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Medical Marijuana in New York MEDICAL MARIJUANA IN NEW YORK: A Symposium Publication Following The Issues Into 2010 by The Committee on Drugs & the Law 1 Preface The Purpose of this Publication On February 7, 2007, the Committee on Drugs and the Law of the New York City Bar Association sponsored a Symposium on Medical Marijuana in New York. Most recently, the Committee has determined that the questions debated in 2007 about legalizing medical marijuana remain the same today. Those legal questions involve federalism, the Commerce Clause, the Supremacy Clause, free speech, and the Fifth Amendment right to life and due process. It is the Committee’s opinion that the conversation about medical marijuana should be promoted. The legal issues, which are often obscured by the medical issues, should be made public to be discussed and debated. This is particularly pertinent in New York State, as the New York State Legislature has not yet passed A. 9016 and S. 4041-B, the most recently proposed medical marijuana bills sponsored by Assemblymember Richard Gottfried and Senator Thomas Duane.1 In 2007, the purpose of the Symposium was three-fold: 1) to clarify the emerging legal issues caused by the passage of state-sponsored medical marijuana laws, in light of the federal prohibition against marijuana use; 2) to have the most recent medical marijuana bill before the New York State Assembly explained by the Assembly sponsor, Richard Gottfried; and 3) to create an interdisciplinary discussion about the legal and public health policy consequences of drug prohibition created by the federal Controlled Substance Act (the “CSA”). In 2010, the above stated medical marijuana agenda is still quite relevant, as the provisions of the CSA have not changed substantively since its inception. Presently, the CSA makes it difficult for: A) legitimate research on marijuana to be conducted, B) people with serious painful conditions to alleviate their pain, and C) doctors to provide appropriate treatment to patients without fear of losing their licenses and/or becoming the subject of a criminal investigation. 1 More recently, efforts have focused on the implementation of medical marijuana in New York State via its inclusion as an item in the FY 2011 Budget. Selena Ross, Support for Medical Marijuana Lights Up In State Senate, THE CAPITOL, Apr. 26, 2010, http://www.nycapitolnews.com/news/126/ARTICLE/1731/2010-04-26.html 2 Today, in 2010, New York State Assemblymember Richard Gottfried (D-75th District) and New York State Senator Thomas Duane (D-29th District) have their most recent versions of the medical marijuana bill pending before the New York State Legislature. They have offered identical bills (A. 9016 and S.4041-B, respectively), which have bi-partisan support. If passed, New York will become the 15th state to allow medical marijuana. As stated above, the Drugs and the Law Committee has chosen to publish this transcript now, as the questions debated in 2007, particularly about the Tenth Amendment and federalism, and the Fifth Amendment right to life, health and due process in the context of health care remain important concerns. Lawyers in general, legislators and citizens of states that have yet to pass a medical marijuana law, and who struggle with the pros and cons of joining this grassroots movement, will find this transcript highly informative. Once legislators decide to support medical marijuana, they must decide how to frame their legislation. This Symposium sheds light upon the legal and political issues at the core of these challenges. The New York City Bar Association has supported the availability of marijuana for medicinal use since 1997, just after Assemblymember Richard Gottfried offered his first bill to the New York State Legislature in 1996. Its support then, and now, is based upon substantial indicators that marijuana has medical utility, and the more recent revelation that the Drug Enforcement Administration (DEA) has declined to allow alternatives to the National Institute of Drug Abuse (NIDA) monopoly on supplying marijuana for research. The New York City Bar takes the position that freedom to conduct appropriate scientific research is vital to the welfare of the nation. The DEA’s administrative law judges have overturned their own agency’s decision regarding this contested policy, but compliance by the agency is voluntary. 2 The reader will, however, have an opportunity to duly consider a defense of the federal government’s position against medical marijuana by reading the words of the Committee’s honored colleague Edward Jurith of the White House’s Office of National Drug Control Policy. 2 See In the Matter of Lyle E. Craker, Ph.D., Opinion and Recommended Ruling, Findings of Fact, Conclusions of Law and Decision of the Administrative Law Judge, United States Department of Justice, Drug Enforcement Administration, Docket No. 05-16, February 12, 2007. 