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Marijuana, Thought Coercion and the Failed War on Drugs

“Over the past 40 years, the United States has fought a losing domestic drug war that has cost one trillion dollars, resulted in over 40 million arrests, consumed law enforcement resources, been a key contributor to jaw-dropping rates of incarceration, damaged countless lives, and had a disproportionately devastating impact on communities of color.”

The War on Marijuana in Black and White. American Civil Liberties Union, June 2013.

The following article is offered by Las Vegas criminal defense attorney Gabriel L. Grasso for educational purposes only.

We live in a time where non-violent offenders are put in prison for ingesting plants that have been consumed and utilized to the benefit of our ancestors for as far back as we are able to peer into the anthropological and archeological record. These aren’t just the few “bad apples” among us. Under the deceptive cloaks of concern for safety and some manufactured morality, significant amounts of Americans are being stigmatized, imprisoned, and discriminated against for engaging in a behavior that countless generations of humans before us have engaged in for a myriad of purposes.

From health benefits, to practical purposes, to spiritual applications, the now-illegal plant-psychoactives have long been utilized as a method of directing our own consciousness. This stifling of an ancient aspect of our humanity is occurring within a nation that advances the First Amendment as one of the most essential and core demands of freedom; the bundle of protections that go to protecting our cognitive processes, beliefs, and individualized conscience.


  1. A) The State of The War on Drugs

Despite the massive harm imposed upon the nation by the recent War on Drugs, many attempts to overturn modern prohibition have proven ineffective. As quoted above, the American Civil Liberties Union (“ACLU”) deems the Controlled Substances Act (“CSA”) to be a harbinger of massive, racially disparate incarceration. Still, few are willing to bring this debate into meaningful opposition to the CSA on a national level.[1] Jurisprudence that touches upon the War on Drugs either defers directly to the CSA or similarly fails to reach a determination of the constitutionality of our current version of prohibition.[2] While recent polls show that 82% of Americans believe the United States is not winning the War on Drugs,[3] policing the Drug War continues to cost the nation financially and actually increases drug-related violence.[4]

In one oxymoronic example, the DEA denied a petition for reconsideration of the position of cannabis within the CSA. The position of the agency is that removing cannabis from the highest tier of the CSA will require an overturning of their position that the plant-psychoactive has (1) a high potential for abuse, (2) no currently accepted medical use in treatment in the United States, and (3) lacks accepted safety for use under medical supervision.[5] This position, made in 2011, now stands in the face of four states and the District of Columbia that have legalized cannabis. In fact, cannabis laws have been shifting worldwide, from legalized state-sponsored cannabis,[6] to significant mention from national leaders.[7] [8] Furthermore, due to prohibition, only about “6% of current U.S. marijuana studies investigate the benefits of medical marijuana. The rest are designed to investigate harm. That imbalance paints a highly distorted picture.”[9]

Importantly, many of these very formidable approaches to debunking the War on Drugs miss the essence of what is blighted by modern prohibition, the sovereignty and freedom of our minds. That is, by proscribing the individual’s sovereign control over his or her own consciousness, the War on Drugs strikes at the heart of the notions of liberty and freedom of conscience enumerated by the Founders of the Constitution, protection against unwarranted encroachment upon the individual mental processes under the weight of the government.

Looking to humanity’s history concerning direction of and attitudes concerning control of consciousness leads us to a conclusion that turns the War on Drugs, or the battle against the sovereignty of the citizen’s mind, on its own head.
B) The Harm of the Drug War, Fuel for Change, and Scouring for the Compelling Interest of Prohibition

Restrictions upon the freedom of the individual’s dominion of her own consciousness in effect devalues and deflates an important part of human expression that goes on to effect society at large. This carries especially troubling implications for a representative democracy to be built on the will and free minds of “the People.” Though beyond this troubling issue, the War on Drugs negatively impacts a huge portion of the American public through its significant part in mass incarceration,[10] the widespread criminalization of behavior that has benefitted humanity for as long as we have existed. Such criminalization, in turn, has inevitably led to the unwarranted diminution of Constitutional protections.

The seminal attempt of the United States towards prohibition during the early part of the twentieth century was no doubt a failure. The usefulness of the comparison between this first attempt and the modern War on Drugs lies with the ability to parallel the objectives, ramifications, and effectiveness of both struggles. The prohibition of alcohol was lauded both on its way into implementation and when it was dismantled.[11] In addition, alcohol prohibition “was undertaken to reduce crime and corruption, solve social problems, reduce the tax burden created by prisons and poorhouses, and improve health and hygiene in America. The results of that experiment clearly indicate that it was a miserable failure on all counts.”[12]

Harms resulting from alcohol prohibition mirror many of the harms of modern prohibition: “Alcohol became more dangerous to consume; crime increased and became “organized”; the court and prison systems were stretched to the breaking point; and corruption of public officials was rampant.”[13] Moreover, because the use of this particular drug, alcohol, had been so engrained in the history of many of the cultures that comprise amalgamation of the United States, it became economically infeasible to continue alcohol prohibition.[14] Other substances that were less-associated with traditional American culture fell to the wayside, as restrictions were not as hotly contested. What is also important to realize is that the most restricted plant-psychoactives were associated with minority and immigrant culture.

