Tag Archive for 'marijuana'

Is There a Right to Use Marijuana for Religious Purposes?

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The current federal policy on marijuana is, to say the least, confusing. When President Obama took office, his Department of Justice said that it would not make prosecutions for the possession of marijuana a major priority, and that medical marijuana operations that are legal under state law will not be a target for federal prosecution.

Supporters of marijuana legalization or decriminalization were pretty excited, believing that, after years of federal crackdowns, a president was finally taking (in their view) a more sensible approach to marijuana.

However, over the last year or so, the federal government seems to have taken a harder line on marijuana. While there’s no question that the drug is illegal under federal law, and that federal law trumps state law (so the federal government can still prosecute people who use medical marijuana, even if they’re complying with the laws of their state), the federal government does have a good deal of discretion in deciding which cases it wants to prosecute, and under what circumstances to do so.

This controversy usually comes up in the context of medical marijuana. After all, there is mounting evidence that marijuana, while certainly not a cure-all, has a wide range of medical uses that are, at the very least, worth exploring. For example, it is one of the most powerful anti-nausea drugs known, which makes it a very effective treatment for some of the side effects of chemotherapy, greatly improving the quality of life for some cancer patients. And there is some evidence (though it’s far from conclusive) suggesting that it may even be able to prevent or treat some forms of cancer.

So, it’s not surprising that a lot of people get a little riled up when the federal government starts shutting down medical marijuana dispensaries.

However, there’s another non-recreational use of marijuana: religious rituals. Many indigenous religions treat marijuana as an entheogen (a substance that triggers what its user believes to be a religious experience), and use it ritualistically.

And as you probably know, the First Amendment enshrines the right of all Americans to freely exercise whatever religion they like.

So, a Native American group that uses marijuana for religious purposes should be exempt from laws against marijuana use, right? Not exactly. The Supreme Court has long ago held that laws of general application (i.e., laws that apply to everyone) that happen to place a burden on some religious practices are generally valid, though they do still warrant some scrutiny under the Constitution.

These generally-applicable laws are typically subject to “rational basis” review, meaning the government only needs to show that the law is related to a valid government interest. And whether you agree with them or not, most courts have held that preventing illegal drug use is definitely a valid governmental interest.

The Native American group sued the DEA in federal court after it seized a FedEx box containing marijuana, with a member of the group as its intended recipient. A federal district court dismissed the case. However, the 9th Circuit Court of Appeals just ruled that the case can continue. The appeals court is not handing the plaintiffs a victory – it’s just saying that their lawsuit should be allowed to proceed.

The court largely relied on the Religious Freedom Restoration Act, which requires federal courts to examine laws that burden religious practices under a more stringent “strict scrutiny” standard, requiring that the government prove that any law that substantially burdens religious practices be justified by a compelling government interest, and that the law is narrowly tailored to advance that interest.

The government argued that the religious group did not have a right to bring the lawsuit, because the Department of Justice had no plans to prosecute any of its members for transporting or using marijuana. In its ruling, the appeals court disagreed, holding that the threat of prosecution is not required to give the religious group standing to sue, because the government had already seized their marijuana, raising a legitimate issue over whether or not it had a right to do so.

The lower court will now have to rule on the merits of the case, deciding whether there is a constitutional and/or statutory right to use marijuana for religious purposes, laws generally prohibiting its use notwithstanding.

This is an interesting issue. Instinctively, I’m inclined to believe that there should be an exception to marijuana laws for religious use, since many different religions have used it in their rituals for thousands of years. However, this view is largely informed by my strong belief that marijuana should be decriminalized altogether.

Obviously, when the court is making its decision, the judge’s view on whether or not marijuana should be legal generally should not enter into his or her decision-making process. Of course, not being a judge, I have the luxury of letting my views on these issues be informed by whatever factors I see fit.

But taking a more detached view, I still don’t see why the First Amendment and the Religious Freedom Restoration Act wouldn’t protect the rights of people to use marijuana, or most other drugs that are otherwise illegal, for bona fide religious purposes, provided that the drugs are used in moderation, and possibly under the supervision of people who will remain sober, to ensure that the drug use poses absolutely no threat to anyone who is not directly involved in it (to make sure that nobody drives under the influence, for example). I don’t think the overall goals of anti-drug laws would be seriously impaired by carving out a narrow exception.