3 The Symposium In pursuit of this complex and very interesting conversation, Noah Potter, Esq., then-Chairperson of the Drugs and the Law Committee, was able to persuade a most outstanding set of panelists to join us in Manhattan for the Symposium. Mr. Potter began the Symposium, and discussed the Committee’s historical support for drug reform. He briefly discussed the array of social policies affected by American drug policy. Eric Sterling, President of the Criminal Justice Policy Foundation, Washington, D.C., and our moderator, introduced the history of marijuana’s medicinal use, and the development of our present day policies. Karen O’Keefe, then-Assistant Director for State Policy for the Marijuana Policy Project, Washington, D.C. (and now Director), presented a slide show of the medical marijuana laws presently in place, and how those laws are being enforced. Her slides are included. Her presentation highlighted the difficulty the federal government has had in executing federal law in those states that have legalized medical marijuana. Robert Raich, Attorney from Oakland, California, and Counsel to Respondent in the U.S. Supreme Court case Gonzales v. Raich3, gave a look at the deliberations of the U.S. Supreme Court in that case. He discussed the ONE question the Court agreed to consider, and reviewed the legal impact of all the issues not decided by the Supreme Court in that case. Edward Jurith, General Counsel of the Office of National Drug Control Policy, Washington, D.C., educated the audience about the U.S. Constitution and the powers vested in each branch of government. He revealed the political and legal reality behind existing federal law, and the power and authority Congress has to pursue the national interest of a united society. Susan Herman, Centennial Professor of Constitutional Law at Brooklyn Law School and General Counsel of the American Civil Liberties Union, continued the discussion about the U.S. Constitution, the role of Article II, and the complex process of constitutional decision-making. She explained to the audience as to how the medical marijuana legal discussion is a classic problem in federalism, and discussed how the federal government can enforce its laws in a state 3 Gonzales v. Raich, 545 U.S. 1 (2005) 4 without violating state sovereignty. Lastly, Assemblymember Richard Gottfried outlined the details of his 2007 medical marijuana bill4, and how it was designed to minimize exposure to the federal law. He also discussed the bi-partisan political support the bill had been attracting and its increased chances of being passed. Medical Marijuana in New York in 2010: It is important to note that A. 9016 is substantially different in content than A. 4867-B. A. 4867-B allowed certified patients and/or their caregivers to grow their own marijuana, and possess up to twelve plants, or up to 2.5 ounces of usable marijuana. A. 9016 allows marijuana to be produced and dispensed only through state certified organizations. This is designed to provide for the State’s capacity to monitor marijuana as it monitors other pharmaceuticals. However, under present day federal law, any organization or governmental entity engaging in the production or distribution of medical marijuana has no legal protection from the federal government and, theoretically, the assets of such businesses or entities could be seized by the federal government and the operator/owners criminally prosecuted. In October 2009, the Obama Administration’s U.S. Justice Department issued guidelines stating that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws in states that have passed medical marijuana legislation. 5 Concerns about marijuana’s prohibited status under federal law and diversion have influenced some New York State Senators to oppose the patient and caregiver production provision found in A. 4867-B. A. 9016 provides for “registered organizations,” defined as hospitals, pharmacies or non-profit entities, to produce and dispense marijuana, and allows certified patients and caregivers to possess up to 2.5 ounces of marijuana. The insistence on an external source of marijuana, as opposed to patient and caregiver production, is intended to make it easier for the government to monitor the distribution of marijuana, and to control diversion of the drug. In the interest of the health and welfare of the people of New York, the New York City Bar Association is committed to exploring the legal and policy considerations that 4 A. 4867-B, 2007 Leg., Reg. Sess. (N.Y. 2007) 5 The guidelines are at http://blogs.usdoj.gov/blog/archives/192 5 drive both sides of this conversation. Additionally, we look forward to the challenges that are likely to emerge. We recognize that both the individual states and the federal government will struggle with questions of federalism and human rights well into the 21st Century. The Association will continue to be a part of that struggle and that conversation. In closing, I must thank all the participants for donating their personal time and resources to the creation and success of this event.
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