Cannabis Law Prof Blog

OPINION: Oklahoma Hospitals Should Reconsider Their Decision to Not Recommend Medical Marijuana

Two prominent Oklahoma hospitals have instructed their physicians to not make recommendations for medical cannabis under the state's new MMJ law, according to a recent article in Tulsa World.  The private Tulsa-based Saint Francis Health System and the public Oklahoma State University Medical Center are turning away requests for cannabis recommendations from their primary care providers.

These hospitals are doing a disservice to their patients and should reconsider their decisions.  Patients should not be blocked from using these treatments because of antiquated laws and outdated perceptions of the substance. 

Cannabis Illegal and of No Therapeutic Value, Health Systems Say

A Saint Francis spokeswoman has said that hospital rules require physicians to follow federal law, which considers marijuana a prohibited Schedule 1 drug. She explained in a statement:

Warren Clinic’s provider contracts and our hospitals’ bylaws require that physicians follow both state and federal laws governing the practice of medicine … To this end, Warren Clinic physicians and providers are not able to endorse or promote the use of cannabis with their patients.

For its part, OSU Medical Center pointed out that its decision was based on the lack of evidence that any of the Schedule 1 drugs on the federal list have therapeutic value.

“Schedule I drugs lack clinical evidence for therapeutic purposes,” a statement from OSU Medical Center reads. “To this end, OSUMC physicians and providers are not able to endorse or promote the use of cannabis with their patients.”

True, marijuana is still illegal under federal law as a Schedule I drug. However, there is a move in many states to approve recreational marijuana (California, Maine, Massachusetts, and Nevada), as well as and medical marijuana use (Florida, North Dakota, and Arkansas). There are now eight states where individuals can purchase marijuana for recreational use and 28 states and Washington, D.C. where medical marijuana is legal under state law.

Further, laws enacted in Connecticut and Maine permit the use of medicinal marijuana formulations by hospitalized patients.

Hospitals are exposed to a significant risk for allowing cannabis use by patients as cannabis continues to be illegal under federal law. This is because hospitals receive their accreditation from the Center for Medicare & Medicaid Services. These facilities also receive federal funds which may be vital to their ability to operate and provide services.

This threat may be perceived as real—especially since U.S. Attorney General Jeff Sessions said that he will enforce federal law as it pertains to marijuana. Sessions rescinded a 2013 memo by the Obama administration that instructed federal attorneys not to hinder states’ ability to legalize marijuana, provided state officials prevented the drug from migrating to places where it remained outlawed, such as federal property, and kept it away from criminal gangs and children. This will allow U.S. attorneys throughout the country to decide whether to devote federal resources to marijuana enforcement based on their district’s priorities. Hospitals are reticent to risk penalties and the loss of federal funding by prescribing or providing the drug in their facilities.

But with more states approving the use of marijuana, hospitals are frequently being asked to allow patients to bring in their own supply for their own use. These hospitals have created their own inpatient medical marijuana policies. To help standardize this, the Minnesota Hospital Association has created a set of policy templates. These policies may help to insulate the hospital and its staff from the threat of federal prosecution, and permit patients to use a drug that has proven to be effective in their treatment.

Healthcare providers such as Saint Francis should implement similar policies that help to reduce liability without sacrificing patient care. Yes, there are potential legal implications for such an approach -- but the likelihood they will be targeted for prosecution is low, while the likely improved patient outcomes are high. 

The benefits of medical marijuana have been proven.  Patients report many benefits of CBD or cannabidiol—the chemical found in marijuana plants. This includes relieving insomnia, anxiety, spasticity, and pain, as well as epilepsy, multiple sclerosis, and the side effects of chemotherapy. In fact, one form of childhood epilepsy, Dravet syndrome, is nearly impossible to control; however, it has been found to respond dramatically to a CBD-dominant strain of marijuana called Charlotte’s Web.

Those suffering from debilitating illnesses should not be denied access to treatments that can help them, whether it is to ease their pain or to find a cure. Medical research in the past 20 years has uncovered substantial data about the benefits of medical marijuana and the chemicals found in cannabis. Further, hospitals are warranted in putting their federal funding at risk in order to prescribe marijuana in the interest of improved patient care and outcomes.

The Oklahoma Medical Marijuana Authority has released a list of close to 40 physicians across the state who have registered as providers willing to recommend medical marijuana for patients. The agency said it released the list “as a courtesy” to potential applicants whose own physicians may be unwilling to sign a recommendation.  But patients of St. Francis and OSU deserve to get this badly needed medicine from their own providers.

