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Victims of the State: The Criminalization of Cannabis

By Robert Moore, 3E

Introduction

The plant known as cannabis has existed for ages.1 More commonly referred to as

marijuana, this plant has been a subject of controversy in recent times.2 This paper will

discuss the historical origins of marijuana and industrial hemp, and explain how this

useful plant has developed such a bad reputation.

I. A Brief History of Cannabis

A. What is it?

Marijuana and hemp are products derived from the same plant, cannabis.3 While

“hemp” generally refers to the fibrous stalk of the plant, “marijuana” generally refers to

the “leaves and flowers.”4 The active ingredient in the plant is tetrahydrocannabinol

(THC).5 THC was not identified as the active ingredient in the cannabis plant until

1974.6 If inhaled through smoking, THC may cause such physiological effects as a

“slight increase in pulse, decreased salivation, a slight reddening of the eyes, and some

impairment of psychomotor control.”7 The physiological effects of smoking marijuana

are maximized within thirty minutes of inhalation and the drug is metabolized quickly

throughout the body.8 There can be some toxic effects from the ingestion of the drug.

These effects include abdominal pain, nausea, vomiting, paranoid reactions, amnesia,

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chills, headache, and sweating.9 Over 400 chemical entities have been identified in the

cannabis plant, including 60 cannabinoids.10 The most commonly studied cannabinoids

are delta-9-tetrahydrocannainol, delta-8-tetrahydrocannabinol, cannabidiol, and

cannabinol.11

It is the difference in THC content, which currently distinguishes marijuana and

industrial hemp on the state level.12 For example, legislation has been proposed in both

Colorado and Kentucky which would require a THC level of less than 0.3% for a

cannabis plant to be “classified as hemp.”13 “Marijuana on the other hand, ranges from

one percent to over ten percent.”14

B. Early Uses

Industrial hemp and marijuana share a similar history. An effort was not made to

differentiate between the two strains of cannabis until long after the plant arrived in

America over 10,000 years ago.15 Five thousand years ago, cannabis was used as a

remedy for “ rheumatism, and even menstrual cramps.”16 The Chinese used hemp to

“produce cloth and used nutrient rich hemp for food and oil.”17

Europeans used hemp in the production of paper products, and during the 17th

century, hemp production in the colonies was “at its peak.”18 Irish doctor, William B.

O’Shaughnessy, studying at the Medical College of Calcutta, introduced cannabis into

Western medicine in 1839. O’Shaughnessy studied information on cannabis, and

conferred with the Hindu and Mohammedan scholars about its effects and uses. He

tested “the effects of various hemp preparations on animals, before attempting to use

them to treat humans.” Only after O’Shaughnessy was confident of the safety of

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cannabis, he used it to treat his patients. He found it to have “analgesic and sedative

properties,…[and] his most spectacular success [with cannabis] came…when he

quelled the wrenching muscle spasms of tetanus and rabies with the fragrant resin.”19

European settlers brought the plant to America and used it in the production of

“clothing, twine, rope, blankets and canvas.”20 The plant became so important to the

livelihood of the early settlers that some colonies required citizens to grow the

substance, and fined those who didn’t harvest it.21

Our own Founding Fathers encouraged the growth of cannabis and even grew it

themselves.22 Ben Franklin used hemp in the production of paper at one of “America’s

first paper mills.”23 During the middle of the nineteenth century, cannabis was added to

the United States Pharmacopoeia.24 Its medical applications ranged from treatment of

epilepsy and tetanus to use as an analgesic.25 Cannabis was used as an “aphrodisiac, for

neuralgia, to quiet maniacs, for the cure of chronic alcoholism and morphine and chloral

habits, for mental depression, hysteria, softening of the brain, nervous vomiting, for

distressing cough, for St. Vitus’ Dance, and for…epileptic fits of the most appalling

kind.”26 Marijuana was also touted as an effective “medicinal remedy” during the Civil

War, and was an ingredient in twenty-eight different medications.27 In fact, a Civil War

edition of a book called U.S. Dispensatory Extractum Cannabis listed the many medical

benefits of marijuana usage. It was used as an effective aphrodisiac, “to increase

appetite, and occasionally to induce the cataleptic state…to cause sleep, to allay spasm,

to compose nervous inquietude,…to relieve pain,…neuralgia, gout, rheumatism,

tetanus, hydrophobia,” convulsions, hysteria, insanity, and even uterine hemorrhage.28

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C. The Beginning of Vilification

Throughout the 1800’s, hemp “continued to be the main fiber source” in the

United States.29 It was only after the turn of the last century that the popularity of

cannabis waned for the first time.30 There are a couple of reasons for this. Firstly, the

growing temperance movement led to an increase in alcohol prices, making it harder to

procure.31 Marijuana on the other hand, was readily available for public consumption.