  1. C) Cannabis as an exemplary example of the failed War on Drugs

In many ways the failure of America’s first shot at prohibition continue to plague the second attempt that has culminated into the War on Drugs. Cannabis remains a potent example of the hypocrisy and nonsensical nature of the War on Drugs. As it remains on one hand a Schedule I “dangerous” substance, and on the other a legal, taxed commodity in several American states so far, cannabis is exemplary of how the scheduling of psychoactives can be clearly divorced from any sort of careful scientific scrutiny or reason, and thus arguably absent of the compelling interest of the type required in the Religious Freedom Restoration Act.

To be sure, interaction with cannabis spans much of known human history and reaches across a vast social strata. For example, an excavated tomb near the Turpan, Xinjiang-Uighur Autonomous Region in China revealed a  “2700-year-old grave of a Caucasoid shaman whose accouterments included a large cache of cannabis… presumably employed by this culture as a medicinal or psychoactive agent, or an aid to divination.”[15] Hindu saints have utilized the entheogenic properties of cannabis in Nepal and India for centuries.[16] The ancient association with the plant is also reflected in the present day within various cultures across the globe. These cultures utilize cannabis both medically and religiously, hailing this particular plant-psychoactive as both sacred and viable as a medicine. For example, religious and medicinal use of cannabis has been documented in China, Tibet, India, Europe, Africa, and the Americas.[17] [18] [19] [20]

In contrast, the history of the prohibition of marijuana within the United States is marked and muddied by propaganda and racial discrimination. In the early twentieth century, Mexican immigrants began to migrate north in search of work, bringing marijuana along with them.[21] Alongside the harrowing societal effects of alcohol prohibition, popularity of marijuana began to grow.[22] Riding the heels of the Temperance movement, propaganda concerning the effect of the plant began to circulate. The vanguard example of this misinformation is exemplified by Reefer Madness, a 1936 film purporting that ingestion of the marijuana could lead to a hellish insanity.[23] Fear and intolerance of immigrants, as well as lack of understanding of the substance, fueled erroneous rumors, such as that Mexicans were distributing “killer weed” to unsuspecting American school children, or that marijuana aroused a “lust for blood” or effectuated violent crimes.[24]

Henry Anslinger, the first Deputy of the Federal Bureau of Narcotics, pushed for the speedy transmission of Marijuana Tax Act through Congress, despite the opposition of the American Medical Association.[25] Anslinger rested his reasoning against the plant not only upon misinformation of its danger and addictiveness but also his own racially-charged and discriminatory thinking.[26] For example, Anslinger can be credited to popularizing many “marijuana misnomers,” such as that “evil weed” could lead to murder, sex crime, and insanity.[27] In addition, Ansingler preyed on marijuana use as a pretense to allow for federal investigation of the actions of those who he deemed “un-American.” [28]

The wave of misinformation and discrimination in the approach of cannabis regulation continued into the mid-twentieth century. By the 1940’s cannabis was regulated by every state, with 35 state’s specifically adopting the Uniform State Narcotic Drug Act.[29] From there, the birth of America’s War on Drugs plunged the nation into total conflict against many plant-psychoactives, with marijuana remaining one of the largest enemies of the heralded conflict. What’s worse, the War on Drugs helped begin the age of mass incarceration, wherein drug-related arrests amount to nearly triple the amount of arrests that were reported for all violent crime.[30] It is worth noting that many of these arrests were simple possession cases, and will bear upon the arrestee the insidious mark of the felon, effectively locking out countless otherwise peaceful Americans from society through a loss of important social and political functions.[31]

More than four decades have passed since Richard Nixon declared a “War on Drugs” in 1971, with a cost around $1 trillion.[32] However, comparative research into domestic and international consensus on marijuana and drug use in general has yielded the following results: (1) The United States leads the world in illegal drug use, and (2) of cannabis use, the United States ranked the highest in world alongside New Zealand.[33] Such staggering information concerning the viability of cannabis prohibition comments strongly on the effectiveness of the modern approach to the regulation of marijuana. Just as the Court in Brown v. Board of Education utilized social statistics to gain insight into the legal fiction that was separate but equal, a court faced with such alarming statistics concerning cannabis prohibition should inquire to whether such prohibition represents a similar legal fiction with similar discriminatory results.

