U.S. GOVERNMENT PRINTING OFFICE

72–258 DTP WASHINGTON : 2001

‘‘MEDICAL’’ MARIJUANA, FEDERAL DRUG LAW

AND THE CONSTITUTION’S SUPREMACY CLAUSE

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIMINAL JUSTICE,

DRUG POLICY AND HUMAN RESOURCES

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED SEVENTH CONGRESS

FIRST SESSION

MARCH 27, 2001

Serial No. 107–2

Printed for the use of the Committee on Government Reform

(

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For sale by the Superintendent of Documents, U.S. Government Printing Office

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Mail: Stop SSOP, Washington, DC 20402–0001

(II)

COMMITTEE ON GOVERNMENT REFORM

DAN BURTON, Indiana, Chairman

BENJAMIN A. GILMAN, New York

CONSTANCE A. MORELLA, Maryland

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

STEPHEN HORN, California

JOHN L. MICA, Florida

THOMAS M. DAVIS, Virginia

MARK E. SOUDER, Indiana

JOE SCARBOROUGH, Florida

STEVEN C. LATOURETTE, Ohio

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

RON LEWIS, Kentucky

JO ANN DAVIS, Virginia

TODD RUSSELL PLATTS, Pennsylvania

DAVE WELDON, Florida

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

C.L. ‘‘BUTCH’’ OTTER, Idaho

EDWARD L. SCHROCK, Virginia

——— ———

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

PATSY T. MINK, Hawaii

CAROLYN B. MALONEY, New York

ELEANOR HOLMES NORTON, Washington,

DC

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

ROD R. BLAGOJEVICH, Illinois

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

JANICE D. SCHAKOWSKY, Illinois

WM. LACY CLAY, Missouri

——— ———

——— ———

———

BERNARD SANDERS, Vermont

(Independent)

KEVIN BINGER, Staff Director

DANIEL R. MOLL, Deputy Staff Director

DAVID A. KASS, Deputy Chief Counsel

ROBERT A. BRIGGS, Chief Clerk

PHIL SCHILIRO, Minority Staff Director

SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY AND HUMAN RESOURCES

MARK E. SOUDER, Indiana, Chairman

BENJAMIN A. GILMAN, New York

ILEANA ROS-LEHTINEN, Florida

JOHN L. MICA, Florida,

BOB BARR, Georgia

DAN MILLER, Florida

DOUG OSE, California

JO ANN DAVIS, Virginia

DAVE WELDON, Florida

ELIJAH E. CUMMINGS, Maryland

ROD R. BLAGOJEVICH, Illinois

BERNARD SANDERS, Vermont

DANNY K. DAVIS, Illinois

JIM TURNER, Texas

THOMAS H. ALLEN, Maine

——— ———

EX OFFICIO

DAN BURTON, Indiana HENRY A. WAXMAN, California

CHRIS DONESA, Staff Director

SHARON PINKERTON, Chief Counsel

CONN CARROLL, Clerk

DENISE WILSON, Minority Professional Staff Member

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C O N T E N T S

Page

Hearing held on March 27, 2001 ............................................................................ 1

Statement of:

Nagel, Laura, Deputy Assistant Administrator, Diversion Control, Drug

Enforcement Administration; Bill McCollum, former chairman, U.S.

House Subcommittee on Crime; Dan Lungren, former California State

Attorney General; and Janet Joy, Senior Program Officer, Division

of Neuroscience and Behavioral Health, Institute of Medicine ................. 55

Sembler, Betty, founder and Chair, Drug Free America Foundation; Joyce

Nalepka, president, America Cares; and Rob Kampia, executive director, Marijuana Policy Project ....................................................................... 8

Letters, statements, etc., submitted for the record by:

Barr, Hon. Bob, a Representative in Congress from the State of Georgia,

prepared statement of ................................................................................... 37

Kampia, Rob, executive director, Marijuana Policy Project, prepared

statement of ................................................................................................... 32

Lungren, Dan, former California State Attorney General, prepared statement of ........................................................................................................... 78

McCollum, Bill, former chairman, U.S. House Subcommittee on Crime,

prepared statement of ................................................................................... 69

Nagel, Laura, Deputy Assistant Administrator, Diversion Control, Drug

Enforcement Administration, prepared statement of ................................ 58

Nalepka, Joyce, president, America Cares, prepared statement of .............. 17

Sembler, Betty, founder and Chair, Drug Free America Foundation, prepared statement of ........................................................................................ 10

Souder, Hon. Mark, a Representative in Congress from the State of

Indiana, prepared statement of ................................................................... 4

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‘‘MEDICAL’’ MARIJUANA, FEDERAL DRUG LAW

AND THE CONSTITUTION’S SUPREMACY

CLAUSE

TUESDAY, MARCH 27, 2001

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON CRIMINAL JUSTICE, DRUG POLICY AND

HUMAN RESOURCES,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2:42 p.m., in room

2154, Rayburn House Office Building, Hon. Mark E. Souder (chairman of the subcommittee) presiding.

Present: Representatives Souder, Weldon, Barr, Jo Ann Davis of

Virginia, and Cummings.

Staff present: Chris Donesa, staff director; Sharon Pinkerton,

chief counsel; Charley Diaz, congressional fellow; Conn Carroll,

clerk; Tony Haywood, minority counsel; Denise Wilson, minority

professional staff member; Ellen Rayner, minority chief clerk;

Earley Green, minority assistant clerk; and Lorran Garrison, minority staff assistant.

Mr. SOUDER. The subcommittee will come to order. Good afternoon and thank you all for coming.

We hear repeatedly that one of the keys to an effective and

meaningful drug policy is to reduce demand in the United States,

whether it be in hearings or meetings with government officials

and drug victims, more popular sources like ‘‘Traffic,’’ the ‘‘West

Wing,’’ or last week’s series on ‘‘Nightline,’’ or even from foreign

leaders. I expect the subcommittee will aggressively explore demand reduction issues during this Congress, beginning with today’s

hearing examining one of the most troubling demand reduction and

law enforcement issues we face today, the effect of so-called ‘‘medicinal’’ marijuana initiatives on attitudes toward drugs and on Federal law enforcement.

It should be obvious that one of the cornerstones of even a basic

demand reduction strategy is to tell our citizens not to use illegal

drugs. Eight States and the District of Columbia, however, have

adopted State laws which have the effect of encouraging their citizens to use illegal drugs for medicinal purposes. These initiatives

are wholly contrary to Federal statutes, which have explicitly stated by law that marijuana, ‘‘has no currently accepted medical use

in treatment in the United States.’’ In addition, they sent even

more confusing and contradictory messages to our already confused

children at a time when their attitudes about marijuana use may

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be open to bad influences and they may be led to even harder

drugs.

Let me be very clear here. The critical issue here is not whatever

medicinal benefits smoked marijuana may or may not have. Federal law has established proper procedures to review that question,

which have not been followed. The issue is a more fundamental one

that goes to the heart of our Federal Government and Federal law

enforcement. In our Federalist system, even strong advocates of

States rights, among which I would count myself, have to agree

that States simply cannot pass their own laws contrary to Federal

law whenever they disagree with the Federal law. The result would

be anarchy. And we have literally seen symptoms of anarchy with

respect to marijuana enforcement as a result of these State initiatives.

In California, Federal and State agents have told subcommittee

staff that the initiative there, proposition 215, has led to uncertainty on the part of State and local law enforcement and has had

the practical effect of curtailing most marijuana enforcement in the

State. The city of Oakland has repeatedly declared, ‘‘a public health

emergency,’’ because citizens cannot obtain marijuana. State judges

have ordered local police to return seized marijuana to its owners,

forcing the DEA to detail agents to seize very small amounts of

marijuana held by local officers. About a week ago I received a

briefing from the DEA in San Francisco, that marijuana growers

are attempting to claim that large crops are medicinal in purpose

and have threatened to hold Federal agents personally liable for

the cost of the plants. The fundamental relationship between the

Federal and State and local law enforcement relies on a vigorous

marijuana enforcement by States and localities. That relationship

has now been called into question.

I believe that this hearing is important for several reasons. First,

we will have an opportunity to review serious issues of Federal law

enforcement and public attitude. The Supreme Court will also consider related issues tomorrow when it hears oral argument in the

Oakland Cannabis case, which will consider whether State initiatives or other authority provides a medical necessity defense to the

clear Federal law against marijuana use for any stated purpose. I

commend the Justice Department and the Solicitor General for

their advocacy in this case and hope that the court is able to swiftly bring some clarity to the field.

Second, we will have an opportunity to review concerns that

these issues fundamentally are not about sick people, but instead

about backdoor efforts at outright legalization of marijuana. And

third, we will obtain some long-term perspective from respected

veterans in the field.

We have some excellent witnesses with us today, and I thank

you all for coming. On our first panel we have concerned citizens.

Betty Sembler is the founder and Chair of Drug Free America

Foundation, and Joyce Nalepka is the President of America Cares.

Both are tireless and unwavering advocates for our families and

children, and it is a real pleasure to work with them and have

them here today. We also have Rob Kampia from the Marijuana

Policy Project, who is an advocate of medicinal marijuana initiatives and medical marijuana use.

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On our second panel, we have from the DEA Laura Nagel, who

is Deputy Assistant Administrator for Diversion Control. We will

hear from two former Members of Congress, both of whom have

been extremely active on this issue. I would like to welcome back

Bill McCollum, former chairman of the Subcommittee on Crime

and author of the legislation regarding the State initiatives which

passed the House 310 to 93, and Dan Lungren of California, who

is also the former Attorney General of California and in that role

has had substantial experience with proposition 215. I thank you

both for traveling here today and for sharing our perspectives. We

also have Dr. Janet Joy, of the Institute of Medicine of the National Academy of Sciences, who edited an IOM study on the potential uses of marijuana.

We look forward to all your testimony. I would now like to recognize Mr. Cummings for an opening statement.

[The prepared statement of Hon. Mark Souder follows:]

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Mr. CUMMINGS. Thank you very much, Mr. Chairman. I want to

join you in welcoming our witnesses here this afternoon, and I

want to thank them, particularly Mr. Kampia and Dr. Joy, who

had to come on very short notice, but I thank you for making yourselves available. The diversity of perspectives represented here

today ensures that we will hear the full spectrum of views on the

very contentions subject of this hearing, and I wanted to commend

you for your willingness to be inclusive.

Mr. Chairman, this hearing’s subject is not only contentious, it

is also a bit more complicated than the title of the hearing lets on.

As we all know, the Supreme Court is poised to hear argument for

the first time on the constitutionality of State laws making legal

under State law conduct that is expressly prohibited under Federal

statutory law; namely, the possession and use of marijuana for medicinal purposes. No doubt because of this impending event today’s

hearing has been cast in terms of the constitutional question presented to the court, broadly speaking whether the supremacy

clause will allow the State laws to operate in the context of a Federal Constitution.

One thing we are certain not to accomplish this afternoon, however, is the resolution of that question. We will hear many of the

arguments that the court will hear tomorrow. But it will be the

court’s job, not ours, to evaluate them and issue a definitive ruling.

The constitutional question raised by the State ballot initiatives

and the legislation that have been passed is but one of several dimensions to the debate over medical marijuana in Congress. And

by and large the members on this panel and the witnesses we are

about to hear expound about the constitutional merits of the State

ballot initiatives question do not come by their position solely on

the basis of jurisprudential philosophy. Inescapable among the

issues raised is the fundamental question of whether the medical

use of marijuana should be legal under any statutory scheme; that

is, does marijuana offer medical benefits that outweigh its harmful

attributes such that its legalization for the purposes of treating certain medical conditions is justified.

Some of my colleagues believe absolutely that it does not. Others

are convinced that it does. Between these two camps are those who

support rigorous scientific investigation to determine the safety

and efficacy of marijuana in the treatment of conditions in which

its effectiveness may be indicated. Even among those in the latter

group there is disagreement on the question of whether the terminally ill who might benefit and for whom the long-term harms may

be irrelevant should have immediate access to medical marijuana

while studies on its effect are pending.

Separate from the health ramifications of medical marijuana initiatives is the question of process. Should State’s have the authority in effect to establish separate standards and do the contrasting

State laws pose an undue obstacle to the effective enforcement of

the Federal drug laws in the States that have adopted them? Does

the current controversy suggest flaws in the process for scheduling

drugs under the Controlled Substances Act?

As I have noted, the Supreme Court will soon resolve whether

the State laws can provide a valid defense to Federal defendants

charged with criminal possession and distribution. Whatever the

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outcome of the pending legal controversy might be, it will not provide the last words on any answer to many of these questions. Congress will inevitably be left with policy decisions to make.

I look forward to hearing the perspective of our witnesses today

and I thank them for being here.

Mr. SOUDER. Before proceeding, I would like to take care of some

procedural matters. I first ask unanimous consent that all Members have 5 legislative days to submit written statements and questions for the hearing record, that any answers to written questions

provided by the witnesses also be included in the record. Without

objection, it is so ordered.

We will now begin our first panel, which is made up of citizens

who have expressed concerns regarding the issue before us today.

I would like to welcome Betty Sembler, Joyce Nalepka and Rob

Kampia. As an oversight committee, it is our standard practice to

ask all our witnesses to testify under oath. If the witnesses will

stand and raise their right hands, I will administer the oath.

[Witnesses sworn.]

Mr. SOUDER. Let the record show the witnesses have all answered in the affirmative.

We will now recognize the witnesses for their opening statements. I would like to thank you for being here today. We would

like you to summarize your testimony in 5 minutes. You will see

the lights. There is a yellow with 1 minute to go, and you may put

your full statement in the record.

Mrs. Sembler, do you have an opening statement?

STATEMENTS OF BETTY SEMBLER, FOUNDER AND CHAIR,

DRUG FREE AMERICA FOUNDATION; JOYCE NALEPKA,

PRESIDENT, AMERICA CARES; AND ROB KAMPIA, EXECUTIVE DIRECTOR, MARIJUANA POLICY PROJECT

Mrs. SEMBLER. Thank you very much. Good afternoon and thank

you very much for the opportunity to speak before you today. As

you said, I am the president and founder of Drug Free America

Foundation, Inc., an organization whose mission is to expose the

hidden agenda of those who wish to legalize all Schedule I drugs

in our country.

Their agenda includes subverting Federal supremacy, manipulating public opinion, and perpetrating a fraudulent marketing campaign touted as compassion for the sick. We have all witnessed this

campaign, some of us agape at the blatant untruths used to convince voters in eight States and the District of Columbia that

smoked crude marijuana is really medicine, quote-unquote, dressed

up to look like a weed.

These drug pushers in coat and tie are intent on using any

means possible to market addictive, unsafe, life threatening substances to our children. In a clear violation of Federal drug laws

and the Constitution’s supremacy clause, these business men disguised as medical experts, using tactics worthy of the Goebbels

award, Hitler’s Propaganda Chief, distort truth, eschew legitimate

research, manufacture facts and bombard the public with

disinformation.

For example, they continually say the war is lost, that our prisons are overflowing with nonviolent drug offenders, no use eduVerDate 11-MAY-2000 08:51 Jun 22, 2001 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 C:\DOCS\72258.TXT HGOVREF1 PsN: HGOVREF1
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cation is to be replaced with so-called responsible use instructions.

Examples abound.

It is a feckless endeavor to look any further for explanations that

would adequately illuminate their motivations. We already know

what their motivation is. It is documented by their own words and

certainly their own actions. The only thing standing in their way

is the Constitution of the United States of America.

To sweep away the protection offered by that august document,

the money bags have employed wordsmiths so they can hide behind

the first amendment, and therefore cleverly use the word ‘‘recommend’’ as a euphemism for ‘‘prescribe.’’ If you read the fine print on any of the initiatives or examine the

tactics that are being used in States that have no initiative process,

it becomes very clear that this is not about compassion and it is

certainly not about medicine. It is about softening public opinion

without regard for truth to promote the acceptance that to chemically alter one’s mind is an inherent right.