However, the increase in cannabis smokers then led to a public outcry.32 “A significant

media campaign was undertaken to rid the United States of [the] devil’s drug,”33 and

legislators across the country moved to pass laws prohibiting marijuana.34

Secondly, cotton, the major competing fiber to industrial hemp, began to grow in

popularity. Additionally, the invention of the cotton gin greatly reduced the cost of

cotton production.35 In 1916, the hemp-decorticating machine was invented, making

hemp production again competitive, but by then it was too late. The negative

propaganda machine against cannabis had taken root.36

By the 1930’s, “the legalization of beer and the return of hard liquor

[continually] decreased the popularity of marijuana.”37 During that same period,

southern politicians “developed a stronger voice in Washington.” They represented the

interests of southern cotton growing farmers.38 As a result of their political influence,

support for hemp production was stopped, while “money was given to the cotton

industry.”39

The stage was set for the criminalization of cannabis. The first federal law

regulating marijuana was known as the Marijuana Tax Act of 1937. The Act required a

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tax stamp on “all sales of hemp products.”40 The statute effectively criminalized

marijuana by restricting possession to certain individuals who paid excise taxes for its

use in medicine and industry.41 In addition to paying the tax, the participator had to

register with the Internal Revenue Service.42 The amount of tax varied depending on

what “role” an individual played in the processing of cannabis.43 The individual might

be involved in importing, milling, researching, or prescribing the plant.44 The

administrative paperwork caused by the implementation of the Act led to a

“decimation” of the hemp industry.45 Medical marijuana and industrial hemp were

considered one in the same substance, and cannabis became the demon “drug plant.”46

Before the Act was made law, hearings were held in the House of

Representatives concerning cannabis. The “legislative activities committee” of the

American Medical Association vehemently opposed the legislation stating, “ There is…

no evidence to indicate the abuse of cannabis as a medical agent or to show that its

medicinal use is leading to the development of cannabis addiction. Cannabis…is

slightly used for medical purposes, but it would seem worthwhile to maintain its status

as a medicinal agent.”47 The committee went on to state that the drug should be further

studied for potential future medical applications.48

D. A Resurgence in Popularity

On December 7, 1941, the United States entered World War II, and marijuana

enjoyed a temporary resurgence in popularity.49 Hemp was needed for the manufacture

of parachutes, marine cordage, and other military equipment. By 1944, the

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government’s “Hemp for Victory” campaign encouraged farmers to produce over 60

million pounds of industrial cannabis for the war effort.50 In 1942, the United States

Government produced a film by that name and a copy of it sits in the National

Archives.51 Unfortunately for hemp farmers, the resurgence in popularity was only

temporary.

E. Criminalization

After the War, Congress began to strengthen laws pertaining to marijuana

possession.52 In 1951, the Boggs Act established mandatory “prison terms and large

fines” for the violation of marijuana laws,53 and the “Narcotic Control Act of 1956

further strengthened those penalties.”54 The culmination of these legal efforts and the

social climate of the early 1960’s led the government to reconsider its rock hard stance

against the cannabis.55 In 1961, the United States ratified the United Nations Single

Convention on Narcotics.56 The Act provided criteria that would distinguish between

industrial-type hemp and what was commonly known as marijuana.57 The norms and

practices discussed at the 1961 convention would take effect in the United States by

1967, and labeled marijuana a Schedule I narcotic.58 This means that the substance had

a high potential for abuse.59 Also, since being labeled a Schedule I drug, marijuana was

instantly found to have no medical value in the United States.60

Under the rules of the 1961 convention, industrial hemp was supposed to be

exempt from the scheduling requirements.61 However, a later law made the

differentiation between marijuana and hemp virtually nonexistent. The 1970

Comprehensive Drug Abuse Prevention and Control Act codified the scheduling system

and eliminated the registration requirements of the Marijuana Tax Act of 1937.62 By

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eliminating the complex registration procedures, industrial hemp farmers lost the means

to exempt and distinguish their product from other cannabis strains.63

“The 1970 Act explicitly made all cultivation and sale of marijuana illegal.”64

President Nixon signed the Act into law on October 27, 1970.65 Under the law, five

schedules “were created to categorize drugs according to their potential for abuse.”66

Schedule I drugs are said to have “no accepted medical use in the United States,

and have a high potential for abuse.”67 Marijuana, heroine, LSD, peyote, and psilocybin

are examples of the drugs in this category. Schedule II includes drugs which do have a

currently “accepted medicinal use,”68 but have a high potential for abuse. Most of the

drugs in this category are synthetic medicines and include Demerol, Dexedrine,

Marinol, Seconal, Nembutal, morphine, codeine, and cocaine. Schedule III drugs are

medically useful but have a potential for abuse less than that of drugs in Schedule II.

