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February 05, 2009

Cannabis and the Courts

The carelessly written Marijuana Tax Act has been a source of confusion and injustice ever since it was passed on the strength of “reefer madness” publicity promulgated almost entirely by Hearst Newspapers in 1937. Although the size and dollar value of the illegal market created by the MTA were comparatively small until “pot” was discovered by baby boomers in the Sixties, today’s marijuana market is now estimated to be worth more than any other crop harvested in North America, annual marijuana arrests continue to climb, and the US prison population has quadrupled since the Controlled Substances Act was passed to replace the MTA in 1970.

Throughout the improbable, and dishonest histories of marijuana prohibition and its parent policy of drug prohibition, America’s judicial system has played a key role in both. In the case of pot, its illegal market remained small between 1937 and the early Sixties, but harsh state laws punishing possession of any illegal drug were widely accepted as reasonable, an attitude that was carried over in 1972 when Richard Nixon summarily dismissed the Shafer Commission's unexpected suggestion that cannabis be investigated for its possible medical benefits.

Of course, a key provision of the CSA had been its medically unsupported listing of three criteria that grant a law enforcement officer, the Attorney General, sole authority to determine which drugs should be banned.

The subsequent creation of two tax supported agencies (the DEA and NIDA), each with a mandate to support the CSA, thus created a tax supported federal lobby for a policy of never-acknowledged drug prohibition that began when the Harrison Act of 1914 was upheld by a series of narrow Supreme Court decisions endowing medically untrained bureaucrats with police powers to enforce their medical judgment and incidentally imposing an arbitrary Judicial definition of "addiction" on society.

Whether one considers that particular anomaly to be scientific or Constitutional, it is the error at the very heart of current drug policy; yet it has never even been considered by any court.

One of many unexpected ways California's Proposition 215 has uncovered flaws in our policy has been by encouraging both state and federal prosecutions of medical marijuana patients and activists. Although the state efforts have, in general, been poorly covered by the media, the increasing tempo of federal prosecutions has already generated engrossing accounts of court proceedings that incidentally serve to expose how shallow, vindictive and irrational our heretofore unassailable policy really is.

At this point, the quickest way for interested readers to see for themselves is by reading Vanessa Nelson's accounts of two pivotal federal prosecutions: Ed Rosenthal's second trial in San Francisco and the totally different, far less humane, yet equally bizarre persecution of an entire family in Sacramento.

I hope to review both very soon.

Doctor Tom

Posted by tjeffo at February 5, 2009 06:18 PM