The premise is that old excuse about a victimless crime. There

is no such thing as a victimless crime. The parents of this Nation

are helpless without you as our elected representatives stepping up

to the plate and telling the people the truth, ‘‘you have been misled.’’

We cannot afford to tear up our constitution in order to provide

inordinate profits to those who ignore the safeguards intended to

protect us.

Thank you very much. May I yield the rest of my time to my colleague Joyce Nalepka?

Mr. SOUDER. Yes.

[The prepared statement of Mrs. Sembler follows:]

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Mrs. NALEPKA. Thank you. Good afternoon, Chairman Souder

and members of the committee. I am Joyce Nalepka, president of

Drug Free Kids: America’s Challenge. I was also a founder and

former president of Nancy Regan’s National Federation of Parents

for Drug Free Youth during the Reagan administration. On behalf

of parents and grandparents across America, I appreciate your invitation to testify and your willingness as a committee to take on

this difficult issue.

Our most important job is preventing kids from getting involved

in drugs, and the second most important job is exposing the underground drug culture represented by groups working to legalize

drugs for their own pleasure. These are the groups that have

passed initiatives in nine States already because an unsuspecting,

compassionate public wasn’t informed on the motives behind the

legalizers’ scam.

As a 25-year veteran in the parents anti-drug movement, I can

testify that some of the most dangerous traffickers are those trafficking in misinformation. They have been for years telling young

people marijuana is a harmless giggle and now they are attempting

to convince a compassionate public that marijuana cigarettes or

joints are medicine. Legalizers were helped substantially, in my

opinion, by the government-funded Institute of Medicine study.

I was one of the few who testified against the issue when one of

the public hearings was held in Washington, DC. I noted that the

audience was filled with folks that I recognized for years as

legalizers. Finally, in 1999, Dr. John Benson, one of the coprincipal

investigators, wrote, ‘‘It is true that a pro-legalization group, the

Marijuana Policy Project, organized the attendance of many of the

patients.’’ It must also be noted that Kenneth Shine, IOM president, serves on one of George Soros boards or committees.

High Times, a drug glamorizing magazine, reported in September 1993 that the Marijuana Policy Project receives funding from

George Soros. MPP was the brainchild of Eric Sterling, we were

told, formerly of the Drug Policy Foundation. DPF’s idea of drug

prevention was to develop a safe crack smoking pipe so users could

smoke crack without burning their lips.

Representing the concern of parents and grandparents, students

and teachers, I am here to tell you that people are looking to you

congressional leaders for help. They want results and they really

need them now. From the experience of the numerous anti-drug

parent groups throughout America, we have a plan that, if implemented on a fast track basis, could reduce student drug use by 50

to 90 percent and also significantly reduce school violence by the

end of the next school term in June 2001 through 2002.

The key ingredient in this is finding the necessary leadership in

Congress and the administration to adopt and implement the plan.

These expectations of early success are based upon hard data from

previously tried and proven anti-drug efforts.

Our plan involved the following as a package. The elimination of

any one element could lead to a continued failure to protect America’s kids from drug dealers and traffickers. We need a national

anti-drug leadership to be established at the highest level of government. Nancy Reagan’s leadership attracted financial support to

the parents’ anti-drug movement so we could hire staff and hold

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national conferences, disseminating valid scientific information to

drug-besieged parents across America. Our efforts resulted, according to NIDA, in a 50 percent drop in child drug use during the

Reagan-Bush years.

The recently introduced bill, S. 304, authorizes Federal funding

specifically for identification and treatment of drug involved kids,

18 and younger. If this could be fast tracked to early enactment,

rescue of drug involved kids could begin at an early age. The S. 304

bill needs to be amended to authorize and encourage local school

districts to fully utilize drug testing programs as an effective

means of identifying drug using kids in need of treatment. Also

needed is legislation requesting the Supreme Court to expedite appeals from several existing conflicting U.S. Appeal Court rulings on

student drug testing.

Money should be redistributed from the current public service

program to provide funding for anti-drug parents organizations. We

must expedite the appointment of a new White House drug czar

with specific instructions to work with parents groups. Of critical

importance is the reintroduction and expedited enactment of Congressman Souder’s former bill, H.R. 4802, or express preemption to

block drug traffickers’ attempts to legalize drugs by tricking a

naive public into voting in favor of harmful but attractive, sounding

State referendum initiatives for medical marijuana cigarettes and

legalizing hemp.

We understand the Drug Enforcement Administration is eager to

work with you to expedite the bill’s passage. We urge you to call

them and to enlist the White House. We promise you that we will

be the wind beneath your wings to get this passed.

The parents’ movement is a potent but underutilized force in

America today. In less than 2 weeks we organized over 50 parents

anti-drug groups and like-minded individuals to voluntarily collaborate on a Friend of the Court brief for tomorrow’s Supreme Court

hearing on whether a smoked marijuana joint can be classified as

medicine. That absurd proposition would never have reached the

Supreme Court if it weren’t for massive pro-drug funding in the absence of parent organizations to rebut that silly idea.

I have in my hand a copy of our amicus brief in that case, United

States v. Oakland Cannabis Buyers Cooperative. We are making an

attempt to put a face on the numbers that people tell us of kids

that are on drugs and we have parents coming in from across

America bringing pictures of their dead children that we believe

will put a face on this. After the vigil and the Supreme Court hearing, we will hold a strategy meeting from 2 to 5 p.m., at the nearby

Hyatt Regency Hotel to discuss effective government actions, as

suggested herein, to eliminate drugs from America’s schools and

communities in order to lecture safety and peace to the citizens.

We parents are alive and well and ready to take on the drug traffickers, but we need effective legislation to help us. We now have

new leadership and you have the ability to provide us that help by

your urgent consideration and adoption of the program we have

outlined. We have access to technical, legal and managerial experts

in the anti-drug field and we have a long established network of

involved anti-drug leadership to make the programs work and work

quickly. We are willing and able to work with your leadership to

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work out any problems. If we move quickly, these measures could

be implemented by next school term.

We feel there are absolutely no excuses. There are 16,000 young

people dying every year and if we don’t get started soon on a major

fast track basis, students’ drug use and drug shootings will continue unabated to the everlasting shame of those who failed to recognize this great opportunity to move forward. And I also have,

which I will leave for the committee, a manual that we have put

together making the case for Federal school drug testing, which

has been very, very successful, one particularly in Texas where in

2 years not only did they have a drug free school but a long list

of parents waiting to get their kids into the school. And it is said

if we don’t know history we are destined to repeat it.

Yet as Jill Jones points out in a book, ‘‘Hep Cats, Narcs and Pipe

Dreams,’’ the scientific and medical communities generally failed to

sound an alarm to the American public about cocaine’s devastating

effect in the early 1900’s and the impact it could have with its return in the 1970’s. We have experienced the same problems with

getting marijuana research disseminated. The only scientist of this

‘‘we love cocaine’’ era to inveigh vocally and publicly against cocaine and marijuana was Dr. Gabriel Nahas, pharmacologist and

professor of anesthesiology at Columbia University, an outspoken

critic of those who said marijuana was a harmless giggle. Even

then, Nahas was attacked constantly. His paper is in the packet of

information I gave you and just one final comment.

I have before me what may look strange to some of you. This container contains 450 some M&M’s, illustrating the number of chemicals that are in a marijuana joint or cigarette before it is lighted.

The other two jars each have 1,000 M&M’s in them, demonstrating

what happens when you light this joint with 450. They begin to act

synergistically with each other and then you have 2,400 and I believe it is some 50 odd chemicals and I suspect that none of us

would be happy if we walked into our doctor’s office and said, here,

you take these. Yet, that is exactly what these kids are smoking.

The most clear damage from marijuana seems to be from the immune system. And NIH has made a statement that, ‘‘People with

HIV and others whose immune systems are impaired should avoid

marijuana use.’’ I will close with that, and I wish we had 2 days.

[The prepared statement of Mrs. Nalepka follows:]

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Mr. SOUDER. Thank you very much. Mr. Kampia.

Mr. KAMPIA. Thank you, Mr. Chairman and members of the committee. I am going to use the outline of my testimony that was submitted as sort of a talking points document.

The Marijuana Policy Project believes that sick people as well as

healthy people should not be arrested and put in prison for using

marijuana. We are the largest membership based marijuana policy

organization in the country. Most recently we have submitted an

amicus brief for the U.S. Supreme Court in the case that is going

to be heard tomorrow, and we are also responsible for drafting legislation that is being debated in the States to remove criminal penalties for medical marijuana use. We were instrumental in helping

to pass the law in Hawaii, which was signed by the Governor in

June 2000, which removes criminal penalties for patients who have

their doctor’s approval to use medical marijuana.

It seems that we are all familiar with what the State initiatives

do, so I will skip over the part of my testimony which explains that

the initiatives allow functioning doctors to recommend the use of

marijuana to patients who have certain specified conditions, who

are then able to possess a certain amount or grow a certain amount

of marijuana. They do not allow for-profit distribution of marijuana. They do not allow people to grow hundreds of marijuana

plants and then to claim it is for medical use. They do not protect

dealers on the streets who are selling marijuana to anyone, including patients.

I would like to spend a minute or two clarifying what the issue

is before the Supreme Court. The issues in Federal law that are

already resolved in this area are, first, that it is quite clear that

patients who are using and growing medical marijuana legally

under State law are still in fact violating Federal law. No one disputes that, and if the DEA and other Federal law enforcement officials are upset about that, then they still retain the authority to

sweep up and down the West Coast arresting AIDS and cancer patients if they so desire. They have the authority to do that, and if

the committee is concerned about State medical marijuana laws

subverting Federal law, I would encourage you to encourage the

DEA to arrest a large number of cancer and AIDS patients on the

West Coast under Federal law.

Another issue that is not debatable is that physicians clearly

may not prescribe marijuana. That is clearly prohibited under Federal law, which then leads to the initiatives to allow doctors to recommend medical marijuana. This is protected by the first amendment. Doctors who recommend marijuana are engaged in free

speech, and this was found to be the case in a court case that was

ruled on last year in Conant v. McCaffrey.

Now I think the issue before the committee is primarily that of

preemption, and in fact when proposition 215 passed in California

in 1996 the Justice Department and other Federal officials were

pulling out their hair trying to figure out a way to subvert the will

of the voters, and they came to the conclusion they could not challenge the State medical marijuana law in court. It stands to reason

given the hostility of those in Congress and on the Federal level

in the Clinton administration and now in the Bush administration

that if there was a way to challenge the State medical marijuana

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laws by using the supremacy clause that they would have already

done it. It has been 41⁄2 years now and there is no legal case there.

And in fact this was found to be the case in a finding in Wayne

Turner v. D.C. Board of Elections and Ethics. This is the court case

that required the local D.C. government to release the results of

the local medical marijuana initiative here, and in that court case

the Federal judge found that there is nothing in the Constitution

of the United States that prevents States from reducing penalties

for medical marijuana use.

So what is the case before the court tomorrow? Quite simply, the

question is whether you can use a medical necessity defense in

Federal court to avoid Federal marijuana distribution charges.

That is all. That is not challenging the validity of State law at all.

With 30 seconds left, I would just like to try to shift gears here.

I think it would be more helpful if the committee would not focus

on the State medical marijuana law, which I consider good, and instead focus on its own bad Federal policies. Under Federal law, seriously ill people are treated the same as recreational marijuana

abusers. They face up to 1 year in prison and a $10,000 fine. Under

Federal law, cocaine and morphine are deemed to have more medical value than marijuana. I think that sends a bad message to the

children and it makes no distinction whatsoever between the medical and nonmedical use. I think if Congress wanted to do something proactive in this area, it would pass a law saying marijuana

when used for medical purposes should be treated less severely

than in those cases when people are using marijuana recreationally

or otherwise abusing it.

Thank you very much.

[The prepared statement of Mr. Kampia follows:]

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Mr. SOUDER. Thank you. Before we start our questioning we

have been joined by additional Members. I wanted to see if Congressman Weldon had an opening statement and then Congressman Barr.

Mr. WELDON. Thank you, Mr. Chairman. I want to commend you

for calling this hearing, and I did want to say a few words. First

of all, let me apologize. I have another hearing going on in the Financial Services Committee and I am trying to bounce between

both locations. I do consider this issue very important.

As many of you know, I have practiced medicine for about 15

years before I was elected to the U.S. House of Representatives,

and I had the opportunity to take care of a lot of cancer patients.

Indeed as well, I also was partners with an infectious disease specialist and for many years he and I were the only people in a county of 400,000 people seeing AIDS patients. So I have a lot of experience taking care of cancer patients and AIDS patients. As well, I

was in a large medical group, we had 35 members total. We had

a 500-bed hospital, and at that hospital typically, we had half the

patients in the hospital and I was on call on a regular basis. And

so I have accumulated a large degree of experience taking care of

cancer and AIDS patients, and I just want to say that I have never

seen a case where there was a medical indication for the use of

marijuana.

Marijuana is purported to be useful in controlling nausea. I will

just point out that if you open up the Physicians Desk Reference

you will see many, many drugs that do not have nearly the side

effects of marijuana for the control of nausea. Marijuana is also

purported to have other beneficial properties or qualities in terms

of enhancing a sense of well-being, and I would like to also point

out there are many legal drugs that are much safer for that purpose. And I have seen two cases where people who did not smoke

cigarettes develop lung cancer who admitted to being chronic marijuana abusers. And so I just want to let the record reflect that I

don’t in my clinical experience recall ever seeing an indication, a

medical indication for marijuana and that the drug, when smoked

as recommended, probably causes lung cancer.

So in my opinion, it is virtually lunacy to talk about a medical

indication for the use of marijuana and that the efforts on the part

of some people to legalize this drug for medication is really just a

veiled attempt to legalize another substance for abuse. And let me

just close, and I thank you, Mr. Chairman, for yielding to me by

pointing out that every day in America there are many people who

die from the ravages of cigarette smoking and alcohol abuse. And

why on Earth would this Nation want to unleash another dangerous substance on our population. There are thousands and thousands of people who will not use marijuana because it’s illegal who

will start using it if it is ever made legal. And to contend that there

are medical indications for this drug is in my opinion patently absurd. Let me finally close by also pointing out that Marinol is a

substance that you can prescribe. It is tetrahydrocannabinol. It is

available in pill form. It is legal. I can write a prescription for

Marinol, if I have that rare unusual case. By the way, I never saw

it once, but if you have a rare unusual case, if you have someone

intolerant to every single anti-medic drugs in the book, and I have

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never seen it happen, and if you have to resort to this you can actually prescribe it in pill form.

What’s really going on is people are trying to legalize the smoking of marijuana and they are trying to use cancer victims and

AIDS victims as their prop to enable them to get it through. And

in my opinion it is shameful and for that reason your hearing is

very timely, Mr. Chairman, and I want to thank you for your indulgence.

Again, I want to apologize. I am going to try to come back. I am

very anxious to hear the second panel’s testimony and engage in

a question and answer time. Thank you, sir.

Mr. SOUDER. Thank you. Congressman Barr, do you have an

opening statement?

Mr. BARR. I do, and I would like to ask unanimous consent that

my full statement be included in the record, Mr. Chairman.

Mr. SOUDER. So ordered.

[The prepared statement of Hon. Bob Barr follows:]

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Mr. BARR. I think that Dr. Weldon hit the nail on the head, at

least insofar as claiming that marijuana has medicinal value and

is a medicine. Whenever I write about the topic, I always put medicinal use in quotes prefaced by the face, so-called, because that’s

what this is. This is a so-called medicinal use but it is really simply

an effort by the druggies to legalize mind altering drugs. And even

though I doubt that we are going to hear anything new from drug

legalization advocates today, I think it is important to hold this

hearing for a couple of reasons, Mr. Chairman.

One is the timeliness of it in light of the Oakland-Cannabis Buyers Corp. case coming up this week in the Supreme Court. I think

it’s important to draw attention to this and get the story out. I

think it is also important for America to see the face of drug

legalizers. They have learned a lot over the last several years. They

don’t so much bring people forward with glazed eyes and blood shot

eyes that look shabby and dress poorly. They know that doesn’t

work, so they send forward people with legal degrees that dress

very nice, that speak very eloquently, that speak very quietly, but

their message is the same. It is death and destruction.

