"Not tenable". This is how western Washington US Attorney Jenny Durkan assessed the state’s poorly-regulated medical cannabis program in 2013. Igor Grant, director of the Center for Medicinal Cannabis Research at UC San Diego, used the same words to challenge the Drug Enforcement Administration’s categorization of marijuana as a Schedule I drug. And after years of reporting across the country for our recently released book, A New Leaf: The End of Cannabis Prohibition, we'd use the same words to describe the legal status of medical cannabis in the US today.



As a Schedule I substance alongside heroin, the federal government considers marijuana to have no medical use and high potential for abuse. Under federal law, it's illegal for any person to manufacture, distribute, or possess cannabis for any purpose.

Yet twenty-one states and Washington DC have made the plant available as a medicine to qualifying patients. And legislation is pending in a dozen other states (including New York and Florida).

And herein lies the great contradiction of US marijuana policy – if these efforts succeed, a majority of US states will find themselves at odds with the federal government.

In the absence of effective or available cannabis-based pharmaceuticals, an estimated one million Americans have turned to marijuana. But federal intransigence on the issue has turned otherwise state-legal patients into criminals and left them to negotiate a confusing patchwork of state laws.

For our book, we talked with people all over the country for which this legal abstraction was a daily reality. A patient in Rhode Island allergic to opiates must sometimes go without her cannabis oil for pain relief when she travels for operations across state lines, or risk arrest. A mother in Vermont faced felony cultivation charges for growing cannabis plants for her son with renal failure when his condition had not yet been approved by the state; she knew the plant helped her other son just before he died of leukemia. A veteran in Illinois was told he would lose access to his pain management program because he tested positive for cannabis, which he preferred to opiates. And parents from coast-to-coast uproot their lives so that their epileptic children can have access to a medicine that's legal in Colorado.

Those who want medical marijuana also constantly battle skepticism and scrutiny. Patients in Illinois might be subject to background checks. Vermont patients with questions visit the same criminal information center that oversees the sex offender registry. In some states like Colorado, Alaska and New Jersey, patients are forced to join a registry for protection from arrest by law enforcement officers, who must verify that their marijuana is, in fact, legal.

Some patients must choose between medical marijuana and hospitals, nursing homes, and public housing because those facilities rely on federal funding and abide by federal law. Earlier this year, Attorney General Eric Holder issued guidelines to the banking industry on how they could work with dispensaries. But they were just that – guidelines, not legal protection.

Everyone from landlords to caregivers to local police departments – those who have decided to serve or accommodate these patients over the last two decades – have faced raids, arrests, subpoenas and asset forfeiture. And these clashes are only a fraction of the 8 million marijuana-related arrests in the past decade that disproportionately affect communities of color.

So how can we resolve this?

We could start by rescheduling marijuana (cannabis) at the federal level. This would at least make the dialogue around the substance more in keeping with science – particularly when it comes to the abuse potential of cannabis, which is simply not equivalent to heroin. Rescheduling it will not make cannabis a medicine dispensed at pharmacies – and various marijuana-based concoctions would still require FDA approval – but it would acknowledge the plant’s therapeutic uses. And barriers to research would be removed because Schedule I substances are the most difficult to access for study.



And at the state level, patients and their families should stop being treated like criminals. Illinois shouldn’t implement the background check. Vermont should transfer the administration of their medical medical marijuana program to its Department of Health. In addition, states like Utah and Georgia should legalize medical marijuana beyond the narrow consideration of CBD-rich cannabis extracts, so that patients who can benefit have access.

There are also simple ways to side-step the current confusion – the Justice Department, for instance, offered to be hands-off in medical- or general-use states, if they prevent access by minors and diversions to states where its still prohibited. Because of these explicit conditions and the fact that full legalization is gaining momentum in states with existing medical programs, strengthening medical marijuana laws now is also necessary for the long-term success of general-use laws in a state. If existing medical programs are not improved, their loopholes and ambiguities might undermine a legalization campaign’s promise to abide by the DOJ requirements.

Medical cannabis laws have multiplied for two decades, and 106 million Americans now live in states where cannabis is available for medical and general use. Alaska, Oregon, and Rhode Island could join Colorado and Washington in full legalization this year, followed by California in 2016. None of the medical marijuana laws are perfect. But we can only devise a clear and solid marijuana policy if state legislators and the federal government recognize that what we need most are more uniform – and more humane – laws governing a needlessly controversial substance.