Pubdate: Tue, 30 Dec 2008
Source: Times, The (Trenton, NJ)
Copyright: 2008 The Times
Author: Gregory J. Sullivan
Note: Gregory J. Sullivan is a lawyer in Hamilton.
Bookmark: (Cannabis - Medicinal)


The movement in the New Jersey Legislature to enact the New Jersey 
Compassionate Use Medical Marijuana Act has much to recommend it. It 
is in fact a sound policy to allow those suffering great physical 
pain to use marijuana to relieve various symptoms. Nevertheless, 
creating an exception for the medical use of marijuana under state 
law does not create an exception under federal law. By using state 
law to sanction marijuana use in the medical context, New Jersey will 
be encouraging a violation of federal law. That is a problem that 
must be resolved before the policy deserves full support. The 
proposed New Jersey statute is admirable in the care with which it 
sets forth the medical exception. It cabins the possibility of abuse 
as well as can be expected. That is to say, it establishes a narrow, 
meticulously circumscribed exception to the general prohibition on 
marijuana use. The premises for the exception are found in the 
legislative findings, which include:

"According to the U.S. Sentencing Commission and the Federal Bureau 
of Investigation, 99 out of every 100 marijuana arrests in the 
country are made under state law, rather than under federal law. 
Consequently, changing state law will have the practical effect of 
protecting from arrest the vast majority of seriously ill people who 
have a medical need to use marijuana.

"Although federal law currently prohibits the use of marijuana, the 
laws of Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, 
Vermont, Washington and Montana permit the use of marijuana for 
medical purposes, and in Arizona, doctors are permitted to prescribe 
marijuana. New Jersey joins this effort for the health and welfare of 
its citizens.

"States are not required to enforce federal law or prosecute people 
for engaging in activities prohibited by federal law; therefore, 
compliance with this act does not put the State of New Jersey in 
violation of federal law."

But it would put New Jersey residents who use marijuana for 
statutorily defined medical purposes in violation of federal law. 
Irrespective of what any state law provides, marijuana remains 
illegal under the federal Controlled Substances Act (CSA). By 
adopting the medical-marijuana law, New Jersey would be placing state 
residents in a position of engaging in criminal behavior under the 
CSA. New Jersey may pledge not to enforce federal law, but such a 
pledge does not bind the federal government. To be sure, federal 
prosecutions are exceedingly rare in this area, but they do occur. 
For example, in 2005, the U.S. Supreme Court decided the important 
commerce-clause case of Gonzales vs. Raich, which approved of a 
federal prosecution of a very modest medical use of marijuana in California.

The approach of ignoring the CSA suggests that New Jersey -- and the 
other states with similar laws -- is, at least implicitly, defiant of 
the superior federal law. That is not the sort of perspective that 
should be fostered by any lawmaker. The law has a distinct 
pedagogical function, and New Jersey and other states are using it to 
convey, to say the least, a confusing message.

Bringing responsible resolution to the problem will require 
recognition of how our federal system operates. What should be 
enacted is a modification of the CSA to allow for states to provide 
for a medical exception to the prohibition on marijuana use. States 
would not, of course, be compelled to adopt this exception, but they 
would be at liberty to do so. States could then act as laboratories 
for this innovative policy. If abuses develop, adjustments at the 
state level can be made. And if the narrow exception for medical use 
turns into a campaign to legalize all marijuana use, then the federal 
government can close the medical-exception lacuna and restore a 
comprehensive prohibition.

The arguments against allowing the use of marijuana as an analgesic 
are exceedingly weak. It is indeed compassionate to permit those in 
dire and chronic physical pain -- those, in the words of the New 
Jersey statute, suffering from a "debilitating medical condition" -- 
to use it to ease their suffering, however imperfectly. Nevertheless, 
respect for the rule of law in a federal system requires that federal 
law must be changed before state law can do what New Jersey and other 
states want to do in this area.
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MAP posted-by: Jay Bergstrom