I think it is important for the American people to see this movement for what it is despite the benign face that they put forward.

And it is important to remind ourselves, Mr. Chairman, that they

are having some success. Young people are starting to ask the

question why shouldn’t we be allowed to smoke marijuana, after all

it is a medicine? Why shouldn’t people be allowed to smoke marijuana, after all it helps people? It doesn’t help people. It kills people. It has very serious medical effects on the reproductive system,

as Dr. Nahas has written extensively, it has very deleterious effects

on other, both psychiatric and physiological functions of the body,

such as memory loss. It is a mind altering drug, the same as those

other substances on the Federal controlled substances list.

So I think it is important to remind people through this and

other hearings, Mr. Chairman, of what the real problem is, to show

these people for what they are, and to remind the American people

not to be taken in by their siren song of so-called medicinal use,

and despite the nice neckties and nice dress and eloquent words

and soft spoken manner of people that their message is still very

much the same.

I appreciate this hearing, Mr. Chairman, and I appreciate all of

witnesses being here, both those that will tell America the truth

and those that won’t. I think it is important for the American people to see the difference. Thank you.

Mr. SOUDER. Thank you, and I will start with the first round of

questioning. Mrs. Sembler or Mrs. Nalepka have made allegations

and have crusaded for a long time on this issue, wherein that the

medicinal use of marijuana is actually a front. Mr. Kampia, today

you said in fact you were focused on medicinal use but you had a

letter published in the Los Angeles Times in 1998, where you said

the marijuana prohibition creates dangerous criminal markets and

takes police resources away from violent crime. It is time to stop

arresting adults who grow and consume their own marijuana at

home.

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Now in that statement you didn’t limit it to medicinal use of

marijuana, yet today you only talked about the medicinal use.

Could you explain the difference?

Mr. KAMPIA. Yes, at the outset of my testimony today I also said

that the Marijuana Policy Project believes that sick people as well

as healthy people should not be arrested and put in prison for

using or growing marijuana. So I have been consistent in that.

Mr. SOUDER. So your consistent position is that people shouldn’t

be arrested at all. And you said in July, you were quoted in USA

Today on proposition 215 in California, ‘‘it is working great. Patients right now can possess and use marijuana in the privacy of

their homes and don’t have to worry about the police.’’ Can you explain ‘‘working great,’’ and once again you did not use medicinal.

Are you saying there is no enforcement of marijuana laws in California by State and local police.

Mr. KAMPIA. I think the word ‘‘patients’’ was used in the quote

that you just read.

Mr. SOUDER. Yes.

Mr. KAMPIA. So I was referring to the fact that proposition 215

is working well, it is protecting patients from having their doors

kicked in by local cops.

Mr. SOUDER. Do you know of any case where a door was kicked

in by a local cop who was a cancer patient using marijuana previously?

Mr. KAMPIA. Sure.

Mr. SOUDER. Where the door was kicked in—you are under oath.

Mr. KAMPIA. Yes.

Mr. SOUDER. The door was kicked in by local police because they

were using marijuana for the cancer?

Mr. KAMPIA. I don’t know what was in the minds of the police

when they kicked in the door, but after the door was kicked in the

police found the person was in fact using marijuana for medicinal

purposes. I would be happy to provide newspaper articles tomorrow

if you’d like.

Mr. SOUDER. Was this after proposition 215 passed or prior?

Mr. KAMPIA. The case I am thinking about occurred in Washington State after the initiative passed in Washington State.

Mr. SOUDER. Also, when you were at Penn State you were arrested for growing marijuana plants and you spent 3 months in the

county prison and were kicked out of school for more than a year,

which delayed your graduation and engineering science degree.

Why did you tell this story to the newspaper and are you proud of

that record? Are you, I mean you don’t seem ashamed at all by saying that you not only were an advocate of marijuana use, you grew

the plants and used it yourself?

Mr. KAMPIA. I think it is an instance of how our government has

gone too far. I was a straight A student in physics and engineering.

I had a full scholarship. The police invaded my privacy, took my

plants, and put me in prison for 3 months. I think it is an example

of how marijuana prohibition doesn’t actually dissuade people from

using marijuana.

Mr. SOUDER. But you knew it was a violation of law.

Mr. KAMPIA. Yes.

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Mr. SOUDER. And you still went ahead and did that. Why would

you do that and put your education at risk and your health at risk?

Mr. KAMPIA. Let’s just say it was foolish youthful experimentation.

Mr. SOUDER. So you currently would not use marijuana?

Mr. KAMPIA. I currently do not.

Mr. SOUDER. May I ask you, Mrs. Sembler and Mrs. Nalepka,

clearly as a prime advocate he at least has a very consistent position on the use of marijuana generally as well as medicinal. Is this

the pattern that you have seen in those you have battled in the different State referendums? That they say it is about medicinal but

in fact they have a broader agenda?

Mrs. NALEPKA. We have information that as far as 1979, where

one of the groups that are their colleagues, the National Organization for the Reform of Marijuana Laws, said they would try to get

marijuana reclassified medically and use the issue as a red herring

to get back at us like we got at them for closing their drug paraphernalia shops. And later on there was a continuing message.

Particularly, NORML was one of the first and one of the most tenacious of the drug legalizing groups, and I hold Keith Stroup, who

was the founder, to be the father of the teenage drug epidemic in

this country and responsible for I believe tens of thousands of

deaths or kids in treatment or lost because he continued to make

statements telling them—there was no particular evidence that

even those few young people who used a great deal of marijuana

necessarily hurt themselves academically and otherwise. And that

was established in High Times Magazine, September 1997, that

had an estimated pass on readership of as many as 30,000 kids.

And later on he testified before Congress that he wanted to completely open the market. No age controls, no street controls. And

that next they need to decriminalize traffickers because most drug

sellers are not violent criminals, are nice folks. They shouldn’t be

treated like violent criminals. And my experience over the years is

that mind destruction is a violent crime. They have been very, very

out front about wanting to legalize marijuana, and there is a whole

network of the groups, of whom we have videotapes of many of

their meetings saying—Dennis Peron, the leader in California, for

instance, made a comment to me, he said, all marijuana use is

medical. And chuckled and an attorney, one of their colleagues,

earlier on said that we have found the chink in the armor. We get

medical marijuana, we will have full legalization, and he is also the

same attorney who said that to him drugs—all law is drugs and

mechanics. This is not an exact quote. But he said you kill a cop

and I’ll defend you for free.

This is the type—we are not talking about the AMA here pushing medical marijuana. The Timothy Leary era continues. Even

though he has been sprinkled into the atmosphere, his colleagues

continue to push for legalization of these disruptions that are causing an incredible amount of damage to kids in our country, and it

is a mystery to me as the mother of two young sons, one just about

Rob’s age and I have looked at his curriculum vitae and saw he

was valedictorian of his high school and he did very well in college.

And I want to ask him why? As a mother you want to take them

home and say, look, let me show you what’s wrong here. But we’re

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having a very tough time standing up against them, quite frankly,

because we are doing it mostly on our grocery funds and George

Soros, John Sperling, Peter Lewis, George Zimmer seem to be pouring endless funds in there. When I first discovered that Soros was

putting money into it I was sure he did not know who he was funding and he was speaking at Georgetown and there was an open mic

and I went to hear him speak, and there were about 450 businessmen waiting to hear him, and at the end I took the microphone and

asked him. I said I know that variety is the spice of life and you

invest in a lot of things, but did you know these things and I

itemized, you know, their statement about legalization and no age

controls and no street controls, and he turned rather ashen but it

certainly didn’t stop him. He continued to do that. Now we know

that he knows exactly what he’s doing because he’s been told with

400 witnesses.

Mr. SOUDER. Mr. Cummings.

Mr. CUMMINGS. Thank you very much. First of all, I want to say

to all of our witnesses I really do appreciate your being here and

I want to make it very, very clear that I don’t consider anybody a

druggie. This is the Congress of the United States of America. And

it does concern me when we ask witnesses to come, I think, we,

and I speak for myself and I hope I speak for all of my colleagues,

respect everybody that comes here and that we assume you come

here because you believe in what you are talking about and you are

not coming here lying to us. You are under oath. And I respect

each one of you for your positions.

You know, I was just sitting here, I was just thinking there is

nobody in this room whose area or places that they live is more effected by drugs than yours truly. And you know I was just wondering, and again I think about it, I looked at these States that have

passed these initiatives and voters aren’t stupid. I’m trying to figure out what kind of arguments are made to voters who, No. 1, see

the effects of drugs every single day, every day. They have seen it.

They have seen it on the 6 o’clock news, they have seen it in the

morning, they see it in the newspapers. They have heard about

shootings that may be drug involved. How do you, what kind of arguments are made to the public to get them to vote for something

like this?

I mean, you can’t convince me that people, I mean, I just can’t,

I’m trying to figure out is it the people are just being bombarded

with information. And when you think about people and their children, people, when you think about your children and you think

about—and I have been watching a series on 60 Minutes last week,

and one of the interesting things that one kid said is that Koppel

kept asking him could your parents have stopped this. And I was

just waiting, you know, anxiously to see what the answer would be

and just about all of the kids said I don’t think their parents could

have stopped them. As a parent, I felt pretty bad about that.

I am just trying to figure out what was being said to the public,

and any of you all can answer this question, that convinced them.

And I am looking at these States. These aren’t the most liberal

States, necessarily, to legalize marijuana. I’ll start either way.

We’ll come across.

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Mr. KAMPIA. I think it’s the same way Congress looked at cocaine

and morphine when Congress said cocaine and morphine should be

available by prescription in 1970. Those drugs are available for prescription even though they never intended for those drugs to be

wildly available for abuse on the streets. I think the voters are at

least as smart as Members of Congress and the voters have said

we understand the medicine and drug of abuse and we don’t see

any reason to get involved in the doctor-patient relationship. We

think doctors and patients should be able to make these decisions,

and it will have no impact upon drug trafficking in the streets. In

fact I will go one step farther, by allowing patients to grow their

own marijuana at home so they don’t have to go out on the street

and buy it, you are actually reducing drug trafficking. So those of

you who are concerned about that, I say allow nonviolent individuals, particularly patients, to grow their own for the specific purposes of reducing the purchase of marijuana on the streets.

Mr. CUMMINGS. Yes.

Mrs. SEMBLER. I would like to bring to your attention though— this is for the State of Florida and, as you know, I’m a Floridian.

We have a petition that’s been going around the State now, this is

the third time. I won’t go into what our laws are but this is the

last chance they would have to pass this. The title of it is of course

Sign for Medical Freedom. What you hear from people who advocate smoked marijuana, smoked marijuana as medicine, has several components to that. First of all, the petition itself calls it Sign

for Medical Freedom. There is no such thing as medical freedom.

But the diseases and conditions that are outlined are never

brought to public attention. This is what the public sees, right

here. And unless you actually request it, you don’t see the bottom

part and you don’t read it. But I will read it to you. It says each

natural person has the right to obtain and use marijuana for medical purposes when a licensed physician has certified the following:

That the use of marijuana is medically appropriate for that person

in the professional judgment of that physician, and, two, that the

person’s health may benefit from use of marijuana in the treatment

of cancer. Notice treatment of cancer, HIV, AIDS, anorexia, glaucoma, arthritis, chronic pain, spasticity, migraine or other specified

medical conditions or illnesses.

I could continue, but I can assure you that there is no place in

here for a physician who would actually say that this person has

glaucoma and he should be smoking marijuana in order to relieve

the pain. They do say that, by the way. But incidentally I work

with physicians all over the country and I am also on the board of

the Brain Institute of the University of Florida Medical School, and

I have been assured by experts who have studied this for years and

years and people who I respect that are not—who are also physicians, glaucoma has no pain. So you can sell things if you say it

long enough, loud enough, if you hide the other parts of it.

You won’t see anything on these ads that show people smoking.

Now you might see something on an ad for a pill, somebody swallowing it, but they never advertise the fact that this is smoking,

and we all know that we have spent time, effort, money, sweat and

tears trying to get people to stop smoking. Why should we promote

smoking? We should not. If there is medicinal value to a plant that

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we can extract, which has already been noted by Dr. Weldon, we

can also point to foxglove, from which we get digitalis, as we have

pointed out, we can get other medicines from plants such as poppies. There is no secret to that. But to promote the smoking of

medicine, that is a lie. It is not a medicine. And I don’t care how

you put it or how you say it, it is not a medicine. But what it does

do is it softens the idea of the use of drugs to which I have just

had a very terrible experience in my own family and I have been

in this for almost 30 years, and I can tell you that young people

hear that and what they hear is that if it’s a medicine it’s not so

bad. And then they begin to use more.

So, the responsibility once again as parents, as grandparents, as

Congressmen, as citizens of this United States is to stand up and

say what the truth is. This is not the truth. What this man is saying is not the truth. This is not for people who have cancer. I don’t

want to go on and on, but I will tell you one more little vignette.

I have questioned people whose parents have died of cancer, one

gentleman out in California. I asked him before the passage of 215

if he was going to vote for it. And he said yes. And I said why. And

he said because my mother died of cancer, and it might have

helped her. I said I want to ask you a couple of questions. Did she

smoke? He said no. I said, was she conscious? He said no. I said,

well, how are you going to get her to smoke marijuana if she had

never smoked and she wasn’t conscious? Did she need it? He says,

no, I think I’ll vote against it.

So all you need is a grain of truth and that’s what we’re asking

you for, a grain of truth. Thank you.

Mrs. NALEPKA. A very similar—— Mr. SOUDER. Mrs. Nalepka, we need to keep the questioning

going. I have been generous with the red light, but I need to make

sure we stay within range.

Congressman Barr.

Mr. BARR. Thank you, Mr. Chairman. Let me be perfectly clear,

I do appreciate all the witnesses coming here today and I will treat

all of them with civility. But I don’t respect Mr. Kampia. I don’t

agree with him. I have no regard for him whatsoever. What he’s

trying to do needs to be told to the American people for what it is,

and that means not coming up here and saying you are a wonderful person and we disagree with you. You are not a wonderful person. You are doing something that is absolutely despicable in a way

that makes it even more despicable because you put a face on it

that appears to be very different from what it is that you’re selling.

What you’re selling to the American people, and particularly to

young people, that’s the real heart of the matter here, is a mind

altering substance. And one can argue over the extent to which

marijuana is a mind altering substance, but it is a mind altering

substance. It alters one’s mind. It does do permanent damage.

There are very, very well-documented and extensive research studies by very learned individuals, much more learned than yourself,

and you are a learned individual, that established beyond any reasonable doubt that there are very serious permanent effects, particularly long-term marijuana usage, but even short-term marijuana usage. And to say that this is a medicine is just—I think it’s

just beyond the pale.

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But I do admire you all’s ability, drug legalizers that is, to do so

with a straight face. You have become very adept at that and that

is perhaps why you all have been successful in recent years in this

score.

Turning though, Mr. Kampia, to the specific issues that the Supreme Court will be taking up this week, I know it would be easy

to draw analogies to saying that the U.S. Constitution should not

in the case of the so-called Medical Necessity Defense act as a prohibition or what not on the supremacy clause; in other words, there

should be no prohibition of the supremacy clause. I know it would

be easy to say, well, what about murders and other types of behavior in which you have two sovereigns; that is, the Federal Government exercising its sovereign power and outlawing certain types of

behavior and the State doing the same, and the one being—the

Federal effort being supreme. But where do you draw the line? You

obviously would like to see the effort in California under the socalled medicinal exception be supreme over the Constitution I suppose, however you want to put it. But you would have to be consistent with that argument. Where would you draw the line? Would it

be child pornography, be something in which if you have a conflict

within the two and you have somebody coming in and claiming,

which I have—as a prosecutor have heard them say it helps them

psychologically to traffic and use child pornography, is that something that would fall within the same category of activity here that

makes you believe and argue that California ought to be able to

with impunity vis-a-vis Federal law use mind altering drugs?