These medicines include Didrex, Tenute, glutimide, methyprylon, and some appetite

suppressants. Schedule IV drugs have an even lower potential for abuse. Examples of

drugs in this category are Talwin, Darvon, Librium, and Valium. Finally, Schedule V

drugs have “the lowest potential for abuse.”69 Medicines in this category are common

cough suppressants and “antidiarrheal agents.”70

II. Modern Trends

A. The War on Drugs

The war on the cannabis plant received a further jumpstart with the formation of

the Drug Enforcement Administration in 1973.71 Under the 1970 Act, the Attorney

General delegated authority to the DEA to “reschedule or deschedule a substance if it

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has been inappropriately scheduled.”72 The agency has been petitioned many times to

reschedule marijuana. One group, known as the National Organization for Reform of

Marijuana Laws (NORML), began “fighting to change marijuana from a Schedule I

substance to a Schedule II substance” without success.73

The efforts of NORML were initiated when Congress enacted the

Compassionate Investigative New Drug program in the early 1970’s.74 This program

allowed some patients to receive marijuana for therapeutic use.75 The program was

largely a failure, as few people were deemed eligible.76 The DEA contributed to the

program’s demise and released a propaganda statement to rationalize their behavior. The

agency stated, “Beyond any doubt, the claims that marijuana is medicine are false,

dangerous and cruel…It is a cruel hoax to offer false hope to desperately ill people. It is

not a safe or effective drug for any illness.”77

Although, the government’s recognition of some medical applications for

cannabis fueled NORML’s efforts to reschedule the substance, those who oppose to the

rescheduling of marijuana say that studies of the health effects are limited and

contradictory. Many of the studies have exposed the negative impact that marijuana has

on people.78

In fact, studies have indicated that cannabis alters mood and perception.79 Users

of the drug may experience “distorted body image and distortions in time and space, as

well as increased sensory awareness of colors, sounds, textures, and taste.”80 There are

also mental disorders associated with the use of cannabis. These negative reactions

include “toxic psychosis, panic attacks, flashbacks, delusions, depersonalization,

hallucinations, paranoia, depression, and uncontrollable hostility.”81 Additionally,

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marijuana contains many unidentified chemicals that enter the body through smoking.

The constant inhalation can lead to cancer of the larynx, jaw, lungs, mouth, and

tongue.82

Cannabis is not an FDA approved drug and has not been through the lengthy

approval process. Every year, thousands of synthetic drugs are developed for

therapeutic uses, but only a few every make to the marketplace.83 It takes “seven years

to complete the development of a marketable prescription drug,”84 and the FDA has a

four-step process to determine whether a substance will make it to the drug store

shelves.

The first stage of the process involves determining which drugs have a

therapeutic use.85 Of course, cannabis would not even make it to this stage because of

its placement in Schedule I. Drugs in this stage of approval undergo extensive cell

culture and animal experimentation. After several years, a pharmaceutical company can

apply to the FDA to begin human trials.86

Once this initial test has been passed, human experimentation may begin.87

Usually, poor people and prison inmates are used as the guinea pigs, and the “patients”

must suffer from the ailment the medicine allegedly treats. Then, any negative reactions

to the new medication are noted. Stage three involves experimenting with a larger

segment of the population.88 This process lasts several years, after which the drug

company can apply for what is known as a New Drug Application.89 The final stage

consists of a careful review of the entire process by the FDA before they place their seal

of approval on the new product.90 It is unlikely that cannabis will go through the

process of FDA approval anytime in the near future.

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B. Movement Toward Legalization

NORML’s goal, starting in the early 1970’s, was to petition the government to

allow marijuana to be prescribed by doctors.91 After, the DEA denied the petition;92

other organizations joined NORML in continuing unsuccessful attempts to reclassify

marijuana. Evidentiary hearings regarding rescheduling “were held in San Francisco,

New Orleans, and Washington, D.C.” 93 By 1988, the DEA recommended that a

rescheduling hearing be held before Administrative Law Judge Francis Young in

Washington, D.C.94 At that hearing, the judge acknowledged the importance of

marijuana for medical use in cancer treatment by stating:

