Marijuana is a useful medicine for treating AIDS, cancer, glaucoma, multiple sclerosis, and many other serious ailments. Yet the federal government prohibits doctors from prescribing marijuana for any reason.

The Marijuana Policy Project (MPP) is lobbying the federal government to permit medical access to marijuana. In the meantime, state legislatures have several routes through which they can enable some patients to use medicinal marijuana despite federal prohibition. This report is a thorough, up-to-date compendium of the states' medicinal marijuana laws. A much more detailed, "how to" version is also available from MPP.

Federal Controlled Substance Schedules

The federal Controlled Substances Act of 1970 created a series of five schedules establishing varying degrees of control over certain substances.1 Marijuana and its primary active ingredient — tetrahydrocannabinol (THC) — are in Schedule I, which is defined as follows: "1) The drug or other substance has a high potential for abuse, 2) the drug or other,substance has no currently accepted medical use in treatment in the United States, and 3) there is a lack of accepted safety for use of the drug or other substance under medical supervision." As such, doctors may not prescribe marijuana under any circumstances.

The pill version known as dronabinol, which is synthetic THC in sesame oil in a gelatin capsule, is in Schedule II— a slightly less-restrictive schedule. Doctors can prescribe dronabinol (marketed as Marinol) under tightly restricted circumstances, as Schedule II substances are defined as having accepted medical use "with severe restrictions" and having a high potential for abuse and dependence. Schedules III, IV, and V are progressively less restrictive.

The federal government prohibits the possession, cultivation and distribution of marijuana for any reason — including medical use. There is only one exception now available: federally approved research. Otherwise, medicinal marijuana-using patients are subject to the same penalties as any other marijuana offender — including lengthy prison sentences.

What Can Be Accomplished on the State Level

It is important to distinguish between reform with practical results (e.g., patients using marijuana without a real threat of prison) and reform that merely sends a message. The main goal is to provide for a legal supply of marijuana. The question of supply is central to the placement of the following reform options into the categories of Practical, Potentially Workable and Mainly Symbolic.

I. PRACTICAL

A. Therapeutic Research Programs

Beginning in the late 1970s, a number of state governments sought ways to give large numbers of patients legal access to marijuana. One clever method was through federally approved research programs.

As mentioned previously, the federal government has one exception to its prohibition of the cultivation, distribution, and use of Schedule I controlled substances — research.

Doctors who wish to conduct research on Schedule I substances must receive special permission from the federal government, including: a special license from the Drug Enforcement Administration to handle the substance; approval by the Food and Drug Administration of the research protocol; and legal access to a supply of the substance. An individual doctor may conduct research if all of the necessary permissions are granted, or a state may run a large-scale program involving many doctor-patient teams. In the latter case, the state secures the necessary permissions from the federal government for the researchers.

There are four potential legal sources of marijuana for research purposes:

1) receiving it from the National Institute on Drug Abuse (NIDA);

2) getting permission from the DEA to import it (e.g., from the Netherlands);

3) getting permission from the DEA to cultivate it; and

4) using confiscated marijuana supplied by state police.   

Since the late 1970s, 24 states have passed legislation creating state-run research programs for marijuana and/or THC (see map).

These laws have since expired in six states and been repealed in five states, and they remain on the books in 13 states (though none is now operating).

The typical structure of a state program is as follows:

•    The program is administered by the state department of health or board of pharmacy;
•    Participating patients, physicians and pharmacies that dispense the marijuana must be approved by a patient qualification review board;
•    Patients must be suffering from glaucoma or undergoing cancer chemotherapy or radiology — and not responding or having adverse reactions to conventional treatment;
•    In some states, patients with other ailments may participate — but only after receiving special approval from the appropriate agencies;
•    The research protocols must be approved by the FDA, and the programs must adhere to federal regulations;
•    The marijuana and THC must be supplied by the federal government — but in some states the state department of health or board of pharmacy was permitted to distribute confiscated marijuana to patients in emergency situations;
•    Program administrators must collect and analyze data; and
•    Patients' privacy must be protected.

Significant variations from this typical structure are explained in the chart.

At least seven states obtained all of the necessary federal permissions, received marijuana and/ or THC from NIDA, and distributed the substances to approved patients through approved pharmacies.2,3 These states included California, Georgia, Michigan, New Mexico, New York, Tennessee and Washington.