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States Lobbying for Relaxed Federal Marijuana Laws

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For decades, there have been many prominent organizations calling for the nationwide decriminalization, or full legalization, of marijuana. Full legalization of marijuana is no longer considered a fringe position, with some polls suggesting that nearly half of all Americans believe that marijuana should be legalized for both recreational and medical use. And a solid majority believes it should be legalized for medical use only.

Yet fewer than half of the states in the U.S. permit individuals to use marijuana medicinally, and none have completely legalized it. The cultivation, sale, possession, and use of marijuana remain completely illegal under federal law.

Under the U.S. Constitution, federal law is “supreme” over state law, meaning that federal authorities can arrest people for violation of federal marijuana laws, even if what they’re doing is legal and sanctioned by the laws of their state. For the owners of medical marijuana dispensaries in these states, this conflict between federal and state law puts them in a legal gray area.

When he was elected, President Obama stated that the Justice Department would not make it a priority to prosecute people who grow, sell, or consume marijuana in accordance with their state’s medical marijuana laws. However, this appears to have changed over the last year or so. According to this article, the Obama Administration has begun targeting businesses necessary for dispensaries to operate, like banks, in order to undermine the medical marijuana industry without actually prosecuting patients.

However, the governors of at least two states are adding some new political muscle to the debate about medical marijuana: the governors of Washington and Rhode Island have begun lobbying the federal government to reclassify marijuana. Currently, the federal government classifies marijuana as a “Schedule I” drug, meaning that (according to the feds) it has a “high potential for abuse, and no currently accepted medical use in treatment in the United States.” All drugs in this category are illegal. Other drugs in this category are heroin, LSD, and GHB (a sedative sometimes used as a date-rape drug).

These governors, along with many drug-reform advocates, are strongly lobbying Congress to move marijuana into “Schedule II.” These are drugs which have a high potential for abuse, but also have limited medical applications. They may be prescribed by doctors to treat approved medical conditions, but they are still tightly controlled, and are generally illegal to use without a prescription. Schedule II drugs include morphine, cocaine, and methamphetamine. In case you haven’t put two and two together, this means that marijuana is actually more tightly controlled than those drugs.

In case you’re not familiar with cocaine, methamphetamine, and morphine, those drugs are generally regarded as being far more dangerous than marijuana (all of them can cause a fatal overdose, while the main psychoactive ingredient in marijuana has no known lethal dose). They’re also widely regarded as being far more addictive than marijuana.

Given the fact that most U.S. states are facing huge budget deficits, one would expect their governments to be seeking new sources of tax revenue. One commonly-proposed source of revenue is the legalization of marijuana. This would allow states to impose taxes on marijuana sales, and it would make it far more likely for sellers of marijuana to pay income taxes on all of the money they earn in the trade, rather than attempting to hide it. And if medical marijuana were fully legalized and taxable, public opposition to taxing it at fairly high rates would probably be minimal, making it one of the only politically-safe new taxes that a government could impose.

On top of that, the costs of enforcing criminal laws governing marijuana, and incarcerating non-violent marijuana offenders, would be eliminated.

I’m honestly not sure if marijuana should be fully legalized for recreational use (though if it remains unlawful, punishments for small violations of these laws should be minimal). However, I see absolutely no reason why it should not be reclassified as a Schedule II controlled substance. This would allow the federal government to tightly regulate it, and prohibit its recreational use, while still allowing doctors to prescribe it according to their medical judgment.

Many doctors now believe that the active ingredients in marijuana have many unique pharmacological properties, which make it highly effective at treating the side effects of chemotherapy, vastly improving the quality of life of some cancer patients.

The current legal situation with marijuana is untenable, however. By forcing patients seeking medical marijuana, and those selling it, to operate in a legal gray area, a criminal element is necessarily drawn to the medical marijuana industry. Also, because of this, many people have come to view the entire medical marijuana system as an excuse for people to get high legally, without fear of arrest. This is unfortunate, as it exposes those patients who can genuinely benefit from medical marijuana to the same scorn.