“It is clear beyond question that many people find marijuana to have, in the

words of the ACT, an accepted medical use in treatment in the United States in effecting

relief for cancer patients. Oncologists…treating cancer patients accept this. Other

medical practitioners and researchers accept this.”95

The judge’s overall recommendation was that Cannabis sativa should be moved

to Schedule II by the DEA.96

The Alliance for Cannabis Therapeutics (ACT) challenged the DEA in 1994. In

Alliance, the group (ACT) sought to have marijuana reclassified as a Schedule II

substance under the Controlled Substances Act. The court used a five-part test to

determine the fate of marijuana’s classification. First, the court examined whether:

“1) the drug has a known and reproducible chemistry, 2) adequate safety studies

were performed, 3) there were well-controlled and adequate studies showing the drug’s

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efficacy, 4) the drug was accepted by qualified experts; and 5) scientific evidence was

widely available.” Based on the above criteria, the court determined that there was no

“currently accepted medical use” for cannabis.97

The industrial variety of marijuana, of course, met the same fate as medicinal

cannabis, as any economic potential for hemp “cannot be considered by the DEA as a

reason to loosen its controls” on hemp production.98 Hemp farmers can still apply for

special permits to grow cannabis,99 but an applicant must apply as a “manufacturer of

marijuana (referring to both marijuana and industrial hemp).”100 The process of

applying for a special permit is costly, and not profitable for potential growers.101

C. Marijuana in Medicine

There has been widespread argument over the potential medical benefits of

marijuana.102 Cannabis has been used in controlled studies to treat the side effects

resulting from chemotherapy treatments in cancer patients.103 Often, patients

undergoing chemotherapy suffer after treatment. They may experience nausea,

vomiting, and severe dehydration.104

The goal of chemotherapy treatments is to destroy cancer cells.105 However, the

chemical agent “cannot differentiate between cancer cells and healthy cells and destroys

the latter as well.”106 The elimination of healthy cells leads to “overwhelming side

effects.”107 As a result of the nausea and vomiting associated with the treatment, the

patient loses weight, strength, and the ability to cope with the disease.108

Treatment with cannabis has been found to relive the negative symptoms of drug

therapy. For example, the Lynn Pierson Therapeutic Research Program studied the

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effects of cannabis on chemotherapy patients.109 The study found that “people who

smoked [marijuana] had a greater than 50 percent reduction in nausea and vomiting.”110

This reduction in discomfort stimulated appetite and increased the patient’s ability to

cope with the disease.111

Marijuana has also been used to treat glaucoma. Glaucoma is a disease of the

eye. It is “commonly cited as the leading cause of blindness in the United States.”112

Over 2 million Americans have some form of glaucoma.113 The disease is characterized

by an increase in ocular pressure, which eventually damages the optic disk causing a

“visual field loss.”114 Sometimes surgery can relieve the pressure, but too often the

attempts are unsuccessful.115 Research has shown that smoking marijuana “leads to a

fall in intraocular pressure,”116 which can save the eyesight of thousands of those

stricken with this disease.

Cannabis appears to reduce the symptoms of multiple sclerosis, “paraplegia,

quadriplegia,”117 and the muscle spasms associated with those diseases.118 Muscle

spasicity is caused when nerve pathways to the brain are disrupted as a result of injury

to the brain or spinal cord.119 “Patients with spasicity complain of impairment in control

of flexion of the associated limb, intermittent uncontrollable contractions, and pain.”120

Marijuana “alleviates the pain associated” with these spasms.121

Cannabis can be beneficial to AIDs patients as well.122 A symptom displayed by

sufferers of the disease is what is known as wasting syndrome. This condition is

“characterized by a significant loss of body weight in a person who is HIV antibody

positive and may be associated with fever and diarrhea.”123 The weight loss is brought

on by an inability to eat, and a change in the body’s metabolic rate brought on by the

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HIV.124 Marijuana helps to slow weight loss by reducing “the debilitating effects of

nausea and vomiting,”125 and stimulating an increase in appetite.

Although there has been little study in this area, some patients with seizure

disorders have even benefited from the use of marijuana.126 A seizure is a major

disturbance in brain function due to “excessive neuronal production of an excitatory

neurotransmitter.” Seizures have been classified as grand mal, petit mal and myoclonic

attacks.127 Cannabis has relieved some of the adverse symptoms of the disease.

One area of the law where the use of medical marijuana has gained some ground

is in the use of the “medical necessity defense.” 128 Lawyers have used this common

law defense with some success. For example, there have been a number of cases where

patients arrested for possession of cannabis were exonerated. These patients suffered

from glaucoma, 1 multiple sclerosis, and AIDS. They argued that their possession and

use of marijuana was an absolute necessity despite the presence of laws forbidding it.