--Jason Carr

OPINION: Marijuana Found in Murder Victim's Apartment is Irrelevant

The tragic murder of Botham Jean in Dallas, Texas attracted media attention from all over the nation. However, according to theroot.com, Texas’s own Fox4 news station focused its coverage of the murder on the marijuana that was found in the victim’s apartment after the fact. The article reports that Fox4 tweeted the "clickbait" above when the station shared its article on Twitter:

Fox4’s coverage reflects a misguided and inappropriate selection of newsworthy material.  It reflects a common technique used by the media to portray black victims of tragic incidents as being flawed, or as somehow deserving the tragedy that occurred. Here, marijuana is used as an attempt to smear the image of the victim.

As an opinion piece in the Observer points out, this is not uncommon: “In the aftermath of many shootings involving black men, reactions have fallen along partisan lines. When Trayvon Martin and Philando Castile were killed, conservative media painted them as criminal and ‘thugs.’” In the light of the tragic events that occurred, it is disappointing that the station found that a small amount of marijuana in a murder victim’s apartment want “breaking news.”

What we know about what  happened on the tragic evening of September 6th can be summarized from a report from Vox:

Botham Shem Jean, a black man, was in his own apartment in Dallas [on September 6] when Amber Guyger, his downstairs neighbor and an off-duty police officer, shot him inside his own apartment.

. . .

Jean was not accused or suspected of any crime. Guyger, a four-year veteran of the Dallas Police Department, says the shooting was an accident — the tragic culmination of a series of missed warning signs that revolve around a mistaken belief that she was in her own apartment.

According to Guyger's account, when she arrived home to the South Side Flats apartments on September 6, she didn’t realize she had gotten out on the wrong floor of her building and that the apartment she was in was not, in fact, hers. Seeing a “large silhouette” in the dark apartment, she said she thought she was being burglarized. So she shot, hitting Jean in the chest. When she turned on the lights in the apartment, she realized her mistake.

However, there are varying accounts of the stories, as “Witness accounts, however, contradict that narrative: Neighbors say they heard Guyger knocking on Jean’s door and demanding to be let in before the shooting.” 

Amid the swirl of questions, I find it extremely problematic that Fox4 news chose to focus its attention on the small amount of marijuana in Jean’s apartment. Instead of using its investigatory resources on the flurry of issues in this case, the news station chose to post an article that focused primarily on the discovery of illicit drugs. As if that is relevant at all to the tragedy that occurred in the apartment, as if marijuana makes Jean a “criminal,” and as if his “criminality” lends credence to Guyger’s account of events. It doesn’t.

As The Observer noted, many outraged Tweeters voiced their disappointment, so much so that the station changed its headline “to reflect that Jean’s family attorneys were outraged the marijuana search warrant became public. The offending tweet is still up, however.” 

To be fair, it could be said that the news station was just sharing publicly available information regarding a development in an ongoing murder investigation. That’s the job of a news station, right? While news stations have the duty to share information with the public, Fox4’s clickbait line goes too far. This was not simply sharing information with the public, it was sharing the information in a way that attempted to change the public perception of the victim. Taglines such as the one used by Fox4 distract us from the uncomfortable, but sad truth: an unarmed, black man was murdered in his own apartment by a police officer who perceived him as a threat. Did subsequently finding marijuana make him suddenly more threatening?

--Ashleigh Morgan Williams 

Cannabis Law Institute program set for September in DC

The National Cannabis Bar Association's "Cannabis Law Institute" is just two weeks off.  The two-day event features more than 70 speakers from the legal, business ,and political worlds, and looks to have some terrific programming.  Check out the conference web site for schedules, registration, and other information.

I'll be seeing you there!

--Frank Snyder

How to Become a Cannabis Attorney

You know that cannabis is getting legitimate when the American Bar Association starts touting it as a great practice field for new lawyers.  The new edition of the ABA's Law Practice Today has an introduction to the topic by Neil Juneja, a founder of GleamLaw, one of the nation's first cannabis-focused law firms.  It's a pretty good place to start.

    Cannabis is the new hot topic of conversation, moving from the smoky dorm to the board room. The green rush is on, and, and as any gold rush of the past, there is good business in selling the picks and shovels to those seeking their fortunes. Coupled with the most difficult legal market for aspiring and new attorneys in the nation’s history, marijuana law is also a hot topic in law schools and in CLEs.