Though all of these programs have since expired, been repealed, or simply ceased operating, for a brief time some of these programs allowed hundreds of patients to use marijuana under their doctors' supervision. Several state legislatures are again taking an interest in therapeutic research programs.

A Washington State law enacted on March 30, 1996, allocated $130,000 to research a tamper-free means of cultivating marijuana plants and to research the effects of medicinal marijuana. This could result in the re-opening of the state's therapeutic research program.

A Massachusetts law enacted on August 8, 1996, contains a provision mandating that within 180 days, the state's public health department must establish the rules and regulations necessary to get its therapeutic research program running. This program was provided for in a 1991 law, but no action had been taken to get it running.

Additionally, in 1992, the Maine legislature passed a bill (H.P. 1729/L.D. 2420) that intended to implement a therapeutic research program — it authorized physicians to "prescribe" marijuana in accordance with federal regulations, so it probably wouldn't have been feasible — but Governor John McKernan vetoed the bill.

B. Medical Necessity Defense

The earliest method through which state governments — specifically the courts, not legislatures — recognized the medicinal use of marijuana and protected some patients from punishment was by allowing arrested patients to use the affirmative defense of "medical necessity."

The necessity defense, long recognized in common law, gives a defendant the chance to prove in court that his or her violation of the law was necessary to avert a greater evil. This defense may lead to an acquittal, even if the evidence proves that the patient did indeed possess or cultivate marijuana.

If the defense is not recognized, the case proceeds as if the defendant possessed marijuana for recreational purposes or distribution. If found guilty, the offender is subject to prison time in most states. This defense is a very limited, damage-control measure.

The first successful use of the medical necessity defense in a marijuana cultivation case led to the 1976 acquittal of a glaucoma patient in Washington, D.C.4 Courts in at least three other states subsequently allowed the medical necessity defense in medicinal marijuana cases: Washington,5 Florida 6 and Idaho.7

Unfortunately, courts in other states have refused to allow this defense: New Jersey,8 Georgia,9 Massachusetts,10 Minnesota 11 and Alabama.12

To ensure that the courts recognize the medical necessity defense, a state legislature can codify the defense into the state statutes. However, it is important to note that a failed legislative attempt might hurt the chances that the state courts will recognize the medical necessity defense when a case comes up. That is, the court would likely rule that the legislative intent was clearly to reject this defense by refusing to codify it into law.

MPP has identified only three states in which the legislature has passed legislation to establish the medical necessity defense for medicinal marijuana offenses — Maine, Massachusetts and Ohio.

The Maine legislature's 1992 bill (H.P. 1729/ L.D. 2420) would have, among other things, allowed the medical necessity defense for cultivation. As stated previously, Governor McKernan vetoed this bill.

In 1994, a bill (H. 3911) introduced in the Massachusetts House of Representatives would have established a "medical necessity defense" as legitimate grounds for acquittal on marijuana possession charges. The bill did not pass the legislature.

Another medical necessity defense bill (H. 2170) passed the Massachusetts legislature in 1995, but Governor Bill Weld "returned" it to the legislature, arguing that it was too broad and likely to be abused.

A revised version of the bill was signed into law by Governor Weld on August 8, 1996. The bill, H. 2176, was carefully tailored by the legislature to address his concerns — making it much more limited. The new law would allow patients to use the necessity defense, but only if they are "certified to participate" in the therapeutic research program and possessed the marijuana "for personal use pursuant to such program."

It is unimaginable that patients in a sanctioned program would be convicted of marijuana possession even without this new law. Thus, it will be beneficial only to the extent that it raises the possibility that courts may accept a defense of medical necessity for a broader pool of patients — for example, patients who meet the criteria for the program, but are not yet enrolled because the program has not started or because they did not know about it.

Ohio is the only state to have enacted an effective medical necessity defense law for marijuana. In 1995, Governor George Voinovich signed a comprehensive criminal justice reform bill (S.B. 2) — effective July 1, 1996 — that establishes the affirmative defense of medical necessity for marijuana possession.

Additionally, a 1995 Minnesota bill (H.F. 1136) would, among other things, allow a medical necessity defense for marijuana possession. While the bill enjoyed bipartisan support, it was not deemed to be a high enough priority to act upon and died when the legislature adjourned in mid-1996.