Hopefully, someday, medical marijuana’s legal situation can be clarified.

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Why the Miley Cyrus Video Will Cause Salvia Criminalization

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So it looks like Miley Cyrus is shaping up nicely to become the next Lindsay Lohan.  Right now she’s following that celebrity crazy pattern to the T.  First up are the lighter drug screw-ups and obligatory apologies.  Next is the dying career, followed immediately by becoming a tabloid star and/or going to drug rehab (not necessarily in that order).  There must be some sort of mandatory self-destruct-and-throw-away-entire-career clause that child stars have to sign or something before they’re allowed to be famous.

In any case, Miley’s subconscious foray toward a moribund career track has so far gone off without a hitch.  In case you’ve somehow been able to screen yourself off from receiving any updates about the teenage pop star (and if you have, please tell me your secret) the latest story to make the rounds concerns video surfacing of Miley smoking salvia from a bong.  The video has done wonders in carving away at her squeaky clean image ever since it made its way onto the internet last December – despite failed attempts by members in Miley’s camp to keep the video from going viral.

The video clearly depicts Cyrus taking a hit from a water bong and giggling uncontrollable.  Miley herself confirmed the substance she was smoking was salvia, but claims that she had recently turned 18 at the time of the video.  Regardless, she’s now finally apologized for her blunder and says it was “a mistake” and that she’s “disappointed in [herself] for disappointing [her] fans.”  Don’t worry Miley, from what everyone has seen when it comes to child stars, your fans will soon become used to disappointment.

However, the bigger story in all of this, to me anyway, is the backlash against salvia that followed after Cyrus’s video.  Certainly, the legal status of the “drug” has been in flux for some time now, with many states criminalizing it.  The debate of whether to ban it has been going on at both the state and federal level since 2002.  But thanks to this most recent controversy, it’s likely now that such measures will finally go through as more and more people begin to speak out against it.  It won’t be too long before salvia goes the way of marijuana and earns the coveted spot of felony level offense.  And for that I’m really quite sad.  Why?  Because all criminalization will end up doing is hurting the country more.

For readers of this blog or followers in general of illegal substance legislation, the argument I’m about to make won’t come as a surprise as it’s the same argument that has pervaded the marijuana legalization camp for years.  And that is that when any formerly legal substance is criminalized, a new illegal market for that drug is created.  The downfalls that come with this are numerous, both in terms of economics and humanity.  The taxes and income once produced by the substance for the government and legitimate retailers are shifted over to drug dealers.  Quality control is also severely hindered, resulting in greater negative health risk for consumers of the substance.  Not only that, but remember that illegal market I mentioned earlier?  Yeah, they are usually not populated with guys who like to talk out their problems.

However, instead of treading over the same ground for why Salvia should or shouldn’t be illegal, a better way to approach the problem is to address why it’s suddenly become a hot topic.  Research about its effects on health has been bandied about for years.  And it’s also no secret that salvia produces a high that is said to be akin to or even more hallucinogenic than marijuana.  And yet with all of this, it hasn’t been banned yet.  Certainly movements take time, but if the effects were as bad as the politicians and media make it out to be now, why wasn’t there a bigger uproar to criminalize it before Miley smoke it?

I know this will seem obvious, but do you think it was because Miley smoked it that caused all this criminalization rallying to begin?  That because of it, it’s become a popular topic to sway voters and get ratings.  Hey, what do you think are the chances that Miley is going to come out with a public service announcement against salvia?

Anyway, the point I’m trying to make is that criminalization and manipulation often go hand in hand.  So before you jump on the bandwagon, all I ask is that you take a moment to think why you’re really getting on that wagon.

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The Montana Pot Rebellion and Jury Nullification

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There’s an interesting story coming out of Montana involving what may be one of the most extreme cases of jury nullification I’ve ever heard of. In a criminal case involving possession of a small amount of marijuana, an entire jury panel refused (also seen here) to sit, each of them saying that they would never convict a defendant for possession of a fraction of an ounce of marijuana.

The defendant ended up pleading no contest, which is not an admission of guilt, even though it usually has the same practical effect.

This case raises some extremely interesting questions about marijuana laws, jury nullification, and just how responsive the courts have to be when public opinion is overwhelmingly opposed to a particular law.