The defense has been described as: “An act which otherwise would be a crime may be

excused if the person accused can show that it was done only in order to avoid

consequences which could not otherwise be avoided, and which, if they had followed,

would have inflicted upon him… inevitable and irreparable harm.”129 Successful use of

this common law defense is one of the only ways that suffering patients can gain access

to legal marijuana.

D. The Hemp Industry

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Several states favor the cultivation of industrial-type hemp. Despite the DEA’s

failure to distinguish between marijuana and industrial hemp, hemp legislation is pending

in Tennessee, Vermont, New Hampshire, Iowa, Maryland, Minnesota, Illinois, and

California.130 The Hawaii State House of Representatives passed a bill that would

“establish hemp test plots in the Hawaiian Islands.131 The legislation stalled in the house

Judiciary Committee, when the chairperson “stated he [was] unwilling to even hear the

bill unless local law enforcement support[ed] its passage.”132 This support is unlikely

because of the continuing pressure from politicians and the DEA.

This lack of support is unfortunate, as hemp could be a valuable economic

commodity for the United States. Hemp is “a far more efficient source of industrial fiber

and pulp for paper than timber.”133 Hemp can produce “four times as much pulp and fiber

as an acre of trees,”134 and environmentalists have seen it as a solution to deforestation.

The plant matures rapidly and “is well adapted for temperate climates.”135 Thirty-five

percent of the stalk can be extracted and used as textile fiber.136 Compared to cotton,

“hemp fibers are longer, more lustrous, more absorbent, have a higher tensile strength,

and are more resistant to mildew damage.”137 Paper manufactured from hemp “resists

decomposition and does not exhibit the usual age-related sulphur-yellowing of wood-

derived papers.”138 The crop grows rapidly and “shades out” competing weeds. There are

few insects that attack cannabis crops and application of pesticides is rarely needed.139

The plant can also be easily reproduced asexually to create many identical plants.

“Vegetative cuttings are made from a mother plant, transplanted and grown to desired

size, then induced to flower by photoperiod (day-length) reduction.”140

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There are many new uses for cannabis. It can be spun into cloth and made into

fiberboard and “biodegradable oils.”141 In fact, the demand for imported hemp products is

increasing, as clothing made from the substance has gained popularity among America’s

youth.142 “Georgio Armani, Ralph Lauren, and Calvin Klein, as well as smaller retailers,

are all producing or marketing hemp clothing” on the world market.143 Although, the

DEA is aware of the difference between hemp and marijuana (in terms of THC

content),144 it seems that the industrial hemp industry, like the medicinal marijuana

industry will not take hold in the United States.

E. Constitutional Considerations

Over the years, there have been several constitutional attacks on marijuana laws.

During the early 1970’s, the laws punishing those possessing or distributing cannabis

were extremely harsh, and some of those laws were challenged on Eighth Amendment

grounds. For example, a Missouri law provided that one could be sentenced to death for

selling marijuana to a minor. A Colorado law provided that a person could be sentenced

to fifteen years in prison for simple possession.145 In Michigan v. Sinclair, 194 N.W.2d

878, 879 (Mich. 1972), the Supreme Court vacated the sentence of John Sinclair who

faced a sentence of over nine years in prison for possession of two marijuana cigarettes.

Justice Brennen held that the “minimum term imposed by the statute was ‘demonstrably

and grossly excessive’ given the nature of the offense and the disposition of other similar

offenses.”146 A trend against the imposition of excessive prison sentences for violators of

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marijuana laws continued throughout the decade of the seventies, making claims of cruel

and unusual punishment less viable.147

There have been arguments presented that possession of marijuana is a

fundamental right, but these claims are not well founded. In NORML v. Bell, 488 F. Supp

123, 132 (D.D.C. 1980) (citing Paul v. Davis, 424 U.S. 693 (1976)), the court said it does

not “pick out particular human activities and characterize them as fundamental, and give

them added protection…” The court stated that its job was to recognize existing

fundamental rights and protect those rights “as the Constitution demands.”148 Possession

of marijuana does not fit into the realm of an existing fundamental right.

Equal protection is another ground used to challenge marijuana laws. The

argument is that marijuana possession statutes are not applied to other alleged “evil”

substances such as alcohol and tobacco.149 The claim is that marijuana is no more

harmful than the latter substances, and that the laws against cannabis are constitutionally

under inclusive.150 However, most state and federal courts have dismissed the above

claims.151

Using the rational basis test, a statute is presumed to be constitutional as long as

its purpose has some rational relationship to a legitimate state interest.152 Since marijuana

is a Schedule I drug, the government does have a legitimate purpose of safeguarding the

public against dangerous drugs. The statutes against marijuana fulfill that purpose.

