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Good medicine – bad medicine?

 THE MICHIGAN MEDICAL MARIHUANA ACT
 
Nothing in the world can take the place of persistence. Talent will not; nothing is more common than unsuccessful men with talent. Genius will not; unrewarded genius is almost a proverb. Education will not; the world is full of educated derelicts. Persistence and determination alone are omnipotent. - Calvin Coolidge


INTRODUCTION TO RECENT HISTORY OF LEGAL AND POLITICAL DRUG LAW REFORMS

Michigan voters approved initiative legislation on November 4, 2008, and joined the dozen states which have, in the past dozen years, legitimized the use of marijuana for therapeutic and palliative care. California(‘96), Alaska(‘98), Oregon(‘98), Washington(‘98), Maine(‘99), Nevada(‘99), Hawaii(00), Colorado(2000), Vermont(2000), Montana(’04), New Mexico(07), and Rhode Island(07), all have passed laws to authorize medical use by patients. Four state legislatures enacted of these laws was enacted though ballot initiatives. Arizona and Maryland have also passed laws that enable medical pot users without legitimizing medical use.  In Michigan, cities has enacted voter initiated measured in the past four years. These "lowest priority" could not overturn state laws, but they passed by large margins (62% yes in Flint 2007; 63% Yes in Traverse City 2005; 61% Yes in Ferndale 2005; 74% Yes in Ann Arbor 2004; and 60% Yes in Detroit 2004). As the progression of marijuana laws, and marijuana law reform, has less to do with policy than power, this treatise will proceed along historical and procedural lines, leaving the substantive debate concerning the safety and efficacy of medical marijuana use to politicians and activists.

In Michigan, Marijuana law reform has been long in coming, but has proceeded in fits and starts. “Legalization” and “Decriminalization” were popular trends with politicians until 1978, when the Jimmy Carter administration botched an undisciplined effort to promote more tolerant drug laws, which ended in the Peter Bourne/NORML scandal. That debacle set in motion a parental movement, from which evolved the prevailing tactical anti-drug mentality among entrenched incumbent politicians and challengers alike. “Soft on marijuana; soft on drug. Soft on drug; soft on crime. Soft on crime; you  go back private sector, get job.” , sounds like a badly translated quote from Sun Tzu’s “Art of War”, writ large in the modern politician’s playbook.

Marijuana use has a long tradition in cultures around the world, but personal consumption of cannabis was obscure America. Hemp was a common industrial crop used for paper, sailcloth, and oil. Common hemp lacked the intoxicating properties of the cannabis strain Americans now call marijuana, which was used in medicinal elixirs but never caught on with smokers, who preferred tobacco. American marijuana laws started as race-based protectionist measures almost a century ago; these laws worked their way across the country, as reactionary trade barriers to stop industrious migrant Mexican Mestizos from creating price competition for local for farm work. From 1914 to 1932, over twenty one states stopped the sale of marijuana along with other “narcotics”, one state outlawed its use, and four others banned it as a crop.

The Uniform Narcotic Drug Act in 1932 and the passage of the Marihuana Tax Act in 1937. Marijuana was demonized as a vice of the lower classes, black musicians, and Mexicans. Marijuana was obscure. Its users were rare and marginal, on the fringes of society. When the baby boom generation hit young adulthood, all that changed----------.

In 1972, the Michigan Supreme Court issued a scathing opinion in the aftermath of the 1969 arrest, conviction, and long prison sentence of popular rock band MC-5 manager John Sinclair for having given two joints to an undercoveragent provocateur. The incident drew attention to the potential for drug law enforcement abuse, and for years the decriminalization movement was able to ride the tide of anti-war sentiment. Mahatma Gandhi could scarcely have imagined that civil disobedience tactics would take form on the UM campus with the perennial Ann Arbor Hash Bash. John Lennon and Yoko Ono even came to Michigan, in 1971, to hold a legendary rock concert to "Free John Sinclair!" The day before the concert, Lansing lawmakers produced ill fated legislation reducing Marijuana use to misdemeanor status.  Shortly after the concert, Sinclair was freed on bond. In 1972 the Michigan Supreme Court ruled in People v. Sinclair, 387 Mich. 91 (1972) that Michigan’s classification of marijuana was unconstitutional, effectively decriminalizing possession for about a week while the Michigan Legislature scrambled to enact a conforming statute. Dicta in the opinion that freed Sinclair read the riot on drug laws, declaring the principal danger of marijuana use was not physical or mental side effects; the danger was that it made one vulnerable to the crushing power of a state willing to punish youthful indiscretion with loss of freedom and a ruined future.

