek help. Everybody has the right to seek help in their own way, whether you want to use herbal supplements, or whether you want to use vitamins, or whether you want to use religion and prayer for your health. You have a right to determine how you will gain your health. And so, by restricting medical marijuana, the government is restricting your right to health.
The second part is this: Before the Constitution, people in the United States had the right to use marijuana. Up until 1937 there were no federal laws against marijuana. So that was practically 150 years during the United States that people were using marijuana.
Then in 1937, the government realized that, in order to restrict marijuana, it would have to pass a constitutional amendment. So instead, it passed a tax law that was confiscatory. It was $100 an ounce tax, which in 1937 was a lot, since an ounce only cost a couple of dollars. So people would be arrested not for possessing marijuana but for not possessing the tax stamp, or paying the taxes on the substance. It wasnt until 1968 that marijuana was made illegal. I believe thats unconstitutional. People had the right to use marijuana through that entire period of time, and it was only in 1968 that it was made illegal. Well, if people had the right to use it, then that was a Constitutional right. How can that be denied?
Years ago I wrote a paper that said that the 9th Amendment is probably going to be the amendment of the 21st centuryand I hope this is the first case on it.
Then the 10th Amendment, thats the states rights amendmentthat any rights not given to the federal government remain with the statesand the state has two basic rights in this area. One is to regulate the health of its citizens, and the other is to regulate doctors. So the federal government is violating these rights in terms of the 10th Amendment. And where this comes in, especially in my particular case, is in the Constitutionand these are interwovenbut in the commerce clause of the Constitution, which regulates interstate commerce. Well, look, this marijuana was grown in California, by Californians for Californians. It was recommended by California doctors for people to use in California. I fail to see where theres any interstate commerce. So, if theres no interstate commerce, and the state has a right to regulate health, and its already determined that marijuana is good medicine, then why is the federal government in here at all?
And then another issue is 885d, a federal law thats part of the Controlled Substances Act. If youre a federal, state, or city health and safety officer, and in the course of your business, youre dealing with controlled substances, youre immune from prosecution. Well, thats so that narcs can buy and sell pot and other drugs and not get arrested for it. And I was a health and safety officer that the City of Oakland had appointed, and I was told by the city attorneys office that I was immune from prosecution under this law. And Judge Breyer said that a literal meaning of this would seem to immunize Rosenthal from prosecution. But then he said, Im not going to allow that, and then he didnt allow the jury to hear it.
And then theres the other thing. Lets say the city attorney was wrong. Lets say the city attorneys office was totally wrong, and they had told me that I was immune from prosecution but I wasnt. Well, then, I should have been immune from prosecution because of estoppel, which means that, if youre told that something that youre doing is okay by the federal government, they cant then come in and say, Look, it isnt right. Youre breaking the law and youre under arrest. Thats the idea of estoppel. Needless to say, I was a little surprised when I was arrested, and as you know, I never felt guilty.
Ill tell you why I did this. First of all, Im successful, which is pretty unusual in America, and I own my own publishing company. And so Im an upper-middle class, a middle class person, and I did not have to get involved in this. This is not my source of income. And the reason why I got involved in it was because the City of Oakland asked me to help patients.
There are all kinds of sayings in life, and we read about most of them as they come out of the Ten Commandments in the daily papers, based on lust, greed, robbery, lying. [Laughter.] But then there are other sins too, and sort of sins of omission. When you see somebody who needs help and you say, Im not going to render that person helpthats a sin. Thats a sin as much as lusting after somebody elses wife, or husband, or whatever. So I felt I was living with this and then, and when the city said, Well, you have immunity, well, I had no excuse not to do it.
And then there were personal things like if I can legally grow pot. Just the thought of that. You know, the federal government says that pots addictive. Well, I dont think that marijuana is really addictive, but growing it is. [Laughter.] And so, when I was given the opportunity to legally grow marijuana, I jumped at that.
So, given all these circumstances, it was inevitable that when I was arrested, I would be fighting this. I had just read a book a few months before I was arrested called The Tipping Point, which talks about movements, and how movements form, and how little things make big changes in society. I think I was really fortunate in reading this book because it gave me insight into what was going to happen to me, what was happening to me, and what was going to happen to this issue.
And, after all, the one thing that this did was change the paradigm in the way that people think about marijuana and the way the press reports it. And this is exactly what the federal government was afraid of. This is what theyve been trying to stop. And their doing this actually made me into a much better activist than Id ever been.
One of my ironic thoughts is that for 35 years I was trying to think, Well, what would make me a more effective activist? How can I be a more effective activist? How can I get this into the media so I could be speaking at places like The Independent Institute instead of at mass rallies? So the federal government found it out for me. And so let this be a warning. Youd better be careful what you wish for. [Laughter.]
So now the real question is, Why does the federal government want to do this? What do they have in it? Whats their vested interest in it this? And I have two ideas about this.
The first is that they really hate marijuana more than any other drug, whether its legal or illegal. And the reason for that, whether youre talking about tobacco, alcohol, amphetamines, cocaine, heroin, all those drugs ultimately make you dysfunctional in one way or another or can kill you. And the problem with marijuana, as far as the police are concerned, is that there is no payback to the people. They dont get any dysfunction from it. They might be happier than the police are. [Laughter.] It doesnt fit the Puritan ethic that if you have enjoyment, that in some way you have to pay for it. And I think, in a way, thats the psychology of the police, but theres something much more important. The whole criminal justice industry is based on arrests and on catching criminals. And so, if you decriminalized or regulated marijuana, then 8 percent of their budget would be down the drain. Eight percent of their budget. One out of every 12 arrests. One out of every 12 jails. One out of every 12 cop cars. One out of every 12 judges. It goes on and on down the line so that were talking about a tremendous amount of money.
And the marijuana war cost the federal government and the state governmentsthat means us, reallysomewhere between $15 billion and $30 billion dollars a year, and Ill give you some quick statistics on that. There are about 730,000 people who were arrested for marijuana last year, 88 percent of them for simple possession. There are probably between 100,000 and 150,000 people in prison right now for marijuana. There are 20,000 people in federal prison for marijuana right now. It costs the government $1.5 billion dollars just to house a small town of 20,000 people. Half of those people are Hispanic, so there are 10,000 Hispanic people in federal prison just for marijuana.
And so if you could think of how much resources are spent on this, its incredible. So lets give a hypothetical. Lets say tomorrow everybody stopped using illegal drugs, or lets say they just stopped using marijuana. So the police went out to arrest people. There was nobody to arrest. Nobody was selling marijuana on the street. Nobody was using it in their home. It wasnt being used. It would be a disaster for the DEA. Could you imagine that?
Now, the DEA has had a pretty good growth period over the last 65 years. In 1937, when the tax stamp came in, there were estimated to be 55,000 users. Now last year there were 730,000 arrests. The arrests totaled 13 times the number of users when marijuana was originally regulated. There are 25 million users for the Feds and state authorities to poach upon. Theyve had a tremendous success. If you take a look at these statistics, statistical impossibility is going to happen sometime around 2020, when there will actually be more marijuana users in the United States than there are people. [Laughter.] So lets see.
Now, I wanted to step back for a moment from this and get into what this is all about. And lets say we were talking about a river, and how we were going to use this river. And thered be all these stakeholders in this river and the water that this river provided would get together and talk about it. You might have farmers, and urban people, and urban communities, and environmentalists, and maybe there would be fishermen who might get involved in it. And together theyd reach some sort of compromise that probably nobody would like but that everybody could live with or sort of live with. So lets look at the stakeholders, in terms of medical marijuana. Well, you have patients. You have the doctors. You have the providers. You have caregivers. You have manufacturers. And all these people have something to lend to the discussion. You have the Public Health Service. They might have something to say about it. Insurers might have something to say about it, because they might have to pay for it.
