Tag Archive for 'medical marijuana'

Hawaii’s Marijuana Dispensary Law Faces Legal Ethics Challenge

Last week, the Disciplinary Board of Hawaii’s Supreme Court issued an opinion that limits the role that lawyers can play in the bourgeoning medical marijuana dispensary industry. The opinion states that a lawyer can advise a client on the legality of marijuana production and distribution under state and federal law. A lawyer may also choose to advocate for changes in state and federal law on this subject. However, a lawyer may not provide legal services to help create or operate a medical marijuana business, as it is illegal under federal law. In other words, Hawaiians who wish to open a marijuana-related business cannot consult with a lawyer as part of the process.  Marijuana Scales

As states experiment with the legalization of marijuana, each will have to make a decision about how the legal profession will play a role, and how to navigate the conflict between state and federal law. Hawaii’s decision is the latest in a long line of marijuana-friendly states’ interpretations of professional ethics rules.

Marijuana in Hawaii

Hawaii legalized medical marijuana some 15 years ago, but only recently enacted a law that would license marijuana dispensaries for patients. The new law is fairly limited. It will set up a state-wide dispensary system with a total of up to 16 dispensaries. These dispensaries are not inexpensive ventures; the new law will require potential licensing candidates to have at least $1.2 million in the bank. The dispensaries will be resupplied with support from production centers around the state.

Under the latest Disciplinary Board opinion, individuals who wish to set up dispensaries or production centers are not entitled to legal advice or assistance beyond counseling on the validity, scope, and meaning of the new law.

Reasons for the Hawaii Disciplinary Board Decision

Hawaii’s Disciplinary Board cites two main reasons for its decision:

First, the Board is concerned by the fact that Congress has not amended federal law; nationally, marijuana is still illegal. The Ethics Board recognizes that the Department of Justice and Congress have both allowed the enforcement of marijuana-related laws to decline. However, the opinion also notes that this is not a permanent federal stance.

Second, the Board observes that the Hawaii Supreme Court has not amended the rule of professional conduct that applies to client conduct that is illegal under federal law. The rule currently states that “a lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, and meaning of the law.” This type of rule exists in all states. However, the rule has been modified in some states to account for conflicts between state and federal law over marijuana.

Legal Ethics in Other Marijuana-Friendly States

Hawaii is not the only state in which medical marijuana laws have caused ethical conflicts. The Maine Professional Ethics Commission has also restricted the role of attorneys in marijuana law. In Maine, the Rules of Professional Conduct for attorneys distinguish between “presenting an analysis of the legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity.” Maine lawyers are thus prohibited from assisting clients in forming medical marijuana enterprises.

Other states have also wrestled with the conflict between the public need for good, reliable legal advice and the furtherance of illegal activities. The Colorado and Nevada Bars have amended their ethics rules with a comment that allows lawyers to provide advice and services so long as they also advise about federal laws (making it clear that marijuana is not completely legal). The Washington Bar has allowed lawyers to provide services “at least until” the federal enforcement policies change.

What Will Happen in Hawaii?

Unfortunately, the public suffers when legal assistance is not available on topics of state law. A lack of legal counseling will not prevent individuals from setting up marijuana dispensaries or grow houses. The absence of legal counsel, however, prevents marijuana dispensaries from making some educated legal decisions that conform to the letter of Hawaiian law. It may also make the process of applying for a state license more difficult and time-consuming than it would otherwise be.

It is also possible that the Hawaiian Supreme Court will take a hint from this opinion and change their legal ethics rule to allow more attorney participation in marijuana law. This would be following in the footsteps of most other states that have partially legalized marijuana.

Decriminalization of Marijuana in Delaware

The governor of Delaware, Jake Markell, recently signed a bill that decriminalizes possession and private use of miniature quantities of marijuana. The maximum amount of marijuana you can legally possess and use is one ounce. However, police can still seize the drugs.

According to the statute, the penalty for using marijuana publicly will be reduced to a fine of $100. Previously, possession of marijuana was a misdemeanor for which you could face up to six months in jail, and be fined up to $1,150. However, simple possession of marijuana is still a criminal offense for anyone who is under age 18. In addition, if you are caught using marijuana in a moving vehicle, in a public place, or within 10 feet of property that is open to the public, you will be charged with a misdemeanor.

Governor Markell signed the bill into law on Thursday, June 19th, and the law becomes effective six months from then. The bill passed the Senate and the House of Representatives, both of which are controlled by Democrats, and was opposed by Republicans, who claim that the bill sends the wrong message to youth.   Marijuana

A lobbying group called the National Organization for the Reform of Marijuana Laws has said that 18 states, including Delaware, have enacted laws decriminalizing personal use and possession of marijuana in small quantities. There are 23 states, including Delaware and the District of Columbia, that permit the use of marijuana for medical reasons. Ballot measures legalizing marijuana for recreational adult use were approved by voters in Washington, D.C., Colorado, Oregon, Washington state, and Alaska. Nevertheless, marijuana is still an illegal narcotic under federal law.