A much-publicized state constitutional challenge to a marijuana law took place in

Kentucky. In that case, Woody Harrelson was arrested for growing four industrial hemp

plants in Lee County, Kentucky. He did this with the specific intent to “challenge the

constitutionality of Kentucky’s existing laws that prohibit the possession or cultivation of

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any plant of the cannabis species.”153 Harrelson claimed, among other things, that the

statute defining cannabis was unconstitutionally broad. Specifically, it was argued that the

broad definition of cannabis, in effect, prohibited activity that should be “constitutionally

permissible” –namely the growing of industrial hemp.154

An expert for Harrelson, Dr. Wiedeman, said that when the statute outlaws all

subspecies of cannabis, it is like outlawing all dogs just because one breed is dangerous.
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Dr. Wiedeman was asked to review Kentucky’s definition of marijuana that was

contained in the statute in question.

Under KRS 218A.010(12), marijuana is defined as: “[A]ll parts of the plant

cannabis…; the seeds thereof; the resin extracted from any part of the plant; and every

compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or

resin or any compound, mixture, or preparation which contains any quantity of these

substances.”

The doctor stated that there was no botanical logic behind the all-inclusive

definition. Case He went on to state that there were visible differences between the

subspecies of cannabis known as marijuana and that of industrial hemp. Therefore, there

would be no problem for law enforcement to distinguish between the two strains of

cannabis.

The District Court of Lee County agreed with Harrelson “and ruled in his favor.

Lee County Attorney, Thomas P. Jones, appealed this decision to the Lee County Circuit

Court, where the judgment of the district court was affirmed.” That judgment was

recently certified for a hearing before the Kentucky Court of Appeals.156

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F. Where Are We Now?

The DEA has continued its war on cannabis.157 They cite “10,000 scientific

studies that [they say] prove marijuana is a harmful, addictive drug which weakens

immune systems.”158 They claim that HIV-positive cannabis smokers develop AIDS

faster than nonsmokers and are more susceptible to a certain form of pneumonia.159 The

DEA uses the studies to bolster their claim that marijuana has no medicinal value.160

The DEA disapproves of any product with even “trace amounts of

tetrahydrocanabinol.” In August of 1999, under DEA direction, the United States

Customs Service seized a Canadian birdseed truck at the U.S./Canadian border.

Apparently, the birdseed was comprised of sterilized seeds processed from industrial

hemp.161 Although the THC content of the seed was barely .0014 percent, the DEA’s zero

tolerance policy resulted in the temporary seizure of the truck.162 It has been stated that

the seed wouldn’t even “give a bird a buzz.”163

Conclusion

The Cannabis sativa plant has a bad reputation mainly for political reasons.

Politicians representing the cotton industry launched a “no holds barred” propaganda

campaign to undermine the hemp industry in the United States. Their efforts led to the

passage of the Marijuana Tax Act of 1937, which placed an undue burden on hemp

farmers, and those doctors who had been using cannabis for medicinal purposes. It was

the first step towards the criminalization of marijuana.

A world war allowed for the temporary resurgence of the hemp industry for the

manufacture of much needed war supplies, but soon after the last bomb was dropped,

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marijuana was again the demon plant. Laws against marijuana were enhanced

throughout the 1950’s and no differentiation was made between medicinal marijuana

and industrial hemp.

After the passage of the Controlled Substances Act in 1970, the cannabis plant

was assigned the same status as heroine and cocaine -- a Schedule I drug. The United

States Government still does not recognize the potential economic and medical benefits

of cannabis. Lengthy sentences are imposed for growing and possessing marijuana. If

politicians would only look back in history a hundred years, they would see for

themselves how marijuana developed such a bad reputation. However, this would be

asking too much. It is the influence of lobbyists and the hope of reelection that

energizes many of these individuals.

Until politicians look to the past for legislative guidance, future laws will

continue to be guided, not by logic, but by the whim political lackeys. The drug culture

of today embraces many medicines with negative side effects.164 Citizens across

America ingest all kinds of drugs without question. Their feeling is if the medicine is

legal, then it must be devoid of all negative side effects. However about 70% of all

“emergency room visits are due to prescription medications.”165 This fact receives little

press because law enforcement is rarely involved in cases of legal drug use. The image

of bashing down someone’s door, throwing a suspect to the floor and seizing medicinal

dope is far more appetizing to politicians seeking a second term—and it generates more

votes.

The debate over industrial hemp and medical marijuana will continue for years

to come. Politicians jest about their early use of recreational dope, while they

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recommend long prison sentences to American citizens for their use of the plant. Our

society needs to reach some middle ground over the status of cannabis. Until this

occurs, patients will continue to suffer needlessly, and the American economy will

suffer because lawmakers and law enforcers have forgotten the economic benefits of the

plant with the bad reputation.

