The social impact of medical cannabis prohibition

Patrick Nightingale of the Law Enforcement Action Partnership (LEAP) shares his thoughts on the challenges US patients are still facing despite increasing access to medical cannabis programmes, and the social impact of medical cannabis prohibition.

Nightingale is a former prosecutor and practising criminal defence attorney in Pittsburgh, Pennsylvania. He spent six years with Allegheny County District Attorney’s Office and was one of the founding members of the domestic violence unit. As both a prosecutor and attorney Nightingale has seen the devastating effects of mandatory minimum sentencing medical cannabis prohibition schemes from both sides.

Nightingale has extensive public speaking experience, both from training police officers in matters of evidence collection while a prosecutor – and from speaking out in support of reforming marijuana laws as the Executive Director of Pittsburgh NORML.

He is also affiliated with Law Enforcement Action Partnership (LEAP) which is a non-profit organisation comprised of police, prosecutors, judges and other criminal justice professionals who use their expertise to advance drug policy and criminal justice reforms to improve public safety.

Medical Cannabis Network spoke with Nightingale about his professional history witnessing the damage medical cannabis prohibition has caused, his role in the legalisation of medical cannabis in Pennsylvania and the challenges which are still to overcome across the United States as a whole.

How did you initially become aware of the Law Enforcement Action Partnership and what attracted you to become involved?

I was a former prosecutor here in Pittsburgh and I was with the Allegheny County District Attorney’s Office for six years. Once I left the DA’s office, I became increasingly involved with efforts to pass cannabis related reform here in Pennsylvania.

On one occasion, we had a hearing in Pittsburgh where we had the lawmakers testifying and we invited guests to present testimonials. That’s when I first met Jack Cole, who was the founder of what was then called Law Enforcement Against Prohibition. Cole attended and did a presentation about how the so called ‘war on drugs’ is unwinnable and so forth and he invited me to become a speaker, so I signed on at that time.

What inspired you to advocate the end of medical cannabis prohibition? Were you always aware of cannabis use for medical reasons?

Before I was a prosecutor, before I was a lawyer and before I even went to college, I was a musician, so cannabis was something that I’d always been exposed to. In high school, I even proposed legislation for the National Youth and Government body. This met in Carolina and I proposed legislation to that platform in 1987. In doing the research for that I obtained information from the National Organization for the Reform of Marijuana Laws (NORML).

That was the first time I went to the store and bought a High Times Magazine; I saw their contact information and sent them a good old-fashioned letter and they sent me back a lot of research.

Keep in mind that this was in 1987 so at the height of the ‘war on drugs, just say no, this is your brain on drugs’ propaganda. As far as I was concerned as a 16-year-old cannabis was just as bad as heroin or cocaine but then I received all this information that showed me that in fact, cannabis doesn’t kill brain cells and it doesn’t cause cancer.

For the first time it really opened my eyes, and so ever since that time I have been very interested in medical cannabis prohibition reform, however, at that time the best you could hope for was decriminalisation on college campuses.

In 1996, the watershed moment when California legalised cannabis for medical reasons got me thinking ‘we might actually be able to make a change in certain parts of the country.’

During the course of your career did you often find that people were using cannabis for medicinal purposes before it was legal to do so in Pennsylvania?

Absolutely. For example, someone once told me: “My Mother is going through a little bit of chemotherapy and she’s not eating, so my cousin brought over a little weed and now she’s eating well.”

That suggested to me that there was no need to take pills for the pain and side effects associated with chemotherapy and that something else had been found that is a natural alternative. Even all through the 2000s people were very reluctant to openly admit any kind of cannabis use unless they are already someone who was comfortable being identified as a cannabis consumer.

In my opinion it wasn’t until fairly recently with this wave of legalisation across the United States that finally – people were finally feeling comfortable enough to admit what they did it in the past.

What challenges did you face in playing a role in the legalisation of medical cannabis in Pennsylvania? Did it complicate matters that it is still federally illegal?

When we first started advocating in 2009, that was the question posed by lawmakers. They simply argued: “What if the federal government just wanted to walk in and shut this down?” They could have if they really wanted to.

We really didn’t start to gain any momentum in Pennsylvania until 2013 and 2014 when we were able to attract a very conservative member of the Senate to champion the cause. The pushback that we were initially getting was that ‘nobody smokes their medicine, this is a gateway drug, your kids are going to become addicted’ – all of the traditional arguments that you hear against legalising cannabis.

However, slowly but surely sceptical lawmakers began to become influenced by the testimony of parents whose critically ill children were actually getting relief from the hundreds of seizures that they had every week. Veterans also presented testimony about how having access to medical cannabis had saved their lives.

We were presenting testimony that medical cannabis could help reduce opioid dependence, and that it has not resulted in any type of spike of criminality and that it can be cultivated and distributed safely. Finally, there was the budgetary spending amendment which since 2014 had prevented the Department of Justice from using its funds to go after well-regulated state programmes. I think that really allowed our lawmakers to say: “if we do this, we don’t have to worry about federal interference.”

It was difficult to get it through with the change in administration and the democrats having a majority in the house, there was a concern that it might not be renewed, but now it’s actually going to be a line item part of the federal budget and no longer a spending rider, so the protections are there.