Back in 1978, before the political sea change, the Michigan Legislature enacted a medical marijuana law (MCL 333.7214) that established a medical use pilot program, which died on the vine 10 years later due to federal barriers to obtaining a marijuana supply for the program. As late as 1983

In 1978, when the Michigan Legislature passed the first Medical Marijuana Laws, it also enacted a comprehensive overhaul of draconian drug laws. This Act included the now familiar ”escape clause” for first offenders at MCL 333.7411, which, in most drug possession cases,  gives the court unfettered discretion to court to impose a period of probation without an adjudication of guilt (a   delayed or deferred sentence), and unilaterally dismiss the case, even after a guilty verdict at trial and despite the People’s objection, after completion of probation term that was often without reporting and as short as (my personal best) 10 days. No fine, only costs, though a jail sentence could be imposed as part of the probation (my personal worst; 1 year).

In 2000, when MCL 333.7408a attached harsh license sanctions, including a period without restricted driving privileges, to marijuana convictions, deferred sentencing under section 7411 has been all the rage. Somewhat erratically applied for decades, as reserved for impressionable youths who showed promise (or were well connected), 7411 has become commonplace and is now the rule, not the exception. Section 7411 serves clients well as a formal diversion program that maintains the law’s deterrent effect and forces drug education, but does no real and lasting harm because it results in no discoverable public criminal record.

The image of overwhelmed probation agents, their cabinets overflowing with probation files that reflect not only the prevalence of 7411 but a concurrent rise in relative arrest and prosecution rates for marijuana users, offers a grim testament to the futility of enacting criminal laws against conduct that is malum prohibitum  but not malum in se. A limited government is ill-equipped to bear the strain of babysitting human beings who commit crimes, like smoking pot, but who are hardly  “criminals” as the term is traditionally understood. The expansive scope of War on Drugs has been good politics but has made for bad laws and bad administration in the criminal justice sector.

More recently, in 2004, the legislature amended the drunk driving laws at MCL 257.625(8), and that the crime of Operating While Intoxicated occurs the driver “…has in his or her body any amount of a controlled substance listed in schedule 1…” (marijuana), without regard to any level of actual intoxication. In absolute deference to the legislature, the Supreme Court ruled in People v Derror, 475 Mich 316 (2006) that “MCL 257.625(8) does not require that a person be under the influence of a schedule 1 controlled substance to violate the statute. It merely requires that a person have any amount of a schedule 1 controlled substance in the person's body.” “It is irrelevant that an “ordinary” marijuana smoker allegedly does not know that 11-carboxy-THC could last in his or her body for weeks. It is also irrelevant that a person might not be able to drive long after any possible impairment from ingesting marijuana has worn off.” “A prosecutor is not required to prove beyond a reasonable doubt that the defendant knew that he or she might be intoxicated..Rather, the prosecutor need only prove that the defendant had any amount of a schedule 1 controlled substance in his or her body”. “It is irrelevant that the “ordinary person” cannot determine, without drug testing, when the schedule 1 substance is no longer detectible in the body.”

 The use of marijuana is classified as a misdemeanor under current law, MCL 333.7404(1) and (2)(d). The Legislature's prohibition of the operation of a motor vehicle with any amount of marijuana, which explicitly includes derivatives of marijuana, in the body provides more than adequate notice regarding the prohibited conduct. The corollary of this prohibition is that once the schedule 1 substance is no longer in the body, one can resume driving.

Specifically, it claims that our interpretation of the statute makes criminals of persons who have merely inhaled marijuana or people who are no longer under the influence of marijuana.

As previously stated,


 

   

 

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