The Dark Side of Marijuana Legalization

Despite the growing popularity of marijuana, I am inclined to agree that legalizing the drug sends the wrong message to young people, who are very impressionable, and will be more likely use, and even abuse, the drug. According to the National Institute on Drug Abuse, marijuana can have adverse effects on the brain, such as impaired memory, altered senses,  altered sense of time, mood changes, and impaired body movement. Marijuana can also make it harder to think clearly and solve problems.

Marijuana also has long-term adverse effects on the development of the brain, especially when people start using the drug during their teenage years. Use of the drug can diminish thinking, memory, and learning functions, as well as impact the ways in which the brain forms connections between the areas needed for these functions. The effects of marijuana on these abilities may be lengthy or could even be permanent.

Other health effects of marijuana include lung irritation, which can lead to breathing problems; increased heart rate, which can give rise to heart attacks; and child developmental problems during and after pregnancy. Use of marijuana on a long-term basis can cause mental illness, including temporary hallucinations, temporary paranoia, and aggravated symptoms in patients who have been diagnosed with schizophrenia.

Thus, with the exception of medical marijuana, I think that legalization of the drug can only lead to an increasing lack of awareness concerning its ill effects, and a rise in the use among young people. There may also be an increase in the number of people who suffer from the above-mentioned health problems.

Why the Controlled Substances Act Should Be Repealed

Courts have rarely questioned the validity of the Controlled Substances Act‘s classification system, even though the CSA has been law since 1970. Astoundingly, almost all judicial inquiry into the CSA classification system has been confined to footnotes. Judge Mueller herself relied on a Supreme Court footnote in justifying her desire to hear evidence on whether marijuana has any medical value. The branch of government charged with interpreting the law has neglected to interpret whether the CSA scheduling system makes any logical sense.

marijuanaA cursory glance at the drugs classified indicates that the CSA is deeply flawed. Marijuana is a Schedule I drug, which means it has a high potential for abuse, no medical value, and lacks safe use even under medical supervision.

Today, the claim that marijuana lacks any medical value or safe use borders on lunacy. As defense attorneys argued, federal prosecutors must essentially “convince the court that the earth is flat when the rest of society appropriately has concluded that the earth is round.” 23 states have legalized medical marijuana and every year that list of states grows. Doctors have testified that marijuana can be used to treat certain illnesses and many patients have come forward to testify that marijuana has helped them when no other treatments could.

Marijuana is just the tip of the iceberg. Peyote is also classified as Schedule I, but Congress granted the Native American Church an exemption if they used Peyote for religious purposes. If Peyote has a high potential for abuse, it shouldn’t be possible for an entire religion to use Peyote without widespread addiction. And yet, the few members of the church who were adversely affected by peyote were able to walk away without any further health problems.

Cocaine is popularly considered more dangerous than marijuana, but cocaine is classified as Schedule II. According to the CSA, Schedule II substances have accepted medical use. It is absolutely silly that the federal government believes cocaine has medical value while marijuana does not. Medical marijuana is recognized in twenty-three states while medical cocaine cannot be legalized in even a single state.

Wait, it gets better. During Judge Mueller’s hearing, prosecutors presented President Bush’s drug czar, Dr. Bertha Madras, as their sole witness. Madras claimed there was “no such thing as medical marijuana” because “it contains significant amounts of toxic chemicals.” One of those toxic chemicals is THC, the chemical compound responsible for marijuana’s psychological effects. THC is the chemical that police look for when they drug test people suspected of using marijuana.

Curiously, the CSA classifies THC as Schedule III. According to the CSA, Schedule III drugs have less potential for abuse than Schedule I or Schedule II drugs. THC was classified lower than marijuana because Congress gave one research company its blessings to produce “marijuana pills” out of THC. However, the only way to get THC is to extract it from marijuana plants. It is mind-bending that a Schedule III substance has less potential for abuse when it is the main hallucinatory in a Schedule I drug.

I suspect that federal drug agencies realize that the CSA schedule system is completely irrational. Courts have rarely questioned the CSA classifications and what little probing exists is in footnotes. However, those rare footnotes are very disturbing. A footnote in one case concluded that the CSA classification system “cannot logically be read as cumulative in all situations.” Another footnote contains statements from a Drug Enforcement Agency (DEA) expert who testified that “marijuana could be rescheduled to Schedule II without a currently accepted medical use.”These footnotes, together with the fact that THC is a Schedule III drug, indicate that the DEA knows that marijuana could safely be removed from the Schedule I list.

The war on drugs is the greatest hoax perpetrated on the American people. Thousands of Americans are denied medication and millions of Americans are incarcerated because of that hoax. It must end.

Did Congress Just Block Marijuana Legalization in DC?