When Anslinger was promulgating these  fictions concerning cannabis use and usefulness, he acted in blatant disregard for medical research. For example, the report of the New York Academy of Medicine, concluding in 1944 that marijuana use did not cause violent behavior, promote insanity, lead to addiction, or promote opiate usage.[34] Today, the situation appears no different. At a federal level cannabis remains uniformly proscribed. Yet not only have millions of Americans utilized democratic voice to legalize cannabis for all forms of use at a state level, but also research has yielded strong positive conclusions on the medically efficacious nature of cannabis as a plant-psychoactive.

With zero confirmed cases of human death from marijuana poisoning,[35], medical marijuana research has been shown to be useful in treating a myriad of health issues. To name only a few of the known medical applications of marijuana, it has been shown to help treat the effects of alcohol abuse[36], arthritis[37], bipolar disorder[38], certain cancers[39], HIV-Associated Sensory Neuropathy[40], depression[41], spinal cord injuries[42], and post-traumatic stress disorder.[43]

  1. D) Conclusion

Revealed as disconnected from sensible policy, the War on Drugs is not only costing the nation in the extreme, but it also clearly negatively impacts more lives than it purports to help. As drug legislation and enforcement attempts hopelessly to chase demand and novelty, it is becoming clear that the Drug War is destined to be an eternal game of whack-a-mole. Humanity’s connection with “drugs” stretches as far as we can see and shows no signs of letting up. What’s worse, these harmful laws are being sustained at the cost one of the most integral freedom’s that remain essential to the free society as envisioned by the Bill of Rights.
Encroachment upon the sanctity of human conscience is repugnant to the very concept of a sovereign people. Such an intrusion upon the individual’s control over her consciousness should not come unwarranted, and can only be justified by narrowly-tailored compelling means. If freedom is to mean anything significant to both the individual and society in this twenty-first century of advancing technology and government, our minds must be protected as autonomous.

If you or a loved one use controlled substances for religious purposes and are charged with a crime, contact Las Vegas Criminal Defense Lawyer Gabriel L. Grasso. We provide cutting edge representation in relation to narcotics offenses and can help restore your life and your rights.


Citations

[1] The War on Marijuana in Black and White. American Civil Liberties Union (2013) Available at: https://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf

[2] See Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990) (where the Court deferred to the constitutionality of the CSA in investigating whether the state could deny unemployment benefits to a person fired for violating a state proscription on the use of peyote); See also Gonzalez v. Raich, 545 U.S. 1 (2005) (where the Court held that Congress could criminalize the home production and use of cannabis even where states approve its use for medicinal purposes, failing to reach the question of the constitutionality of such a proscription)

[3] “82% of Americans say the U.S. is not winning War on Drugs.” Rasmussen Reports, August 18, 2003. Available at: http://www.rasmussenreports.com/public_content/politics/general_politics/august_2013/82_say_u_s_not_winning_war_on_drugs

[4] War on Drugs: Report of the Global Commission on Drug Policy. Open Society Institute (OSI). 24 June 2011. Available at: http://www.globalcommissionondrugs.org/wpcontent/themes/gcdp_v1/pdf/Global_Commission

_Report_English.pdf

[5] “Denial of Petition To Initiate Proceedings To Reschedule Marijuana; Proposed Rule.” 76 Federal Register 131, 40552-40598 (8 July 2011).

[6] “Uruguay becomes the first country to legalize the marijuana trade.” NBC News, 12 December 2013. Available at: http://worldnews.nbcnews.com/_news/2013/12/10/21852934-uruguay-becomes-first-country-to-legalize-marijuana-trade

[7] Lunn, Susan (28 November 2015). “‘World is going to be looking to Canada’ on pot legalization, Jane Philpott says”CBC News. CBC/Radio Canada. Retrieved 23 December 2015.

[8] http://www.drugpolicy.org/news/2014/09/new-report-world-leaders-call-ending-criminalization-drug-use-and-possession-and-respon

[9] “Why I changed my mind on weed.” Dr. Sanjay Gupta, CNN Chief Medical Correspondent, CNN Health. 8 August 2013. Available at: http://www.cnn.com/2013/08/08/health/gupta-changed-mind-marijuana/index.html

[10] See Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012)

[11] Thornton, Mark. ‘Alcohol Prohibition was a Failure’, Polic Analysis, No. 157, Cato Institute (1991).

[12] Id.

[13] Id.

[14] Tullock, Gordon and Richard B. McKenzie (1985), The New World of Economics: Explorations into the Human Experience, 4th edition, Homewood IL: Richard D. Irwin,Inc.