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Michael Vitiello, Proposition 215: Defacto Legislation of Pot and the Shortcomings of Direct Democracy, 31 U. Mich. J.L. 707, 749 n.240.
2
Deborah Garner, Up In Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555 (1999).
3
Thomas J. Ballanco, The Colorado Hemp Production Act of 1995: Farms and Forests Without Marijuana, 66 U.Colo. L. Rev. 1165, 1166
(1995).
4
Id.
5
Seeley v. State, 940 P.2d 604, 607 (Wash. 1997).
6
Ballanco, supra note 3, at 1167.
7
Ravin v. State, 537 P.2d 494, 505 (Alaska 1975).
8
Mary Lynn Mathre, Cannabis in Medical Practice 58 (1997).
9
Id. at 61.
10
Id. at 56.
11
Id. at 57.
12
Susan David Dwyer, The Hemp Controversy: Can Industrial Hemp Save Kentucky?, 86 Ky. L.J. 1143, 1145 (1997-98).
13
Ballanco, supra note 3, at 1166.
14
Id.
15
Jack Frazier, The Great American Hemp Industry 1 (1991).
16
Abbie Crites-Leoni, Medicinal Use of Marijuana: Is the Debate a Smoke Screen for Movement Toward Legalization?, 19 J. Legal Med. 273,
274 (1998).
17
Matthew R. Rheingans, Impact of the Tobacco Settlement on Kentucky: Is Industrial Hemp a Viable Alternative for the Commonwealth?, 14
J. Nat. Resources & Envtl. L. 115, 117 (1998-99).

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18
Id.
19
Mathre, supra note 8, at 44.
20
Deborah Garner, Up In Smoke: The Medicinal Marijuana Debate, 75 N.D. L. Rev. 555, 557 (1999).
21
Id.
22
Marty Bergoffen, Hemp as an Alternative to Wood Fiber in Oregon, 11 J. Envtl. L. & Litig. 119, 121 (1996).
23
Id.
24
Gregg A. Bilz, The Medical Use of Marijuana: The Politics of Medicine, 13 Hamline J. Pub. L. & Pol’y 117 (1992).
25
Seeley, 940 P.2d at 628, n. 10 (Sanders, J., dissenting).
26
Mathre, supra note 8, at 58.
27
Michael Vitiello, Proposition 215: Defacto Legislation of Pot and the Shortcomings of Direct Democracy, 31 U. Mich. J.L. 707, 749 (1998).
28
Mathre, supra note 8, at 46.
29
Bergoffen, supra note 22, at 121.
30
Dwyer, supra note 12, at 1157.
31
Garner, supra note 2, at 555.
32
Dwyer, supra note 12, at 1157.
33
See id.
34
Susan D. McGuire, Medical Marijuana,: State Law Undermines Federal Marijuana Policy – Is the Establishment Going to Pot? 7
S.J Agri. L. Rev. 73, 74 (1997).
35
Rheingans, supra note 17, at 117.
36
See id.
37
Garner, supra note 2, at 558.
38
Dwyer, supra note 12, at 1159.
39
See id.
40
The Marijuana Tax Act was held to be unconstitutional because it violated the 5th Amendment guarantee against self-incrimination.
See Leary v. United States, 395 U.S. 6 (1969).
41
Allison L. Bergstrom, Medical Use of Marijuana: A Look at Federal and State Responses to California’s Compasionate Use Act, 2
Depaul J. Health Care L. 155, 156 (1997).
42
See id. at 156.
43
Id.
44
Id.
45
Dwyer, supra note 12, at 1162.
46
See id.
47
Mathre, supra note 8, at 49.
48
Id.
49
Dwyer, supra note 12, at 132.
50
See id. at 134.
51
Mathre, supra note 8, at 7.
52
Matthew Segal, Overdue Process: Why Denial of Physician-Prescribed Marijuana to Terminally Ill Patients Violates the United
States Constitution, 22 Seattle U. L. Rev. 235, 237 (1998).
53
Garner, supra note 2, at 555.
54
See id. at 558.
55
See Frontline: Busted – America’s War on Marijuana: Timeline (Visited Feb. 25, 2000)
http://www.pbs.org/wgbh/pages/frontline/shows/dope/etc/cron/html.
56
Dwyer, supra note 12, at 1164.
57
See id.
58
See id.
59
Bergstrom, supra note 41, at 160.
60
See id.
61
Dwyer, supra note 12, at 1164.
62
See id.
63
Id.
64
Id.
65
See Frontline: Busted, supra note 55.
66
Mathre, supra note 8, at 4.
67
Id.
68
Id.
69
Id.
70
Mathre, supra note 8, at 4.
71
Ballanco, supra note 3, at 1172.
72
Dwyer, supra note 12, at 1167.
73
Garner, supra note 2, at 561.
74
Crites-Leoni, supra note 16, at 277.
75
See id.
76
See id. at 278.
77
Mathre, supra note 8, at 9.
78
Crites-Leoni, supra note 6, at 279.
79
See id. at 280.
80
Id.
81
Id.

