Thursday, April 26, 2018

Deschedule Marijuana


Deschedule Marijuana: Remove it from the list of Controlled Dangerous Substances


Testimony to the 
Office of The Attorney General
Division of Consumer Affairs
The Richard J Hughes Justice Complex
Attorney General's Library 
Trenton NJ 08611

April 24, 2018

by:
Kenneth R. Wolski, RN, MPA
219 Woodside Ave., Trenton, NJ  08618
(609) 394-2137 kenwolski@gmail.com

Dr. Sanjay Gupta, who was President Obama's original choice to be U.S. Surgeon General, said, "We have been terribly and systematically misled (about marijuana) for nearly 70 years in the United States." This misinformation, fed by decades of cherry-picked science, continues. The National Institute on Drug Abuse (NIDA), which refuses to allow research into the benefits of medical marijuana, and only permits research into its harms, is an important part of this misinformation. The federal government still insists that there are no accepted medical benefits of marijuana despite the facts that: 
  • 30 states have passed laws recognizing marijuana as medicine; 
  • over a million Americans use marijuana with a physician's recommendation;
  • scores of healthcare organizations endorse medical marijuana; and, 
  • an entirely new field of science, based on the discovery of how marijuana actually works in the human body--the Endocannabinoid system--is emerging.

The issue is personal as well as professional for me.

In 1966, when I was a senior at Trenton Central High School, I did a term paper on drugs. Shortly after my research was completed I determined to try marijuana for myself. Marijuana was fairly easy to obtain, even back then. I experimented with marijuana a few times before I graduated from high school, over 50 years ago. I was convinced, even then, that the government was exaggerating the dangers associated with marijuana, as it continues to do today.

By 1969, I was a full time college student and I was using marijuana regularly, a couple of times a week. I was an advocate for marijuana law reform, and I was thrilled that the 1937 Marijuana Tax Act was declared unconstitutional by the U.S. Supreme Court on May 19, 1969. It was a political decision to ban marijuana in 1937, not a medical or scientific one. Previous scientific studies like the Indian Hemp Drugs Commission Report were ignored. The draconian penalties against the possession, use and cultivation of marijuana were entirely inappropriate. These penalties were the result of government misinformation and propaganda that insisted that the use of marijuana led invariably to “insanity, criminality and death.” My own direct experience, and the experience of millions of others, was that the use of marijuana was more likely to lead to “peace, love and happiness.”

For a short time in 1969 and 1970, there was no federal law against the use of marijuana. My initial elation at this fact was tempered by the realization that the vast majority of marijuana arrests were at the state and local level. The laws against marijuana at these levels were still intact and marijuana arrests were rising every year nationally. According to the National Organization for the Reform of Marijuana Laws (NORML), annual marijuana arrests in the U.S. went from 31,000 in 1966 to 188,000 in 1970:

My hopes for reform of marijuana laws were further tempered by Congress rushing through the Controlled Substances Act (CSA). The CSA was introduced in Congress in September 10, 1970 and signed into law by President Richard Nixon on October 27, 1970. I well remember the controversy and even outrage from some when it was learned that marijuana was to be included, along with heroin, as a Schedule I drug, meaning that it had no accepted medical uses in the U.S.

A growing population of health care professionals and patients realized by 1970 that marijuana had medical uses, at a minimum for use in the management of glaucoma and for the nausea and vomiting associated with chemotherapy. My research showed that marijuana was used medicinally in many different cultures throughout history. Indeed, marijuana was a recognized medicinal in the U.S. for about 100 years, from approximately 1840 to 1940. There were about 100 articles about the therapeutic value of cannabis/marijuana in the American scientific journals of the day. Marijuana/cannabis was removed from the U.S. Pharmacopeia in 1942 because of a campaign of government propaganda against it that led to the passage of the now-unconstitutional Marijuana Tax in 1937. Marijuana was taken OFF the U.S. market for political reasons when Congress passed the Marijuana Tax Act in 1937.  There was no scientific evidence that marijuana led to “insanity, criminality and death” as alleged by government officials then.  Marijuana was legal in the U.S. for medical purposes longer than it was illegal.

To quell the outrage about marijuana’s inclusion as a Schedule I drug, the government promised that this was only temporary, pending the results of a commission that was being appointed to study whether marijuana was appropriately included as a Schedule I drug. 

After the CSA passed in 1970, President Nixon appointed the Shafer Commission to study whether marijuana was properly classified.  The Shafer Commission, a handpicked group of conservative politicians and academicians, studied the issue for almost two years.  Their findings were that marijuana should not be included as a scheduled drug at all, but rather that it be decriminalized for adult use in the U.S.  The Shafer Commission said, “The actual and potential harm of use of the drug is not great enough to justify intrusion by the criminal law into private behavior.”  However, President Nixon ignored the results of the commission he appointed.  