Mr. KAMPIA. You and I talked about this on TV a few months

ago when this was first announced, and I will say now what I said

before is that my understanding of the case before the court tomorrow is the narrow question of whether patients in any State can

cite medical necessity in order to avoid Federal prosecution for

marijuana distribution. It is not really hinged upon the text of the

California law. This is a kind of claim that could have gone into

Federal court in Georgia, and the question then becomes can you

sort of finagle Federal law to justify medical necessity exceptions

to the marijuana laws. There is a lot of people who think the good

guys, meaning us, are going to lose this case that is before the

court because Congress has been pretty clear that it wants to allow

no medical use whatsoever for marijuana. That is a separate issue.

All of that is a separate issue of whether or not the court could

overturn proposition 215.

Let’s look at it this way. If the court decides that the States are

not allowed to reduce the penalties associated with medical marijuana use, that is going to open a whole can of worms because then

what do you do about the other penalties in different States that

don’t match the penalties on the Federal level? There are some

States that don’t give jail time for recreational marijuana use. Like

in Ohio, you don’t go to jail if you are caught with a bag of pot in

Ohio. So how does that jibe with the fact that Federal law prohibits

the recreational use of marijuana?

So I think it is 99.9 percent sure that the Supreme Court is going

to allow States to have their own medical marijuana policies even

if the majority Members of Congress don’t like that decision.

Mr. BARR. Will we have a second round, Mr. Chairman?

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Mr. SOUDER. Yes.

Mr. BARR. OK. Thank you.

Mr. SOUDER. We have been joined by Congresswoman Davis of

Virginia. Do you have any questions?

Mrs. JO ANN DAVIS OF VIRGINIA. Thank you, Mr. Chairman. I

apologize for being late. I was at another meeting. I guess I am just

curious, Mr. Kampia, do you support recreational use of marijuana?

Mr. KAMPIA. I don’t support the use of any drugs. But our organization believes that it should not be a criminal offense to use marijuana.

Mrs. JO ANN DAVIS OF VIRGINIA. Do you believe that marijuana

may be a gateway to stronger drugs?

Mr. KAMPIA. I believe that the laws of our society cause marijuana to be a gateway to other drugs. For those who are interested

in purchasing marijuana, they are oftentimes introduced to LSD,

cocaine, and other drugs through the criminal market. And if we

would regulate marijuana like we do alcohol, then those who buy

marijuana would not be exposed to cocaine and LSD. So I think

that the very laws of this Congress create marijuana as—sort of

put marijuana in the position of being a gateway drug.

Mrs. JO ANN DAVIS OF VIRGINIA. The only statement I will make,

Mr. Kampia, is that I am the mother of two sons, one who is 24.

I will tell you that I disagree with you. I think that marijuana is

the gateway to other drugs, even when it is not purchased. Thank

you, Mr. Chairman.

Mr. SOUDER. I am going to yield to Mr. Cummings next.

Mr. CUMMINGS. I just wanted to ask the ladies, one of you had

said that—were talking about the plan that could reduce drug

usage by 50 to 90 percent. Was it with regard to teenagers?

Ms. NALEPKA. Yes, it was.

Mr. CUMMINGS. Tell me a little bit about that.

Ms. NALEPKA. Junior and senior high school students. We were

referring to organizing parent groups centered around the parents

of their own children’s friends. And this is what we did in the 80’s,

instructed parents to get to know the parents that are the parents

of your children’s friends. Get together, set guidelines for them according to their age group. Make sure they have a good time.

Chaparone their parties. And go to your school and offer your help.

Tell them you are not there to blame them, but you want to find

ways to get drugs out of the schools. And what happened then,

many of our parents found that schools were teaching responsible

use messages and the parents were able to get those out. And then

we discovered drug paraphernalia shops and we went after them.

And then began networking with parents around our own State

and, finally, around the Nation.

But the thing currently that we were discussing is the potential

that we feel universal, nonpunitive drug testing can have in

schools. And in two situations that I am most familiar with, one

in Sundown, TX, and one in New Orleans, the New Orleans school

was a parochial school and they claim that—my recollection is that

they announced that they were going to do drug testing in the

schools, announced to all the kids and said look, if anyone has a

problem now, you come to us. This is not going to be a punitive

program. We want to help you. The next day something like 52

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kids came in and asked for help. And at the end of 2 years of universal drug testing with parental permission, they claim to have a

drug-free school.

And a very similar situation happened in Sundown, TX. The

principal called the parents and said, the conditions are these: you

must sign to have this happen. We are not going to have the ACLU

chasing us all over Texas. It is going to be parental permission.

And they started testing the kids and the result has been after

again approximately 2 years they claim to have a drug-free school.

The ACLU has not been able to get a single person to complain.

And finally there is, we are told, a waiting list for parents who

want to get their kids in those schools. And from my own parental

experience, I think that once those kids know that they are going

to be tested, they are looking to us as adults to hold them accountable and help them.

Most kids who get into drugs I’m sure wish there were some

adults there strong enough to stop everyone from using them rather than allowing them to be at risk.

Mr. CUMMINGS. The second school, was that a public school?

Ms. NALEPKA. The Texas school was a public school, yes, sir.

Mr. CUMMINGS. So they just did it in one of the public schools?

Is that it?

Ms. NALEPKA. In that particular case, but there are about 500

schools nationwide out of, I think, 15,000 schools. There are 500

schools now using some form of drug testing.

Mr. CUMMINGS. Did you have something to say?

Ms. SEMBLER. Yes, I have in my possession a fax, or e-mail that

was sent—as far as I know, it was sent to every single legislator

in the State of Florida. I was told that it was also sent to every

legislator in the entire United States, State legislators. I don’t

know that that is true, but I can tell you this was sent by the Marijuana Policy Project, signed by Mr. David Nolan in November 1999

to every single legislator in my State.

Fortunately, one of them works for me on his off-time and the

purpose of this—which I did not include in my documents, supporting documents, but will be glad to give you a copy of it—is asking

that you write a letter to then the Secretary of Health and Human

Services, Donna Shalala. Included in that was—there were two

things that they were emphasizing. One of them, the second one

says, and I would read it to you: There should be no prohibition

on single-patient clinical trials. That’s just the opening statement.

What they’re trying to do is they’re trying to get Members of

Congress to sign it. A few of them did. Here’s the list of them that

did. And that should be what we consider ‘‘research.’’ In other

words——

Mr. CUMMINGS. Let me—I just want to get to Mr. Kampia before

my time runs out, if you don’t mind. Your movement has been basically accused of trying to—it is a farce—saying that it is a false

movement. That you are really not—this is not about medicine, it

is about legalizing drugs. Could you answer that for me? Mrs.

Sembler, I might have the chance to ask you a question. Sorry.

Ms. SEMBLER. That’s perfectly all right.

Mr. KAMPIA. That’s a good question, because that is sort of the

most often used accusation these days, because our opponents

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know they have totally lost the medical marijuana debate. They

know that we’re going to be passing initiatives in any States that

we choose to, and that we are going to continue to work with legislatures to remove criminal penalties. So now they are trying to

scare people by saying well, really it is not just about medical marijuana, it is about this broader agenda.

And in fact that is not the case. We’re always quite honest about

what our agenda is. We don’t want to see people go to jail for marijuana. And if we can keep sick people out of jail in the short run,

then, by God, we’re going to do it. Because right now—I will be cordial with Congressman Barr, but I must say I don’t respect him either. Because he is supportive of a policy that criminalizes seriously ill people who have their doctors’s approval to use what is a

legitimate medicine. That to me is way beyond the bounds of what

the Federal Government should be doing. This should be a decision

that is made between doctors and patients, and jail should not be

the solution to the medical problems that an AIDS patient or a

cancer patient is undergoing.

In sum, there is no master plan here. There is no disguised agenda. We’re always honest about our goal, which is to keep as many

people out of jail as possible. And if this country is only able, only

ready to keep cancer parents and AIDS patients and MS patients

out of jail that use medical marijuana with their doctors’s approval,

then we are going to do our best to see that that happens.

Mr. SOUDER. Before yielding to Mr. Barr, I want to make a brief

statement, if you will put the clock on me too. Because these hearings challenge the nature of civility when they are hearings where

we have disagreements. Because I deeply believe that advocacy

from your group has put my kids at risk, has resulted in additional

deaths in my community.

And I believe in having a fair hearing and having the debate, but

when somebody protects and provides a shield for things that are

so damaging to our families and children, it is hard for us not have

to strong statements about each other. I understand the argument

that you are making about us locking up criminals, because—although apparently, it is based on one case that you had in the

media where you weren’t sure why they went in the House and you

weren’t sure of exactly the date, you did not name a bunch of cases

relating to going in and getting cancer patients.

There are procedures where you can go to HHS—and we’re going

to have far more experienced people than you on the next panel to

answer the questions on the criminal questions and the medical

questions that we will pursue this question. But you can get waivers and you have not anywhere in your testimony, or for that matter, in most of the documents, your organization made the exclusive case of any medicinal qualities of marijuana that are not elsewhere. The only question we have really debated—and I have debated on this on television over the years as well with different advocates and different cancer patients—is whether or not it alleviates vomiting, and whether Marinol works as well with that.

And as that has advanced, we still have the problem—in fact, in

California, you have a tension in law enforcement. You cannot

come in, because this is an official place, an official cannabis center

raising marijuana for so-called medicinal purposes where you have

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all sorts of clear evidences in the State of going around and hiding

behind; where you have referendums that are predominantly

backed by people with huge amounts of money that have a far

broader agenda which speaks for itself. In other words, it isn’t a

matter of you just saying I am concerned about cancer patients. It

is that you are concerned about the broader marijuana issue. I am

not saying you aren’t concerned about the cancer patients, but I am

saying they are a convenient shield with which to argue a broader

case.

And so some of us, while it may not sound courteous, because

you are an articulate advocate for an evil position in my position.

And I understand the argument you are making, but I have kids

dying. It is ridiculous to say that the only reason people move to

marijuana and other things is who they are exposed to. It may exaggerate the problem. In other words, some of those people who

move to harder drugs might not have if it had been legal. But it

is not true in the Netherlands, in Vancouver, in Alaska, in other

places where they attempted the legalization that they did not

have an even greater move to harder drugs.

We debate that statistic all the time too, but in fact, we are seeing, for example, our methamphetamine problem and the ecstasy

drugs coming from the very countries that supposedly were eliminating the problem by legalizing.

We are going to continue to have deep disagreements. It is important to have you here today to have the debate. At the same

time, we are trying to be civil and at the same time, I think the

record—I want the record to show that I have a deep, deep offense

caused by the type of arguments you have made on television and

how you are attacking my own family and other families in my

community because of the advocacy of your position. If you would

like to make a brief comment in my remaining minute and a half

here.

Mr. KAMPIA. Two comments. The first is that the policies of this

Nation are responsible for arresting 700,000 marijuana users a

year.

Mr. SOUDER. The actions of the individuals.

Mr. KAMPIA. Say again?

Mr. SOUDER. The actions of the individuals are responsible. We

are legislators who respond to voters. If individuals get arrested, it

is not our responsibility. They violated the laws of the land. That

is like saying people who are locked up on pornography are somehow innocent and we just locked them up.

Mr. KAMPIA. OK. The laws of this land have defined certain behaviors as such that 700,000 marijuana users get arrested every

year.

Thousands of those—of course, there is no hard numbers on this

but I think most of us who have worked in this field for a few decades understand that at least 1 percent of marijuana users actually

use for medicinal purposes. I don’t want to debate that point. It is

just sort of a feeling that I have—— Mr. SOUDER. That is not cancer. That is all medicinal purposes;

right?

Mr. KAMPIA. Right. At least 1 percent. Let’s just say

conservatively——

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Mr. SOUDER. That is arthritis and other things?

Mr. KAMPIA. Possibly rheumatoid arthritis, but I’m talking about

MS, epilepsy, what we call legitimate conditions. If you say that 1

percent of these conditions, 1 percent of those who are arrested are

arrested for medical use, that is still 7,000 a year and those numbers are increasing. So I did not mean to say that because I knew

of one patient in Seattle, that that man was the only person in the

entire country who had ever been arrested for medical marijuana.

That would be an absurd statement. I could open up my files to you

and show you example after example where patients with their

doctors’s approval have actually been arrested for medical marijuana use.

Second of all, I would like to respond just briefly to the other

point.

Mr. SOUDER. But that was a fair analysis, because if I

mischaracterized your earlier position, I apologize.

Mr. KAMPIA. That’s fine. And the second is that there is no process in HHS that allows patients to go and be able to get permission

to use medical marijuana. If I was hearing you correctly, you might

have been alluding to the program that was opened up in 1978 and

which was closed in 1992, which currently allowed eight patients

in the country—eight, to legally use medical marijuana where they

are smoking 300 marijuana cigarettes a month each.

That program has not been opened for the past decade. So there

is no witness here who will tell you today that it is possible to get

some sort of Federal waiver. That Federal waiver is impossible.

And, in fact, if you are interested in creating a Federal waiver system, I would be able and happy to work with you to pop open that

program so that the most ill of the ill could maybe squeak in and

get some sort of Federal shipment of medical marijuana.

Mr. SOUDER. I’m sure that over time, we are going to be looking

at ways to deal with the most ill of the ill. Not necessarily, however, through marijuana, but through the content, the substance,

Marinol. The substance inside the marijuana. We certainly need to

look at ways to alleviate the suffering. We may still have a problem

with the marijuana.

Mr. Barr, do you want to go next in the questions?

Mr. BARR. Thank you. Over the last couple of years, we’ve had

an issue that comes up every time with the District of Columbia

Appropriations bill. And my opposition to efforts in the District of

Columbia to move in the direction of so-called medicinal use sometimes are mischaracterized as an effort to do the same with the

States, and that is not my goal or intention.

This is an issue that each State has to address by itself. The District of Columbia, as I know you are aware, is different. Congress

does have a direct constitutional, very explicit responsibility and

authority over the District of Columbia. Therefore we have jurisdiction.

It’s not my goal to tell the voters in California or New Mexico

or any other State what to do. I do think it is a very important

issue that the citizens of each State have to decide. But that being

said, I am still a little bit curious as to how you can almost sort

of cavalierly get around the supremacy clause of the Constitution.

If you accept the fact, which is one of the basic precepts of our FedVerDate 11-MAY-2000 08:51 Jun 22, 2001 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 C:\DOCS\72258.TXT HGOVREF1 PsN: HGOVREF1
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eral system of government, that you cannot have two sovereigns

with an interest in certain behavior, have different laws, how can

you really maintain that you have respect for our Federal system

of government if you say that in any one, and if you say in any

one, then you have to open the door to all sorts of other instance,

a particular State cannot trump the supremacy clause?

And again I go back to—granted it is a hypothetical, but I think

it is one that ought to be addressed, and I pose it to you again— if you have individuals come in and tell the court and convince a

court in, say, California that exposing themselves, being able to use

child pornography has a therapeutic effect on them, and you find

some doctors that substantiate that, why would not the same logic

prevail? Why should not that also provide a medical necessity for

the people in California who might, in their so-called wisdom, decide that they want to make a decision to allow pornography for— child pornography for medical purposes? I mean, to be consistent

wouldn’t you have to say, well, yes they should do that? They

should be able to?

Mr. KAMPIA. I guess, first I’d just like to read something from the

court decision that overturned your amendment that tried to prevent the D.C. government from counting the votes of our medical

marijuana initiative. The quote is, this is from the judge: Whatever

else initiative 59 purports to do, it proposes making local penalties

for drug possession narrower than the comparable Federal ones.

Nothing in the Constitution prohibits such an action.

So, don’t take my word for it, take the Federal judge’s word for

it. There is nothing in the Constitution that prevents States from

having, or even the District of Columbia from having, penalties on

the marijuana or other drugs that are lower than on the Federal

level. But as a former prosecutor, you know that the penalties in

Georgia on a State level don’t match the penalties for drugs in the

U.S. Code. There are disparities all the time, drug to drug. So this

is just yet one more example of how there is a disparity in penalty.

