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The Medical Marijuana Magazine

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Editor's Note: The drive for a D.C. Medical Marijuana Initiative was actually sparked by a proposal earlier this year by Eric Holder, then the federal prosecutor for the District to make possession of more than one and half ounces of marijuana a felony, subject to a five year mandatory minimum sentence. (Mr.Holder was nominated for the position of Deputy Attorney General, a position that required Senate approval. Of course, this had absolutely nothing to do with this proposal. Mr. Holder is now the Deputy A.G. and has said nothing about this recently.) This draconian law would have made the operation of a Cannabis Buyers Club impossible in the District, hence the need for a medical marijuana initiative.

The following is an excellent synopsis of the marijuana reform position.

Testimony of R. Keith Stroup, Esq.

Executive Director

National Organization for the Reform of Marijuana Laws (NORML) before the Committee On The Judiciary Council of the District of Columbia

Wednesday, May 7, 1997

My name is Keith Stroup and I am here representing the National Organization for the Reform of Marijuana Laws (NORML). I want to thank Chairman Evans and the members of the Committee on the Judiciary for the opportunity to appear here today to present our views regarding Bill 12-12, entitled the "Distribution of Marijuana Amendment Act of 1997.{1}"

For the record, let me first outline our position on marijuana policy generally.

I. NORML Position on Marijuana Policy

Since 1970, NORML has been a voice for Americans who believe it is both counter-productive and unjust to treat marijuana smokers as criminals. Arresting and jailing otherwise law-abiding citizens who happen to be marijuana smokers serves no legitimate societal purpose. Rather it is an enormous waste of valuable law enforcement resources that should be focused on truly serious crime, and it has a terribly destructive impact on the lives, careers and families of those Americans who are arrested and jailed. We have declared war against a whole segment of our own citizens, without cause. It is time to end marijuana prohibition.

We do not suggest that marijuana is totally harmless or that it cannot be abused. That is true for all drugs, including those which are legal. We do believe that moderate marijuana use is relatively harmless -- far less harmful to the user than either tobacco or alcohol, for example -- and that any risk presented by marijuana smoking falls well within the ambit of choice we permit the individual in a free society. Today, far more harm is caused by marijuana prohibition than by marijuana itself.

A. Recreational Marijuana Smokers

It's time we put to rest the myth that smoking marijuana is a fringe or deviant activity, engaged in only by those on the margins of American society. In reality, marijuana smoking is extremely common, and marijuana is the recreational drug of choice for millions of mainstream, middle class Americans. According to the most recent NIDA data{2}, between 66 million Americans have smoked marijuana at some time in their lives, 18 million have smoked marijuana in the last year, and 10 million are current smokers (have smoked as at least once in the last month). In fact, NIDA found that 61% of all current illicit drug users report that marijuana is the only drug they have used; this figure rises to 80% if hashish (a marijuana derivative) is included.

A recent national survey of voters found that 34% -- one third of the voting adults in the country -- acknowledged having smoked marijuana at some point in their lives{3}. Many successful business and professional leaders, including many state and federal elected officials from both political parties, admit they have smoked marijuana. We should begin to reflect that reality in our state and federal legislation, and stop acting as if otherwise law-abiding marijuana smokers are part of the crime problem. They are not, and it is absurd to continue to spend law enforcement resources arresting and jailing them.

Marijuana smokers in this country are no different from their non-smoking peers, except for their marijuana use{4}. Like most Americans, they are responsible citizens who work hard, raise families, contribute to their communities, and want a safe, crime-free neighborhood in which to live. Because of our marijuana laws, these citizens face criminal arrest and imprisonment solely because they choose to smoke a marijuana cigarette when they relax, instead of drinking alcohol. They simply prefer marijuana over alcohol as their recreational drug of choice. This is a misapplication of the criminal sanction which undermines respect for the law in general and extends government into areas of our private life that are inappropriate.

B. Responsible Marijuana Use

At NORML, we believe that marijuana smokers, like those who drink alcohol, have a responsibility to behave appropriately and to assure that their recreational drug use is conducted in a responsible manner. Neither marijuana smoking nor alcohol consumption is ever an excuse for misconduct of any kind, and both smokers and drinkers must be held to the same standard as all Americans.