I recommend that the entire Report of the National Commission on Marihuana and Drug Abuse, “Marihuana: A Signal of Misunderstanding” commissioned by President Richard M. Nixon, March, 1972 be entered into the record of this hearing.

Some salient excerpts from the above report include: 
  • “Cannabis sativa has been used therapeutically from the earliest records, nearly 5,000 years ago, to the present day (Mikuriya, 1969: 34) and its products have been widely noted for their effects, both physiological and psychological, throughout the world.”
  • “For a half-century, official social policy has been not only to discourage use but to eliminate it…With the principal responsibility for this policy assigned to law enforcement, its implementation reached its zenith in the late 1950's and early 1960's when marihuana-related offenses were punishable by long periods of incarceration. This policy grew out of a distorted and greatly exaggerated concept of the drug's ordinary effects upon the individual and the society.”
  • “Marihuana's relative potential for harm to the vast majority of individual users and its actual impact on society does not justify a social policy designed to seek out and firmly punish those who use it. This judgment is based on prevalent, use patterns, on behavior exhibited by the vast majority of users and on our interpretations of existing medical and scientific data. This position also is consistent with the estimate by law enforcement personnel that the elimination of use is unattainable.”
  • “The criminal law is too harsh a tool to apply to personal possession even in the effort to discourage use. It implies an overwhelming indictment of the behavior which we believe is not appropriate.”
  • “The most notable statement that can be made about the vast majority of marihuana users-experimenters and intermittent users-is that they are essentially indistinguishable from their non-marihuana using peers by any fundamental criterion other than their marihuana use.”
  • “On the basis of our findings…we have concluded that society should seek to discourage use, while concentrating its attention on the prevention and treatment of heavy and very heavy use. The Commission feels that the criminalization of possession of marihuana for personal is socially self-defeating as a means of achieving this objective.”
  • “Marijuana has important therapeutic qualities which should be aggressively explored.”
  • “The existing social and legal policy is out of proportion to the individual and social harm engendered by the use of the drug.”


In 1972 the Alliance for Cannabis Therapeutics (ACT), and National Organization for the Reform of Marijuana Laws (NORML) petitioned the Bureau of Narcotics and Dangerous Drugs (BNDD) to reschedule marijuana to a Schedule II drug, to make it available for doctors to prescribe. The BNDD, which was the precursor to the DEA, and later the DEA refused to hold hearings for 14 years. They had to be taken to court three times before they would hold the hearings and finally in 1986, hearings were begun. 

Regarding these hearings, I highly recommend the two volume book, “Marijuana, Medicine & the Law,” R.C. Randall, editor, Galen Press, Washington, D.C., 1988. Volume I is the record of “Direct Testimony of Witnesses On Marijuana’s Medical Use In The Treatment of Life- & Sense-Threatening Diseases Including Cancer, Glaucoma, Multiple Sclerosis, Para- & Quadriplegia, Chronic Pain & Skin Disorders In Hearings Before The U.S. Drug Enforcement Administration.” Volume II is the record of “Legal Briefs, Oral Arguments & Decision Of The Administrative Law Judge On Marijuana’s Medical Use In the Treatment of Life- & Sense-Threatening Diseases.”

Doctors, nurses, patients and researchers testified that marijuana should be available. Researchers additionally testified about the difficulty of conducting research on marijuana due to the federal government’s restrictions. The DEA testified why marijuana should remain unavailable. The decision was given by the US Department of Justice, DEA Administrative Law Judge Francis L. Young on September 6, 1988. He said:
  • “The evidence in this record clearly shows that marijuana has been accepted as capable of relieving the distress of great numbers of very ill people, and during so with safety under medical supervision.”
  • “It would be unreasoning, arbitrary and capricious for DEA to continue to stand between these sufferers and this substance in light of the evidence in this record.”
  • “Marijuana, in its natural form, is one of the safest therapeutically active substances known to man.” 

Marijuana should have been rescheduled and approved nationwide for medical use then and there. Unfortunately, the Administrator of the DEA overturned the judge’s decision, acting in an arbitrary, capricious and unreasoning manner.

Subsequent attempts to reschedule marijuana on the federal level have been unfairly frustrated and similarly unsuccessful. The DEA even manipulates the English language. In its July 2011 denial of a nine-year-old petition to reschedule marijuana, the DEA said that marijuana had a high potential for abuse. But according to the DEA, abuse of marijuana does not mean that the use of marijuana is interfering with a person’s life in some negative way, marijuana abuse means any use of marijuana, even when recommended by physicians in state-legal programs, since marijuana is federally illegal except for research purposes. Like in Alice in Wonderland, words mean what the DEA wants them to mean.