The penalty in California for possession of medical marijuana is

now zero. The penalty in California for the possession of marijuana

for recreational use is——

Mr. BARR. I am not talking about a disparity in sentencing. That

is another issue. We are talking here about carving out a trump

card. In this case, medical necessity. Would not your position have

to be, in order to be consistent and credible, in answer to my hypothetical that, yes, the medical necessity argument should be allowed in that hypothetical to allow the people of California who

have passed a referendum or whatever to say that we think that

people that benefit psychologically from exposing themselves to

child pornography ought to be able to do so, and the Federal Government should not be able to prosecute them?

Mr. KAMPIA. Let’s be clear here. My understanding—and tell me

if this is not your understanding—is that this medical necessity argument that is currently pending before the U.S. Supreme Court

is predicated upon common law. It is not predicated upon proposition 215. It is a common law question—— Mr. BARR. It really doesn’t matter what it is predicated on. What

I am talking about is the end result of it, and whether or not we

are going to have a supremacy clause or not. It doesn’t matter what

52

you base the medical necessity on. Let’s say that, however, it is

based that the same situation is presented to the court in the hypothetical. But rather than marijuana being used for medical socalled medical necessity, it is child pornography. Wouldn’t the same

argument that you posit have to prevail in that hypothetical also?

Mr. KAMPIA. I don’t know. It is getting too hypothetical for me.

Maybe I will have a better answer for you after I hear the court

argue this tomorrow. I just don’t know. I mean, quite frankly, I

find the argument on just the medical necessity of marijuana before the court to be perplexing, because of the fact, as I said, Congress has been pretty clear on not wanting to allow any medical

use of marijuana under any conditions. To reach into common law

or whatever to say that there is some medical necessity for marijuana distribution under Federal law is to me, it sort of requires

a lot of thinking to see how that could be possible. So that is as

qualified of an answer that I can give you at this point. I’m sorry

that I can’t give you more.

Mr. BARR. I wasn’t quite sure earlier, did you say that you

thought the Supreme Court would rule to uphold the Ninth Circuit

or to overturn it?

Mr. KAMPIA. I guess I’m not trying to make a prediction on what

the court would do—— Mr. BARR. I thought you had earlier.

Mr. KAMPIA [continuing]. I could see how there could be a reasonable argument to be made that the Ninth Circuit decision would

be overturned because Congress has been clear on the question of

whether or not marijuana has medical value. I am also more sure

that the court is not going to overturn State medical marijuana initiatives in a blanket way. That is not even before the court, and

I can’t imagine that the court would—— Mr. BARR. In other words, what they would probably wind up

doing is, on narrow grounds, overturning or remanding the case?

Mr. KAMPIA. Yes. In terms of what could be argued in Federal

court, yes.

Mr. BARR. All right. Thank you.

Mr. SOUDER. We have been joined by Congressman Gilman of

New York, vice chairman of the committee, who has an opening

statement.

Mr. GILMAN. Thank you, Mr. Chairman. And I regret I was delayed and I am being called now to another meeting. I do want to

thank you for holding today’s hearing on medical marijuana, Federal drug laws, and the Constitution supremacy clause. I know that

tomorrow there is going to be a hearing before the Supreme Court

and hopefully we will get some good advice out of that opinion.

I’d like to thank our witnesses who have agreed to appear before

us today to offer their insight on these important issues. The last

5 years have seen a number of initiatives in several States to relax

or overturn restrictions on the possession on the sale and use of

marijuana. And since 1996, eight States and the District of Columbia have enacted primarily through voter initiatives provisions that

permit under State law the use of marijuana for medicinal purposes. The general looseness of such provisions however has resulted in de facto decriminalization of marijuana use in those

States.

53

These new State provisions appear to run counter to Federal law,

which classifies marijuana as a scheduled controlled substance. In

essence, Congress has explicitly stated in statute that there is no

accepted medicinal use for marijuana and has criminalized its possession and use.

Many of us who have been active on the drug issue for a number

of years here that these recent voter initiatives were designed to

provide a back-door method to legalize marijuana usage. The broad

language in a number of those provisions, particularly California’s,

underscores that fear. Moreover the media bears some responsibility in shaping this debate. By and large, a majority of news reports

on medicinal marijuana have focused on the supposed benefits of

the drug and the compassion in permitting the terminally ill to

smoke it, rather than on the dangers of marijuana use or the fact

that the scientific evidence shows that the beneficial components

can be provided synthetically independent of marijuana. And I

have read recently that there was competent medical information

that there is a good synthetic use of the pain killer.

It is my view and many on our committee that Federal law preempts local law on this issue by virtue of the supremacy clause of

the Constitution. The Supreme Court is due to hear those arguments, as I noted, tomorrow, and I am confident the court will

reach an appropriate decision in due course and lay this matter to

rest. Marijuana is a gateway drug that is cheaper, more readily

available, and stronger than ever before. The sooner we end this

latest attempt to legalization, the better.

Thank you, Mr. Chairman I regret that I’m being called to another meeting.

Mr. SOUDER. Thank you, Congressman Gilman. Congresswoman

Davis, do you have any further questions?

Mrs. JO ANN DAVIS OF VIRGINIA. Yes, I do, of Mr. Kampia. I believe I heard you state that you think medical marijuana should be

used for cancer and AIDS. Yet I heard Mrs. Sembler say in the petition that she mentioned anorexia. And I heard you say that in

these eight cases, they were using 300 a month, which is 10 a day.

Anorexia in itself is a sickness which you can be cured of, I believe.

I am not a doctor. I am not sure. But what happens when you get

these people hooked on marijuana? What is your answer to that?

You put them on marijuana for medicinal purposes and then you

have another problem. How do you respond to that?

Mr. KAMPIA. I’m not familiar with that particular petition, but to

answer your question directly, it ultimately should be left up to the

doctor and the patient. Doctors prescribe drugs every day that are

far more addictive and give the patient a far easier chance of overdosing than marijuana. I am hoping that Congressman Weldon

could verify what I just said.

There has never been an overdose death from marijuana in the

history of our country. There are legal medicines that are prescribed every day by doctors where patients have a very real

chance of overdosing or becoming physically addictive. What we’re

saying is treat marijuana like any other medicine. Allow doctors

and patients to make the determination as to whether or not it

should be used. And yes, marijuana isn’t free or devoid of negative

side effects, but the Institute of Medicine found, and you will hear

54

more about it in the next panel, that the negative health effects of

marijuana are certainly within the realm of reason, given the drugs

that are already available by prescription in our society.

Mrs. JO ANN DAVIS OF VIRGINIA. I apologize in being late in

hearing your testimony, but these other drugs you are talking

about that the doctors prescribe, they do just that. They prescribe

and tell you how much of a dosage you can take and they wean

you off. Maybe I’m misunderstanding it, but on medical marijuana,

it is not necessarily prescribed but recommended. And you can

grow it in your own backyard, so the dosage is not controlled by

the doctor. It is controlled by you. And the doctor doesn’t wean you

off, you wean yourself off if you can. Am I correct in that?

Mr. KAMPIA. The State laws in most cases specify an upper quantity limit that you are allowed to possess. Then you use whatever

you need to use in order to treat your condition, similar to a doctor

prescribing you a big bottle of pills. If you wanted to you could eat

all the pills in 1 day. But if you are smart and you want to treat

your condition, you would take half a pill a day or one pill a day.

Mrs. JO ANN DAVIS OF VIRGINIA. Who controls the amount that

you can grow?

Mr. KAMPIA. The only way that patients can get access to a safe

supply of marijuana is to grow their own. So, that’s the best that

we can do. If you are not happy with that scenario and you want

to work with us——

Mrs. JO ANN DAVIS OF VIRGINIA. Don’t want to work with you.

Don’t misunderstand me.

Mr. KAMPIA. You don’t want to work with us. I don’t know if it

is protocol to ask a question. Maybe I’ll rephrase it as a statement.

Mrs. JO ANN DAVIS OF VIRGINIA. Fine by me.

Mr. SOUDER. It is not protocol, but if you would like to put a general comment in the record.

Mr. KAMPIA. I think one thing that the committee might be interested in knowing is that right now it is more difficult to do clinical

trials on the medical uses of marijuana than any other drug in our

society. And I have always been working under the assumption

that Congress intended for marijuana to be treated like any other

potential medicine. Do the clinical trials. If the FDA buys it, sure.

Approve it. But let’s not have these voter initiatives deciding what

is medicine.

If that is really where Congress is on this issue and you want

to see clinical trials move forward, I would point out that the Clinton administration released guidelines in 1999 which make it much

more difficult to do research on marijuana. So if you don’t want to

work with me, perhaps work among yourselves to try to ask the

Bush administration to make those guidelines different so that legitimate researchers who have FDA approval can actually get a

quantity of marijuana to study in a clinical trial and not have it

be any more difficult than studying any other potential medicines

in our society.

Mrs. JO ANN DAVIS OF VIRGINIA. I think the scary part is watching our children study it.

Mr. SOUDER. Thank you. I thank the first panel for coming. I

know that many of you travelled from a long distance. We have adVerDate 11-MAY-2000 08:51 Jun 22, 2001 Jkt 000000 PO 00000 Frm 00058 Fmt 6633 Sfmt 6633 C:\DOCS\72258.TXT HGOVREF1 PsN: HGOVREF1
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ditional written questions that we may ask each of you for additional answers. Once again, I thank each you for coming.

I would just like to say for the record that as a person who has

opposed some of those research studies, I do not favor looking at

illegal narcotics for the medicinal value. I am encouraged to find

alternatives to illegal narcotics to address the problem.

If the next panel could come forward.

We have distinguished witnesses with us on our second panel

and I very much appreciate all of you joining us today and we look

forward to your testimony as well.

From the administration we will hear from Laura Nagel, who is

the Deputy Assistant Administrator for diversion control at the

Drug Enforcement Agency. We’re also joined by two of our distinguished former colleagues, Bill McCollum of Florida and Dan Lungren of California who has not been invited just because he is a

Notre Dame grad, but it is an extra bonus that we get today. And

also testifying will be Dr. Janet Joy from the Institute of Medicine

from the National Academy of Sciences.

Again, as an oversight committee, it is our standard practice to

ask all of our witnesses to testify under oath. If the witnesses will

rise—and Congressman Lungren, if you want to just sit there and

hold your hand up, that is just fine. Raise your right hands and

I will administer the oath.

[Witnesses sworn.]

Mr. SOUDER. Let the record show that the witnesses have all answered in the affirmative.

We will now recognize the witnesses for their opening statements. Again, we ask to you summarize in the 5 minutes and include any fuller statements you may wish to make in the record.

Ms. Nagel, to you. Do you have an opening statement?

STATEMENTS OF LAURA NAGEL, DEPUTY ASSISTANT ADMINISTRATOR, DIVERSION CONTROL, DRUG ENFORCEMENT ADMINISTRATION; BILL MCCOLLUM, FORMER CHAIRMAN, U.S.

HOUSE SUBCOMMITTEE ON CRIME; DAN LUNGREN, FORMER

CALIFORNIA STATE ATTORNEY GENERAL; AND JANET JOY,

SENIOR PROGRAM OFFICER, DIVISION OF NEUROSCIENCE

AND BEHAVIORAL HEALTH, INSTITUTE OF MEDICINE

Ms. NAGEL. Thank you, Chairman Souder and members of the

subcommittee. Good afternoon and thank you for the opportunity

to address this subcommittee on the effects certain State laws have

had on the enforcement of Federal narcotic laws.

Mr. Chairman, on behalf of Administrator Marshall, I would like

to thank you and the subcommittee for the unwavering support you

have given to the Drug Enforcement Administration and drug law

enforcement in general.

Let me begin with a discussion of the Controlled Substance Act

and the scheduling process. The CSA was passed to minimize the

quantity of abusable substances available while providing for legitimate medical, scientific, and industrial needs for those substances

in the United States. The CSA places legitimate and illicit substances with a substantial potential for abuse into one of five

schedules. This placement is based on the substance’s accepted

medical use, safety, potential for abuse and/or dependence liability.

56

Schedule 1 is the most restrictive and schedule 5 is the least restrictive schedule. The act also provides a mechanism for substances to be controlled, added to a schedule, decontrolled, or removed from a schedule and rescheduled or transferred from one

schedule to another.

In 1995, DEA received a petition to transfer marijuana from

schedule 1 control. This petition was based on the assertion that

marijuana has lower abuse potential than other substances in

schedule 1. The accepted medical use issue was not addressed in

the petition. Following the administrative scheduling process, exhaustive reviews, and evaluations of the scientific and medical literature and other data were conducted independently by the Department, Health and Human Services, and DEA. On March 20,

2001, DEA denied the petitioner’s request to reschedule marijuana

on both legal and scientific grounds.

I would like now to address the impact State laws have had on

Federal law enforcement. These State laws purport to legalize

marijuana for medical use. These so-called medical marijuana laws

work as follows: If a doctor recommends, no prescription is required, that a patient use marijuana for any ailment, then it is

legal for the patient to grow and use marijuana. However, ‘‘medical

marijuana’’ is a misnomer since marijuana is in fact a schedule 1

drug.

The situation has been viewed as a green light for many marijuana growers and distributors who recognize that State and local

officials are looking the other way. State judges have ordered law

enforcement officials to return marijuana seized from criminal defendants who claim to be handling the drug for medical reasons.

Even when local police have made arrests and seizures, there have

been numerous instances where district attorneys have been unwilling to prosecute because the defendants complied with the spirit of the State law. In essence, allowing traffickers to carry on with

impunity in this manner undercuts the enforcement of the CSA

and allows an unproven and potentially dangerous drug to be sold

to the public as medicine.

Two pending lawsuits have developed from law enforcement efforts to keep this situation in check. In United States v. Oakland

Cannabis Buyers Cooperative, the United States sought an injunction ordering this cannabis club to stop growing and distributing

marijuana in violation of Federal law. The club claimed a medical

necessity defense. The U.S. Supreme Court will hear argument on

this case tomorrow.

In Conant v. ONDCP, a group of Californians sued the government claiming that doctors have a free speech right to recommend

that their patients use marijuana in violation of Federal law. The

Federal District Court agreed and issued an injunction which prohibits DEA from investigating doctors who recommend marijuana,

or from revoking their DEA registrations.

Last, I would like to point out that the United States is a party

to several international treaties to control international and domestic traffic in controlled substances. Congress and the CSA expressly

recognize these treaties. Most of the provisions of the CSA must be

enforced in order for the United States to meet its obligation under

these treaties. There is no doubt that proposition 215 and similar

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State initiatives provide an obstacle to the United States meeting

its obligations under these treaties. In addition, these State marijuana initiatives to remain in force potentially undermines diplomatic efforts by other countries, like Mexico and Colombia, to enact

and vigorously enforce their drug laws.

In conclusion, I would like to thank the subcommittee for the opportunity to comment on this highly controversial but important

topic and look forward to answering questions.

[The prepared statement of Ms. Nagel follows:]

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Mr. SOUDER. Thank you, and I again want to welcome our former

colleague, Congressman McCollum, who was a leader in the Crime

Subcommittee and a leader in the drug task force. We miss you

very much. You were a very articulate spokesman in the antidrug

effort. Hopefully, you can continue to stay involved in this administration.

Mr. MCCOLLUM. Thank you, very much, Mr. Chairman for letting

us come and talk about this subject.

Mr. Chairman, marijuana is not a medicine, it is an illegal drug.

Smoked marijuana is a highly dangerous narcotic. In addition to its

addictive qualities, it is known to cause cancer and harm the body’s

immune system. The American Medical Association and many

other medical groups oppose the use of smoked marijuana for medicinal purposes, citing the fact that its addictive qualities and

health hazards far outweigh any medical value. The AMA points

out that what medicinal value there is in a marijuana plant has

been approved by the Food and Drug Administration and been

available in prescription pill form for a long time.

Nonetheless, the State initiative movement to ‘‘legalize’’ smoked

marijuana for medicinal purposes has resulted in eight States legalizing the possession of certain amounts of marijuana for socalled medicinal purposes.