The NORML Board of Directors has issued the following statement entitled "Principles of Responsible Cannabis Use," which defines the conduct which we believe any responsible marijuana smoker should follow

I. ADULTS ONLY Cannabis consumption is for adults only. It is irresponsible to provide cannabis to children. Many things and activities are suitable for young people, but others absolutely are not. Children do not drive cars, enter into contracts, or marry, and they must not use drugs. As it is unrealistic to demand lifetime abstinence from cars, contracts and marriage, however, it is unrealistic to expect lifetime abstinence from all intoxicants, including alcohol. Rather, our expectation and hope for young people is that they grow up to be responsible adults. Our obligation to them is to demonstrate what that means.

II. NO DRIVING

The responsible cannabis consumer does not operate a motor vehicle or other dangerous machinery impaired by cannabis, nor (like other responsible citizens) impaired by any other substance or condition, including some medicines and fatigue. Although cannabis is said by most experts to be safer than alcohol and many prescription drugs with motorists, responsible cannabis consumers never operate motor vehicles in an impaired condition. Public safety demands not only that impair drivers be taken of the road, but that objective measures of impairment be developed and used, rather than chemical testing.

III. SET AND SETTING

The responsible cannabis user will carefully consider his/her set and setting, regulating use accordingly. "Set" refers to the consumer's values, attitudes, experience and personality, and "setting" means the consumer's physical and social circumstances. The responsible cannabis consumer will be vigilant as to conditions -- time, place, mood, etc. --and does not hesitate to say "no" when those conditions are not conducive to a safe, pleasant and/or productive experience.

IV. RESIST ABUSE

Use of cannabis, to the extent that it impairs health, personal development or achievement, is abuse, to be resisted by responsible cannabis users. Abuse means harm. Some cannabis use is harmful; most is not. That which is harmful should be discouraged; that which is not need not be. Wars have been waged in the name of eradicating "drug abuse", but instead of focusing on abuse, enforcement measures have been diluted by targeting all drug use, whether abusive or not. If marijuana abuse is to be targeted, it is essential that clear standards be developed to identify it

V. RESPECT RIGHTS OF OTHERS

The responsible cannabis user does not violate the rights of others, observes accepted standards of courtesy and public propriety, and respects the preferences of those who wish to avoid cannabis entirely. No one may violate the rights of others, and no substance use excuses any such violation. Regardless of the legal status of cannabis, responsible users will adhere to emerging tobacco smoking protocols in public and private places. As these principles indicate, we believe there is a difference between use and abuse, and the government should limit its involvement and concentrate its resources to discourage irresponsible marijuana use. Responsible marijuana use causes no harm to society and should be of no interest to the government in a free society.

C. It's Time To Stop Arresting Marijuana Smokers

The "war on drugs" is not really about drugs; if it were, tobacco and alcohol would be your primary targets. They are the most commonly used and abused drugs in America and unquestionably they cause far more harm to the user and to society than does marijuana. Instead, the war on drugs has become a war on marijuana smokers, and in any war there are casualties. According to the latest FBI statistics, in 1995 nearly one-half million (489,000) Americans were arrested on marijuana charges. That is the largest number of marijuana arrests ever made in this country in any single year, and reflects a 70% increase over 1991 (288,000). Eighty six percent (86%) of those arrests were for possession, not sale.

Those were real people who were paying taxes, supporting their families, and working hard to make a better life for their children; suddenly they are arrested and jailed and treated as criminals, solely because they smoke marijuana. This is a travesty of justice that causes enormous pain, suffering and financial hardship for millions of American families. It also engenders disrespect for the law and for the criminal justice system overall. Responsible marijuana smokers present no threat or danger to America, and there is no reason to treat them as criminals. As a society we need to find ways to discourage personal conduct of all kinds that is abusive or harmful to others. Responsible marijuana smokers are not the problem and it's time to stop arresting them.

It's time to seek a policy that minimizes the harm associated with marijuana smoking and marijuana prohibition -- a policy that distinguishes between use and abuse, and reflects the importance we have always attached in this country to the right of the individual to be free from the overreaching power of government. Most of us would agree the government has no business knowing what books we read, the subject of our telephone conversations, or how we conduct ourselves in the privacy of our bedroom. Similarly, whether we smoke marijuana or drink alcohol to relax is simply not an appropriate area of concern for the government.