The DEA also said in July 2011 that it could not reschedule marijuana because no large-scale clinical trials have been done. There have been a number of very successful small-scale double-blind, placebo controlled clinical trials of marijuana in the U.S. These successful trials would presumably lead to large-scale trials. But NIDA, the only official source of research grade marijuana in the U.S., following its mandate, does not approve research into the benefits of marijuana. Moreover, NIDA has never had a sufficient supply of marijuana to conduct these trials. 

Professor Lyle Craker from the University of Massachusetts/Amherst faculty is an example of an unsuccessful 10-year struggle to grow a sufficient supply of marijuana to conduct large scale clinical trials. Prof. Craker’s research was approved by the university and the FDA, but DEA refused to allow him to proceed. The professor took DEA to court and DEA’s own Judge Bittner ruled the professor should proceed, and that the federal government’s supply of marijuana was “inadequate” but DEA overruled the judge: http://www.maps.org/research/mmj/mmj-news/2525-background-on-the-craker-lawsuit


As we have seen, researchers have complained for over 30 years that access to marijuana for research purposes has consistently been stymied.  It is absurd to have DEA be the final arbiter of what clinical and scientific studies can be done on marijuana in America. DEA is part of the Department of Justice—federal police. We should not have federal police guarding and limiting our scientific borders. This is inappropriate and unreasonable. We must resolve, as a nation, to stop DEA’s interference with science and medicine and never let it happen again.

This is beyond Kafkaesque. It is an embarrassment to science, to countless health care professionals and to patients nationwide.

I have been hearing since the 1960’s that more research on marijuana is needed. In all that time, there has never once been a clinical trial of marijuana in New Jersey for any disease, symptom or medical condition. 

Opponents of marijuana reform say that there are no long term studies of the safety of marijuana, and that we must wait 20 years or so for these long-term studies to be completed—studies that have not even begun yet. This is nonsense. Millions of Baby Boomers have been using marijuana for 50 or more years. You have only to look around you for evidence of marijuana’s long term safety. It promotes nothing but useless suffering to say more study is needed and then do nothing about the lack of studies.  

For the following reasons, marijuana must be rescheduled in New Jersey:
  • Marijuana is considered medicine in 30 states, including New Jersey and the District of Columbia, by duly passed legislation; and, 
  • Marijuana has historically been used as a medicine both in the United States and in much of the world; and,
  • The Shafer Report concluded that marijuana was misclassified as a Schedule I drug and should be decriminalized for adult use in the U.S.; and,
  • DEA Judge Francis Young concluded that marijuana should be rescheduled after a public hearing on the issue; and,
  • Numerous legitimate health care organizations have issued statements that recognize the therapeutic safety and efficacy of marijuana.

In 2008, the American College of Physicians (ACP), the country’s second-largest physician group called on the federal government to reschedule marijuana. In 2009, the American Medical Association (AMA) urged the federal government to reschedule marijuana. The ACP and the AMA join the American Nurses Association, the American Academy of Family Physicians, the British Medical Association, the Canadian Medical Association, and dozens of other organizations of healthcare professionals in calling for rescheduling of marijuana, but the federal government continues to refuse to do so.

The U.S. Supreme Court has already acknowledged (in the Garden Grove decision) that states have the right to determine the proper practice of medicine within each state.  In the Garden Grove case the U.S. Supreme Court let stand a lower court’s decision that said: "Congress enacted the Controlled Substances Act to combat recreational drug abuse and curb drug trafficking.  Its goal was not to regulate the practice of medicine, a task that falls within the traditional powers of the states.”

Marijuana prohibition rests on a lie. The lie is that marijuana is a Schedule I drug, with no accepted medical uses in the U.S., is unsafe for use even under medical supervision, and it has a high potential for abuse. None of that is true. New Jersey is one of 30 states that have accepted medical uses for marijuana; the safety profile of marijuana is the envy of most prescription drugs and even many over-the-counter drugs, and while marijuana may have a high potential for use, it does not typically interfere with a person’s life to the extent that it could be considered “abuse.” Most people who use marijuana—about 20 million Americans a month—use it periodically or episodically. As a Schedule I drug, marijuana is in the same class with heroin, a powerfully addictive and potentially deadly drug. Yet marijuana is about as addictive as caffeine and has never killed anyone through overdose. To put marijuana in the same class with heroin is absurd. Even children know that. When minors find out they have been lied to about marijuana they will not believe the very real dangers that can be associated with the use of other drugs. This Big Lie is the basis for the current draconian penalties against marijuana and it is an appalling lie to tell children.