Finally, a 1995 Kansas Bill (S.B. 333) included a medical necessity defense provision when it passed the House but was subsequently removed before the bill passed the full legislature.

C. Removal of State Penalties

The best option for state legislation is to establish that it is no longer a state-level crime for patients to possess or cultivate marijuana for medicinal purposes. Federal laws would indeed be broken by individual patients, but state and local law-enforcement officials would have no grounds to arrest marijuana-using patients who have their doctors' approval, as such an offense would not be prosecutable.

This would effectively allow patients to grow and consume marijuana without fear of arrest or prosecution. There simply are not enough DEA agents to hunt down and arrest patients for growing a few marijuana plants. To date, no state has removed its penalties for possessing and/or cultivating marijuana for therapeutic use, but progress is being made.

On November 5, California voters will have the opportunity to change state law through a ballot referendum so that qualifying patients are exempt from provisions of law that otherwise prohibit possession or cultivation of marijuana. The initiative is similar to a bill (A.B. 1529) that was vetoed by California Governor Pete Wilson in 1995. Activists subsequently began working toward getting the question on the ballot, because the governor cannot veto a law enacted directly by the voters.

The new law created by the initiative would require that a patient with "any ... illness for which marijuana provides relief' who has a physician's recommendation would not be subject to any civil or criminal penalties for possessing or growing marijuana for personal use.

A bill now being considered by the Missouri legislature — S.B. 573 — would change Missouri law such that no criminal or civil penalties would apply to a patient possessing less than 70 grams (about 2.5 ounces) of marijuana with a written recommendation by a practitioner authorized to prescribe Schedule II controlled substances. Cultivation would not be permitted.

A more bureaucratic option was introduced in Oregon in 1995. The bill — H.B. 2970 — would allow patients to apply to the state board of pharmacy for a special certificate authorizing them to possess marijuana for medicinal use. If approved by the board, the patient would be required to present the certificate to a law-enforcement officer upon request to avoid being arrested. Unfortunately, the bill never made it out of committee.
Additionally, the 1992 Maine bill (H.P. 1729/ L.D. 2420) which the governor vetoed would have authorized some cancer and glaucoma patients to possess marijuana.
 

D. Lesser Penalties

One practical damage-control variation on the removal of penalties would be simply to lower penalties for certain marijuana offenses when a patient has a doctor's recommendation to use marijuana as a medicine.

For example, A.B. 2120, which recently did not make it out of committee in the California legislature, would have made cultivation of personal-use amounts of marijuana for medicinal purposes a misdemeanor instead of a felony.
 

II POTENTIALLY WORKABLE

A. Pseudo-Prescriptive Access

Virginia law currently allows patients to possess marijuana if "obtained directly from, or pursuant to, a valid prescription." The problem is that there is no legal supply of marijuana to fill such a prescription: Federal law prohibits the distribution of Schedule I substances for anything but research. Doctors cannot "prescribe" marijuana, and pharmacies cannot distribute it.

The Virginia law is very close to ideal. If it were amended to allow patients to possess or cultivate marijuana contingent upon a physician's written "recommendation," it would be similar to the pending California initiative — and therefore effective.

A few other states have enacted similar prescriptive access laws (see chart), but none of these laws can be effective as written without a change in federal policy.

B. Allowing Physicians to Prescribe Confiscated Marijuana

Before it was repealed in 1987, Oregon's law allowed physicians to prescribe confiscated marijuana. (However, MPP is fairly certain that confiscated marijuana has never been prescribed in Oregon or any other state.)

In 1993, the Iowa Senate, by a vote of 50-0, passed S.F. 361, which would have required state law enforcement agencies to supply confiscated marijuana for medicinal purposes. Companion legislation, H.F. 619, was introduced in the House. Neither of these bills was enacted into law, however, because of Governor Terry Branstad's objection that it would have put Iowa's government in the position of violating federal law. In 1992, the Maine legislature passed a similar bill (H.P. 1729/ L.D. 2420) and Governor John McKernan vetoed it for the same reason.

These governors were correct in assuming that the state laws would violate federal law. It's one thing for a state to look the other way while patients grow it themselves; it's another — a federal felony, in fact — for a state to distribute a Schedule I substance for anything other than federally approved research.