By stubbornly defining all marijuana smoking as criminal, including that which involves adults smoking in the privacy of their home, we are wasting police and prosecutorial resources, clogging courts, filling costly and scarce jail and prison space, and needlessly wrecking the lives and careers of genuinely good citizens. It's time we ended marijuana prohibition and stopped arresting and jailing hundreds of thousands of average Americans whose only "crime" is that they smoke marijuana. This is a tragic and senseless war against our own citizens; it must be ended.

D. Medical Marijuana

Another point I would like to make to the committee is that marijuana should immediately be made legally available to the tens of thousands of seriously ill Americans who need marijuana to alleviate pain and suffering. Of all the negative consequences of marijuana prohibition, none is as tragic as the denial of medicinal marijuana to those who need it.

On the question of whether seriously ill patients should have legal access to marijuana to relieve pain and suffering, 85%{5} of the American public already support this change. Many of them (22%) have had a family member or friend sick with cancer, AIDS, multiple sclerosis, glaucoma or some other potentially devastating disease, who has had to risk arrest and jail to obtain marijuana to alleviate the side effects of cancer chemotherapy, overcome the AIDS wasting syndrome, or treat other life threatening or serious illnesses. Basic compassion and common sense demand that we allow these citizens to use whatever medication is most effective, subject to the supervision of a physician.

It is clear from available studies and from what tens of thousands of seriously ill patients tell us, that marijuana is a valuable therapeutic in the treatment of a number of serious ailments{6} and that it is both less toxic and costly than the conventional medicines for which it may be substituted. In many cases it is more effective than the commercially available drugs it replaces. Groups such as the American Public Health Association{7} and the Federation of American Scientists{8} have endorsed the medical use of marijuana, and majority of the voters in California approved the legal use of marijuana as a medicine under state law in a statewide referendum last November.

Marijuana is an effective means of overcoming the nausea and vomiting associated with cancer chemotherapy, and the nausea and appetite loss in the wasting syndrome of AIDS. It is useful for various spastic conditions including multiple sclerosis, paraplegia, and quadriplegia. It also lowers intraocular pressure in people who suffer from open-angle glaucoma. For some people with epilepsy it is the only anticonvulsant that works.

Many seriously ill patients in this country are already using marijuana to reduce their pain and suffering, even though it means they and their families must risk arrest. Informal buyers' clubs, which supply marijuana to the seriously ill, have been formed in many cities, including the District of Columbia. Some of these clubs are small and clandestine; a few, such as the one in San Francisco, operate openly and serve several thousand clients on a regular basis. Despite these heroic efforts, the underground emergency distribution system reaches only a small proportion of the tens of thousands of patients who could benefit from legal marijuana.

Whatever one's views may be on the war on drugs, denying effective medication to the sick and dying should never be part of it. The District of Columbia, and all other states, should follow California's lead and exempt medical users from existing state laws, and use your influence with Congress to exempt medical users from federal law.

II. NORML's Position on Bill 12-12

A. Bait and Switch We urge the Committee to oppose this ill-conceived proposal. It is an example of what the National Criminal Justice Commission{9} calls "bait and switch." The proponents claim violence is on the increase and propose harsh, mandatory legislation, but the legislation that results primarily impacts non-violent offenders. Bill 12-12 fits this definition perfectly.When U.S.Attorney Eric Holder held his press conference explaining the need for this new piece of legislation, he alleged there had been an increase in violence associated with marijuana trafficking in the district, and under current law, violent and serious offenders could not be punished appropriately for the crime.

With all due respect, the proposal that emerged does not address the problem described by Mr. Holder. Violence is never mentioned in this proposal. Rather it would impose mandatory prison terms for all marijuana distribution and possession-with-the-intent-to-distribute offenses, regardless of whether any violence was associated with the event. If violence is the reason for imposing harsh and unyielding mandatory sentences, the legislation should be targeted at violent offenders.For example, many otherwise law-abiding marijuana smokers share marijuana with friends, often on a non-profit basis. Under this bill, they would be subject to a mandatory prison sentence. This has absolutely nothing to do with violence, the problem identified by the proponents as justifying this bill.