Are there still barriers to access for medical cannabis? Is there still a black market in areas where there are medical cannabis programmes that those people might be taking advantage of if they can’t access the state programmes?

Statistically speaking, up to one and a half, to two million Pennsylvanians consume cannabis of some type of regular basis, and we have 200,000 people on our programme. Clearly the vast majority of cannabis consumers here in Pennsylvania and across the country are not medical users. There is an argument of course which we made that all cannabis use is medical because we have an endocannabinoid system, but only registered patients that are either critically ill or suffer with chronic pain are ‘legitimate.’

Therefore, we continue to have a black market and because of the high price of some of our dispensary cannabis products, a lot of patients have no choice but to resort to black market access or risk felony prosecution for cultivating their own supply. People can either turn to criminality or become a medical refugee by travelling to somewhere where they can have access to that medicine.

That is what our patients who were facing these problems were living with. Families with children who are seizing thousands of times a month resorting to splitting up their family with half of them moving to Colorado and the rest standing in Pennsylvania just to have access to something that provides some relief. It was just heart breaking, some of the testimony that we heard.

However, you have to start somewhere and that’s what that’s really got us over the fence here. When a group of mothers saw the CNN special from Sanjay Gupta and saw a child (Charlotte Figi) being treated with a strain of cannabis that was high in CBD and achieving significant seizure relief they went to their conservative State Senator and he decided to go all in. Without him adding his political clout to the movement it would not have passed. If we didn’t have Republican conservatives championing this, we couldn’t do it through our legislature.

It isn’t just having the support of politicians behind it, but the right politicians. Plenty of liberal progressive Democrats are supporting this, but they don’t control the legislature, so we couldn’t do anything. We are dealing with that at the moment with trying to bring about decriminalisation and full adult use legalisation.

We got those into Pennsylvania’s legislature, but the Republican committee chairs and the Republican leadership will not allow the legislation to move forward. Some states have upheld initiatives allowing voters to decide but here we have to do it by introducing legislation. Unfortunately, the United States Congress and the majority party don’t want it to move.

What more needs to be done to prevent social injustices arising as a result of medical cannabis use?

We have a list of qualifying conditions in Pennsylvania, but it is not exhaustive. Individuals who fall outside of that list of qualifying conditions are shut out of the programme and forced to resort to criminality if they wish to use cannabis to alleviate their symptoms.

If you were using cannabis for chronic insomnia for example, you remain a potential criminal. If you are using cannabis for diabetes, or for bipolar or any other conditions for which cannabis has proven effective but it is not on our list then you’re out of luck.

Another component to this is that we have strict prohibition on anyone with drug related convictions working in this new and emerging industry. If you look at the war on cannabis and the war on drugs in general, people of colour and people in lower economic categories in this country are disproportionately affected by medical cannabis prohibition.

We have a situation where there is this new industry emerging that is generating millions of dollars and could potentially explode into a massive industry – yet the people and the communities that have been most affected by medical cannabis prohibition are shut out from participating in these new business opportunities.

I think that’s something that everyone needs to be aware of, especially if we expand from here. I think those are probably two of the more significant social justice components in Pennsylvania, and this is something going on across the States. More guidelines or specific courses of action to address employment discrimination, housing discrimination, custody and other legal proceedings like that are required.

We have got some protections, but this is such a new area of the law that people are still getting fired. Even if a state has a law stating that cannot to be terminated on the basis of cannabis use, it has schedule 1 status which federally means that any workplace subject to federal regulation like Department of Transportation for example. Even with Occupational Safety and Health Administration (OSHA) guidelines cannabis users are frozen out of those opportunities.

There are also issues with states that have zero tolerance Driving Under the Influence (DUI) statutes. Here in Pennsylvania and in many other states, if you have any cannabis metabolites in your blood (not active THC, but non psychoactive metabolites) you can be convicted of driving under the influence.

Therefore, practically speaking, every single Pennsylvania patient is prohibited from operating a motor vehicle. I have had clients who have accidentally shown their medical cannabis card to the officer when they have been pulled over (it looks very similar to our driver’s licences) and were then investigated for DUI.

Do you see any of these issues being resolved in the near future?

I would say that one thing that is exciting to see is that the negative stereotypes are starting to be put to rest. The stereotypes associated with medical cannabis use, used to be ‘you’re just a ‘stoner’ and you’re pretending that you’re sick in order to get access to legal weed.’ Now we are seeing quite the opposite.

In Pennsylvania for example, our fastest growing patient demographic is our senior community. I have a dispensary just around the corner from my house and whenever I drive past it, I see people in wheelchairs and older people helping each other into the dispensary – they are the people who are truly benefiting from this.

The more that these stories are shared, the more that their family members see how well they’re doing then the more stereotypes of cannabis consumers as second-class citizens will finally be shattered.

Patrick Nightingale
Former Prosecutor
Criminal Defence Attorney
Law Enforcement Action Partnership
+1 781 393 6985
Tweet @PoliceForReform
lawenforcementactionpartnership.org

This article appeared in the first issue of Medical Cannabis Network which was out in January. Click here to subscribe.