As one might expect, prosecution of trafficking or possession of

marijuana in these States under State law has become much more

difficult, and where there is a recommendation from a doctor, virtually nonexistent. In turn, this has made the job of Federal law

enforcement, especially that of the Drug Enforcement Administration, much more difficult. The Controlled Substances Act is a Federal law that prohibits trafficking in marijuana anywhere in the

United States. Trafficking in marijuana recommended for medicinal purposes in the eight States that have passed marijuana initiatives is still a crime under the Controlled Substances Act. DEA is

rightfully concerned that the absence of any prosecution for these

activities in the given States will send a message not only in those

States, but throughout the country and the world that undermines

the moral foundation for controlling trafficking in marijuana generally and undermines the deterrent effect of the Controlled Substances Act.

In the case being heard tomorrow in the Supreme Court, the

Ninth Circuit Court of Appeals ruling effectively nullifies Federal

law in medical marijuana cases. This being challenged there. Technically, it involves, as you have heard other witnesses say, a narrow matter of the government’s burden of proof in seeking injunctive relief under the Controlled Substances Act, but has a broad

implication for Federal prosecutions as well.

Congress, in making marijuana a schedule 1 drug and prohibiting its sale, distribution, and possession under the Federal Controlled Substances Act determined by that act, by passing that law

and making that schedule, that it had—that marijuana had no

medical utility. In addition, the Food and Drug Administration has

never approved it as a medication and no drug can be prescribed

without approval.

The supremacy clause of the United States Constitution nullifies

any State act to contradict these Federal laws. Although one can

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never be certain of the constitutionality of a law under challenge

until the Supreme Court rules, I believe in all likelihood that the

results of the court ruling tomorrow will be injunctive relief and

the prosecution of marijuana traffickers will prevail, regardless of

the protections of State initiatives in question. And I also believe

that the medical necessity argument will be thrown out.

The more pertinent question then is whether and under what

conditions Federal prosecution should be undertaken. In my view,

Federal prosecution should be undertaken only in the context of a

new broader policy initiative by the Bush administration to educate

the American public on the dangers of smoked marijuana and the

dangers of initiatives such as proposition 215. Until such a policy

and plan of action to go with it are developed and adopted,

confrontational Federal prosecutions of marijuana trafficking protected under State laws are likely to engender more harm than

good.

It is obvious from the fact that these initiatives have passed in

the affected States that those proposing them have been successful

in persuading the public of the alleged benign nature of these

inititatives. Many, if not most of the residents of these States, seem

to have no comprehension of the true dangers of smoked marijuana. Neither do they seem to appreciate that the effect of how

these initiatives have been drafted is to undermine efforts to control marijuana trafficking in the affected States and elsewhere.

Federal prosecution of these trafficking crimes, given the current

climate of a poorly informed public, could well cause a political

backlash.

We need the concerned mothers and fathers of America to rise

up in their communities all across this country and educate their

friends and neighbors and the public opinion makers on the dangers of smoked marijuana, the importance to our children of not legalizing marijuana, and the perils of the course these initiatives

are taking us on. The President and the Office of National Drug

Control Policy need to develop and implement a plan to educate,

motivate and organize parents across the Nation to bring about a

state of public opinion that will sustain a policy in opposition to

medical marijuana initiatives. A policy of enforcement of Federal

law against all trafficking in marijuana, regardless of its intended

use, and the policy that discourages rather than encourages teen

use of marijuana and other narcotics.

As a part of this effort, at some point enforcement of Federal

criminal laws against marijuana traffickers in the medical marijuana States would be appropriate. The promoters of medical marijuana and the legalization of marijuana must be confronted. Appeasement will only make them more aggressive and more successful. But again, such prosecution should only be undertaken in the

context of a larger national policy.

Just last week, two teenagers appearing before a Senate committee hearing on ecstasy told the Senators that ecstasy was not the

first drug they used, marijuana was. Not only is marijuana dangerous in its own right; it is the gateway drug to cocaine, heroin,

ecstacy, methamphetamines and many more.

Any message that says to our children that it is OK or acceptable

to smoke marijuana is dangerous. And that is just a fact. The mesVerDate 11-MAY-2000 08:51 Jun 22, 2001 Jkt 000000 PO 00000 Frm 00071 Fmt 6633 Sfmt 6633 C:\DOCS\72258.TXT HGOVREF1 PsN: HGOVREF1
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sage being sent by medical marijuana initiatives that have been

passed in California and other States is precisely such a dangerous

message. We must find a way to counter it and rally public opinion

to do so. Thank you, Mr. Chairman.

[The prepared statement of Mr. McCollum follows:]

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Mr. SOUDER. Thank you again, Mr. McCollum. And I want to say

that one of the more moving testimonies that we had in this subcommittee was in a hearing that we had done jointly with you in

Orlando on the heroin question where we had a young boy and his

dad who was a local elected official. They went public together and

the young boy talked about how he started on the marijuana habit

and how it evolved and how his dad had wanted to wish the best,

and his dad cried in public, said—and I didn’t want to acknowledge

what was going on with my family, and I am coming forward today

because I want to warn other parents. That was moving testimony

of the interrelationships. I want to thank you again for your leadership.

Dr. Joy.

Ms. JOY. Good afternoon, Chairman Souder and members of the

committee. In 1996, I think it was—I am forgetting my date—the

Institute of Medicine was asked by the Office of National Drug

Control Policy to conduct an independent scientific review of the

medical benefits of marijuana. And I served as the study director

on that report and that’s what I’ll be talking about today is that

report.

We were asked to review the scientific evidence—it’s not a legal

review. The report makes no—takes no position on the legal status

of medical marijuana. And I should add that we were also asked

to look at the—examine the evidence of the gateway effect of marijuana.

As such, this report represents the views and inputs of the Nation’s leading scientists whom we assembled to provide the panel

with information and so forth. What was striking about the study

was the level of consensus on the scientific evidence of the therapeutic potential of medical marijuana and its constituent components I should add. And I’m going to move from there to just reviewing the recommendations for you.

The committee concluded that canabinoids—and that’s the category of drug of which THC is a part. There are other canabinoids

in marijuana. Not all of them are strongly linked to therapeutic

benefits. Canabinoids also exist naturally in the human body. The

panel concluded that canabinoids likely have a control in pain modulation, control of movement and memory.

Canabinoids affect the body in very different ways, not all of

which is known, but a tremendous amount of new information has

been learned from research in the past 10 years. And as a result

of this new information, coupled with lack of information, the committee recommended that research should continue into the physiological effects of synthetic as well as plant-derived canabinoids, as

well as the natural functions of canabinoids found in the body.

The second recommendation concerned clinical trials. The committee did, in fact, recommend clinical trials. These are clinical

trials of canabinoid drugs, meaning chemically defined drugs,

meaning the standard pharmaceutical development pathway.

This was derived from the committee’s conclusion that there are

scientific data that indicate the potential therapeutic value of

canabinoid drugs, primarily THC, for pain relief, control of nausea

and vomiting, and appetite simulation. They further noted that

smoked marijuana, however, is a crude THC delivery system that

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also delivers harmful substances. And I will take an aside to note

here that Marinol is not an equivalent for smoked marijuana,

‘‘marijuana’’ being the legally available THC. There is an important

pharmacological difference between smoking a substance versus

swallowing it, and that is rapid onset of action. So the committee

recommended developing systems for delivery that permitted rapid

onset of action.

OK. Recommendation 3 concerned the multiple effects of

canabinoid drugs which includes marijuana. The psychological effects of canabinoids, which include anxiety reduction, sedation and

euphoria can influence their potential therapeutic value. This may

be positive or negative; potentially undesirable for certain patients

in certain situations and beneficial for others. One complication is

that the euphoria can mask the perceived benefit. So the committee

recommended that the psychological effects of canabinoids should

be evaluated in any clinical trial.

The fourth recommendation is based on the conclusion that numerous studies suggest that marijuana smoke is an important risk

factor in the development of respiratory disease. Note that the committee did not say that it has been proven. It has not been proven,

although it is true that marijuana smoke contains many of the

same substances as tobacco. And the committee thus recommended

studies to define the individual health risks of smoking marijuana

to be conducted, particularly among populations in which marijuana use is prevalent. This is a safety issue, not a recommendation that these people use it, but an acknowledgment that there are

many, many people smoking marijuana, and we know very little

about the negative physiological health effects.

OK. The committee was also asked to address the gateway drug.

They made no recommendations about this. But they did note that

in the sense that marijuana use typically precedes rather than follows initiation of other illicit drug use, it is indeed a gateway drug.

But because underage smoking and alcohol use typically precede

marijuana use, marijuana is not actually the most common and is

rarely the first gateway to illicit drug use. There is no conclusive

evidence that the drug effects of marijuana are causally linked to

the subsequent abuse of other illicit drugs. That doesn’t mean they

don’t precede them, but the causal link has not been established by

any scientific studies.

OK. So to summarize, the committee concluded that present data

on drug use progression neither support nor refute the suggestion

that medical availability would increase drug abuse. However, this

question is beyond the issues normally considered for medical uses

of drugs and should not be a factor in evaluating the therapeutic

potential of marijuana or canabinoids. The committee discussed

some of the scientific data on gateway drugs and I’ll come back to

that later in questioning. I don’t think I have time to elaborate.

The second to last recommendation which was the fifth recommended clinical trials of marijuana use for medical purposes

being conducted, but only under limited circumstances. Trials

should involve only short-term marijuana use, less than 6 months.

They should be conducted only in patients with conditions for

which there is reasonable expectation of efficacy. They should be

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approved by institutional review boards and should collect data

about efficacy.

Now an important point here is that the goal of these clinical

trials would not be to develop marijuana as a licensed drug, but

rather to serve as a first step toward the possible development of

nonsmoked, rapid onset canabinoid delivery systems.

And the last recommendation—in the meantime, there are patients with debilitating symptoms for whom smoked marijuana

might provide relief. The use of smoked marijuana for those patients should weigh both the expected efficacy of marijuana and

ethical issues in patient case, including providing information

about the known and suspected risks of smoked marijuana.

So the last recommendation then states, smoked short-term of

marijuana use, less than 6 months, for patients with debilitating

symptoms such as intractable pain or vomiting must meet the following conditions: first, failure of all approved medications to provide relief has been documented; the symptoms can reasonably be

expected to be relieved by rapid onset canabinoid drugs; such treatment is administered under medical supervision in a manner that

allows for assessment of treatment effectiveness; and last, involves

an oversight strategy comparable to an institutional review board

process that could provide guidance within 24 hours of submission

by a physician to provide marijuana to patient for specified use.

And I’ll point out that this is considerably narrower than any of

the State ballot initiatives, but it does acknowledge the fact that,

although the panel recommends traditional pharmaceutical development for the active ingredients and whatever synthetics can be

manufactured, there remains the problem of people with debilitating and devastating conditions for whom none of our medications

have proven effective. And that ends my comments.

Mr. SOUDER. Thank you. It is great to have you with us, Congressman Lungren.

Mr. LUNGREN. Thank you, Mr. Chairman. The way my back feels

and as long as I waited to testify, I may be voting for medical marijuana before we leave here. Just a joke. I’m sorry.

The subject of today’s hearing, ‘‘Medical Marijuana Federal Drug

Law and the Constitution Supremacy Clause’’ may at first blush

appear to be overly legalistic and sometimes antiseptic, but upon

reflection, goes to a core question which emerges with greater and

greater vitality, and which if ignored, threatens to overwhelm society’s appropriate concern about the drug problem itself.

Variously stated, it boils down to this: Has the war on drugs

trampled on our constitutional framework and our constitutional

rights? While I would vigorously answer this in the negative, the

very fact that we are having this inquiry today compelled by various State initiatives purporting to liberalize or liberate the use of

marijuana and other schedule 1 controlled substances needs to be

addressed.

It is a fact that an uncertainty of approach has been allowed to

develop throughout this country. Real doubt about the chances for

success has taken hold. Wealthy advocates of partial or total decriminalization or legalization of drugs, such as George Soros, have

effectively manipulated this doubt using their wealth to succeed

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with various schemes to legitimize the use of illegal drugs under

certain circumstances.

In California, for instance, Mr. Soros and his allies outspent the

opposition 100 to 1 in gaining passage of the medicinal marijuana

initiative. What is most important to understand is that they are

succeeding increasingly to undermine our society’s previously consistent opposition to drug use, particularly among our youth. This

assault on the common distaste for drug use, and all that it causes,

has attracted partial support of many common sense individuals

who have become confused about the purposes of our government’s

response to the problem.

I think we need to acknowledge that some of this has occurred

as a result of a perceived refusal on the part of government leaders

to at least reexamine some parts of the war on drugs to see if and

where we may have made mistakes. With the new administration

comes a unique opportunity to review, reform and reinvigorate the

campaign against drug abuse, and I truly believe that President

Bush’s philosophy of compassionate conservatism can address this

problem in a special way, since within its parameters there is no

need to apologize for being both tough and loving.

It seems to me we have to recognize that drug abuse has lost its

place on the national stage. We have to reassert the fact that it is

a national problem or, more precisely, a national tragedy, which

touches every part of our social fabric. Hollywood has finally reawakened to this. The movie Traffic is an example of that. I give

Traffic high marks for illustrating the reach of this problem, the

magnitude of the problem. I give it lower marks, however, for the

conclusion, which I suggest suggests to us that there is no answer.

That this is an insoluble problem. It is solvable, we just have to

put our minds to it.

But as one who has participated in this fight on both the Federal

and State levels, as well as interfaced with the private sector, I believe that discordant messages which we have seen for the last 8

years at least, and divided leadership are the ingredients for failure, if not disaster. I have seen what happens when there is a

major policy cleavage in law enforcement at the Federal and State

levels.

I can go into that specifically if you would like to talk about that,

or at State and local levels. Not only does the failure to agree

render cooperation impossible for the task at hand, it also tends to

make cooperation on associated or related activities difficult as

well.

At the very least, inertia is often a by-product. The drive to create many different laws concerning illegal drugs throughout the

country will only exacerbate the problem, and in the process, confuse the citizens that our laws are supposed to serve. I would suggest there are few things more debilitating to a representative democracy than a failure to make clear what is criminally prohibited

and what is not. This is particularly true of a subject as serious

and pervasive as drug abuse.

As the legal analysis for this question reaches its zenith in the

U.S. Supreme Court considerations, suffice it to say that the supremacy clause of the Constitution makes it clear that to whatever

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ent State powers are prohibited. It is hornbook law that a State

law would be held void if it would retard, impede, burden, or otherwise stand as an obstacle to the accomplishment and execution of

the full purposes and objectives of Congress in enacting the Federal

law.

But whatever decision is ultimately rendered, my hope is that

the importance of congressional decisions commenced some 90

years ago and their progeny to protect the public from health charlatans and flim-flam artists selling their special elixirs will be recognized. A successful effort in the wholesale overturning of the

FDA and allied enforcement mechanisms would be disastrous for

the country. Yet as important as the question about the supremacy

clause may be, an equally important question looms. Does the Federal Government and various State governments, for that matter,

stand the chance of being repudiated by the public on the matter

of drug legalization? I suggest here we might take a healthy dose

of humility in the political sector. While I have strong doubts about

the efficacy of marijuana for medical purposes, I have discovered,

at least in California, that the public believes this is a question

that should be seriously considered.

The reluctance of most in government to permit a full-scale medical and scientific testing of the possible medical uses of marijuana

and its constituent parts has created an environment in which the

citizenry at large opts for the only proposals presented to them.

While such initiatives, and I think this goes to the question you

asked Congressman Cummings, why are people voting for them? I

don’t think they’re stupid. There’s a reason. I think they’re wrong

in California because such initiatives result in putting the cart before the horse. That is approving marijuana for medicinal purposes

before it is ever proven to be safe and effective in such circumstances.