In New Jersey, it is the Director of the Division of Consumer Affairs who is empowered to change the schedule of drugs.  I met with Tom Calcagni, former Director of Consumer Affairs, Office of the Attorney General, regarding rescheduling marijuana on 2/15/11, in Newark. He had the power but not the will to reschedule marijuana. I pointed out to him that it was logically inconsistent for the state to say marijuana was a Schedule I drug with no accepted medical uses while at the same time enumerating the medical uses for marijuana.   (See my attached letter to Mr. Calcagni.) Director Calcagni was very interested and promised to have subsequent meetings with me, but after I left his office, all the subsequent meetings were cancelled and he denied my request to reschedule marijuana in New Jersey.

Simply rescheduling marijuana to a different level of controlled substance (Schedules II – V) is not enough. If marijuana is to be legal for any adult to purchase in New Jersey, which Governor Murphy hopes to accomplish as quickly as possible, marijuana should not be considered a controlled dangerous substance at all. Marijuana should be descheduled in New Jersey.

Removing marijuana entirely from the New Jersey Controlled Dangerous Substances Act, N.J.S.A. 24:21-2, is an important measure in legalizing marijuana in the state. 

Even after descheduling, the State can still pass laws against the misuse of marijuana, just like we have laws against the misuse of alcohol, which is not a controlled substance, either. 

Descheduling marijuana in NJ will encourage other states to do likewise, and it will put pressure on the federal government to change its absurd, almost 50-year-old opinion that marijuana is a Schedule I drug, an opinion that is purely political and completely unsupported by science. 

Thank you for your consideration.

Ken Wolski, RN, MPA
Executive Director
Coalition for Medical Marijuana--New Jersey, Inc.



References:

Federal drug law, 21 U.S.C. § 903, gives the states the authority to determine accepted medical use. See, Gonzales v. Oregon, 546 U.S. 243, 269-270 (2006):  
“Congress regulates medical practice insofar as it bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood. Beyond this, however, the statute manifests no intent to regulate the practice of medicine generally. Federalism… (allows) the States ‘great latitude under their police powers to legislate as to the protection of the lives, limbs, health, comfort, and quiet of all persons.’” Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S. Ct. 2380, 85 L. Ed. 2d 728 (1985)).

“Marijuana, Medicine & the Law, Volume I & Volume II,” R.C. Randall, editor, Galen Press, Washington, D.C., 1988.

Congressional Research Service Report for Congress
Medical Marijuana: Review and Analysis of Federal and State Policies, 
Mark Eddy, Specialist in Social Policy, April 2, 2010.

Report of the National Commission on Marihuana and Drug Abuse:
Marijuana: A Signal of Misunderstanding  
(The Shafer Commission Report)
Commissioned by President Richard M. Nixon, March 1972

United States Department of Justice, Drug Enforcement Administration
In The Matter of Marijuana Rescheduling Petition Docket No. 86-22
Opinion and recommended Ruling, Findings of Fact, Conclusions of Law and Decision of
Administrative Law Judge Francis L. Young, September 6, 1988

29 Legal Medical Marijuana States and DC
Laws, Fees, and Possession Limits

Compassionate Investigational New Drug Program

State of New Jersey Department of Health, Medicinal Marijuana Program
New Jersey Compassionate Use Medical Marijuana Act

Emerging Clinical Applications for Cannabis and Cannabinoids:
A Review of the Recent Scientific Literature, Fifth Edition, 4/10/2012
Paul Armentano, Deputy Director, NORML Foundation, Washington, DC

Marijuana and Medicine: Assessing the Science Base (1999)
Janet E. Joy, Stanley J. Watson, Jr., and John A. Benson, Jr., Editors; Institute of Medicine
Division of Neuroscience and Behavioral Health
National Academy of Sciences, Institute of Medicine

Trends in Pharmacological Sciences
Volume 30, Issue 10, October 2009, Pages 515–527

Physical, Mental, and Moral Effects of Marijuana: The Indian Hemp Drugs Commission Report

National Organization for the Reform of Marijuana Laws (NORML), annual marijuana arrests in the U.S. went from 31,000 in 1966 to 188,000 in 1970:

Professor Lyle Craker, University of Massachusetts/Amherst, unsuccessful 10-year struggle to grow a sufficient supply of marijuana to conduct large scale clinical trials:

Enc.: January 6, 2011 letter to:
Thomas R. Calcagni, Acting Director, Division of Consumer Affairs
P.O. Box 45027, Newark, NJ 07101
Re: Compassionate Use Medical Marijuana Act effectively rescheduled marijuana in New Jersey

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