Similarly, many seriously ill people in the District of Columbia use marijuana to relieve their pain and suffering, primarily AIDS and cancer patients. Often their illness requires that a primary caregiver obtain their marijuana. Those caregivers would serve a mandatory prison sentence under this proposal. Others, preferring to avoid the black market, grow a few marijuana plants in their apartment. They too would be subject to these mandatory penalties. And if violence is the target, those charged with selling marijuana commercially should not be included unless violence is involved in the activity. To do otherwise is to confuse and obscure the important distinction between violent and nonviolent offenses.

B. Has There Really Been an Increase in Marijuana-Related Violence? Before reimposing mandatory sentences for drug offenses, the first question that should be asked is what evidence exists of this alleged increase in violence associated with marijuana-related trafficking in the District of Columbia. This data should be made available to the Council and examined before even considering this proposal. Since we know that this law would increase the number of District residents who are incarcerated, and increase the length of incarceration for many offenders, this is not a step that should be taken lightly. At a minimum, let's first determine whether the perceived problem actually exists.

According to the FBI, since 1991, rates of violent crime have decreased 10% nationwide{10}. In Washington, DC, the FBI reports that just since 1993, murder rates have declines by 26%, robbery rates have declined 4%, rape has declined 11% and aggravated assault has declined 25%. This seems to concur with a recent announcement by the D.C chief of police who also claims the District has experienced a decline in violent crime. While it is possible that the District experience with marijuana-related violence has run counter to this trend, the proponents should demonstrate this before asking for stronger penalties.C. Harsh Mandatory Penalties Already Available Under Federal Law. Also, Mr. Holder said these mandatory penalties were needed because the DC drug laws are not severe enough to deal with the really dangerous marijuana offenders. In making this statement, Mr. Holder ignores the federal laws which are also available to his office.

In the District the U.S. Attorney prosecutes violations of District law in the D.C. Superior Court and violations of federal law in the U.S. District Court for the District of Columbia. Every day the U.S. Attorney's office decides which new drug cases are most serious and should be prosecuted in the federal court, and which are less serious and will be prosecuted in Superior Court. Those prosecuted under federal law are subject to the rigid federal sentencing guidelines and to all the mandatory penalties adopted by Congress during the last several years, both those covering drugs as well as those pertaining to the use of guns. In other words, Mr. Holder already has tough federal penalties available to him should he believe the District Code is insufficiently harsh to deal appropriately with a particular offender. It was disingenuous for him to suggest that his hands were tied by the absence of mandatory penalties under D.C. law.

D. Bill Would Increase the Numbers of District Residents in Prison. As the study entitled Hobbling A Generation: Young African American Males in Washington, D.C.'s Criminal Justice System{11} found five years ago, at least 42% of the District's African American males aged 18 through 35 are in jail or prison, or otherwise under the supervision of the criminal justice system on probation or parole. Without question the adoption of this proposal would further increase these already unsettling numbers by locking up increasing numbers of nonviolent drug offenders for longer periods of time.

The experience with mandatory penalties in the federal system is illustrative. Since 1987, when the federal sentencing guidelines (a version of mandatory sentencing) went into effect, the federal prison population has increased from 41,000 to 106,600. According to a 1994 DOJ study, there are now more than 16,000, nonviolent, low-level drug offenders in federal prisons, serving an average sentence of 7 years. 12,000 of these individuals were first-time offenders. Currently 61% of all federal inmates are incarcerated on drug offenses. Only 11% of those incarcerated in federal prisons last year were convicted of violent offenses; 89% were nonviolent offenders. To hold all of these nonviolent offenders, the federal system has built 38 new prisons since 1980 and 10 more are under construction.

The disparate racial impact of the federal drug laws has also been apparent.{12} In 1987, when the federal sentencing guidelines were adopted, 48% of the federal prison population were black and Hispanic; 52% were white. Today 62% are black or Hispanic; 38% are white. Imposing harsh mandatory drug penalties in the District will have a similar effect on the District's prison population. The number of individuals imprisoned will increase, those imprisoned will serve longer sentences, and it will have a disproportionate impact on the black and Hispanic population. Before considering legislation such as this, the Council would be well advised to request a racial impact statement, to determine in advance the likely impact of such a proposal.