People often complain that Congress doesn’t do anything. The naysayers believe that partisanship has created a gridlock in the legislative branch, preventing any laws from being passed. Well, with less than a month before the new Republican controlled Congress replaces the old divided Congress, senators and representatives are lining up to show that they can get things done. The first item on their list was the No Social Security for Nazis Act (the name speaks for itself). The second item on the agenda is a federal spending bill for 2015.

dc marijuana lawsThat might not sound very interesting, but federal spending bills usually hide all kinds of controversial provisions. Politicians often use these bills to fund organizations they support and defund organizations they oppose. Exhibit A is recreational marijuana in Washington D.C. Last election, voters in the District of Columbia voted to decriminalize and legalize cannabis. That’s hardly surprising. Before November, the local penalty for marijuana possession was a mere $25 fine. Traffic tickets are more expensive than D.C. marijuana fines. So it was hardly a shock when D.C. voters approved Initiative-71, an initiative to decriminalize marijuana, by a solid majority of 70%.

If D.C. was a state, the initiative would have been become law. Under the Constitution though, Congress has final control over Washington D.C. If D.C. passes a law that the federal government doesn’t like, Congress has a month to overturn it. Congress often meddles in D.C.’s politics, blocking nationally controversial laws such as abortion and medical marijuana. Congress is expected to do it again.

The federal spending bill has a provision that would prohibit federal and local D.C. funds from being used to implement an initiative legalizing marijuana. Although the White House had warned Congress against interfering with the marijuana initiative, President Obama will likely sign the bill since vetoing the federal spending bill could result in another government shutdown.

Drug Policy and Progressive Ideals

The most disappointing aspect of this bill is that Congress really didn’t have to take this step. Indeed, both parties could benefit from a change in drug policy.

Democratic leaders in Congress will attempt to portray the bill as a compromise to save the initiative. The D.C. provision would theoretically prevent local D.C. government from creating regulation to sell and grow marijuana, but decriminalization would be preserved. Given the recent racial tensions in Ferguson and New York though, fully defending the D.C. marijuana initiative should be more than justified. Eric Garner died after a police confrontation over cigarettes. Democrats understand that drug enforcement is often arbitrary and minorities are incarcerated more because of drug traffic laws. This was an opportunity to change our archaic drug laws in a tense political climate and Democratic leadership squandered it.

Drug Policy and Conservative Ideals

Republican policy on drugs is even more perplexing. While Democrats understand that drugs lead to more minority arrests, current drug laws are contrary to the principles that Republicans stand for. Republican congressman cannot claim to be the party of limited government and local governance while simultaneously using federal power to block a popular local initiative approved by voters.

Reversing the War on Drugs is more beneficial to Republicans on other political fronts. Illegal immigrants from Central and South America come to the United States because their countries have been turned into cesspools by large drug cartels. These drug cartels are multi-national empires built on the black markets created by our drug laws. We can put up as many walls as want and deport as many illegal aliens as we can, but the long-term solution will be to shut off the drug cartels that are driving illegal immigrants into this country. Republicans cannot stop illegal immigration without changing our drug laws.

It’s amazing how many political issues are connected to our drug policy. Illegal immigration, racial equality, police militarization, and prison overcrowding are all tied into the massive drug system we’ve built. The D.C. initiative was the perfect symbol of change. Instead, Congress has decided to keep a broken status quo. We don’t need Congress to pass more laws. We need Congress to have better vision.

New York Legalizes Medical Marijuana (with Strings Attached)

New York became the 23rd state to legalize medical marijuana when Governor Andrew Cuomo signed the Compassionate Care Act (CCA) into law. In 2015, New Yorkers who suffer from cancer, AIDs, ALS, Parkinson’s disease, multiple sclerosis, spinal cord damage, epilepsy, and inflammatory bowel disease can use marijuana to help treat their conditions.

medical marijuana in New YorkHowever, the CCA has a number of differences which make it unique compared to medical marijuana programs of other states.

  1. The Department of Health has the power to price the medicine purchased. New York will start with a 7% tax.
  2. Even qualified patients aren’t allowed to smoke marijuana. Patients will be forced to mix marijuana with food, ingest pills, or breathe vapors instead. The only other state which legalizes medical marijuana but prohibits smoking is Minnesota.
  3. New York patients can’t grow their own marijuana. They must buy it from a state regulated dispensary. Finally, physicians who prescribe more than 2.5 ounces will be subject to penalties.

In short, New York will have the most regulated medical marijuana program in the country. Governor Cuomo and state legislators believe the law strikes an appropriate balance between medical need and public health. “Public health” means making sure people don’t abuse marijuana or use it as a gateway drug to more dangerous substances like heroin.

The problem is that the rules don’t correlate with public health. The smoking prohibition looks like a means to protect public health, but bans on tobacco smoking in public areas could easily be extended to marijuana. The ban on smoking will not guard against second-hand smoking. Forcing patients to ingest rather than smoke marijuana will cause patients to spend more money on the drug.

It is also difficult to understand how a tax would prevent addicted potheads from spending all their cash on weed. Given that patients must buy from state approved dispensaries, the CCA looks more like a way for the state to make money than to help sick patients. Of course, any amount of medical marijuana is better than none.