Hemp for Health

by Chris Conrad

  PEREMPTORY LAW

  Even lawmakers, lawyers, and judges have a hard time keeping up with all the criminal code changes passed by Congress each year, so the lay person has little chance of sorting out the legal rights and obligations, and often ends up being victimized by the system. Fortunately, the founders of the Republic foresaw that possibility, and prioritized the rule of law. The U.S. Constitution establishes the peremptory chain of legal authority. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding”.9 This means that instead of having to fight over each new layer of laws and regulations, the Constitution determines the real law. When in doubt, go back to the Constitution. Any state or federal law or policy that is in conflict with the Constitution is, in the clarifying language of the Supreme Court’s famous Marbury vs. Madison decision, “null and void.” Since there is no authorization for the government to prohibit drugs, it is clear that the federal ban on cannabis is patently illegal, and every judge is bound by oath of office to disregard or overturn the law. Article 8 of the Constitution allows Congress to regulate interstate commerce, which has been distorted into a claim of “overriding interest” in pursuing the Drug War.

  On the other hand, some say that even if the United States wanted to legalize cannabis, it could not do so because of international treaties. Wrong again. The Charter of the United Nations states, “Nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the members to submit such matters to settlement.”10 So, unless we’re exporting cannabis, compliance is strictly voluntary. Meanwhile, the stated purpose of the United Nations includes, “To reaffirm faith in fundamental human rights . . . [and] To practice tolerance and live together in peace with one another as good neighbors.”11 The right to effective medicine was affirmed in international law in 1948. The Universal Declaration on Human Rights Article 25 provides that “Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing, medical care and necessary social services.”12 Article 30 reiterates that “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” As a member of the United Nations, the United States is committed to those principles.

  The next vacuous argument is that the World Health Organization and the International Narcotics Control Board have jurisdiction, thanks to a complex web of international drug control agreements designed by self-serving bureaucrats to implement a universal anti-drug policy. When we follow the trail back to the roots of its authority, we come to the Single Convention. The very first sentence of the treaty states that “the medical use of narcotic drugs continues to be indispensable for the relief of pain and suffering and that adequate provisions must be made to ensure the availability of narcotic drugs for such purposes.” Article 28 sets three regulations on cannabis: “1) If a Party permits the cultivation of the cannabis plant for the production of cannabis or cannabis resin, it shall apply thereto the system of controls as provided in Article 23 respecting the control of the opium poppy. 2) This Convention shall not apply to the cultivation of the cannabis plant exclusively for industrial purposes (fiber and seed) or horticultural purposes. 3) The Parties shall adopt such measures as may be necessary to prevent the misuse of, and illicit traffic in, the leaves of the cannabis plant.”13 Article 23 requires government supervision of production and distribution of cannabis. So the United States promised to “ensure the availability” of cannabis for medical use, yet refuses to do so based on the hope that none of us will read them. But these agreements indicate that it is a fundamental right for American citizens to use and provide medicinal cannabis, by virtue of the Ninth and Tenth Amendments of the U.S. Constitution.

  INDUSTRIAL HEMP BILLS

  In light of Article 28 of the Single Convention, described above, drug laws clearly should not apply to industrial hemp, an ecological farm crop with no psychoactive properties. The European Community actually subsidizes farmers for growing seed or fiber hemp. Federal Bureau of Narcotics Director Harry Anslinger assured Congress in 1937 that despite the Marihuana Tax Act farmers “can go ahead and raise hemp just as they have always done it.”14 During the Second World War, the federal government waived prohibition and purchased about a million acres of seed and fiber hemp from American farmers, subsidized the production of processing factories through the War Hemp Industries program, and produced the 1943 USDA film Hemp for Victory. At the end of the war, Senator Robert LaFollette said of the Marihuana Tax Act that, “the Senate committee was very much concerned to be certain that in enacting this drastic piece of legislation they weren’t putting the Federal Bureau of Narcotics in a position to wipe out this legitimate hemp industry.”15 Nonetheless, it did wipe the industry out after the war and has been eradicating feral hemp ever since.

  Senator Joe Galiber of New York submitted two bills reforming cannabis law to the state legislature in 1991. One would have legalized all drugs for adults; the other set a legal age of consent for cannabis use. After discussions with the Business Alliance for Commerce in Hemp (BACH), he added a third bill, to restore the farmers’ right to grow industrial hemp as a substitute for timber, cotton, and fossil fuel. The measure got tied up in committee. He tried again in 1992, but to no avail. That year the Library of Congress issued a Report to Congress on hemp, concluding that the federal government was politically opposed to growing it, no matter how beneficial the crop is. In 1994, Hemp Agrotech Corporation in California tried to use the U.S. Department of Agriculture’s jurisdiction to plant a privately funded research crop, but state agents went onto federal property to destroy the crop. Also that year, the governor of Kentucky was inspired by the Kentucky Hemp Growers Association and others to appoint a task force to research growing industrial hemp as an alternative to tobacco. In 1995, it issued a statement saying that the government basically would not let them grow it. A University of Kentucky public opinion poll found that about 78 percent of the people were in favor of industrial hemp.