But where are the police in this? Where is the criminal justice system in this? Whats their stake in this? They claim to have a stake. Do they have a right to poach upon people? To poach upon sick people? Just what is their stake in it? And this is the problem. Their stake in this is arrests. They need arrests or else they cant justify their budgets, and thats what this whole thing is all about. And thats why this is a culture war. We will hear later that this is a culture war. And this is part of the culture war. Whether they have a right to arrest a certain group of people because theyre using this substance just so that they can arrest them.
Can you imagine all of the wasted resources of this? The thousands and thousands of people whose lives are being ruined. 730,000 people were arrested last year. That doesnt affect just 730,000 people. It affects millions of people. It affects their families. It affects their employers. It might affect their employees. It affects them if theyre college students, because they lose eligibility to all federal grants.
So 730,000 arrestsand it doesnt stop at the end of the year. These 730,000 are processed. It continues all their lives. They might lose professional licenses. They might lose the ability to continue with their education.
So, when we step back and we see who are the stakeholders, heres what I think. The police, the criminal justice system, is not a stakeholder in whether medical marijuana patients should be able to use marijuana, or how much they should be able to use, or how they should be able to grow it. They have absolutely no expertise in this area. Any expertise that they claim to have is negated by their official organization, the California Narcotics Officers Association. You can go onto the Internet and look at their position papers and here is what they say: Marijuana is not a medicine. These people are verbal terrorists.
Now, the reason why I say theyre verbal terrorists. In order to remain a police officer in California, you have to continually get education. You have to take educational classes. And the California Narcotics Officers Association is deputized to give some of these classes. So this is what theyre teaching their students, who are the police. That marijuana isnt a medicine. That anybody whos using it is using it as a ruse. Dont believe it. Bust them now and let the courts sort it out. And theyre giving a training session, in case anybody wants to go, on November 8th to the 13th. Im going to try and register for one. [Laughter and applause.]
And so theyre saying that the people who are supporting medical marijuana are just doing it as a means of pushing marijuana onto the public, so that this is the first step. This is the only thing that I agree with them about, that medical marijuana is only a first step, because everybody has a right to use it, whether theyre using it medically, or recreationally, or however they want to use it.
And I know that people will say, the Narcotics Officers Association will say, Well, thats exactly what we said, but lets get real. Does the federal government differentiate between medical marijuana and recreational marijuana? Theres no differentiation in the law. And, in fact, what do they tell the juries? No matter what the state law might be, the federal government doesnt recognize medical marijuana. So you have this Narcotics Officers Association functioning as verbal terrorists in this war. And then they want to sit down at the table with stakeholders and say, Well, were stakeholders in it too. But, I question, where is there stake in it?
And Ill give you one example of how this played out very recently. There was recently the Vasconcellos bill, which former Governor Davis is going to decide whether hes going to sign or not. Part of the reason hes going to be former Governor Davis is that he was always apathetic, and actually, anti-marijuana, and anti-medical marijuana. And maybe, if he had a little more empathy for a few sick people, he wouldnt be in the terrible position that hes in.
What the Vasconcellos bill originally said, it adopted the SAM, the Sonoma guidelines, which were 99 plants in 100 or 200 square feet. Well, after it was ready to go right into the Senate, what happened was [Calif. Attorney General Bill] Lockyer got a hold of Vasconcellos and they changed it to six plants.
Now, what expertise does Lockyer have about what six plants will produce? What does he know about medicine? Why was he even involved in it? Dont you think its up to the people of this state to make policy and then for the attorney general and the district attorneys to follow that policy, and for the police to follow it, rather than for the tail to wag the dog? Thats where its at.
We have a police department that is out of control, and I have to get off, but theres one last part of this which is this: If you look at the Oakland Narcotics Bureau, where do you think theyre housed? Theyre not in the Oakland police building. Theyre not at city hall. Theyre not in any of their own buildings. No. They have a space in a federal building. And narcotics divisions all over the country are becoming part of the national police. Theyre being directed more by the federal government than by their local police chiefs, and they are now becoming part of the anti-terror network. And thats what were dealing with.
We have a big job ahead of us, but we will win this. Heres something for us all to say and think about. These laws are doomed. Thank you. [Applause.]
What I might just add as a footnote to what Eds been saying is theres a school of economics that is in part at the Independent Institute called the School of Public Choice. And Public Choice economists are very well aware of what Ed is talking about as far as the incentives that police agencies have in fostering and actually criminalizing behavior for their own benefit.
I want to thank Ed for a wonderful presentation. Our next speaker is Donald Abrams. [Applause.]
Donald I. Abrams, M.D. Contents
Professor of Clinical Medicine, UCSF Medical Center
Thank you. Its a pleasure to be here. I wanted to start by telling you a little bit about how I got into this field of doing research on marijuana. Its been a path thats been ongoing for the past 11 years. It started in 1992. I am an AIDS doctor, as was mentioned. Im also a newly appointed chief of hematology-oncology at San Francisco General Hospital, so I take care of patients with cancer and patients with AIDS, and thats what Ive been doing during my career.
In 1992, the AIDS conference was being held, in all places, in Amsterdam, and I was in my hotel room, glancing at CNN, when I noticed that Mary Raften was being arrested. Mary was a volunteer in our clinic at San Francisco General Hospital. She was about 70. She was known as Brownie Mary. She won the Volunteer of the Year award two years running because she came and took our patients to X-ray, and took their blood to the lab, and picked up their prescriptions, and she also baked brownies for her kids. And here I was in Amsterdam watching Brownie Mary being arrested in Sonoma for baking her brownies. When I got back home, there was a letter addressed to the director of research at the AIDS program at San Francisco General Hospital. Somebody brought it to me thinking I was a good enough person to respond to it. And it was from Rick Doblin who was the president of the Multidisciplinary Association of Psychedelic Studies or MAPS. Rick is a Ph.D. graduate of Harvards Kennedy School of Government, and his particular interest is in drug policy reform. Rick suggested that a clinical trial demonstrating the medicinal benefit of marijuana should come from Brownie Marys institution, as if she were our dean or something. [Laughter.]
Well, 1992 was a bad year for people living with HIV because we really had no drugs. We only had three, and I had just finished a trial comparing the three of them, so as a clinical trialist, this was sort of a gauntlet that I decided should be picked up. So I began to develop a clinical trial to look at smoked marijuana in patients with the so-called AIDS wasting syndrome, a very common condition at the time, where patients lost weight, became very skeletal, had diarrhea, no appetite. And marijuana is something that these patients were using, to a large extent obtaining it from Dennis Perons Cannabis Club in downtown San Francisco before it was closed.
We designed a clinical trial, Rick Doblin and myself, and sent it off. It was really readily approved by the Food and Drug Administration, surprisingly. The University of California Institutional Review Board had four pages of issues that I addressed. Ultimately, the question became obtaining marijuana for the study, and we needed to go to the National Institute on Drug Abuse where Allan Leshner was the director at that time.
Allan and I have a correspondence thats on the World Wide Web. It gives me a number of Goggle hits, but, basically, he sent me back a letter after nine months, having reviewed my proposal, and said that he was sorry that he could not provide us with the marijuana for this clinical trial because the study was not scientific. Here it had been approved by the FDA, by the University of California, and controlled substance studies in California also need to be approved by the California Research Advisory Panel or CRAP. [Laughter.] Ive told this story so much that CRAP has changed their name to the Research Advisory Panel of California so I cant make that little joke.
Anyway, it was a little bit upsetting to me that Allan Leschner had called our study unscientific when all these other bodies had approved it. It turned out later on that Allan and I became somewhat friendly and he explained to me something I didnt realize. The National Institute on Drug Abuse has a mandate from Congress to study substances of abuse as substances of abuse and not to provide them to researchers who want to study these substances for potential medical benefit. As he said, Donald, were the National Institute on Drug Abuse, not for drug abuse.
