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.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The Times of Trenton
Author: Gregory J. Sullivan
Contact: New Jersey On-Line
Copyright: 2008 New Jersey On-Line LLC.
Website: Compassionate, But Still Illegal
"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.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The Times of Trenton
Author: Gregory J. Sullivan
Contact: New Jersey On-Line
Copyright: 2008 New Jersey On-Line LLC.
Website: Compassionate, But Still Illegal
