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Marijuana Policy: What Factors Affect Implementation?EBBERS 1

Marijuana Policy: What Factors Affect Implementation?Ingrid Elizabeth EbbersBoise State University12 December 2012

INTRODUCTIONOn November 6, 2012 two states, Colorado and Washington, made history in the fight against marijuana prohibition by passing voter-led initiatives legalizing marijuana for recreational use for anyone 21 and older, essentially treating it like alcohol. Earlier this year Connecticuts legislature passed legislation legalizing medical marijuana. In addition, Massachusettss voters passed Ballot Question 3, becoming the 18th state to legalize it for medicinal use. On the flipside, several states chose not to approve legislation for legalization (Oregon) or medicinal use (Arkansas). Since the passage of the 1970 Controlled Substances Act marijuana advocates have tried to persuade the federal government to reconsider their stance but have failed. Realizing their efforts were futile they decided to pursue an avenue through the states. The first successful medical marijuana law came in 1996 with the passage of Californias Proposition 215 and ever since states continue to put forth medical marijuana ballot initiatives or legislation. Some states have been more successful than others in their efforts to pass laws leaving many to ask, What affects marijuana policy in the United States? For marijuana advocates this is an important question to answer because it will help them determine how to effectively pursue an avenue towards legislation. This is also an important question for opponents of such measures because of their efforts to stop states from enacting marijuana laws. The marijuana debate however is not as simple as medicinal use; the passage of such laws has broader implications on the American-led War on Drugs. Before delving into what affects marijuana policy a review of the current literature on US drug/marijuana policy is necessary.

1. LITERATURE REVIEWMost of the literature on marijuana does not discuss what affects policy enactment but instead examines the arguments for and against. Until more states enact marijuana policy I think the research on this subject will focus more on these arguments, rather than what affects policy. In the USA Today article Slowly, Limits on Pot are Fading, William M. Welchand and Donna Leinwand write about the declining opposition to medical marijuana. It points out that medical marijuana legislation is a rising trend and since 1996 14[footnoteRef:1] states plus the District of Columbia have passed legislation either through ballot initiatives or their state legislatures. This article is also the basis for the dependent variable discussed later. One of the interviewees, James Gray, spent two decades as a superior court judgeand once ran for Congress as a Republican switched sides in the war on drugs, becoming an advocate for legalizing marijuana (Welchand and Leinwand 2010). He is not their only onetime drug warrior (Welchand and Leinwand 2010). Jeff Studdard, a former California police officer, changed his mind after an accident resulted in a broken back and marijuana was the only thing that relieved his pain. The article also presents polling data that shows 44%[footnoteRef:2] of Americans favor full legalization, where another poll found 81%[footnoteRef:3] of Americans favored legalization for medical marijuana. They also show that the Obama administration has a markedly different approach than previous administrations. Attorney General Eric Holder last fall announced that raiding medical marijuana facilities would be the lowest priority for U.S. law enforcement agents (Welchand and Leinwand 2010). Finally, some of the interviewees, including Gray, have suggested that full legalization is not far off. [1: This was the number of states with medical marijuana at the time this article was written but the number has risen to 18 plus the District of Columbia.] [2: Gallup Poll from October 2009 ] [3: ABC News Poll from January 2010]

