Thursday, January 9, 2014
I am thrilled to be joining this blog as a guest. These are exciting times for those of us who have been following marijuana law and policy and I'm thrilled to have the opportunity to blog here for a bit. You can also read the series Joel Warner and I are writing for Slate.com or check out my academic writing on this and other subjects here.
New York Governor Andrew Cuomo announced the other day that he was using his executive powers to make medical marijuana available to those in need in his state. What he envisions, though, is quite different from the free-for-all of states like California or the carefully regulated medical marijuana market in my home state of Colorado. Rather, the governor seems to envision a very narrow exception to New York's general marijuana prohibition. The plan would allow hospitals to administer marijuana to a narrow range of patients, principally those with life- or sense-threatening illnesses.
As enlightened as this approach seems, it also raises concerns. For example, any doctor prescribing marijuana risks losing her license. Marijuana is still classified by the federal government as a Schedule I narcotic, a drug with a high likelihood of addiction and no safe dosage. Other medical marijuana states finesse this obstacle by requiring a doctor's "recommendation" rather than a "prescription". Cases from the abortion context seem to indicate that a doctor cannot be enjoined from speaking with her patient about any potential treatment option. Yet, when Governor Cuomo spelled out his plans in his State of the State address, he spoke of New York doctors being allowed to "prescribe" marijuana.
Another question that needs answering is exactly where this medical marijuana will come from. While the 1980 law on which the governor draws envisioned federally-provided medical marijuana, it is not clear that that option is still available. Furthermore, production of marijuana, even for medical purposes, remains criminal in New York as a matter of both state and federal law. While early articles mentioned marijuana seized by law enforcement as a potential source, it is hard to imagine black-market marijuana being a part of a careful medical program. Furthermore, requiring health care providers in state-run hospitals to distribute marijuana to their patients would bring state and federal law into direct conflict; it is for this reason that other marijuana states have considered, but rejected, state-run dispensary models.
In the current issue of Rolling Stone, Bruce Barcott writes of the importance of multiple models of marijuana regulation, citing the differences between the approaches taken by Colorado and Washington State to legalizing recreational marijuana. Governor Cuomo's initiative is an example of a new and innovative approach to medical marijuana, but at the moment it seems to raise at least as many questions as it answers.