21
82
See id. at 282.
83
See id. at 286.
84
Id.
85
Id.
86
See id. at 287.
87
Id.
88
Id.
89
Id.
90
Id.
91
Lauretta Higgins Wolfson, A Quality of Mercy: The Struggle of the AIDS-Afflicted to Use Marijuana, 22 Thomas Jefferson L. Rev.
1, 10 (1999).
92
Id.
93
Segal, supra note 52, at 243.
94
See id. at 244.
95
See id. at 245.
96
Id.
97
Alliance for Cannabis Therapeutics v. Drug Enforcement Admin., 15 F.3d 1131 (D.C. Cir. 1994).
98
Dwyer, supra note 12, at 1168.
99
Id.
100
Id.
101
Id.
102
Garner, supra note 2, at 562.
103
Id.
104
See id. at 563.
105
Mathre, supra note 8, at 71.
106
Id.
107
See id. at 70.
108
See id. at 71.
109
Id.
110
See id. at 76.
111
See id. at 80.
112
See id. at 94.
113
See id. at 103.
114
Id.
115
Garner, supra note 2, at 564.
116
Id.
117
Id.
118
Id.
119
Mathre, supra note 8, at 112.
120
Id.
121
Garner, supra note 2, at 564.
122
Gary Allen Johnson, Letter to the Editor, 336 New Engl. J. Med. 1184 (Apr. 17, 1997).
123
Mathre, supra note 8, at 87.
124
Carl Grunfeld, What Causes Wasting in AIDS?, 333New Engl. J, Med. at 123 (July, 13, 1995).
125
Colleen Corcoran & Steven Grinspoon, Drug Therapy: Treatments for Wasting in Patients with the Aquired Immunodeficiency
Syndrome, 334 New Engl. J. Med. At 1740 (June 3, 1999).
126
Mathre, supra note 8, at 156.
127
See id. at 125.
128
See id. at 25.
129
See id. at 22.
130
Cheryl Maday, Hemp, hemp hooray!, Mother Earth News, Oct. 1, 1999, at 16.
131
Rheingans, supra note 17, at 127.
132
See id.
133
Ballanco, supra note 3, at 1167.
134
See id.
135
Mathre, supra note 8, at 193.
136
See id. at 198.
137
Id.
138
See id. at 200.
139
See id. at 205.
140
See id. at 209.
141
Dwyer, supra note 12, at 1155.
142
Rheingans, supra note 17, at 116.
143
Id.
144
Segal, supra note 52, at 243.
145
See Hyman M. Greenstein and Paul E. Dibianco, Marijuana Laws – A Crime Against Humanity, 48 Notre Dame Lawyer 314
(1972).
146
See Michigan v. Sinclair, 194 N.W.2d 878, 906 (Mich. 1972).

22
147
Id.
148
Shapiro v. Thompson, 394 U.S. 642 (1969) (Stewart J., concurring).
149
See generally United States v. Fry, 787 F.2d 903, 905 (4th Cir. 1986).
150
McDonald v. Board of Election Comm’r., 394 U.S. 802, 809 (1969).
151
Frye, 787 F2d at 905.
152
McDonald, 394 U.S. at 809.
153
Brief Addressing Constutionality of KRS218A.010(12) at 2, Commonwealth v. Harrelson, No. 96-M-00161 (Lee County District
Court 1996).
154
Commonwealth v. Foley, 798 S.W.2d 947, 952 (Ky. 1990).
155
Rheingans, supra note 17, 125.
156
See id. at 120.
157
Drug Enforcement Admin., U.S. Dep’t of Justice, Say it Straight: Myths of Marijuana (visited Feb. 25, 2000)
<http://www.usdoj.gov/dea/pubs/sayit/myths.htm>.
158
Id.
159
Id.
160
Id.
161
Christopher C. Wren, Bird Food is a Casualty of the War on Drugs, N.Y. Times, Oct. 3, 1999 at 1.
162
Andrew Clark, Contentious Crop, Maclean’s, Oct. 18, 1999 at 86.
163
Wren, supra note 161.
164
Mathre, supra note 8, at 5.
165
Id.

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