[15] Russo, et. al., 59 J. Exp. Bot. 15 (2008).

[16] Bloomquist, Edward (1971). Marijuana: The Second Trip. California: Glencoe.

[17] See generally, Mia Touw, The Religious and Medicinal Uses of Cannabis in China, India and Tibet, 1 J. of

[17]Psychoactive Drugs 13 (1981).

[18] Pilcher, Tim (2005). Spliffs 3: The Last Word in Cannabis Culture?. Collins & Brown Publishers. p. 34.

[19] Branch, Rick (2000), “Rastafarianism”,

[20]  N.J. Van der Merwe, “Cannabis Smoking in 13-14th Century Ethiopia”, in Cannabis and Culture, ed. V. Rubin (The Hague: Mouton, 1975), pp. 77-80.

[21] Beverly A. Potter & J. Sebastian Orfali, Drug testing at work: A guide for employers, 4 (Ronin Publishing 1998).

[22] Id.

[23] Id.

[24] Eric Schlosser, Reefer madness: Sex, drugs, and cheap labor in the American black market, 19 (2004).

[25] Id at 19.

[26] Id at 20-21.

[27] Id.

[28] Id at 21.

[29] Richard J. Bonnie & Charles H. Whitebread II, The Forbidden Fruit and the Tree of Knowledge: an Inquiry into the Legal History of American Marijuana Prohibition, 56 Virginia L. Rev. 6 (1970).

[30] “Crime in the United States 2012 – Arrests,” FBI Uniform Crime Report (Washington, DC: US Dept. of Justice, September 2013), p. 1.

[31] See generally Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2012).

[32] Richard Branson,  War on Drugs a Trillion Dollar Failure, CNN, available at: http://www.cnn.com/2012/12/06/opinion/branson-end-war-on-drugs/index.html

[33] Lousia Degenhardt, Toward a Global View of Alcohol, Tobacco, Cannabis, and Cocaine Use: Findings from the WHO World Mental Health Surveys, 5 PLos Med 7, doi: 10.1371/journal.pmed.0050141

[34] Schlosser, supra at 21.

[35] W. Hall, N. Solowij. Adverse effects of cannabis, 352 Lancet 9140, 1611–16 (1998). doi:10.1016/S0140-6736(98)05021-1.

[36]  P. Thanos, E.S. Dimitrakakis, O. Rice, A. Gifford, N. Volkow. Ethanol self-administration and ethanol conditioned place preference are reduced in mice lacking cannabinoid CB1 receptors, 164 Behavioural Brain Research 2,  206–13 (2005). doi:10.1016/j.bbr.2005.06.021.

[37] AM Malfait, R. Gallily, P.F. Sumariwalla, A. Malik, E. Andreakos, R. Mechoula, M. Feldman. The nonpsychoactive cannabis constituent cannabidiol is an oral anti-arthritic therapeutic in murine collagen-induced arthritis, 97 Proceedings of the National Academy of Sciences of the United States of America 17, 9561–6 (2000).

[38] L. Grinspoon, J.B. Bakalar. The use of cannabis as a mood stabilizer in bipolar disorder: anecdotal evidence and the need for clinical research 30 Journal of Psychoactive Drugs 2, 171–7 (1998). doi:10.1080/02791072.1998.10399687

[39] H.A. Patsos, D.J. Hicks, R. Dobson, A. Greenhough, N. Woodman, J.D. Lane, A.C. William, C. Paraskeva. The endogenous cannabinoid, anandamide, induces cell death in colorectal carcinoma cells: a possible role for cyclooxygenase 2. 54 Gut 12, 1741–50 (2005). doi:10.1136/gut.2005.073403.

[40] D.I. Abrams, MD; C.A. Jay, MD. Cannabis in painful HIV-Associated Sensory Neuropathy 68 Neurology 7, 515–521 (2007). doi:10.1212/01.wnl.0000253187.66183.9c.

[41] FR Bambico, N Katz, G Debonnel, G. Gobbi, Cannabinoids elicit antidepressant-like behavior and activate serotonergic neurons through the medial prefrontal cortex, 27 The Journal of Neuroscience 43, 11700–11 (2007). doi:10.1523/JNEUROSCI.1636-07.2007.

[42] Lester Grinspoon, James Bakalar. Marihuana, The Forbidden Medicine: Chapter 2, “Common Medical Uses: Paraplegia and Quadriplegia,” 94-99 (Yale Unversity press, 1997)

[43] E. Ganon-Elazar, I. Akirav. Cannabinoid receptor activation in the basolateral amygdala blocks the effects of stress on the conditioning and extinction of inhibitory avoidance, 29 J. Neuroscience 36, 11078–88 (2009). doi:10.1523/JNEUROSCI.1223-09.2009.

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