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Mr. Paul Jones Director Justice Issues

U.S. General Accounting Office 441 G Street, NW Washington, DC 20548

Dear Mr. Jones:

On August 26, 2002, the General Accounting Office (GAO) provided the Department of Justice (DOJ) copies of its draft report entitled "MEDICAL MARIJUANA: Early Experiences With Four States' Laws." While we note that the report fully describes the current status of the programs in the states reviewed, we are concerned that it fails to adequately address some of the serious difficulties associated with such programs. The DOJ believes the report does not adequately address, through any considered analysis, issues related to the 1) inherent conflict between state laws permitting the use of marijuana and federal /aws that do not; 2) potential" for facilitating iiiegai trafficking; 3) impact of such laws on cooperation among federal, state, and local law enforcement; and 4) lack of data on the medicinal value of marijuana. Further, the GAO's continued use of the term "medical marijuana" implicitly accepts the fact that there is a 1) proven medicinal value to marijuana and 2) legitimate exception to federal law for this use. Neither of these premises are true. Finally, we note that the GAO fails to consider what the existence of state "medical marijuana" laws communicates. We believe such laws send society the wrong message.

Conflict Between Laws

The most fundamental problem with the draft GAO report is that it fails to emphasize the fact that there is no federally recognized medicinal use of marijuana and thus possession or use of this substance is a federal crime. Further, the GAO fails to even mention that state laws purporting to approve marijuana for medical use undermine the closed system of distribution for controlled substances established by the Controlled Substances Act (CSA). The time-proven safeguards that have made the medical drug supply in the United States the safest in the world are lacking. State medical marijuana legislation does not and could not require the cultivators and distributors of marijuana to comply with the federal requirement that all manufacturers and distributors of Schedule I controlled Substances be registered with the Drug Enforcement Administration (DEA). The registration process and record-keeping requirements established by federal law and administered by DEA are critical components of DEA's

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effort to restrict abuse of marijuana and other controlled substances. In this regard, there is no analysis nor comparison of state controls of marijuana subject to state "medical marijuana" laws with federal and state controls of other prescribed medicines covered by the CSA. The regulation of the production and distribution of prescribed medicines is a critical component in preventing the diversion of controlled substances that are properly prescribed for medical use. A comparison of DEA's controls of other legitimately prescribed controlled substances would highlight the lack of proper oversight of marijuana as a "medicine."

The registration process is also an important aspect of the United States Government's implementation of international drug control treaties. These treaties obligate the federal government to prohibit the cultivation of marijuana except by persons licensed by, and under the direct supervision of, the federal government. The treaties also obligate the federal government to control the distribution of marijuana. This is required even if the federal government determines that marijuana has an accepted medical use. Any state legislation purporting to authorize medical use of marijuana is inconsistent with the CSA as none of these state laws require the cultivation of marijuana that is federally licensed and supervised by the federal government. These state laws undermine the ability of the federal government to meet its obligations under international law. The GAO Draft Report makes no mention of this critical issue.

Abuse of State Laws to facilitate Illegal Drug Trafficking

The GAO Draft Report does not mention that state "medical marijuana" laws are routinely being abused to facilitate traditional illegal marijuana trafficking and use. Information acquired by DEA during its investigations of cannabis clubs would provide specific examples of this abuse. The report focuses exclusively on so-called medical use of marijuana and omits any mention of the abuse of state "medical marijuana" laws. The report fails to reflect the underlying criminal arena in which marijuana is produced and consumed and the significant profitability that drives the marijuana market. Because of that factor, there is a blurred line between medical and illegal commercial markets. Further, some U.S. Attorney's Offices have indicated that in their district violent crimes associated with marijuana cultivation (such as homicides) create significant law enforcement and social issues. Without addressing the illegal production and diversion of marijuana, the GAO Draft Report provides an incomplete analysis of the impact of the "medical" marijuana laws on the enforcement of drug control laws.

The passage of Proposition 215 in California and similar legislation in other states has created unfortunate circumstances for state and local law enforcement officers. The state initiatives also have provided legal loopholes for drug dealers and marijuana cultivators to avoid arrest and prosecution. This is due in part to California state government's lack of guidance as to the implementation of the law and their seeming unwillingness to enforce state drug laws against traffickers who claim to be involved with marijuana under the state "medical marijuana" law. Further, those counties that have taken a public position on proposition 215 have contributed to the dilemma now being experienced by state and local law enforcement. The vague guidelines established throughout the counties in California sends a message to many that anyone who has a "recommendation" from a doctor is permitted to grow and possess certain (varying) amounts of marijuana.

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Impact on Law Enforcement Operations and Cooperation

The GAO Draft Report states that "[s]ome of the federal law enforcement officials we interviewed indicated that the introduction of state "medical marijuana" laws has had little impact on their operations." This statement does not accurately reflect DEA's experience in addressing state "medical marijuana" laws. One of the major effects of the states legislation is the worsening of relations between federal, state, and local law enforcement.