Anyway, ultimately, in 1996 HIV changed because protease inhibitor drugs became available that could really suppress the virus. The wasting syndrome disappeared. This was the year that we in California voted for Proposition 215, and if you recall at the end of the year, Barry McCaffrey, flanked by Donna Shalala and Janet Reno, got up there on December 30, 1996, and said, No, no, no. Physicians in California and Arizona cannot talk to their patients about use of marijuana because we will do all these terrible things to them, and thats when physicians finally began to mobilize. The National Institutes of Health got together. The Institute of Medicine began to investigate this, and everybody said we need more research.
Having already written two proposals, we were ready to write a third. And the availability of protease inhibitors gave us a new twist because these drugs are metabolized in the liver by the same system that metabolizes cannabis. So we proposed a clinical trial, not to see if marijuana was effective in patients with the AIDS wasting, because AIDS wasting disappeared, but to see if it was safe for people on protease inhibitors to smoke marijuana fearing that there may be some sort of a drug-drug interaction between cannabis and their drugs or cannabis and their immune system, because there was all this concern about what effect marijuana has on the immune system.
This was successful, and in 1997, we were awarded one million dollars and 1,400 of the governments finest 3.95 percent THC-containing marijuana cigarettes. We conducted a clinical trial from 1998 to 2000 in which we enrolled 67 patients and housed them in our in-patient general clinical research center at San Francisco General Hospital for 25 days. One third of the patients took Marinol, which is synthetic delta9-THC. One third took Marinol placebo, and one third smoked a NIDA cigarette three times a day for 21 days. Again, the endpoint of the study was what happens to the level of the AIDS virus in the blood stream with, also, a look at the immune system, the level of the protease inhibitors, and since we have the patient there, we were also going to see what happened to their caloric intake, their weight, and their body composition.
We completed the study. The study was published, Im happy to say, August 18th of 2003, after having been rejected by four major august journals. It was published in the Annals of Internal Medicinewhich had previously rejected it, but I appealed it because I said they have published the results of my study in a thought piece on medical marijuana the year before, and I said, Here Im sending you the original research. I think you should publish it. And, after a year of going back and forth about the statistics, they ultimately published the study.
I will say that the first august journal that rejected it, named after a region of our country in the northeastone of the peer reviewers in a one paragraph rejection said that these authors sound more like activists than scientists. I was a bit shocked and Ive been rejected by that journal on a number of times, and I said, You know, this is a bit biased. And I would be, if I were you, ashamed to have sent this to an investigator, a letter thats so politically biased, and rejecting this paper on the basis of that.
When a paper goes out for peer review, peers review it and send back their comments, and the reviewers comments in all the journals that rejected the paper were quite favorable. I think it was the editors of these journals that were concerned about publishing a study that showed our results. Our results being that there was no impact on the HIV viral load, that there was no significant drug-drug interaction between cannabis and the protease inhibitors, that the patient smoking marijuana gained weight, three kilograms, compared to one kilogram in the placebo group, and that, in fact, the immune system seemed to get a little better in the people smoking, compared to the people on placebo.
So anyway, the studys done. Its history. And fortunately for all of us, we live in the State of California, although who knows whats going to happen next week. Although weve heard Governor Davis sort of lambasted, he did approve or not veto John Vasconcelloss subsequent bill, which provided money to establish the Center for Medicinal Cannabis Research at the University of California. I have now been awarded three grants to study three different conditions in clinical trials.
Currently, we are doing a study in patients with HIV in painful peripheral neuropathy, which is nerve damage, leading to very severe pain in the hands and feet. The patients with peripheral neuropathy do not benefit from opioids, but they do seem to benefit from cannabinoids or cannabis, so we have just completed a pilot study, and now were doing a randomized placebo controlled trial of smoked marijuana versus smoked placebo.
We also have a study for cancer patients who are taking opioid narcotics and still have pain. This study is looking at the interaction of cannabis and the opioid analgesics to see if together they provide an additive pain relief, which we believe they will. Were also currently doing a study of women with breast cancer who have delayed nausea and vomiting secondary to their chemotherapy to see if cannabis or Marinol provides relief. And the final study that I just hung up from the FDA with this afternoon discussing is a study to look at the Volcano vaporizer as a smokeless delivery system.
I believe, personally, that marijuana has medicinal benefit. This is not news. People have known this for 5,000 years. In fact, it is only over the last 70 years that physicians in this country could not prescribe cannabis. What I find myself in the midst of now is a somewhat Sisyphean, if thats the right word, effort to reprove that marijuana is medicine. And we live in an era of evidence-based medicine, so my goal is to produce evidence that will, hopefully, convince people that need to be convinced that this is a drug that benefits people who need it. Whether or not this is a possibility in our lifetimes remains unclear, but it is the goal of the work that Im doing. With that, Ill stop and thank you very much. [Applause.]
Thank you very much, Donald. Our next speaker is Edwin Dobb. [Applause.]
Edwin Dobb Contents
Contributing Editor, Harpers Magazine
I speak not as a medical expert or criminologist but instead as a person whose occupationjournalismforces him to pay attention to certain perennial questions regarding democratic citizenship. One question concerns how societal problems are identified and defined. Another concerns the people controlling the process of definition, in other words, who determines the way problems are defined, the terms that dominate public debate, the often hiddenor deliberately obscuredassumptions that steer and constrain solutions.
The two questions are, of course, intertwined. And taken together, they constitute an inquiry into the exercise of power. Just such an inquiry is needed, I believe, to expose what may be missing or under-appreciated in our approach to the use of such illegal mind-altering substances as marijuana.
Judging from the language, stories, and images that dominate mainstream media, the troubles that accompany drug use can be understood in two ways. On the one hand is the medical perspective, with its emphasis on illness, treatment, and physicians. On the other is the punitive perspective, which stresses moral weakness, punishment, the police. Note that both models are based on roughly the same assumptionthat the problem springs from some form of individual inadequacy.
Certainly those who actually provide the treatment or mete out the punishment may and often do hold a more complex and forgiving view of the people in their charge, especially of the reasons why human beings make a habit of ingesting mind-altering substances. But Im speaking here of the debate as it plays out in the public domain, the fundamental ideas that define how we as a society frame the issue before us. Essentially thats a bipolar world inhabited by sick people and bad people.
Its also a relatively new world, brought into existence in 1914 with the passage of the Harrison Narcotic Act, which for the first time in this country allowed for the taxation of some mind-altering substances, leading to the criminalization of their use. During the past 90 years, the pendulum has swung between punishment and treatment, with punishment clearly being the preferred alternative, the one to which weve devoted by far the most time and resources. Indeed, among the early consequences of the Harrison Act was the arrest of physicians who refused to stop prescribing drugs how and when they saw fit.
As if there werent enough about this wrong-headed, profoundly destructive social experiment to induce despair, consider that we are once again harassing, arresting, and incarcerating physiciansphysicians who, employing not only marijuana but powerful opiates, would dare to relieve patients of excruciating, often end-of-life pain.
Perhaps nothing so clearly exemplifies the worldview of those prosecuting the War on Drugs than the demonization of doctors. As in the War on Terrorism, the rhetoric has become wildly inflated and misleading, allowing for the exploitation of fear and ignorance and the cynical promotion of self-serving rationales for curtailing the private behavior of our neighbors. In such a politically as well as emotionally charged climate, we must choose our words carefully.
For at least a generation, and under both Democratic and Republican administrations, the threat to society posed by the use of illegal substances has been deemed so grave that the only reasonable solution is one thats described in military terms. The policeman is now a warrior, and the warrior cant do his job if his hands are tied. Ridding the world of evil is a dirty business. Blood will be spilled. Collateral damage cant be avoided.
And its not enoughreally, its never been enoughto counter this view with one that simply replaces warriors with healers. By allowing ourselves to be seduced by the traditional bipolar scheme, and with few exceptions the mainstream media still encourages this outlook, we inadvertently ignore a more fundamental issuerights and responsibilities in a democratic society. By insisting that the only alternative to the rhetoric of punishment is the rhetoric of treatment, we make it easier for those who believe that the War on Drugs justifies placing new restrictions on the freedom of individuals.