At a time when the District is required to close schools and downsize social services to save money, surely the Council does not wish to repeat the costly mistakes of the federal system. Every nonviolent offender sent to Lorton costs the District taxpayers approximately $23,000 per year, more than it would cost to send them to college. We must make a distinction between violent and nonviolent offenders and reserve our scarce and costly prison space for violent offenders. There are less costly and more effective community-based alternatives for nonviolent offenders.

E. Bill Removes Ability of Judges to Fashion a Sentence to Fit the Crime. The basic problem with mandatory sentences is that they remove from the sentencing process the ability of the judge to fashion a fair sentence that reflects the individual facts of the case and the culpability of the individual defendant. All defendants convicted of the same offense receive the same sentence, regardless of individual circumstances or culpability. Justice cannot be dispensed in a cookie-cutter manner. Mandatory drug sentences assure that many nonviolent offenders will end-up serving longer prison terms than those convicted of murder, rape and other violent offenses.

Mandatory sentences transfer power from neutral judges to prosecutors, who can effectively determine the sentence to be imposed by the choice of charges filed. Those who are not guilty may be coerced into pleading guilty to a lesser offense instead of fighting the charges, rather than risk the imposition of a mandatory prison term if convicted. Mandatory penalties further increase the overwhelming power of the prosecutor and undermine our traditional adversarial system of justice.

As the Council correctly determined three years ago when mandatory penalties for drug offenses were removed, mandatory penalties do not result in justice. They are rigid in their application, frequently resulting in unfair sentences. And they are terribly costly, draining scarce governmental resources from education and other vital programs. The District should seek more effective and less costly alternatives to prison for nonviolent offenders, and provide drug treatment and education for those who need it. This proposal, Bill 12-12, would have the opposite effect.

For all of the above reasons, I urge the Committee to reject this unnecessary, harsh and expensive proposal which would fill our prisons with even more low-level nonviolent drug offenders.

FOOTNOTES

{1} While the bill is entitled "Distribution of Marijuana Amendment Act of 1997", the language purports to impose mandatory minimum penalties for all drug trafficking offenses. Either the bill was incorrectly drafted, or it is misnamed.

{2} National Institute on Drug Abuse, Preliminary Estimates from the 1995 National Household Survey on Drug Abuse (Department of Health and Human Services, Public Health Service, Bethesda, MD, August 1996).

{3} ACLU National Survey of Voters' Opinions on the Use and Legalization of Marijuana for Medical Purposes (March 31-April 5, 1995).

{4} National Commission on Marijuana and Drug Abuse, Marijuana, A Signal of Misunderstanding (New York: The New American Library, Inc., 1972).

{5} Ibid., at 2.

{6} Grinspoon L., Bakalar J., Marihuana, the Forbidden Medicine (Yale University Press, New Haven, Conn. 1993); Grinspoon L., Bakalar J., Marihuana as a Medicine: A Plea for Reconsideration (JAMA, June 21, 1995, Vol. 273, No. 23); The American Public Health Association, Resolution 9513, Access to Therapeutic Marijuana/Cannabis (APHA Public Policy Statements, Washington, DC, November 1995); Federation of American Scientists, Medical Use of Whole Cannabis (Washington, DC, 1994); National Task Force on Cannabis, The Health and Psychological Consequences of Cannabis Use (Australian Government Publishing Service, Canberra, Australia, 19 -need year); Institute of Medicine, National Academy of Sciences, Marijuana and Health, A Report of a Study by a Committee of the Institute of Medicine (National Academy Press, Washington, DC, 1982).

{7} The American Public Health Association, Resolution 9513, Access to Therapeutic Marijuana/Cannabis (APHA Public Policy Statements, Washington, DC, 1995).

{8} Federation of American Scientists, Medical Use of Whole Cannabis (Washington, DC, 1994).

{9} National Center on Institutions and Alternatives, The Real War On Crime, The Report of the National Criminal Justice Commission (HarperCollins,1996).

{10} U.S. Department of Justice, FBI, Crime in the U.S. 1995, Uniform Crime Reports (1996).

{11} Miller, Jerome G., Hobbling a Generation: Young African American Males in Washington, DC's Criminal Justice System, National Center on Institutions and Alternatives (April 1992).

{12} Miller, Jerome G., Search and Destroy: African American Males in the Criminal Justice System (Cambridge University Press, 1996).

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