But why do they do that? I think they vote for compassion or

sympathy over law enforcement concerns. This growing movement

has the potential of dramatically altering the Federal presence in

the drug battles. While I can recite the past studies on marijuana,

I know they are falling presently on deaf ears. That’s why I support

a full-blown study in California. In order for it to be effective, the

Federal Government needs to grant the proper waivers. I would

suggest that would be an appropriate thing. And I think we all

should agree that we will abide by the scientific decisions that are

made. Treat it as we would treat other studies of drugs. I don’t

think that they are going to be successful, but if they are, we will

allow that to direct our decisionmaking.

Mr. Chairman, one of the things I learned through the experience of prop 215 in California is how voters will be willing to upset

long established enforced law schemes if they are convinced of a

compassionate necessity. The argument which drove the proposition’s electoral success in California was simple, and this is the

way it was stated. People with chronic pain should have marijuana

as a medical option if all else fails to alleviate terrible pain, and

if the underlying provable facts support the proponents, who could

be against it? It is difficult to be able to analyze that, though, in

the heat of a campaign.

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It occurs to me that as the medical community has begun to

more fully appreciate the reality of pain and concomitant need to

address it effectively, the medical regulatory nexus needs to adjust

accordingly. Use of controlled substances under proper medical indication should not be denied in pain management circumstances

for fear of possible abuse and other scenarios. Greater recognition

by HMO’s and insurance companies of the appropriate and efficacious applications of pain management and treatment are in order.

In a similar vein, I would suggest we should reexamine the role

of mandatory minimum sentences in certain types of drug cases,

and honestly determine, for instance, whether the treatment of

crack cocaine within the criminal justice system has had a fairly

disproportionate impact on minority youth. I remember being on

the subcommittee that wrote that law in the 80’s. And I remember

we responded to cries from the minority community that crack cocaine was killing the community. That’s why we went so hard on

the penalties involved with crack cocaine. We did it for a good purpose.

If, in fact, there’s been a disproportionate impact, if, in fact, it

has disproportionate impact on the community and make it look

like we treat different races or different groups differently, then we

ought to take a look at it. I know what we did and why we did it,

but I think we ought to recognize, or at least I recognize now, at

least in my State, that in many ways we are losing, you might call

it the public relations, or I would call it the public opinion battle.

And in order to get it back and get us back onto what we need to

do, which is to have a single message on drugs from the top to the

bottom having us all working together, government and nongovernment, all parts of our culture together.

I think some of us who believe very, very strongly in this ought

to at least have an open mind toward considering some of these

things that I suggested. I thank you very much, Mr. Chairman, for

your time.

[The prepared statement of Mr. Lungren follows:]

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Mr. SOUDER. I thank you, Congressman Lungren, Attorney General Lungren. Let me say, I think we will be forced into this reevaluation whether we want to or not because the general public

is demanding changes and we need to figure out, for example, in

the penalties on differentials on powder and crack whether we

lower one or raise the other, but there ought to be an equivalency,

and we do have to look at unintended consequences and we need

to be willing to look at variables.

But I want to come back to a couple of things, a couple of questions for Dr. Joy here. I want to make sure we have in the record

a couple of key quotes. In 1997, Surgeon General David Satcher

wrote that there is no scientific sound evidence that smoked marijuana is medically superior to currently available therapies, including an oral prescription medication containing the active ingredient

in marijuana. Now your statement, I understood in the recommendations to say, that the primary things was speed in

smoked. Is that how you would reconcile this statement which is

somewhat contrary?

Ms. JOY. I wouldn’t even want to say what the primary difference

is, but there is an important pharmacological difference in the

onset of the drug effect depending on how it is delivered. If you

take it in a pill form it’s longer, and in the case of Marinol it is

much more variable. If it is inhaled the effect is within minutes.

Mr. SOUDER. Why would the surgeon general have said there is

no scientific sound evidence that that is medically superior?

Ms. JOY. I didn’t say medically superior. I said it’s very different.

Personally, you can imagine if you were suffering severe nausea,

you might like a rapid onset. I am not going to say what he’s thinking, though.

Mr. SOUDER. Yeah, but I would assume relief is part of that, but

it’s not necessarily. Now he also wrote that the Center for Disease

Control also supports HHS Secretary Donna Shalala, who stated

California’s proposition 215 and Arizona’s proposition 200 are particularly dangerous and misguided efforts, and I oppose them in

the strongest possible terms.

You made it pretty clear that the guidelines, particularly your

sixth point, have nothing to do really with California because you

said they had to work under close supervision, there was, I think,

limited quantities, you had to have exhausted all other remedies,

none of which are in the California law or Arizona.

Ms. JOY. You are correct in stating that the IOM panel’s recommendations are different from California law and more strict.

The IOM recommendations say nothing about quantity.

Mr. SOUDER. OK. I misspoke. Sorry. In 1999, ONDCP Deputy Director Donald Vereen reviewed the study in congressional testimony concluded, there is little future in smoked marijuana, a medically approved medication. This is because long term harms of

smoking made it a poor delivery system and because cannabis

plants contain a variable mixture of biological compounds and don’t

meet the modern expectation for consistency.

Can you comment on those two things? The delivery system and

the consistency question, and then respond also to this question.

Do you know of any approved medicine in smoked form?

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Ms. JOY. I can’t think as fast as you can talk. What you said

were quoting Don Vereen saying was almost a verbatim quote from

the report itself. So yes, we would concur with that. Then you said

something about the harms, did you?

Mr. SOUDER. I said do you know any approved medicine in

smoked form.

Ms. JOY. No.

Mr. SOUDER. So there would be no reason—how could—why

wouldn’t you have—I don’t believe in her testimony, she went

through all this, but Ms. Nagel has an extensive—in the written

testimony how the FDA tried to isolate the components in marijuana into other forms. Why wouldn’t that be the logical way to do

it if there is no smoked alternative in any form of authorized

drugs? Why wouldn’t the goal rather than study, the impact of

marijuana, why wouldn’t the goal be to isolate the subcomponent

of marijuana?

Ms. JOY. That is the goal.

Mr. SOUDER. So Marinol, Nabilone, Cesamet, I think that’s one

of the—— Ms. JOY. The name is Nabilone.

Mr. SOUDER. Is that brand name for it?

Ms. JOY. Yeah.

Mr. SOUDER. That in one of those, it’s moved from schedule 1 to

2. Marinol went to schedule 3. The goal here is not to—in fact, it

isn’t marijuana that’s medicinal. It’s a component in marijuana

that can be isolated and turned into therapeutic drugs.

Ms. JOY. What I said is the goal is the development of rapid

onset cannabinoids drugs, which would include THC, but not be restricted to it. There are a number of synthetic compounds that are

much more effective.

Mr. SOUDER. So shouldn’t the research be focussed on how these

alternatives that don’t have downsides as smoking other dangers

as gateway drugs, why wouldn’t the focus, if the mere question was

how to address the health aspect, why wouldn’t the focus be on

how to get more of an immediate delivery system?

Ms. JOY. That was recommendation No. 2. Should I read it

again?

Mr. SOUDER. No.

Ms. JOY. That’s exactly what the recommendation is. There is a

number of layers to the recommendation. One is recognition of the

fact that there are a lot of sick people out there, and I’m not talking mentally, I am not trying to make a judgment. I am talking

about people in poor health who smoke marijuana. We have very

little information about what the physiologic effects are. Many believe that the data on the immune system are highly inconsistent.

So that’s the basis of that recommendation. Some of the recommendations are where to go forward and some of the recommendations are how to cope with the situation as it stands.

Mr. SOUDER. Congressman Cummings.

Mr. CUMMINGS. I have been listening and I tell you, Mr. Lungren, I want to thank you for your testimony. You are the first person since I have been here that explained to me why there is such

a difference between the penalties of crack cocaine and powder cocaine, the first one.

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Mr. LUNGREN. I was here when we did it.

Mr. CUMMINGS. It is incredible because Black people are being

locked up big time, and we don’t hear any cries so much about that

and there is such a big difference in the sentencing, it is phenomenal. And I think you are right, we definitely need to send a message, whatever it is, and I think the chairman just mentioned it

too, there needs to be a consistent message whatever it is that if

you are going to penalize the use of drugs, you ought to penalize

it wherever they’re found and not base it upon what form they

come in. Were you getting ready to say something?

Mr. LUNGREN. One of the things I thought worked very well in

the 1980’s was criticized by some as being inelegant. It was Nancy

Reagan’s ‘‘just say no’’ campaign, but that ‘‘just say no’’ rhetoric or

rubric stood for an overall consistent policy that was understood.

And believe me, we came from somewhere else because we didn’t

have it before and I am not making any political aspersions.

We got Republicans and Democrats to work together in the Congress along with the administration. We got Hollywood to work on

it. Hollywood took out the glamorization. Then we seem to all fall

off the wagon. We thought we solved the problem. Hollywood went

back to glamorizing drugs. They’re not making public service announcements. And I will tell you in that vacuum began the rebirth

of the efforts we see in initiatives. And look, I know some very sincere people who opposed me when I was opposing proposition 215

in California who truly wanted it only for medicinal purposes. I

know others who want it as a Trojan horse. I know others have

been talking about it for years and years about the red herring.

And I fought all those battles. But frankly we lost in California. If I had $2 million as the other

side—that’s all they spent was $2 million. We had $20,000, that’s

all we could raise against it. And yet the message is very simple.

I have people come up to me all the time now who are common

sense folks, who are overall against drugs, and they say what’s

wrong with a little marijuana if we are going to help people?

We are losing that battle and what I see is the experience you

have in Alaska, that you have the 10 year experiment brought

about by the Supreme Court decision in Alaska where marijuana

was OK, was allowed for private use, not medicinal use, private use

by adults but not for kids.

And what happened during that 10-year period of time? The

marijuana use by kids in Alaska doubled from what it had been

and remained doubled. It was in the rest of the country. So consistency is important. In terms of the minority community, obviously,

I don’t speak for the minority community, but I have tried to watch

it and work with it and deal with it, and I see the distrust there

and I see the questioning there. And when people say to me by

God, it’s unfair. You’re locking people up in the African American

community for having crack cocaine. It’s no different than powder

cocaine, I have to come back and remember, I remember the subcommittee when we were meeting in the Judiciary Committee, and

one of the members came in and represented—a part of his community was African American, poor inner city, and he said this is killing the community. We got to do something about it. We got to get

these people off the street. We got to have the toughest laws we

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got. Frankly, that is why we did it. We didn’t do it to punish the

community. We thought we were responding in an appropriate

fashion because we heard the testimony, which was it’s far more

potent. It’s having a disastrous impact. And frankly, I think it

would have been unfeeling of us not to have responded. What I’m

saying now is if we’ve had the chance to look at it after 10 or 12

years and we say hey, we did it with some good intentions, it’s had

some unintended consequences.

Mr. CUMMINGS. Big time, big time.

Mr. LUNGREN. Let’s look at that so we don’t lose the support of

that part of our community which we need for consistent anti drug

policy.

Mr. CUMMINGS. But just as important, losing all of these young

people who are spending time in jails when white folks with more

cocaine aren’t spending that kind of time in jail.

Mr. LUNGREN. Of course. Let’s recognize the difficulty at times.

Where are the buys taking place?

Mr. CUMMINGS. I understand that. I am talking about powder cocaine and crack cocaine.

Mr. LUNGREN. I understand.

Mr. CUMMINGS. It’s not just getting more people on your side. It

is the fact that so many African American young people are sitting

and rotting in jails and that’s—and you know it’s so interesting.

But going to you, Mr. McCollum, former Congressman Lungren

states in his testimony that the use of controlled substances under

proper medical indications should not be denied in pain management circumstances for fear of possible abuse in other scenarios.

He also supports Federal medical trials to determine whether marijuana for medicinal purposes are safe and effective. How do you

feel about that? Is that accurate? Don’t let me misquote you.

Mr. LUNGREN. I didn’t want—if I misstated and said we should

all use illegal drugs, what I’m saying is those classified scheduled

drugs that are available for prescription but that many doctors, at

least in my experience, are fearful of using, or have not been educated, understand that they can be used now, need to be done. Pain

management is a relatively recent development in the area as a

specialty in the medical community. And I think we ought to make

sure our doctors are trained such that they understand the uses of

these. And the other thing, well, I think I will stop right there.

Mr. MCCOLLUM. If I can respond. I don’t think anybody is opposed to the scientific study and development of remedies for pain

or for disease in whatever form. We just want to see, and I want

to see the process followed legally. If the Food and Drug Administration approves a prescription or direction or we have guidance

from the American Medical Association on the proper efficacy of

marijuana compound, then I think all of us would be happy with

that. But right now that’s not the case, and a lot of people are

stretching that.

I would like to make one comment, too, because I happen to

share a lot of what Mr. Lungren said, a lot of people don’t know

that I served in that same Congress with him when the crack powder issue came along, and I also served as chairman of the Subcommittee on Crime for the last 6 years, and prior to that, with Mr.

Hughes when he was chairman.

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We tried both when the Democrats had control of the Congress

as well as the Republicans, quite a number of us, to put the two

together, to find a common denominator. We had those numbers for

a while and we couldn’t get the votes for them. And I certainly

would encourage those who continue to have an interest in it to

work on that because you could raise the powder and lower the

crack penalties and come up with a number. It’s quite possible that

you can do that. You can argue over what they should be, but they

shouldn’t be as different as they are now.

Mr. CUMMINGS. Thank you.

Mr. BURTON. Congressman Barr.

Mr. BARR. Thank you Mr. Chairman. Ms. Nagel, thank you for

being here, and please convey our support and admiration for the

work that you and your colleagues at DEA do, and we appreciate

your work on behalf of our country.

Ms. NAGEL. Thank you, sir.

Mr. BARR. On page 5 of your statement at the very beginning,

you say in 1995 the DEA received a petition to transfer marijuana

and THC from schedule 1 control, etc. At the end of that paragraph, you say on March 20, 2001 the DEA denied the petitioner’s

request for rulemaking marijuana on both legal and scientific

grounds. Was the work that DEA put into its decision here, was

it fairly extensive or was it very cursory?

Ms. NAGEL. No, sir, it took several years. We relied on the government scientists and medical experts at Health and Human

Services, exhaustive reviews at the same time that the scientists

worked for me, our medical people did a review. And what’s important, the petition never addressed the medical uses of marijuana,

the petition only addressed the abuse because you’re in schedule 1

for two reasons, medical use and the potential for abuse. This petition only addressed the abuse potential, and that’s what everyone

did research on, exhaustive 4 years, I have read it. There was no

evidence based on abuse to move marijuana out of schedule 1,

none.

Mr. BARR. Are there any petitions pending to transfer marijuana

out of schedule 1 on medical grounds?

Ms. NAGEL. No, sir.

Mr. BARR. Have you had such petitions presented to you?

Ms. NAGEL. I believe several years ago we had one under two or

three administrators ago, and at this point, until we get the scientific and medical basis to act, we can’t, we can’t move it out of

schedule 1 without that.

Mr. BARR. Thank you. Thank you. I yield to the gentleman from

Florida.

Dr. Weldon.

Mr. WELDON. I thank the gentleman for yielding. I had a question for you, Dr. Joy. You referred to the report where it stated

that more research was needed, possible use of cannabinoids in a

clinical situation where all available drugs had been exhausted, I

think is the term that you used. Did the Institute of Medicine

study at all how often that clinical situation actually occurs?

Ms. JOY. No.

Mr. WELDON. OK. I had a feeling that was the case.

Ms. JOY. It would be difficult to get that kind of data.

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Mr. WELDON. Well, just from my clinical experience, I never saw

it. I only saw one case where a person was smoking marijuana. It

was a young man who had lymphoma and he was not particularly

experiencing a lot of pain, he was getting chemotherapy for his

lymphoma, but it was pretty obvious he was getting high, at least

based on my clinical assessment of the patient. And as I stated in

my opening statement, I just never saw that. And frankly I was a

little disappointed in the Institute of Medicine’s report for even

making that statement, because it implied there is some validity to

the arguments being put forward by those who are advocating the

legalization of marijuana because you know, really, when you think

about it, there are a lot of countries in the world and there are a

lot of pharmaceutical companies all over the world, and if there

was some real potential for this drug, I would think that somewhere it would be researched and studied and demonstrated scientifically.