In addition to the USA Today article, there have been countless journal articles and even research conducted by the Congressional Research Service (CRS) in regards to marijuana policy. The Congressional Research Service is a part of the Library of Congress that provides nonpartisan research and analysis to members of Congress and their committees. In 2010, Mark Eddy, a specialist in social policy, wrote the report Medical Marijuana: A Review and Analysis of Federal and State Polices for the CRS. The purpose of his research paper was to give Congress information to help them determine whether to continue the federal prosecution of medical marijuana patientsor whether to relax federal marijuana prohibition enough to permit the medicinal use of botanical cannabis (Eddy 2010, 1). His 47-page report breaks the topic down into several sections: federal policy (congressional, executive, and judicial actions), state policies, public opinion, and concludes with an analysis (not taking either side) of the arguments for and against marijuana. Mr. Eddy gives a brief history of medical marijuana prior to the passage of the Marijuana Stamp Act of 1937, and then discusses the federal marijuana policy for the past 75 years. According to Mr. Eddy, medicinal marijuana can trace its origins to ancient China, India, Greece, Rome, and even parts of the Middle East. He further states that prior to the passage of the Stamp Act, for most of American history, growing, and using marijuana was legal under both federal and state laws of the individuals states (Eddy 2010, 1). Then the federal government enacted the first legislation in a long line of anti-marijuana legislation the Marijuana Stamp Act of 1937. The purpose of the Act was to [impose] registration and reporting requirements and a tax on the growers, sellers, and buyers of marijuana. Although the act did not prohibit marijuana outright, its effect was the same (Eddy 2010, 2). An interesting point Mark Eddy makes, using testimony from a congressional hearing during that time, is that the American Medical Association (even back then) did not agree with the federal government and believed marijuana did possess medicinal value. The next major legislation the Controlled Substances Act (CSA) of 1970 came during the Nixon administration and was passed by a Congress controlled by Democrats. The CSA provides the federal government a way, through the Food and Drug Administration (FDA), to regulate narcotics based on: (1) its actual or relative potential for abuse; (2) scientific evidence of its pharmacological effect, if known; (3) the state of current scientific knowledge regarding the drug or other substance; (4) its history and current pattern of abuse; (5) the scope, duration, and significance of abuse; (6) what, if any, risk there is to the public health; (7) its psychic or physiological dependence liability; and (8) whether the substance is an immediate precursor of a substance already controlled under this subchapter (Food and Drug Administration 2009). The CSA classifies marijuana, along with opiates, opium derivatives, and hallucinogens (marijuana falls under this subgroup) as a Schedule I. These drugs have high potential for abuseno currently accepted medical useand a lack of accepted safety for use (Food and Drug Administration 2009). Mr. Eddy then discusses more current federal marijuana legislation, including the 105th Congresss anti-marijuana legislation (Not Legalizing Marijuana for Medicinal Use) and the Hinchey-Rohrabacher Amendment (2003-2007). He concludes that any attempt to relax federal marijuana law has failed. The next section in Mark Eddys report is executive branch actions, which include the FDAs Investigational New Drug (IND) Compassionate Program (1978), the FDAs approval of the synthetic form of marijuana Marinol in 1985; several administrative judge rulings; and the DEAs enforcement of federal law. Under his judicial action section he presents three federal cases, two of which are Supreme Court cases, involving marijuana policy: US v. Oakland Buyers Cooperative (2001), Contant v. Walter (2002), and Gonzales v. Raich (2005). In US v. Oakland Buyers the issue was whether a medical marijuana distributor can use a medical necessity defense against federal marijuana distribution charges (Eddy 2010, 15). The Supreme Court in an 8-0 ruling, concluded that a medical necessity defense is at odds with federal law and therefore cannot be used (Eddy 2010, 15). The next case Mark Eddy reviews, Contant v. Walter (2002), refers to a 1997 Clinton administration threat against doctors prescribing marijuana. This case only reached a federal appeals court, where a permanent injunction was issued prohibit[ing] federal officials from threating or punishing physicians for recommending marijuana to patients (Eddy 2010, 15). Lastly, he presents the 2005 Supreme Court case Gonzales v. Raich, which argued the CSA exceeded Congresss constitutional authority under the Commerce Clause but the Court ruled 6-3, against this argument; thus upholding federal law (Eddy 2010, 16).The CRS report then breaks down the 14 states plus the District of Columbias laws regarding marijuana. Other more updated sources for federal and state marijuana laws include ProCon.org (a website dedicated to the pros and cons arguments for marijuana) and the National Organization for the Reform of Marijuana Laws, NORML.org (an organization that formed during the 70s and is dedicated to reforming laws). State laws vary from very restrictive (e.g. only specific conditions allowed, not accepting out-of-state medical cards, state mandated registration) to less restrictive (e.g. allowing residents from other states to apply for a medical card, open-ended lists of conditions permitted, and no state registration). In addition, the way in which states enact legislation varies from ballot initiative