First of all, public opinion seems to be shifting against criminalization of marijuana, or at least extremely harsh punishments for its possession and use. Obviously, this is a matter of personal opinion, policy preferences, and priorities, on which reasonable minds can differ.

The fact remains, however, that the public (at least in some parts of the U.S.) is firmly on the side of decriminalization of marijuana, or greatly reducing the criminal penalties for possession of the drug. So, what happens when the state calls on members of the public to serve on a jury where the defendant is charged with an act that the public doesn’t believe should be criminalized?

If you’ve ever been called to jury duty, you probably know the drill: the judge and the lawyers for both sides tell you that you have to render a verdict based solely on the evidence presented by each side, and the law as instructed by the judge. You’re told that you have to put your personal views on a particular law aside, and if you’re unable to, you will probably be dismissed from the jury pool.

However, what the court rarely tells the jury about is the practice of “jury nullification.” This is when a jury finds a defendant not guilty, even if they believe that the prosecution has proven all of the facts alleged against the defendant, because they disagree with the law the defendant broke.

The exact nature of jury nullification is sometimes hard for people to wrap their heads around. It’s not a special right of jurors codified in the constitution, or any other source of law, nor is it some secret cheat code.

It’s simply a by-product of the basic nature of the jury system: when a jury renders a verdict, the jurors don’t have to explain their reasoning. It’s that simple. U.S. courts have held that, while jury nullification isn’t exactly a “right” of jurors, jurors can never be punished for rendering an “incorrect” verdict, unless there is clear evidence of misconduct. In criminal cases, unlike civil cases, a court cannot under any circumstances direct a verdict against the defendant. This makes sense, because our constitutional right to a trial by jury in criminal cases wouldn’t mean much of the jury’s verdict could be easily overridden by the court.

This makes jury nullification an extremely powerful tool, and if juries consistently nullify certain types of criminal charges (charges for possession of a small amount of marijuana, for example), this can render an unpopular law ineffective. After a while, prosecutors start to focus on prosecuting other crimes, and with a law going completely un-enforced, lawmakers may reconsider its wisdom.

However, this case went a step further: during jury selection, every prospective juror stated that they would not convict the defendant, regardless of the evidence, to the point that an unbiased jury could not even be impaneled. I’ve never heard of anything like this happening before, and if you’re in Montana, and believe that marijuana should be decriminalized, you might take this as a sign that public opinion is shifting in your favor.

So, what do you do if you’re picked for jury duty and are strongly opposed to the law that the defendant is charged under? That’s actually not an easy decision. If you simply state your views on the law, the prosecution is almost certain to dismiss you as a juror. However, if you really want to be on the jury specifically for the purpose of nullifying the charges, you have to lie when asked about your ability to be impartial. Obviously, it’s best to simply tell the truth.

Interestingly, David Simon, the creator of The Wire, has called on Americans, when called to serve on juries in cases involving non-violent drug offenses, to vote for acquittal, regardless of the evidence. It’s unknown how effective this campaign has been, but it’s an interesting idea. But is it a good one?

Jury nullification is not without controversy. Some have argued that it amounts to mob rule, and undermines our unique brand of representative democracy (as opposed to direct democracy). On the other hand, if a person is called to serve in a jury – an important civic duty – they effectively become part of the criminal justice system, and can serve in the role of the justice system’s conscience, and can serve as a direct check against government overreaching. If the people are the “fourth branch” of government, jury nullification is their primary means of exercising their power.

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Why California’s Medical Marijuana Dispensary Legal Fight Should Be Irrelevant

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Is it just me, or do you guys out there also think that it’s a little weird that in a country where 18-year-olds can be sent to fight in a war and liquor can be bought and consumed with impunity, that for some reason marijuana still isn’t legal?  Odder yet is that the one state that’s supposedly the most progressive in the country is currently embroiled in a legal battle over medicinal marijuana.  The one good thing about all of this is that the rest of the world can’t knock us for being too boring – except maybe the Middle East – they always have stuff going on.