The Trojan horse issue which Dan Lungren brought up, I think,

is clearly operative in this whole marijuana debate. And I think

George Soros has made no bones about it, that he wants to see

marijuana legalized and he is the one funding a lot of these initiatives.

I had another question, you also, in the Institute of Medicine report, you talk about the development of a rapid delivery system to

study this. There again it relates to my other question, why would

you need this if there’s really no real clinical need for the drug?

Ms. JOY. Can I interject, because I’m having trouble tracking all

your questions. The committee does feel that there are certain

unmet needs. The treatment of pain is notoriously difficult, especially neuropathic pain. So the committee does see an unmet need.

It is very difficult to assess the breadth of that need.

Mr. WELDON. If I could just comment, my experience, and I took

care of a lot of chronic pain patients usually in coordination with

an anesthesiologist, and my experience with chronic pain is that

it’s usually the clinicians don’t know how to manage it and that’s

why these patients have chronic pain, including people with things

like peripheral neuropathies and reflex sympathetic dystrophies,

things that are notoriously very, very hard to manage.

But in the course of the research, was there any scientific evidence that you unearthed at that point? Marijuana was useful in

those clinical situations?

Ms. JOY. Well, one of the members of our panel was a leading

neurologist in the treatment of pain, and he presented a different

scenario than you’re describing. It’s not really my position to speak

to who said what. Your experience was different.

Mr. WELDON. Please forgive me. We’ve been beating you up.

Ms. JOY. I’m OK with that.

Mr. WELDON. You were the staff person, and you put together

the report, but you were not personally responsible for the scientific opinions in the report or am I mistaken?

Ms. JOY. The Institute of Medicine is responsible for the scientific opinions. I know the report probably better than anyone

else. It’s a little unfair of me to speak outside the report since I

am here representing the report. But I can say that one of the

panel members was a neurologist who specializes in pain. I can say

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that very recent scientific data are extremely compelling in terms

of cannabinoids acting, and this is in animal studies, on different

pain pathways than the traditional morphine, and also in a way

that might decrease the need for morphine in the treatment of

pain. So scientifically, there are—well.

Mr. WELDON. Those are animal studies that showed

cannabinoids that acted on different pathways. There have been no

clinical trials of marijuana demonstrating that marijuana is useful

in the treatment of pain, correct?

Ms. JOY. You are absolutely right, and I think there’s one being

started in California on the treatment of neuropathic pain, and

that wasn’t available at the time of the report.

Mr. WELDON. The only clinical trials I know of are for marijuana

being used as an antiemetic, correct?

Ms. JOY. There were clinical trials in the 70’s as an antiemetic.

There were small clinical trials. They weren’t all, in fact, they

weren’t all terribly wonderful. You may already know this, this is

in the report—a lot of people—— Mr. WELDON. It was not very effective?

Ms. JOY. A lot of people in those clinical trials in the cancer patients in the 70’s, the dropout rate, I’m forgetting now, is 25 percent.

Mr. WELDON. They didn’t like the effect on their level of consciousness?

Ms. JOY. Right.

Mr. WELDON. The mind altering properties?

Ms. JOY. Right.

Mr. WELDON. The Institute of Medicine referred to the gateway

issue, and you made some statements about that. If you could just

elaborate a little bit. The reviewers, or the members of panel, acknowledge that most people who go on to use other drugs start

with marijuana, but then they go on from there to sort of conclude

there’s no cause and effect conclusion there. You can’t—but were

they not really talking about a scientific process?

It’s very hard to scientifically prove that marijuana leads to heroin, but you can clearly demonstrate by just interviewing heroin

users that a significant percentage of them start with marijuana,

and therefore it is reasonable to conclude it’s a gateway drug. But

the IOM report seemed to imply that we can’t prove that. But

that’s because it would require a large scientific study where you

would have to take people and give them marijuana and see how

many of them go on to heroine.

Ms. JOY. Well, there have been large epidemiological studies. If

I may, I’ll read something about the gateway effect story. It’s a little confusing because now, as I read before, the report does state

that in the sense that it precedes the use of cocaine and heroin, it

is a gateway drug. In the sense that it causes a person to use those

substances, there’s no data.

Mr. WELDON. There’s no scientific evidence to back that up, is

that not what they have concluded?

Ms. JOY. There’s scientific evidence to back it up, that marijuana

precedes cocaine and heroin uses. It also adds what precedes marijuana use is usually underage alcohol and tobacco. That is the first

step in the pathway to abuse.

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Most of the gateway studies, and I’m thinking of Denise Kandel,

who has done really extensive studies out of Columbia, are about

one-time-only use, and they don’t address what we call abuse. So

that included, in that study, people that tried it only once as opposed to who abused it, understanding that for some, you might

say even once-only use is abuse, but abuse in the definition of the

DSM IV, which is the diagnostic and statistical manual for psychiatric disorders.

The trick about the gateway issue, I will read from the report

now, ‘‘the gateway analogy evokes two ideas that are often confused, the first more often referred to as the stepping-stone hypothesis, is the idea that progression from marijuana to other drugs

arises from pharmacological properties of marijuana itself.’’ And

there’s no evidence to that particularly—well, OK I’ll go on. ‘‘The second is that marijuana serves as gateway to the world illegal drugs in which youths have greater opportunity and are

under greater social pressure to use illegal drugs.’’ That is the one

that is most often used in the scientific literature, and that’s where

the sequence comes from.

Mr. SOUDER. Dr. Joy, one concern I have that you have raised

earlier, you don’t address what most of us say, and that is, most

of us don’t maintain that there is necessarily a physical relationship or physiological relationship necessarily, although there is

some certain causal relationship about the people that you are

with, but in fact it’s an experiential or psychological relationship,

was that addressed? For example, you want to get high, the high

kind of goes dead after a while, and you want to get a further high.

You didn’t address that in either of those.

Ms. JOY. That’s a social—— Mr. SOUDER. Social, the implication was, in our earlier panel,

was is that the social was because you’re involving illegal, and you

used this earlier in your testimony as well, illegal alcohol, illegal

tobacco, therefore you’re in a circle where you’re getting exposed to

an illegal drug.

Ms. JOY. In my earlier statement, I did not say anything about

social and physiological. Here what I wanted to do is make a distinction between the idea that you somehow changed your brain or

something, making it want more stimulation of a stronger nature.

I might not be quite understanding what you were saying, but I did

want to show you how the panel had separated the two and what

they were talking about.

Mr. SOUDER. I think there is a distinct third that you didn’t address there. There is a social pressure, which you alluded to, and

a physiological addiction which would say that marijuana may

physiological—it’s much what we argue about the other habits in

your life, that is the habit an actual physical addiction, for example, alcohol for many people becomes a physical condition, to some

degree it becomes a psychological dependency. And that’s not social. A social would be arguing that you’re at a party and you’re

a social drinker merely to fit in. That’s merely a different category,

and if that’s not in there, that’s the one we argue most about.

Ms. JOY. You know, I feel like I’m going to be stepping out of

bounds if I start talking about what substance abuse researchers

talk——

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Mr. SOUDER. You have read the results.

Ms. JOY. But that’s not in the report, and I’m not comfortable

going beyond that.

Mr. SOUDER. Do you have anything?

Mr. WELDON. I just had a couple of questions for Ms. Nagel. I

just wanted to clarify there was a court case you referred to where

the DEA was going to go after doctors who recommended marijuana where it is not approved. It is a schedule 1 substance. And

the court ruled that you could not do that. It was a district court,

I think you said.

Ms. NAGEL. It’s the Federal District Court in California. It’s an

injunction against the DEA.

Mr. WELDON. Is that part of case that’s being heard tomorrow?

Ms. NAGEL. No, sir, it’s totally separate.

Mr. WELDON. Is that case being appealed by the DEA?

Ms. NAGEL. The Department of Justice, I believe, has filed a notice for appeal, but has not, in fact, filed its appeal yet.

Mr. WELDON. When did the Department of Justice file its notice

for appeal?

Ms. NAGEL. It has been some time.

Mr. WELDON. Was it the previous administration, the Clinton administration?

Ms. NAGEL. Yes.

Mr. WELDON. Thank you, Mr. Chairman.

Mr. SOUDER. I have a couple of additional things I want to put

in for the record, and then we may give you some each additional

written. Congressman McCollum, your resolution that passed Congress saying that we should not move marijuana off of schedule 1

and not medicinal is not one of the main arguments in the solicitor

general’s case tomorrow. Could you explain what your view of the

effect and meaning of that provision was for the record?

Mr. MCCOLLUM. For the record, Mr. Chairman, my view and I

believe it is the congressional view, it should be very clear that

marijuana is indeed intended by Congress to be a schedule 1 drug.

It would not have been done had we thought there would be medical utility, because obviously schedule 1 drugs prohibit that. It also

is a fact that we didn’t have any evidence then any more than we

have today that any official body that we condone at the Federal

level, like the Food and Drug Administration, to make decisions on

medical efficacy of use of properties like this had come forward to

anything like this to suggest we should alter this schedule. So the

resolution was pretty straightforward in its restatement of the

basic law and our support for the Controlled Substances Act in the

keeping of the marijuana on schedule 1.

Mr. SOUDER. And I wanted to ask Congressman Lungren, proposition 215, understanding the—I agree with your fundamental

premise that the reason we’re losing these referendums is the compassion question. And we have to figure out how we’re going to

deal with this politically, because it’s undermining the broader

question, but in proposition 215, you describe that there were multiple different types of people who supported it. If it was really for

medicinal use, why would it have not contained the close restrictions that were outlined in that report? And in California, or another way to say this is, in California, do you believe this is, for

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the most part, being used in narrow things where everything else

has been exhausted, where it’s under controlled prescriptions,

where the people are under observation, that it’s guaranteed for a

short-term period or any of those type of limitations? Because we

certainly have heard new stories and seen things on TV of clubs

and all sorts of things.

Mr. LUNGREN. Well, there’s a couple of different questions there,

and a lot of people confuse it. I moved to close down the Cannabis

Buyers Club in San Francisco prior to the passage of 215. They

claimed they were operating only for medical necessity, yet we had

undercover operations there that showed them selling to teenagers,

showed exposed secondhand marijuana smoke to infants. They

tried to show how they were following what the law would be by

only giving it to people for an expressed medical purpose. And I’m

not making this up.

One of the reasons given was for treatment of yeast infection.

And you have to—the minds boggles how that could be relevant

whatsoever. But the law was written with some specificity. Not as

much as you suggested. And we argued when we tried to then enforce the law—which is a limitation on law enforcement.

People don’t understand, it basically is stated as an affirmative

defense for someone who is charged with the continuing prohibition

against marijuana possession and use in the State of California. So

it’s a limited affirmative defense to an individual who uses it. And

it is also supposed to be a limited defense to someone who possesses it for his or her own personal use for medical purposes, or

is a caretaker of someone else that went through the definitions of

caretaker. But as you can imagine, some of those who supported

it tried to expand it beyond that.

This whole argument about this Cannabis Buyers Club out of

Oakland and so forth, the law does not change, the underlying law

in California with respect to operation of something like a Cannabis Buyers Club. They claimed after the law passed, after the proposition 215 passed, that it’s impossible if you give someone the

right to have this medical marijuana, and then don’t give them the

ability to buy it somewhere.

You have created an inconsistency in the law. We all know there

are inconsistencies in the law. The fact of the matter is that wasn’t

part of it. And I think those who frankly wrote the law didn’t put

it in because they knew the voters would probably vote against it

if they knew that was part of it. But what’s happened is you have

different counties interpreting the law differently, some allowing

cannabis clubs, some not, some allowing growing in their counties.

In other counties prosecutions are taking place right now, even

though the defense is hey, we’re only growing it for sale on a cost

basis to a cannabis cooperative.

And so if you think there is a disconnect between Federal and

State law enforcement, we also have a disconnect between State

and county or county to county in the State of California. It is not

written with the specificity that you speak to, and that was one of

the arguments I made in fighting against it. The commercials and

all of the public statements on behalf of it focussed on as was focussed on by a previous panel member here today, the chronically

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tient, and I think people responded to that, but the law does not

limit it to that.

Mr. SOUDER. This is the last question for you, and also Ms.

Nagel, if you could address this. My understanding basically in

how law enforcement is working and our ability—we’ve given more

flexibility as we have brought a DEA office into my home area of

Fort Wayne, IN to have, in effect, major cases kind of move up the

chain because Federal law can be tougher in enforcement. And in

fact, because of a more, there isn’t any other way to say it, a more

general tolerant approach to marijuana usage in the United States,

that the bulk of smaller cases in law enforcement on marijuana

have fallen to the local county level, to some degree the State level

rather than at the Federal level. And if State law then undermines

the beginning cases at the marijuana level at the local level, and

if in fact, to add one additional variation of this, as you said, if it

varies by county, then certain counties can become conduits for

other counties that are choosing to interpret the law differently.

For example, a major case in California right now is turning out

to be a provider of marijuana to much of the United States and are

coming up with unusual protections, which is why we have national law. I want to ask for the record, is it true that, in fact, we

move marijuana—have moved marijuana enforcement mostly to

the local and State level, and the DEA other than major bust cases

on interdiction, will tend to deal with cocaine and heroin, and does

this not, then, at the State level and medicinal marijuana, things

not defined tightly, put at risk our entire enforcement process on

marijuana?

Mr. LUNGREN. Mr. Chairman, I will just answer it in a couple

ways. No. 1, it has always been the case that you have more law

enforcement officers at the local and State level than you have at

the Federal level, even with the specialized expertise of the DEA.

And so DEA, in other words, is spread more thinly across the country than local agencies. So the primary jurisdiction for marijuana

busts of individuals has been in the past at the local level, except

when you get to larger quantities.

We have also had, in the past, some U.S. attorneys limitations

on the prosecutions they were taking had to be a huge amount,

what I thought were huge amounts before they would have prosecutions.

Second, I would say in some areas, there’s been very good cooperation with the DEA and locals. But I can tell you a particular

experience I had in California in which DEA was one of the first

ones involved in a major operation we had against a marijuana

club. In fact, one of those that invited us in and worked very hard

on them, and then when it came down to making the final decision,

somehow they were called off.

And so you can see the difficulty you have when you have very

different standards approaching a very serious problem that goes

across State boundaries. I mean, there’s just no doubt about it. It

is a recipe for disaster.

Mr. SOUDER. Mrs. Nagel.

Ms. NAGEL. DEA’s primary responsibility is the largest international, largest growers, trying to go with the highest level violators we can. With the laws, particularly in California, have created

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confusion county to county, and it’s strained our relationships with

our partners because they have turned to us, and when I spoke to

the people in California, they’re telling me they get phone calls

from sheriffs begging us to come to take marijuana because they’ve

been ordered to give it back, and they just can’t bring themselves

to do it.

They want us to step in and pick up what they are unable to do

right now, because the State laws won’t permit it. And we can’t

step in and take care of everything for them. So to a great extent

it’s not being done. The laws are not being enforced at the State

level, and the Federal Government cannot and should not be responsible for doing it. It’s created havoc with particularity in California.

Mr. SOUDER. I thank you all for your testimony today and for

taking the time to come. Clearly we have—we’re entering a very

difficult period and a very critical period with the new administration of how to focus on the battles, whether you refer to it as a

drug war or as a cancer, and we need to make sure we have a national focus.

Many of us remain very concerned that because of difficulty of

our dealing with pain and suffering, we have, in fact, seen something that particularly in this last question, we have seen could, in

fact, result in the de facto legalization of marijuana if, in fact, you

can’t enforce it at the local level, because the Federal Government

in no way can step in what local law enforcement has been doing.

And in Indiana, we can hardly battle our Indiana problems yet

alone if it starts coming as it seems to in larger quantities from

California.

With that, I thank you all again, and our hearing stands adjourned.

[Whereupon, at 5:25 p.m., the subcommittee was adjourned.]

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