  In 1995, Senator Lloyd Casey introduced an industrial hemp bill into Colorado’s Judiciary committee with the support of the Colorado Hemp Initiative Project, the Hemp Industries Association, BACH, and local farmers. To almost everyone’s surprise, the measure lost in committee by only one vote. This encouraged another bill in 1996, with the support of the Colorado Farm Bureau and the American Farm Bureau. It was approved by the Senate Appropriations Committee, the Agricultural Committee, and a floor vote. Unfortunately, by the time requirements were added for alarms, dogs, guard towers, and eighteen-foot fences, it was so overburdened that it died in the Finance Committee. During the session, Casey was arrested by the Denver sheriff for having a bail of industrial hemp in his senate office.

  In the meantime, a Vermont Republican, Representative Fred Maslack, was moving Act 176 forward through the state Agricultural Committee. He anticipated smooth sailing with the support of his fellow conservatives. By the time the federal government was done making demands, however, and the legislature caving in, the act had gone from allowing farmers to grow hemp to authorizing two years of research without field trials. The victory was almost a setback, because it would have been easier to return next year with a hemp bill that included field trials if it had lost. Now the state is committed to two more years without crops. After releasing the BACH island self-sufficiency development plan, I was contacted by Representative David Tarnas of Hawaii. We discussed different options and he drew up several versions of a 1996 bill to reintroduce industrial hemp as a substitute for sugarcane in the island agricultural economy. When he couldn�
�t get field tests approved for it, Tarnas withdrew the bill. At the eleventh hour, he reintroduced the bill as a research project without test crops. It went through.

  Missouri State Senator Jerry Howard also discovered the hemp issue in 1996, and got the state senate to pass a non-binding resolution expressing interest in the crop. It is not a bill, but it commits the senate to seriously consider a bill in the future. The state has a depressed economy, and hemp has strong allies here. Much of the driving force comes from a farmer named Boyd Bansel, whose grandfather introduced rice farming to the area. More hearings are scheduled to put an initiative on the ballot there, perhaps in 1997. Every time state legislators discussed a legal exception for farmers to grow nonpsychoactive industrial hemp, the federal DEA refused to issue horticultural research permits, then threatened to arrest any farmer who tried to grow industrial hemp, forcing the test crops to be canceled.

  In Ohio, with the support of the farmers’ union and the Ohio Farm Bureau, activists are circulating a citizens petition. The drive has about 25 percent of the 107,000 signatures required to put an initiative on the ballot. And back in Kentucky, actor Woody Harrelson (Cheers, The People vs. Larry Flynt) planted four industrial hempseeds into the soil of the Bluegrass State, which was once the nation’s largest producer of fiber hemp. Harrelson was arrested on the spot. He is challenging the law against nonpsychoactive seed lines, and faces a year in prison for his political stand.

  Drug testing poses a major potential problem for the hemp food industry. In 1996 an employee who had eaten a Seedy Sweetie snack failed a drug test for marijuana. The candy is made by Hungry Bear Hemp Foods using pressed hempseed. Normally it does not contain THC, but apparently a detectable amount of residue from leaves slipped through the cleaning process. Aegis Laboratories found positive readings in one person’s urine sixty hours after consuming the candy, and similar cases have arisen in other states. The Department of Transportation issued a policy guide to “never accept an assertion of consumption of a hemp food product as a basis for verifying a marijuana negative. Whatever else it may be, consuming a hemp food product is not a legitimate medical explanation for a prohibited substance or metabolite in an individual’s specimen.” Rather than recognizing the inherent flaw in its testing system, the DEA is instead considering making hempseed snack bars illegal, since they may occasionally trigger false positives.

  Sterilized hempseeds are legally available in the United States, but the sterilization process and shipping costs make it more expensive than other fruits and grains. Fertile seed is strictly controlled, and nearly impossible to get legally.16 The method used to sterilize the seeds compromises their nutritional value, although to what extent is still subject to debate. Some pest-control processing occurs in the handling of all imported foods, another good reason to allow American farmers to again produce a domestic crop and protect the consumer from such processing. One way to proceed may be a unified response that coordinates the Industrial Hemp Council, the Hemp Industries Association, and political representatives for appropriate responses to each bill that comes up. This will help fight off the legislative encroachment that takes a good bill and turns it into something that really doesn’t make the grade in asserting the state’s rights and jurisdiction. A coordinated, multistate venture may yet claim the holistic benefits of industrial hemp by establishing reasonable terms of legal compliance.