    Marijuana is now legal for consenting adults in four states and Washington DC. Medical marijuana is legal in 23 states at the time this article was published. The international community is following suit, with an increasing number of nations decriminalizing or outright legalizing cannabis. Colorado now brings in more tax dollars from marijuana than from liquor. The momentum is clear; no matter which party conquers the 2016 presidential election, cannabis is here to stay.

    While this nascent industry is growing at a pace unparalleled since the dot-com era, many large law firms refuse to service the clientele because the federal government considers marijuana to be a Schedule 1 drug, as defined by the Controlled Substances Act of 1970.

Kamin & Wald: "Public Lawyers and Marijuana Regulation"

Sam Kamin and Eli Wald of the University of Denver's Sturm College of Law are two of the top thinkers on issues relating to marijuana legalization and the issues it raises for lawyers.  A year or two ago they published "Marijuana Lawyers: Outlaws or Crusaders?" in the Oregon Law Review.  (If you're a lawyer and haven't read it, be sure to do so.)

Now they've published a brief follow-up on the issues  public lawyers (those who work for governmental agencies, in particular) face, and how those can be evaluated differently from those of private lawyers.  I'm not entirely convinced that the differences is as clear as they suggest, but by all means check out "Public Lawyers and Marijuana Regulation," in the Winter 2015 issue of The Public Lawyer.

Unfortunately, I've just got a PDF; the article starts on page 14.    [Public Lawyer PDF]

Michigan Prosecutor's "Diatribe" Against Medical Marijuana Dooms Pot Conviction

A Michigan court of appeals has reversed the conviction of a man convicted for growing 22 marijuana plants because of a "personal diatribe" against medical marijuana that the prosecutor made to the jury. 

Alger County Prosecuting Attorney Karen Bahrman is a career prosecutor with more than 30 years of experience, and her public website suggests that she's competent, caring, and level-headed.  But she's battled a lot of drunk driving in the "U.P." (the frozen north end of Michigan where abusing booze is as popular as ice fishing) and she's on record as being against marijuana legalization:

    From where I’m sitting, a place with a panoramic view of crimes fueled by alcohol, lives ruined by alcohol and lives lost to alcohol, its hard to understand why anyone would want to add another intoxicating and addictive substance to the legal table on the theory that its no worse than what’s already there.

    The argument that surrender is warranted by the cost/benefit analysis I do understand, in fact I would prefer almost anything to the current de facto legalization of marihuana, meaning that our medical marihuana act is so broad that virtually anyone can obtain a medical marihuana card by saying the right things to the right physician; its hard to listen to long time recreational users who are otherwise perfectly healthy talk about being patients, having caregivers and taking medicine, and I’m sure its equally hard for the tiny group of seriously ill people for whom this law was supposedly intended to endure our skepticism.

That's a subject on which reasonable people can differ.  But it appears that Ms. Bahrman went a little over the top in making her views known to a jury:

    During her closing argument, Alger County prosecutor Karen Bahrman criticized the medical marijuana law and attacked the credibility of a local group, the Alger Hemp Coalition, which she said has a "vision for the country where everybody can walk around stoned."

    "They do nothing to support the government services they want, and have nothing but criticism for the government services they don't want," Bahrman told the jury. "We're trespassers and tramplers of their rights right up until they need us to protect them from the violence that they attract to the community."

    Heminger had a medical marijuana card, but there was evidence that he was growing an excessive amount, possibly to sell or use, the appeals court said.

    Nonetheless, his right to a fair trial last year was violated by the prosecutor's "unfounded, irrelevant and inflammatory statements," the court said in an opinion released Friday.

    "The prosecutor's closing argument was clearly and thoroughly improper," the court said. "The prosecutor embarks on a political commentary, and a personal diatribe discrediting the (law) as a whole. … She calls the act 'meaningless,' and suggests that those suffering from chronic pain are simply cheating the system."

I started life as a litigator and I sympathize with how easy it is to get carried away.  Sounds like the court of appeals got it right.  Whether jurors are entitled to disregard the law is an interesting question (which we call "jury nullification") but there's no doubt prosecutors aren't supposed to tell jurors to ignore the law.  [State v Heminger opinion PDF here.]

H/T Chris Lindsey