But if instead we move the discussion into a civil liberties context, the ever-growing dangers of the war itself come into focus and the strategy of the warriors is exposed for what it is in effect, if not intentionan assault on the principles upon which the Constitution is based. At the most fundamental level, the issue isnt one of sickness vs. health or bad vs. good. Its what lengths do we believe the state can and should go to monitor and control the voluntary, private use of any substance, regardless of its effects upon the individual. Seen in this light, the societal problem that truly demands our attention isnt drug abuse. Its the abuse of power.
Preventing the government from overstepping its bounds is probably the quintessential and enduring topic of debate in robust democratic societies. So its no surprise that the terms were set long ago, and in this regard, never so forcefully as in John Stuart Mills essay On Liberty, written in 1857. Since this goes to the heart of the matter, it deserves being quoted at length. Heres what Mill wrote: The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant. He cannot rightfully be compelled to do so or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise or even right. The implications couldnt be clearer. The state, in this view, shouldnt use its police powers to punish adults for what they ingest. Period. Nor, and this needs to be emphasized, should the state compel treatment. Period. Over himself, Mill says, over his own body and mind, the individual is sovereign. And with such sovereignty, we must remind ourselves, comes responsibilityshould one persons exercise of rights lead to excess and bring harm to another. To favor the expansion rather than the further restriction of freedom is not to promote a cruel free-for-all in which no one is held accountable for his actions.
Once the principle of individual sovereignty is violated, all civil liberties are at risk. Which is the same as saying that all citizens are at risk. Which is another way of saying that as remote as the use and sale of illegal substances may seem to some, the War on Drugs, like the War on Terrorism, is our war, like it or not. Its being fought in our name, after all, and with our tax dollars. More to the point, a government that has no qualms about abridging the civil liberties of your pot-smoking or cocaine-snorting neighbor could just as easily show up on your doorstep with an equally unwarranted and intrusive plan to prevent you from harming yourself.
Merely a partial list of the drug warriors current assaults on liberty explains why former Supreme Court Justice Thurgood Marshall referred to them as the drug exception to the Constitution. Here are nine reasons why U.S. citizens should take exception to the drug exception:
1. Restricting free speech. This past August, Attorney General Ashcroft asked the Supreme Court to overturn the decision of the 9th Circuit Court of Appeals upholding the right of California doctors to recommend medical marijuana to their patients. Note the hypocrisy of those in power who profess a distaste for governmental intrusion yet are intolerant of states decisions in this regard.
2. Invasion of privacy. Drug testing is now routine, with severe consequences, even though its an unwarranted invasion of privacy, no necessary connection exists between urinalysis tests and impairment, and the tests can be inaccurate. Imagine getting fired for having had a drink the previous Friday night. In effect, the state is monitoring and punishing private behavior thats unrelated to job performance.
3. Violation of due process. Civil asset forfeiturethe seizure of cars, homes, and other propertyhas become one of the nasty little secrets of law enforcement agencies, because theyve grown dependent upon the proceeds generated . More alarming, though, is that, despite recent reforms, property still can be seized before a person is convicted of a crime, the property neednt be involved in the facilitation of a criminal enterprise, and the burden of proof is less than that required in a criminal proceeding. Often the most serious offenders, those with a great deal of money, can bargain for leniency, further corrupting the process.
4. Cruel and unusual punishment. Beginning with the Sentencing Reform Act of 1984, mandatory sentencing laws have greatly reduced the discretionary power of judges, leading to grossly disproportionate forms of punishment. Other disparities include those introduced under the Anti-Drug Abuse Act of the late 1980s. Example: Possession of 500 grams of powder cocaine results in a five-yard prison term, while it takes only five grams of crack cocaine to get the same punishment. This obviously discriminates against poor and minorities.
5. Denying access to education. 1998 law prohibits giving federal aid to students whove been convicted of drug crimes. Incredibly, convicted murderers and rapists are eligible for financial aid, while those convicted of marijuana or other drug charges are barred from a year to life. In the last three years alone, about 90,000 people have been denied aid. This law also discriminates against the poor, those most in need of education.
6. Homelessness. In 1996, the Department of Housing and Urban Development enacted a One Strike and Youre Out policy whereby a single drug crime, on or off housing premises, can result in the eviction of an entire household. Not only does this provision deny people the right to due process, which prevents one person from being punished solely because of the actions of another, the law targets low-income families, those for whom the prospect of homelessness is most devastating.
7. Disenfranchisement. In 13 states, ex-felons are barred from voting for life. And in the War on Drugs, thousands of people are being convicted of felonies every year.
8. Destruction of the social safety net. The Welfare Reform Act of 1996 denies for life cash assistance, food stamps, and other benefits to any person convicted of a state or federal drug offense. Although 31 states have eliminated or modified the provision, 19 states still impose it in full. Once again, even murderers and rapists escape such punitive measures. And once again, the law singles out the poor, as well as children, for undue punishment. According to a 2002 report by the Sentencing Project, more than 92,000 woman and 135,000 children are affected by the welfare ban.
9. Misuse of informants. Frequently, the only evidence against a defendant is the accusation of an informant. Under current rules, such informants can remain anonymous. And given the pressure on everyone involved to reach a plea bargain, defendants often never get the opportunity to confront their accuser anyway. A further abuse is the over-reliance on the testimony of a single biased witness, the recent case in Tulia, Texas being an egregious example. Twelve percent of the black population of a town of about 5,000 people were arrested solely on the word of a corrupt undercover agent. But that was preceded in 2000 by the arrest of 15% of the black males in the town of Hearne, Texasthis time on the word of an informant whod agreed to implicate certain individuals. All of the men were innocent.
Nightfall, as former Supreme Court Justice William O. Douglas, once said, does not come all at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the airhowever slightlest we become unwitting victims of the darkness.
Changes in the air brought about by the War on Drugs are now so numerous and troublesome that they cannot be ignored without risking deep and possibly permanent damage to our form of government and way of life. It is dusk in America and vigilance is required to navigate in the fading light. This is the responsibility not of experts in law or medicine or sociology, though their skill and wise counsel are surely needed, but instead all citizens. It surely shouldnt be left to the drug warriors who, even as we sit here tonight, are laying plans to conflate the War on Drugs and the War on Terrorism, concocting the so-called VICTORY Act, a successor to the PATRIOT Act that would greatly expand the governments power to seize records and conduct wiretaps, make it easier to seize property, and so on.
The drug problem, redefined as an abuse of power problem, dictates a very different set of possible solutions than those that usually dominate such discussions. And they all stem from an awareness of and willingness to fight to maintain the real locus of power in a democracythe people. The warriors can pursue their ill-conceived campaign only so long as we permit them to do so, only so long as we defer to their mad vision, only so long as we view ourselves as spectatorsor unwitting victims, in the words of Douglas.
Civil liberties cannot exist in the absence of citizens who, on the one hand, exercise them, and on the other, defend them. In the defense of liberty, we should work toward the day when no one is arrested, charged, goes to jail, or in any way suffers coercion at the hands of the state for possessing or using drugs of any kind. Besides protecting the sanctity of individual rights, this approach would greatly reduce corruption of law enforcement agencies and help restore the integrity of the overall judicial system. [Applause.]
Thank you, Ed. For those of you have not followed it that closely, of course, the USA PATRIOT Act has a successor which was termed PATRIOT II. Of course, the PATRIOT Act was cynically named PATRIOT Act to appeal to the public, and when the PATRIOT Act began to get bad PR, of course, they renamed the PATRIOT Act II to the so-called VICTORY Act, so thats the next thing on the horizon. Our next speaker is Robert MacCoun. [Applause.]
Robert J. MacCoun Contents
Professor of Law, Boalt Hall, Professor of Public Policy, Goldman School of Public Policy, University of California, Berkeley
Thanks. Im really delighted to be here. I think the civil liberties issues are quite important but Im going to change direction a little bit and focus more on some empirical questions about the effects of drug laws on drug use.
