COMPASSIONATE, BUT STILL ILLEGAL

The movement in the New Jersey Legislature to enact the New Jersey
Compassionate Use Medical Marijuana Act has much to recommend it. It
is in fact a sound policy to allow those suffering great physical
pain to use marijuana to relieve various symptoms. Nevertheless,
creating an exception for the medical use of marijuana under state
law does not create an exception under federal law. By using state
law to sanction marijuana use in the medical context, New Jersey will
be encouraging a violation of federal law. That is a problem that
must be resolved before the policy deserves full support. The
proposed New Jersey statute is admirable in the care with which it
sets forth the medical exception. It cabins the possibility of abuse
as well as can be expected. That is to say, it establishes a narrow,
meticulously circumscribed exception to the general prohibition on
marijuana use. The premises for the exception are found in the
legislative findings, which include:

"According to the U.S. Sentencing Commission and the Federal Bureau
of Investigation, 99 out of every 100 marijuana arrests in the
country are made under state law, rather than under federal law.
Consequently, changing state law will have the practical effect of
protecting from arrest the vast majority of seriously ill people who
have a medical need to use marijuana.

"Although federal law currently prohibits the use of marijuana, the
laws of Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon,
Vermont, Washington and Montana permit the use of marijuana for
medical purposes, and in Arizona, doctors are permitted to prescribe
marijuana. New Jersey joins this effort for the health and welfare of
its citizens.

"States are not required to enforce federal law or prosecute people
for engaging in activities prohibited by federal law; therefore,
compliance with this act does not put the State of New Jersey in
violation of federal law."

But it would put New Jersey residents who use marijuana for
statutorily defined medical purposes in violation of federal law.
Irrespective of what any state law provides, marijuana remains
illegal under the federal Controlled Substances Act (CSA). By
adopting the medical-marijuana law, New Jersey would be placing state
residents in a position of engaging in criminal behavior under the
CSA. New Jersey may pledge not to enforce federal law, but such a
pledge does not bind the federal government. To be sure, federal
prosecutions are exceedingly rare in this area, but they do occur.
For example, in 2005, the U.S. Supreme Court decided the important
commerce-clause case of Gonzales vs. Raich, which approved of a
federal prosecution of a very modest medical use of marijuana in California.

The approach of ignoring the CSA suggests that New Jersey -- and the
other states with similar laws -- is, at least implicitly, defiant of
the superior federal law. That is not the sort of perspective that
should be fostered by any lawmaker. The law has a distinct
pedagogical function, and New Jersey and other states are using it to
convey, to say the least, a confusing message.

Bringing responsible resolution to the problem will require
recognition of how our federal system operates. What should be
enacted is a modification of the CSA to allow for states to provide
for a medical exception to the prohibition on marijuana use. States
would not, of course, be compelled to adopt this exception, but they
would be at liberty to do so. States could then act as laboratories
for this innovative policy. If abuses develop, adjustments at the
state level can be made. And if the narrow exception for medical use
turns into a campaign to legalize all marijuana use, then the federal
government can close the medical-exception lacuna and restore a
comprehensive prohibition.

The arguments against allowing the use of marijuana as an analgesic
are exceedingly weak. It is indeed compassionate to permit those in
dire and chronic physical pain -- those, in the words of the New
Jersey statute, suffering from a "debilitating medical condition" --
to use it to ease their suffering, however imperfectly. Nevertheless,
respect for the rule of law in a federal system requires that federal
law must be changed before state law can do what New Jersey and other
states want to do in this area.