As a result of these circumstances the most significant issue that now appears to be occurring is the recognizable rift that the laws have created between state and local law enforcement and federal drug agents, who are mandated to enforce the federal law. There have been and undoubtedly will continue to be instances that occur in the affected states where local officers working joint investigations with DEA have been ordered or instructed not to seize contraband plants and/or marijuana by their district attorney or state's attorney office. In some cases, DEA has been required to obtain Federal warrants to seize marijuana being held by local police agencies to prevent the return of the marijuana to persons pursuant to State court orders. This conflict has lead to several heated incidences on the West Coast.

For example, in one recent case, where federal agents were cooperating with local officers to serve a state search warrant at a residence, the District Attorney of Butte County, California, advised a Butte County detective to arrest a DEA Special Agent if the agent confiscated six marijuana plants that were found during the operation. The District Attorney asserted that under California's "medical marijuana" law the plants were lawfully possessed; however, such possession violates federal law. The plants were seized and submitted to the DEA laboratory for destruction without incident only after negotiations between the U.S. Attorney, the District Attorney, and DEA representatives to resolve the issue. In another instance, the Oakland Police Department referred to the DEA a shooting incident involving the theft of a pound of marijuana because the city of Oakland prohibits its officers from pursuing any investigation of marijuana that may be claimed to be subject to the state "medical marijuana" law. In this instance the "victim" of the robbery was a marijuana recipient under the state "medical marijuana" law who was attempting to sell the marijuana he had to his robbers. Such conflicts over individual mandates have required frequent intervention by DEA's Office of Chief Counsel and the DOJ due to the clear lack of a coordinated drug law enforcement policy.

Because state and local law enforcement cannot work on certain marijuana cases under these laws, federal seized asset sharing has been negatively impacted. In the state of Oregon, the state legislation prevents the federal government from sharing seized assets directly with state/local law enforcement entities in cases involving asset seizure without criminal prosecution initiated following marijuana grow seizures.

It is much more difficult for federal and state officials to prosecute marijuana cases where medicinal use can be claimed. There is growing local sentiment that because of these laws, federal law enforcement resources should not be devoted to marijuana prosecutions. This sentiment also manifests itself in jury

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trials where prosecutors have jury nullification concerns (as a result of softened public attitudes towards marijuana).

In these states, the perception that marijuana is accepted by the public has significantly impacted law enforcement. According to Oregon State Police authorities, outlaw motorcycle gang members are now applying for marijuana caregiver status, believing that this will officially authorize their marijuana grow operations. Marijuana grow operations have always presented problems to law enforcement, and marijuana potentially subject to state "medical marijuana" laws only serve to further confuse the general public on this drug. Public perception on this issue appears to be further softened as a result of strong marketing strategies by pro-legalization/medicinal use advocates. Groups supporting the legalization of marijuana in Alaska are now preparing new proposals to legalize all marijuana. The public confusion on this issue can be demonstrated by the fact that the voters in these states approved the medical use of marijuana but do not allow use in public places (Oregon) or in medical facilities, or nearby school grounds, recreation centers or youth centers (Alaska). This sends a mixed message to the public as no other medicines are restricted in this way.

Marijuana As Medicine

The GAO Draft Report's discussion of the debate over the medical value of marijuana is inadequate and does not present an accurate picture. The draft states that "[t]he potential medical value of marijuana has been a continuing debate." It fails to mention, however, that smoked marijuana has never been approved as medicine by the Food and Drug Administration (FDA) and has never been proven safe and effective in sound scientific studies. Further, at its 2001 Annual Meeting, the American Medical Association (AMA)adopted the following as its policy on the medicinal use of marijuana:

"The AMA calls for further adequate and well-controlled studies of marijuana and related cannabinoids in patients who have serious conditions for which preclinical, anecdotal, or controlled evidence suggests possible efficacy and the application of such results to the understanding and treatment of disease; (2) The AMA recommends that marijuana be retained in Schedule I of the Controlled Substances Act pending the outcome of such studies. (3) The AMA urges the National Institutes of Health (NIH) to implement administrative procedures to facilitate grant applications and the conduct of well-designed clinical research into the medical utility of marijuana. ... (4) The AMA believes that the NIH should use its resources and influence to support the development of a smoke-free inhaled delivery system for marijuana or delta-9-tetrahydrocannabinol (THC) to reduce the health hazards associated with the combustion and inhalation of marijuana."

We also believe the GAO Draft Report should at least reference DEA final orders concerning petitions to reschedule marijuana published in 1992 and 2001. These reports contain a comprehensive explanation of the scientific and legal bases for keeping marijuana in Schedule 1.

Mr Paul Jones

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