Im actually going to say very little about medical marijuana, because I actually dont think medical marijuana is really whats at issue here. I think the risk of medical marijuana systems leaking marijuana into the recreational community is such a trivial problem that I find it extremely difficult to rationalize the federal governments interest in this, taken at face value.
But I think, clearly, what the federal governments really interested in here is symbolic politics, the symbolic politics of medical marijuana, and the perception that medical marijuana is really a Trojan horse for marijuana legalization, and I think theyre surely right. I think its clear that the medical marijuana issue carries tremendous political importance.
Ive been tracking Gallop polls measuring opposition to marijuana legalization, and if you look back over 30 years, the opposition has been very stable among adults, 75 percent or 80 percent of the population. Only recently have we seen that opposition really start dropping, and I think the opposition is really starting to drop in part because the federal government has shown pretty much the same kind of political acumen that the Fox News lawyers showed when they went after Al Franken. [Laughter.] The problem with going after medical marijuana is that it brings into focus public views about what were actually achieving with marijuana prohibition.
Jimmy Carter, when he was president, amazingly, said the penalties against a drug should not be more dangerous to an individual than the use of the drug itself, and when they are, they should be changed. Nowhere is this clearer than the laws against possession of marijuana.
I want to open up the context a little bit by looking at, well, what do wewhat would actually happen if we decriminalized marijuana, de-penalized marijuana, legalized marijuana. And I come at this not as an activist telling you what to believe, but as a policy analyst, definitely not funded by the federal government, but funded by the Albert Sloan Foundation, the Robert Wood Johnson Foundation, to look at this question empirically. And Ive looked at this from various different angles, looking at historical evidence, cross-national comparisons, looking at experiences with alcohol and tobacco regulation, and so on.
I want to tell you about some of the things we know, although we dont know everything wed like to know. The federal government has been complaining about Canadas recent decision to decriminalize marijuana and saying that theyre bad neighbors, that theyre poisoning our neighborhood. But the Canadians were good enough neighbors in the 1970s not to accuse us of being bad neighbors when 11 of our states decriminalized marijuana. In fact, we did it first. Eleven states in the United States decriminalized marijuana meaning, specifically, possession was downgraded from a felony to a misdemeanor. And it varies from state to state how this is implemented, whether theres a quantity limit, or a frequency limit, or so on.
And so thats one of the choices of evidence we can look at. When we look at that evidence, we are unable to find any effect of that legal change on levels of marijuana consumption. You cant really detect any. Theres one study that has shown a very small effect. Nobody else seems to get the effect. Even the study that finds an effect is very tiny.
Australia. Some of the regions of Australia have de-penalized it. I prefer the term de-penalization because I think its clearerthey have de-penalized possession of marijuana. Both cross sectional and longitudinal studies failed to find any effect of this on levels of marijuana use.
The US is increasingly isolated in marijuana policy as country after country relaxes its marijuana laws. The US federal government has really been bullying other countries into trying to tow the US party line for a long time, and a lot of countries are finally saying, No. Were going to go our own way. Canada has said that. Great Britain has said that. Many regions of Germany have said that. Australia, Portugal, Italy and Spain. Its actually not well known, but Italy and Spain decriminalized marijuana back in the 1970s. And we dont find effects of removing penalties for possession on use. And this is a big part of what this debate is about, and this looming specter of de-penalization just does not look like it has any serious consequences.
I do want to talk about distinguishing de-penalization from legalization and talk a little bit about legalization. Legalization would involve allowing legal sales of marijuana, and here we really only have one contemporary example, and even thats not a perfect example. The Netherlands. By the letter of the law, cannabis sales are prohibited in the Netherlands. Don mentioned Amsterdam, but people laughed. A lot of my research has been in Amsterdam. Its a tough job, but somebodys got to do it. [Laughter.] And what the Dutch actually did was have a written policy of non-enforcement of sales up to five grams of marijuana.
The evidence on the effect of commercial sales are very ambiguous, and its very hard to know for sure whats happening. I will say, during the 1980s, when there was a dramatic increase in the number of coffee shops and the visibility of coffee shops, and during the period of the 80s, when there was a lot of advertising by these coffee shops, the Netherlands was the only country that had rising levels of marijuana use in Europe. The United States had falling levels during that time. I think its not implausible that commercial promotion did lead to some increase in use. Having said that, its very hard to find any indication that thats in any way harmed Dutch society, and in fact, levels of marijuana use in the Netherlands are now significantly lower than in the United States.
Interestingly, the reason why the Dutch allowed coffee shops to sell marijuana is that a Dutch sociologist in the 1970s argued that there was a gateway effect, that marijuana led to hard drug use. And the Dutch concluded that they needed to soften their marijuana laws. How did they reach this conclusion? Because they believed that the causal mechanism of the gateway is that young people come into contact with hard drug users and hard drug dealers, and so they wanted to separate the markets.
It seems to me, and in my book I reviewed some evidence, that the Dutch have successfully done this and that theyve actually weakened the gateway. It seems to me that probably a less risky way to reform marijuana laws, if you interpret increased use as a risk, and not everyone does, would be to follow the model used in Alaska and in South Australia, which is to allow legal cultivation of a small number of plants for personal use. Theres no commercial promotion involved. Theres no advertising involved. And it separates the marijuana market from the hard drug market without the risk of commercial interest. And in our book we take a very jaundiced look at the tobacco industry, gambling industry, alcohol industry, and there are a lot of problems with monied interests getting involved in an intoxicating substance.
So, one of the threats faced by the slippery slope of medical marijuana? I dont think the threats are really all that serious, and its worth looking at them directly. And I think whats happening is, increasingly, many countries are looking at the evidence and concluding that its just very hard to justify an aggressive, American-style war on marijuana. Thanks. [Applause.]
Questions and Answers Contents
And thank you, Rob, very much. We now have plenty of time for questions. The cards are, of course, designated to different speakers or the entire panel. The first question is for Ed. What advice do you have for people just starting out in the medical-marijuana dispensing business? [Laughter.]
Actually, there are more dispensaries now than when I was arrested, and there are more dispensaries throughout California than when I was arrested, and more and more of these dispensaries are working in cooperation with local governments. And my advice would be, if youre going to start a dispensary, try and make arrangements with the local government, and try to become an officer of the city, although that hasnt helped me much. Dot your Is, cross your Ts, in terms of business licenses, and try to work with the parts of the city government other than the criminal justice system. Theyre not going to give you a hand, but city council members, if theres a public health service in the city or the county, organizations like that within the government will help you. And the other advice that Id give is, remember that youre there to serve your citizens and your clients. Its not there for you; youre there for them.
The next question is for Donald Abrams. In the clinical study of cannabis, how were the subjects immune systems improved? Was this finding statistically significant? Are any researchers looking into this further?
Donald I. Abrams, M.D.
Yes, good question. The CD4 lymphocytes are the cell that the AIDS virus infects. Its the helper cell of our immune system, and as HIV progresses, the number of these cells decline. The CD8 lymphocytes are the suppressor cytotoxic cells which fight virally infected cells. A high number is associated with people who are the so-called long term, non-progressors.
What we saw in the group that smoked marijuana was a very highly statistically significant increase in CD8 cells compared to the placebo group. We also saw a CD4 increase that was significant but not as highly statistically significant as the CD8 increase, so we saw immune system benefits on both of those parameters. But in a number of other more extensive immune system studies that we did, we saw no real difference between the three groups.
The next question is for Ed Dobb. Mainstream news media typically strive for balance and feel theyve done their job if they give equal weight to both sides. Do you see any way to get the mainstream press to do more probing and more real reporting?
Certainly through this sort of activity. Im a full-time working journalist, independent, and I think by my participation in forums like this, I can have an effect on other writers. I can have some impact on the way issues are framed. I think simply a matter, in terms of writers and editors, campaigning for the type of story and the type of approach to this story that more clearly defines the stakes.
Okay, a question for Rob MacCoun. How can we overturn marijuana laws in the U.S. while being a signatory to international drug treaties?
