By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
He also elicited joyous whoops when he jettisoned existing Bush-era policy last fall and instructed Attorney General Eric Holder and the vast federal anti-drug apparatus to stand down in the protracted war with states over medical marijuana. No longer would the private holder of a medical-marijuana card have to fear being busted by federal agents after picking up a supply of kush from the corner dispensary. Nor would the dispensary owner have to worry about the feds.
For the marijuana lobby and its broader aims, the win was gigantic. It removed—for the current presidential term, at least—the daunting specter of federal interference and turned virtually the entire continental United States into one big, wide-open game board. Pot advocates divide that game board state by state, believing that the surest way to overcome conservative inertia that keeps pot outlawed is to spread legalization keyed to states' rights to craft their own statutes.
Medical marijuana has been on the move since 1996 and is now legal in 14 states, including California, with at least a dozen more to debate it soon. Proponents predict it will continue to hopscotch from state to state much the way legalized gambling expanded along the Mississippi River and throughout a lot of the country in the 1980s and 1990s.
The Texas Legislature has grappled with the issue of medical marijuana for four sessions, but legislation failed to gain much traction because of the incendiary nature of the issue in this state. These bills would not have prevented law enforcement from arresting and prosecuting those who possess pot, but rather would have provided users with an affirmative defense if they could prove they possessed marijuana for a serious medical problem. For the last two sessions, State Representative Elliott Naishtat, a Democrat from Austin, has sponsored legislation that would have provided this affirmative defense if an accused could prove in court that they possessed pot "for a bona fide medical condition like cancer, AIDS or multiple sclerosis, and a doctor had recommended marijuana to help ameliorate the symptoms of that debilitating condition," Naishtat says. "Nothing would be legalized by the bill that I introduced." But his bill died in committee in the 2007 and 2009 sessions after being denied public hearings by conservative committee chairs.
Naishtat plans on reintroducing the legislation in the 2011 session. "I am much more optimistic about the bill in light of the Obama administration's telling states who have adopted medical marijuana laws that the Justice Department wouldn't prosecute users and wouldn't use federal resources to enforce the federal laws on marijuana in those states," he says. "That sends a signal that the feds are willing to defer to the states with respect to authorizing use of medicinal marijuana."
Naishtat says that his legislation is fairly benign, "the minimum you could enact—it's nothing like California, where they are trying to legalize it." Although he acknowledges that some might feel his bill would be a "major first step toward legalization," he maintains that's not what his bill is about. "It's about helping sick people"—not about gaining acceptance for recreational use.
Attorney Sean T. McAllister might disagree. He led a successful crusade this past fall to get small amounts of pot legalized—less than an ounce for private possession and use—in the small ski-resort town of Breckenridge, Colorado, in a vote that was largely symbolic, given that possession remains a misdemeanor under Colorado law. McAllister acknowledges that medicinal use of weed is a wedge to help pro-pot activists gain leverage in advancing recreational use of the drug. "Medical marijuana is really leading the way, letting us see what a taxed and regulated market for marijuana would look like," McAllister says.
As Ethan Nadelmann, executive director of the Drug Policy Alliance in New York, put it, "The face of marijuana isn't some 17-year-old, pimply-faced kid; it's an older person needing help."
The widening perception that cannabis is a godsend for sufferers of cancer, AIDS, glaucoma and other afflictions has partially erased its own entrenched stigmas, including a reputation for dulling the intellect. One Web site, CannabisCenters.com, boasts more than 240 maladies that respond to marijuana, from writers' cramp to cystic fibrosis. For prostate cancer, Huntington's disease, ulcerative colitis, lupus and grand mal seizures, pot promises at least a whiff of relief.
To be sure, the purported benefits of marijuana—so vital to its broadening acceptance—are not without controversy. The drug, when smoked, is also a source of carcinogens. According to the federal National Institutes of Health, "Marijuana smoke contains some of the same, and sometimes even more, of the cancer-causing chemicals found in tobacco smoke. Studies show that someone who smokes five joints per day may be taking in as many cancer-causing chemicals as someone who smokes a full pack of cigarettes every day." (On the other hand, someone smoking five joints a day probably has bigger problems than the risk of cancer.)
The multimillion-dollar pot lobby has used the drug's analgesic properties to press a more challenging agenda: to remove the barriers to recreational use, either through outright legalization or, at minimum, decriminalization, which, in most cases, means that being caught with less than an ounce is only a legal infraction comparable to a parking ticket.