Seriously though, ever since California voters elected to legalize medicinal marijuana usage back in 1996, the state has been slowly dismantling the law bit by bit.  Currently, the state’s narcotic bureau has been going after and successfully shutting down cannabis dispensaries.  While this doesn’t necessarily kill off access to medical marijuana entirely since people can still grow their own bud, for those looking for the good stuff, they’ll have to go without unless they have a sufficiently green thumb.

Anyway, the reason that California has been cracking down on dispensaries is because under California’s medicinal marijuana law, though cannabis is legal for users who are legitimately prescribed it by doctors or given it by their primary caregivers, dispensaries themselves aren’t allowed to make a profit from their marijuana sales since they don’t actually fit under either of these categories.  Therefore, in order to continue operating, Californian dispensaries have instead been designating themselves as the primary caregiver for each of their patients.

Now it’s pretty obvious that these dispensaries can’t possibly be considered actual caretakers.  Each dispensary has a clientele list in the thousands and last time I checked a caretaker does more than just plop some drugs down on a counter for you.  However, it would seem that without them, medicinal marijuana would be largely inaccessible outside of cultivation done personally or by actual caretakers and unfortunately not every chemo patient has either the energy or money to afford this option.  It seems then that California is stuck between a rock and a hard place: either continue to enforce the medicinal marijuana laws as-is, resulting in the possible withholding of medical marijuana to needy patients, or turn a blind eye to the dispensaries and undermine the state’s own authority while also creating a bad legal and political precedent.

But, as I hope all of you out there have come to realize from reading my blogs, there’s always a third option and in this case it’s simple: legalize marijuana.

Yes, I’m aware that California’s Prop 19, which would have legalized personal marijuana use, was voted down in the November election.  But thankfully, failure to pass a law doesn’t necessarily spell out that proposition’s death.  Like a horror movie, the hand always rises again from the grave.  California Assemblyman Tom Ammiano is currently pushing AB 2254 through the state senate.  The bill would not only legalize marijuana if passed, but do so in a more structured and clear way where the state will actually be allowed to tax the new cannabis industry ala its alcohol and tobacco equivalent, a feature ambiguously written or left out of Prop 19.

Now some of you might be thinking that legalizing marijuana is all well and good, but the burdens it will cause to the state and country outweigh any of its benefits.  And to this, I say we need to find Doc Brown and take a ride in his DeLorean way back to early 1800s America.  The reason is because this is around the time that the American temperance movement began.  For all you history buffs out there, you’ll know that it was this movement that helped to eventually spawn the ratification of the Eighteenth Amendment, which led to America’s Prohibition Era, which ultimately failed with its repeal by the Twenty-First Amendment.  All of this is important because by looking at what caused Prohibition to begin and end, as well as what happened afterward, we can discover what would likely happen if the same tact was taken for marijuana.

First off the temperance movement was founded by Protestant leaders and other political and religious figures who simply viewed alcohol as being counter to their own moral beliefs and denounced it because they saw it as the cause of society’s ills.  Sound familiar yet?  On to its enactment; Prohibition could not have occurred without the creation of the federal income tax, which was seen as constitutional until the Sixteenth Amendment.  Prior to this, the alcohol tax was the main source of revenue for the government.  Last, Prohibition was repealed because of the Great Depression.  Because of the high unemployment, the government couldn’t collect the high amounts of federal income taxes it had been receiving up until then.  Repeal mean the government could earn over $1 billion annually in alcohol tax revenue.  By contrast the government was only earning about $2 billion a year on federal income tax and spending hundreds of millions of dollars on enforcing liquor laws.

Sound pretty familiar to anyone out there?  The point is that by simply legalizing marijuana a lot of the government’s current financial problems can be greatly relieved much in the same way that Prohibition’s end helped the country get back on its feet.  Let’s face it, the War on Drugs has been a failure and marijuana shouldn’t have been on that list to begin with.

And as far as cannabis being a gateway drug, yeah, that’s getting more and more debunked every day.  In this sense, marijuana is much more similar to alcohol in terms of its political controversy; however unlike alcohol, health benefits can actually be attributed to marijuana.

There seems to be so many compelling arguments for legalizing cannabis now that it’s hard to keep this criminalization charade up any more.

But what do you guys think?  As always, sound off in the comments section below.

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