Robert J. MacCoun
Thats a very good question. Actually, these international treaties are one reason why the Dutch have not legalized marijuana. Theyve come up with this elaborate way of de facto legalizing it because theyre signatories to these international conventions.
Now, conventions can be renegotiated. In the early 1990s, I went to a European Union conference on harmonizing drug policies. What harmonizing drug policies meant at that meeting was to bring the Dutch in line, and the Dutch were really being bullied at that meeting.
Now almost a decade later, we see many of the old adversaries of the Dutch in this battle really moving in the Dutch direction, and as Europe is changing, Australia, Canada are changing. I think were going to see a movement internationally. Yes, theres this belief in American exceptionalism, and it may well be that the American federal government doesnt care what other countries are doing. But one thing that is important is that some of these other ways of dealing with marijuana will no longer just be hypothetical. Well actually have experience with those and well find out what happens. And so far, as were accumulating evidence, we find out that not much happens. The sky does not fall in, and I think that thats potentially important.
Another question for Ed Rosenthal. Where is the tipping point in this drug war?
I think the tipping point has already occurred. And the tipping point has occurred over a period of time as citizens in eight states voted overwhelmingly for medical marijuana. And when we heard in the polls that between 60 percent and 75 percent of the population are in favor of it. Weve tipped in terms of medical marijuana. And its just that right now the tail is wagging the dog. Its not going to be happening for long.
And one of the things that the book The Tipping Point talks about is that things will go along on a plateau for a while, but when thing start happening, they happen quickly. And in our lifetime thats happened any number of times. One day we woke up and the Soviet Union was no longer. We had apartheid in our country. There are a number of major changes. There was no gambling in this country. There was only one state that had gambling, and now thats an accepted practice. So I think that we have actually tipped, and were going to see a rapid change in this, probably with new administration in Washington. [Applause.]
I have a number of questions, which Ill direct to the entire panel, regarding the question, what do individuals with terminal illnesses do to alleviate pain and who either live in or outside of Californiawere talking about people with Crohns, ALS, and any other ailmentsif the Feds are breathing down the neck of clubs and so forth? What can these individuals do? Who can they turn to?
Robert J. MacCoun
Actually, let me give a non-medical opinion on this. I think its extremely hard to justify prosecution of people using marijuana for medical use. But I think we also have to be clear that the evidence is that the risk of arrest and prosecution for someone using marijuana medicinally or otherwise is quite small. The probability of arrest for all marijuana users in a year of using is about 3 percent, and for medical patients who are using it medically, that the risk is certainly lower than that. Basically, there are a lot of people in states without medical marijuana laws who are already obtaining marijuana and using it. Anyone else?
Okay, another question for the entire panel. One of the real concerns of the opponents of medical legalization is the growing use among youth, but medical marijuana is used much more by people who are older. Can you comment on this youth-age question?
Donald I. Abrams, M.D.
Actually, I just read, I think yesterday, that as an example of how the current drug war is not working, that there has been an increase in utilization of marijuana smoking in sixth graders and eighth graders or something. Martha Rosenbaum, who is in the audience, knows this a lot better than I do, and I just heard her speak.
But I think that this question of the gateway drugI always quote whoever it was that said that marijuana is as much of a gateway drug as caffeine and tobacco. Its just that people have access to these things at a younger age, and then, if they go onto other things, its because of that, not because of marijuana leading them to other drugs. So I think there is a problem with use among youth, but I think we need to be upfront and discuss it with children.
Actually, I think that the its been shown that some of the federal commercials, you know those
Donald I. Abrams, M.D.
They have totally backfired. That theyve actually given kids an incentive to use it. [Laughter.] And, well, you know, there was that one commercial that said that you were the youngest grandparents in the neighborhood. I mean, I never found that effective that way, but that might have a certain incentive to youth, and also I think the taboo factor comes into play.
I have a 12-year-old daughter, and she doesnt seem to have an interest in using it. She thinks of it as an adult thing. But I think when you bring the taboo factor into it, that is a major player in it.
May I say something too? I think, too, that obviously the discrepancy between what people actually know by virtue of experience, especially with marijuana, is like were living on two different planets. Theres a group of people who have been involved in this social experiment now for the last 40 years. A couple of generations have accumulated wisdom about the use of marijuana now, and its completely at odds with what many policymakers and politicians view. And I think that discrepancy, if its promoted in terms of education and anti-drug programs, just fosters a cynicism and a disbelief in those very officials, because theyre so out of touch with the reality of a drug thats now so widespread, on a recreational level, that simply, for many people, its just part of the woodwork now. Its part of the climate we live in. And I think that has an erosive effect.
One more thing. You know, from reports in the newspapers, Bushs own daughters dont believe the rhetoric. [Laughter.]
I think this would be also a question for Dr. Abrams. What research is planned or has been completed about the addictive influence of HIV medicines on cannabis users? Its a reverse question.
Donald I. Abrams, M.D.
Addictive? Im not aware ofIm not sure I understand that one at this point.
For the entire panel, the question is, please talk about SB420 and what it means, if its passed? This is regarding the issue of plant limits for individuals, and co-ops, and so forth.
Okay, SB420 is the Vasconcellos Bill that we were talking about, and what that bill would do is set a certain minimum for counties, because right now in California, effectively, medical marijuana legalization is county by county. In some counties, they say you can grow a large number of plants or posses a large amount. In other counties, its a very small amount, and this bill would set certain minimum standards. Counties could adopt other standards, but this would set a floor on them, and its six plants in a certain amount of space. But it also provides for more medical research.
And so the medical marijuana community is really divided on whether this bill should be signed by the governor or not, because Lockyers officethe attorney generals officeput such limits on the number of plants that it would be difficult for some patients to grow enough to supply themselves.
Robert J. MacCoun
Just by way of comparison, in Alaska theres a state supreme court decision that interprets their privacy provision in their constitution as allowing up to 25 plants, not for medical use but for anyone to grow up to 25 plants, just to put it into context how low this limit is.
Well, let me get into this for just one moment. Marijuana flowers based on the number of hours of uninterrupted darkness that it has. So you could take a plant thats this tall and flower it, or you could grow a plant for six months, where its 12 feet tall or something before flowering it. So plant size is not a real accurate method of describing the volume or the quantity or yield that youre going to get. And there are much better methods using either canopy space, or the number of lights.
So, this is just cop jargon where they say, Oh, he had a thousand plants, and everybodys picturing these giant plants that are five feet breadth and ten feet tall. The way I was cultivating mother plants, they were in a three by three square foot area. There were 24 plants. I mean, they were very small plants, so to use a plant count is really not an accurate method of describing marijuana.
Another question for the entire panel. Do you feel the average recreational pot smoker ultimately helps or hinders the legitimacy of medical marijuana?
Robert J. MacCoun
We could interpret that as a question of moral philosophy or as a question of politics. I think from a political perspective, it probably cuts both ways. The existence of recreational users certainly creates the possibility that somebody might be pretending to have a medical condition to get marijuana, and thats always the caricature thats held up.
In fact, a third of the American adult population has tried marijuana without a prescription, and so it cuts both ways because, in fact, you have so many American adults whove tried marijuana that I think its shaping their political views. And I think thats one of the reasons why, for the first time in several decades, were starting to see a shift in public opinion about marijuana.
But on the other hand, a lot of people who think that theyre using marijuana recreationally are actually using it medically, in the same way that a person might come home and have a drink after work, as a stress release, or as a life enhancement. And, in fact, my doctor told me Im supposed to have three glasses of wine a day. Luckily, I dont do it. So there is a lot of use that people might consider recreational, but is actually, really, life enhancing or medical use.
Another question for Ed. In a Chronicle op-ed piece, you lamented your ability to vote now that you are a felon. Letters responded that you are wrong. You still can vote. Please comment.
Thats true. I learned that I was misinformed by my supervisory officer about my voting status, and I do plan to vote. [Applause.]