In the context of a state therapeutic research program, it would be legal — and a good idea — to circumvent NIDA's marijuana monopoly by distributing confiscated marijuana if approved by the FDA.

III. MAINLY SYMBOLIC

A. Rescheduling Marijuana

States have their own controlled substance schedules, which typically mirror the federal government's. However, states are free to place substances in whatever schedules they see fit. Some states have done so. (See chart.)

In 1994, a California bill (S.B. 1364) that would have rescheduled marijuana from Schedule I to Schedule II was vetoed by Governor Pete Wilson. The 1995 Minnesota bill (H.F. 1136) would have — in addition to authorizing the medical necessity defense — moved marijuana to Schedule II, but it died when the legislative session ended.

Unfortunately, there is little or no practical significance to rescheduling marijuana on the state level, because the federal law supersedes state law. No entity in the state would be allowed to distribute marijuana to fill a doctor's "prescription" — which would not even be valid federally. It would be relatively easy for the DEA to arrest pharmacists and others for distributing marijuana.

B. Non-Binding Resolutions

At least five state legislatures — in California, Michigan, Missouri, New Hampshire and New Mexico — have passed non-binding resolutions urging the federal government to allow doctors to prescribe marijuana. Non-binding resolutions are passed by both houses of a state's legislature and do not require the governor's signature. These resolutions send a powerful message, officially proclaiming the legislature's positions, but do not change policy on the state level.

Resolutions can call for general medicinal marijuana law reform or for more specific actions, like making marijuana available for medical research. Because non-binding resolutions are not actually state laws, they are very difficult to locate in the state's records. Thus, it is possible that other states have passed similar resolutions over the past 20 years. A non-binding medicinal marijuana resolution — SJR 10 — died in committee in Iowa on February 21, 1995.

Conclusion

Medicinal marijuana law reform is desperately needed. Patients' suffering must be alleviated as soon as possible. A great deal can be done on the state level to help. Because 80 percent of the public already agrees, the time is ripe for medicinal marijuana law reform.

States have pushed the issue forward and enabled many patients to use marijuana in the past. With focused, coordinated lobbying, it can be done again. Serious, dedicated activists are making substantial progress in several states.

Activists interested in working for medicinal marijuana law reform on the state level should start by reading the more detailed, "how to" version of this report, "How Can a State Legislature Enable Patients to Use Medicinal Marijuana Despite Federal Prohibition?". This report gives more thorough background information, discusses the pros and cons of each legislative option, and offers direction and specific advice to state legislators and activists. It is available from MPP for $10.

Robert Kampia and Chuck Thomas are co-founders of the Marijuana Policy Project, which focuses on educating the public about the need for responsible marzjuana related policies. MPP PO. Box 77492, Capitol Hill, Washington, DC 20013; tel: (202) 462-5747.

REFERENCES

1 Title 21 of the U.S. Code, Section 812(b) (21 U.S.C. 812(b)) and 21 Code of Federal Regulations 1308.

2 R. C. Randall, ed. Marijuana, Medicine & the Law, Volume II, Washington, D.C.: Galen Press, 1989.

3 'The Controlled Substances Therapeutic Research Act in the State of Washington," Journal of Clinical Pharmacology, 21; R.A. Roffman, 1981.

4 United States v. Randall, 104 Wash. Daily L. Rep. 2249 (D.C. Super. Ct. 1976).

5 Washington v. Diana, 604 P.2d 1312 (Ct. App. Wash. 1979); Washington v Cole, 874 P. 2d 878 (Ct. App. Wash. 1994).

6 Florida v. Musikka, No. 88-4395 CFA (17th Judicial Cir. Broward County, Dec. 28, 1988);Jenks v. Florida, 582 So. 2d 676 (Ct. App. 1st Dist., Fl. 1991).

7 Idaho v. Hastings, 801 P. 2d 563 (Sup. Ct. Idaho 1990).

8 New Jersey v. Tate, 505 A. 2d 941 (1986).

9 Spillers v. Georgia, 245 S.E. 2d 54, 55 (1978).

10 Massachusetts v. Hutchins, 575 N.E. 2d 741, 742 (1991).

11 Minnesota v. Hanson, 468 N.W. 2d 77,78 (1991).

12 Kauffman v. Alabama, 620 So. 2d 90 (1993).