  FEDERAL CANNABIS REGULATION

  The United States has provisions for and barriers against medical marijuana on the federal, state, and local levels. The Controlled Substances Act of 1970 devised a comprehensive system of federal drug control laws in the United States. It established five schedules of controlled substances, with Schedule I containing those prohibited from all use, including medical. There is a test for Schedule I drugs, which must meet all three of the following criteria: 1) A high potential for abuse; 2) No currently accepted medical use in treatment in the United States; 3) A lack of accepted safety for use of the drug or substance under medical supervision. Since cannabis is virtually nontoxic and has been clinically demonstrated, historically recognized, and popularly used to help cancer, AIDS, glaucoma, and neurological patients, it clearly fails the second and third tests. In the opinion of the DEA, however, the possibility of cannabis abuse outweighs its own legal obligations. Its arbitrary definition of abuse (“use of any illegal drug equals abuse”) is a classic Catch-22 scenario: as long as cannabis is illegal, use equals abuse, ergo cannabis cannot be legalized. The Alliance for Cannabis Therapeutics, among others, fought for nearly two decades in federal court, detailing the case against the ban on medical marijuana, and the DEA’s own administrative law judge, Francis Young, handed down his decision in September, 1988. “The evidence in this record clearly shows that cannabis has been accepted as capable of relieving the distress from great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for the DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record. . . .The judge recommends that the Administrator transfer cannabis from Schedule I to Schedule II.”17 The renegade DEA refused to comply. The appeals court described that action as “vengeance,” noting that the DEA-imposed criteria were “impossible to fulfill and thus must be regarded as arbitrary and capricious. Impossible requirements imposed by an agency are perforce unreasonable.”18 It remanded the decision back to the DEA for explanation, and the next appeals court decided that the question was moot until cannabis was approved by the Food and Drug Administration: another long bureaucratic process that has nothing to do with the tests for Schedule I. And so it goes.

  When Congress implemented the Investigational New Drug program in the 1970s to provide cannabis for medicinal use and research, the DEA blocked individuals from enrolling in the program and kept the substance out of the hands of researchers. Thirty-seven state legislatures have voted at various times to recognize the medical value of cannabis, with an average of 87 percent in favor. Archconservative Newt Gingrich was among those who sponsored federal legislation in 1981, 1982, and 1983, to allow medical access to cannabis, asserting that “it was the right thing to do.” Even the National Association of Attorneys General found the idea of prosecuting sick and dying people distasteful enough to vote on June 25, 1983, to support legislative efforts “to make marijuana available on a prescription basis to patients undergoing anti-cancer treatment or suffering from glaucoma.”19 But such bills have made little progress. The medical marijuana bill introduced by Representative Barney Frank in 1995, HR 2618, did not make it out of committee, but will be reintroduced.

  FIGHTING IN THE COURTS

  Faced with the symptoms of debilitating life- and sense-threatening illness, people continue to risk everything to find relief. With no responsible leadership coming from the administration or Congress, the battles have been left to individual cases before the courts. Most judges are appointed after being prosecutors, not defense attorneys, which gives the prosecution an undue advantage. Given the hard-nosed “tough on drugs” mentality of politics, it is not surprising to find a prevalence of hanging judges over tolerant and informed justices.

  Confined to a wheelchair for over twenty years due to an injury, Oklahoma paraplegic Jimmy Montgomery smoked cannabis to stimulate his appetite and help control the severe muscle spasms caused by his injury. Using cannabis allowed him to live in comfort and with relative independence. He kept a low profile regarding his medical use. Based on the testimony of a drug suspect who got a lighter sentence in exchange for testifying against the patient, police got a search warrant and found less than two ounces of cannabis tucked away in a pouch on the back of Jimmy’s wheelchair. The judge refused to let him argue medical necessity, but a police expert was allowed to tell the jury that the young man was a drug trafficker, with no evidence of any sales. Based on this unequal testimony, Jimmy was convicted in 1992 of cannabis possession with intent to distribute. To
substitute for the cannabis he is no longer allowed to use, the government provided him with opiates, tranquilizers, and muscle relaxants. He was dragged in and out of solitary confinement, handcuffed to a prison bed to restrain his violent spasms, and held without adequate medical treatment for the infections that developed in his lower body. Friends watched his condition deteriorate. After considerable public outcry, Governor Keating released Jimmy to a hospital with electronic monitoring, where he is still deprived of his medicine of choice.

  Three elements are usually required to sustain a medical necessity defense in federal court. 1) The defendant did not intentionally bring about the circumstance that precipitated the unlawful act; 2) The defendant could not accomplish the same objectives using a less offensive alternative available to the defendant; and 3) The evil sought to be avoided was more heinous than the unlawful act perpetrated to avoid it.20 From this legal vantage point, not only must cannabis be beneficial, it must also be the remedy of last resort.