I hope everyone notices the irony of that. Here you have a jury not informed, making the wrong decisions. He gets convicted. His parole officer doesnt even know his own rights. Another question for the whole panel. Are there good numbers of the extent of police budgets as they become more and more dependent upon asset forfeiture?
Robert J. MacCoun
If you go to Google and you type in Albany Source Book on Criminal Justice Statistics, you can all look them up for yourself. It turns out that there is an increasing database now on this, and just to sum it up qualitatively, its becoming an important source of income for a lot of agencies, and which, of course, creates a serious conflict of interest.
Another question for Ed. Do you think it will take a national vote to make marijuana legal?
I think that in order for the Democratic Party to win back the presidency, it has to come out at least in favor of medical marijuana. [Applause.] And you would think that was a no-brainer for the candidates. Marijuana wins by wider margins than they do. [Laughter.]
Other questions for Don Abrams. Are there studies regarding marijuana and menopause? Do people develop tolerance, either physical or psychological, to the effects of marijuana? Are there significant reaction times and motivation to marijuana use? How does it change? The different types of people and degree of usage and so forth.
Donald I. Abrams, M.D.
Well, I dont know of studies that are currently ongoing on women with menopause, but Im sure menopausal women have their own anecdotal experiences, so I dont know the answer to that. With regards to tolerance, Im not really a substance specialist in this fashion. Im an AIDS and cancer doctor, so I dont really know all these details, but I do believe that enzymes get inducted as equal smoke, and you might need more or less marijuana depending as time goes on. The other questions, they sort of went by me too quick, and I dont have answers to them anyway. [Laughter.]
A question for Ed Dobb. The recent Supreme Court decision striking down laws against homosexual sex appear to open the window toward protecting privacy and liberty. Do you see an opening for drugs and cognitive liberty?
This goes back a little bit, if I understand the question, to the tipping-point question earlier. I honestly take an extreme position in terms of legalization, or at least the cessation of government intrusion into private behavior. I dont foresee a tipping point regarding any of the more serious drugs, or the drugs we take more seriously any time soon, if ever.
My deepest concern is that various crises are used, be they related to drugs or not, to expand police powers, and once they are expanded, and the crisis is over, whether its manufactured or manipulated, the police powers are not automatically withdrawn. We sort of take that as a given, and theres a cultural shift going on.
In fact, I was thinking as we were talking about gateway drugs. There are sort of gateway steps to intrusion on civil liberties, and thats what concerns me about the overall atmosphere in which we discuss this thing. Obviously, were not going to legalize cocaine and heroine any time soon, but I think, in our debate about that, we should be very concerned about any change, any expansion, in terms of police powers, because then it can be used for anything, not just drug use, but any kind of personal behavior, and I think thats why were all at risk.
We all have a stake in whats happened to Ed, and its all our responsibility to at least be vigilant and aware, and to do what we can to make sure that the state does not expand police powers.
Theres a question for Ed. The Medical Board of California is claiming that Dr. Tod Mikuriya, a Berkeley psychiatrist, has violated a standard of care in 17 of 7,500 medical marijuana recommendations. Mikuriya notes that all 17 cases involve patients who have been targeted by law enforcement. He claims the state law enforcement officers for Prop 215 are trying to intimidate doctors like him and prevent patients from getting medical, medicinal cannabis. Do you feel this is true?
When they say the California Medical Boardits Californian and its a board, but its not medical; its out of the district attorneys office. And these 17 cases were complaints, not by patients, not by their caregivers, not by their loved ones. Every one of the complaints against Dr. Mikuriya is by police officers or prosecutors.
And my attitude towards this is that I promised not to call a doctor if I have a robbery, and they should stay out of [laughter and applause]and the police and the so-called medical boardyou know, this medical board is really there to investigate doctors fraud or pill pushers, and things like that. And the fact that theyre using it in this politically motivated thing, it denigrates the entire attorney generals office. And as a result of this, I call on Lockyer to resign from this. Really. [Applause.] Hes too muchhes not in the hands of the people. Hes not representing the people. Hes representing a small clique of verbal terrorists who are members of the California Narcotics Officers Association.
Its a questions for Don Abrams. Any evidence that marijuana or THC can have a beneficial effect on depression? (Like being depressed about the laws.)
Donald I. Abrams, M.D.
Clinical trials have really not been done about that. I think theres interesting information about schizophrenia. There are some people who believe that schizophrenia may actually be responsive to marijuana and that some adolescents who have so-called schizoid personalities tend to be ones who use more marijuanaand its one of the chicken and the egg questions. Are they schizoid because theyre smoking marijuana, or are they smoking marijuana because they have schizotypal (as psychiatrists call it) tendencies?
Depressionits an interesting question for those of us who are caring for patients who are dying for whom marijuana can provide many different medical benefits, including relief of pain, increase of appetite. There is also what people who are sort of funny about their opinions about marijuana call the side effect of euphoria, and is that an adverse side effect for people who are depressed, or for people who are dying?
I think not, so I think some people actually do get more depressed though after smoking marijuana. I know many people in my generation, in fact, claim that theyve stopped smoking marijuana because it seemed to depress them a bit.
But I think a buzzword now in medicine is pharmacogenomics, and it means that we all metabolize drugs differently, depending on our genetic make-up. So I think to make a blanket statement about depression and marijuana is not possible, and it probably goes both ways.
Another question for the entire panel. Please discuss the role of science and law enforcement with respect to possible harm to others from using marijuana, e.g., driving under the influence, and the individual health effects, possible carcinogenic effects of smoking marijuana that individuals should be informed of.
Robert J. MacCoun
Yes, there are several lines of evidence on this question. One is by looking at motor vehicle mortality data. There is some correlation with marijuana use, but when you look closely at it, it mostly involves cases where the person was also under the influence of alcohol, and the alcohol effect was probably acute. The marijuana effect is less certain, because marijuana stays in your bloodstream for up to a week, and so theyre probably measuring alcohol rather than marijuana.
A more direct way of testing is to put people in. They set up in a parking lot these little driving tests and have people drive under the influence of various substances. And marijuana does impair psycho-motor coordination, but thats largely offset by the fact that marijuana drivers drive more slowly. [Laughter.]
And before he passed away, the late Pat Paulson, the comedian who ran for president every four yearsI emailed his campaign headquarters and got a quick response from him, because I think he is the campaign staff, or was the campaign staff. I asked him, where his office stood on the question of legalization of marijuana. He said, Im against it because it makes people drive too slow. [Laughter.]
Im making a joke, but I dont want to trivialize this. Its not a good idea to operate heavy machinery when youre stoned, obviously. But it exemplified something that Ive seen again and again. From all the research trying to document harms of marijuana, what Im struck by is that there are tremendous professional rewards for finding harms of marijuana, and there are a lot of people out searching very aggressively.
And I see a standard of evidence that is used that is quite different from the standard of evidence I see in other areas I work in, and I find it quite troubling. I see extremely weak effects getting really trumped up. I see interpretations by NIDA-funded scientists that are not at all supported by their studies.
Just as a quick case in point, so-called animal evidence for a gateway effect is extremely indirect. One study that supposedly implicated a link between marijuana and morphine was based on gnawing movements by rats, when they take marijuana, and they counted nine movements. Something they didnt do, which would have been obvious to do, is simply give rats THC and see if theyre more likely to self administer cocaine or heroin. I cant find any study thats actually done that in the literature. Obviously, thats what you would do if it was a gateway effect, and I have to assume that if you could do it, they would have found it by now.
And so marijuana is not harmless. Its also not as harmful as the government is telling us.
Donald I. Abrams, M.D.
Can I address cancer for a second? The national toxicology program of the Department of Health and Human Services did a study in rats and mice, which they delayed the publication of by two years, until we discovered the draft copy, and asked them where the final one was.
The study gave rats and mice increasing dosages of delta9-THC which is syntheticthe compound that is most psychoactive in marijuana. And what they found was that the rats and mice who got higher dosages actually lived longer and had fewer malignancies.
