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BY GERALD F. UELMEN, PROFESSOR OF LAW AND DEAN EMERITUS,SANTA CLARA UNIVERSITY SCHOOL OF LAW

"If It Doesn't Fit" Gerald Uelmen book cover

NOTE: This essay is excerpted from Uelmen’s most recent book, If It Doesn’t Fit (Xlibris, 2017).

On Jan. 1, 2018, California opened the doors to full implementation of a 2016 initiative measure to legalize the distribution of marijuana for recreational and medical use. A carefully structured regulatory scheme was in place to prevent distribution to minors and closely monitor and tax every step in the cultivation, production, and distribution of cannabis. On Jan. 4, 2018, U.S. Attorney General Jeff Sessions announced that the U.S. Department of Justice was “rescinding” the Obama-era Cole Memorandum that instructed federal prosecutors to forego federal prosecution of marijuana distribution or use that was in full compliance with state laws.

For over 20 years, California served as a principal battleground to contest federal prosecution of patients using cannabis as medication. With the Santa Clara Law students enrolled in my seminar Drug Abuse and the Law, I was at the forefront of that battle. In 200l, 12 students who assisted in briefing the case accompanied me to Washington, D.C., for the oral arguments in the case of United States v. Oakland Cannabis Buyers’ Cooperative. A unanimous court rejected our argument that a defense of medical necessity should be recognized under the federal Controlled Substances Act.

Despite losing the Oakland Cannabis Cooperative case, I had a continuing part to play in the vindication of medicinal marijuana through my pro bono representation of WAMM, the Wo/Men’s Alliance for Medical Marijuana in Santa Cruz. WAMM is a legitimate collective serving patients who use the drug to alleviate the side effects of cancer treatment, the wasting syndrome of AIDS, and other painful ailments. For me, representing Valerie Corral, the founding director of WAMM, was like representing Mother Teresa. She is the most compassionate person I have ever met. Each October, I would accompany my students for a visit to WAMM’s marijuana garden in the Santa Cruz Mountains to meet Valerie and observe the annual harvest. After the Drug Enforcement Administration raided WAMM and arrested Valerie, we went to federal court to seek an injunction to prevent federal authorities from interfering with its operation.The case was settled with an agreement by federal authorities to leave WAMM alone, a precursor to the Cole Memorandum.


marijuana growWith regard to the legalization of recreational use of marijuana, I remain a skeptic, but believe we should keep the door open despite the risks. My fear is that we are creating a mass market that will multiply the health dangers we already face from cigarettes and alcohol.


After the frustration of watching the federal war on drugs become a federal war on medical marijuana, it was a great relief to see a modicum of sanity return to our federal drug policy through the Cole Memorandum. Its demise is a misguided attempt to turn back the clock and shows contempt for the recent scientific breakthroughs that have demonstrated legitimate medical uses for cannabis.

With regard to the legalization of recreational use of marijuana, I remain a skeptic, but believe we should keep the door open despite the risks. My fear is that we are creating a mass market that will multiply the health dangers we already face from cigarettes and alcohol. But long ago, we recognized that the solution to alcohol abuse was not the enforcement of a total prohibition. Having a legitimate market can minimize the role of the illicit drug cartels, which have become a national scourge and corrupted so many developing nations. But by turning over the production and sale of recreational marijuana to private entrepreneurs whose goal is to maximize profits, we will replicate the patterns that characterize alcohol and tobacco marketing. Their profits come from the 10 percent who are the heaviest users, and their marketing strategy is to turn users into heavy users. With respect to medical use, however, we should not restrict the availability of a useful medication to those who suffer pain simply because some people will abuse their access to this drug. No one would argue that the widespread abuse of opioids would justify cutting off the availability of opioids to patients who need the drug to alleviate their pain.

ATTN: Santa Clara University and Law School are closed until 11/26 due to poor air quality. For more info check here - Air Quality Closure Info