Rats and mice are not people, however, so Steve Sydney, who is a medical school colleague, a classmate of mine, and also the director of research for the Kaiser Foundation in Oakland, published in the American Journal of Public Health an overview of men in the Kaiser system who were followed for at least 10 years, divided into four different groups of 5,000 men per group. One group never smoked cigarettes or tobacco. One group smoked only tobacco. One group smoked marijuana or tobacco, and the other group smoked both.
Over 10 years of follow-up of 5,000 men who never smoked either tobacco nor marijuana, there were two cases of lung cancer. In the groups that smoked tobacco, either alone or with marijuana, the risk of lung cancer was increased 13 fold, which is the risk of cigarette smoking. In the group that smoked only marijuana and never tobacco, there were zero cases of lung cancer.
Now zero compared to two, its a small numberyou cant say anything statisticallybut certainly it did not appear to increase the risk of lung cancer. And if we look at Rastafarians in Jamaica, for example, a population that uses marijuana extensively for religious and cultural purposes, there is no increased risk of lung cancer. There have been people who have published studies suggesting that there is increased head and neck cancer, and for unclear reasons perhaps prostate cancer, but I believe that these studies are probably flawed and there are other co-factors that are accounting for these malignancies.
Another question for the entire panel. Are you familiar with LEAP, Law Enforcement Against Prohibition?
Donald I. Abrams, M.D.
Yes, I just got a T-shirt from them someplace. [Laughter.] And its a good one.
Yes, there are a lot of police officers who are really concerned with this. Either they know better, or they see the police force being corrupted by it, and pretty much LEAP members are ostracized by the criminal justice community.
If a person is a patient in the hospital and has a medical marijuana prescription or ID card, can they possess and/or use their marijuana while in the hospital?
Donald I. Abrams, M.D.
Most hospitals are currently no smoking facilities and that holds for marijuana. We have, at San Francisco General, a certainly much more extensive use of substances besides marijuana that goes on at our campus, but we do have a little courtyard on the third floor of the hospital outdoors where patients do go to smoke cigarettes, and Im sure that some of my chemotherapy patients have been seen there as well.
One thing is that smoking marijuana is pretty much an artifact of Prohibition, and so there are many other ways for marijuana patients to receive it. They can use a tincture, which they use sublingually under the tongue, or brownies, pills, and other ways ofvaporizers. So people dont have to smoke it.
For instance, lets say you were in the theatre and you wanted to light up, and that would disturb people around you, but if you just have a tincture and you put a few drops under your tongue, it would disturb nobody.
Donald I. Abrams, M.D.
Our research is done in San Francisco General Hospital, and to equip the room in the general clinical research center, we had to put a fan in the window that exhausted to the outside. Unfortunately, being San Francisco General Hospital, the door to the patients room to the hallway is about an inch above the floor, so nurses, when the patients are smoking, have to roll up a blanket and put it outside the patients door, sort of the reverse of college. [Laughter.]
There are a number of questions that relate to one of the points that Ed Dobb made in his presentation. If marijuana were legalized and taxed, couldnt that be a major source of public revenues? And theres different ways of looking at it. One point before I pass it to Ed is that when the Harrison Act was first passed, it was actually an excise tax on opiates, and the tax then created a black market, and to enforce black market contracts, different groups, of course, used draconian means. Meaning a lot of crime rates went up, and the solution to that, allegedly, was to ban these different substances. Theres more to it than just that, but thats essentially what happened. And as Ed also mentioned, a similar kind of thing happened from the 1930s on, as far as when Prohibition was lifted on alcohol, marijuana was taxed, and then ultimately banned.
So anyway the question is, what would happen if marijuana were legalized and taxed? Is that anyone?
Robert J. MacCoun
Well, we take that up in the book Drug War Heresies, and we identify some serious drawbacks to any retail sale and taxation model. Legalization would almost certainly reduce prices. Public health and drug policy forces would strive to increase the tax to reduce any increase in use. That could generate a lot of revenue. But if the tax is too high, you recreate the black market, as Canada learned when they tried to steeply raise their tobacco taxes. Also, commercial interests would lobby hard to resist steep taxes.
Moreover, there are several lines of evidence that commercialization will lead to steep increases in useincreases the general public is unlikely to be willing to risk. I think if we were going to move some sort of legal model, there are a lot of advantages to a home cultivation model rather than a retail and tax model. A model of legal home cultivation would probably produce less of an increase in use, and would help to separate the marijuana and hard drug markets.
I think of it more as a tomato model. [Laughter.] And what I mean by the tomato model is this. Actually, if youre going to grow a vegetable garden, youre most likely to grow tomatoes. And there are more tomatoes grown, and eaten, and consumed that are homegrown than are grown commercially in the United States, but there still is a very large commercial tomato market.
And I think that most people arent going to want to grow their own. They dont have the space, or the time, or they just use a little bit, or they use it once in a while, and those people have no incentive to grow their own. They really just want to go and purchase it. And on the other hand, there are a certain number of people who are going to want to do it.
Now, there was a book that covered abortion and the cost, it was called, Baseball, Abortion, and Prohibition, I think, and when abortion became legal, the cost of an abortion went down by about two-thirds. When alcohol was re-legalized, it went down by about 50 percent.
So if there was a legalization model that had a certain amount of excise tax in it, the market would absorb it because people are paying that excise tax in terms of the risk. If a person buys an ounce of marijuana right now, theyre paying a certain amount for the cost of manufacture, and distribution, and so on, and then theyre paying an extra price for the risk that the grower is taking. And the taxes would fall somewhere in between and would take some of that risk money as an excise tax, and thats typical. Take cigarettes as an example. There is a certain amount of cigarette smuggling, but the overwhelming majority of cigarettes that are sold in the United States today are taxed.
Robert J. MacCoun
Well, when we took a look at the home cultivation model, it hadnt occurred to me that home cultivation might be addictive, and that does raise some concerns. [Laughter.]
Im afraid we have time for just one last question, and this is for the whole panel. And this relates to the point that was mentioned earlier, that all the major candidates in the recall election have endorsed medical marijuana. What can a new governor of California do to stop a federal campaign against medical marijuana?
I think that the new governor could comment and use the state resources to defend medical marijuana users and their suppliers, and say, Well, if the federal government is coming in, were going to defend these people, and I think that the federal government would back off because theyd never, ever be able to get a conviction again. [Applause.]
Robert J. MacCoun
I think if a state politician, especially a governor, really started contesting the federal government on this, I think it would really be a very serious political consequence for the federal government and would really risk underlying support for the federal governments position on marijuana. This is truly remarkable that we have all these candidates endorsing medical marijuana. When we wrote our book, we couldnt find any politicians in office to cite as being in favor of marijuana reform, other than Mark Morial, the mayor of New Orleans at the time, and Kurt Schmoke, the former mayor of Baltimore. Otherwise there were no politicians on record as favoring reform of any kind.
I want to thank Ed Rosenthal for his superb work and surely courageous leadership. Were indebted to Ed, and as Ed has said, its just a matter of time. I also want to thank our speakers, Donald Abrams, Edwin Dobb, and Robert MacCoun for their really excellent presentations and taking their time to join us for this program tonight.
Were especially grateful to our co-sponsors, Harpers Magazine, the Drug Policy Alliance, and the Goldman School at U.C. Berkeley for their marvelous assistance, and most of all, I want to thank each of you for joining with us. Without you this program wouldnt have been such a success and the movement that were discussing could not possibly succeed.
As I mentioned earlier, Ed and Rob will be available in the outer lobby. We hope that each of you will pick up copies of their books, Why Marijuana Should Be Legal and Drug War Heresies. Anyone seriously interested in this issue cannot do any harm by reading their books, to say the least, so I strongly encourage you to get them. Theyd be happy to autograph them for you. Please also visit our website, Independent.org for upcoming information about our events. We look forward to seeing you at our next Independent Policy Forum. Thank you and good night. [Applause.]