Overview
The State of Iowa has authorized the Iowa Pharmacy Board (pdf) to review drug schedule classifications and hence what medical use and circumstances, if any, apply to certain controlled substances.
Today, August 19, 2009, the Iowa Pharmacy Board holds the first of four public hearings as part of a review to determine whether there is sufficient evidence to warrant the legislature's authorizing the use of marijuana for any medicinal purpose.
Members of the seven person board are appointed by the serving governor at the time of vacancy for a term of 3 years. Currently, the Board consists of five licensed pharmacists and two public members. Four are Democrats, two are republicans and one is an independent.
I. The Pharmacy Board Hearings are important because they shift the focus of decision making from the partisan special interests inherent in the political process to a more objective review of the evidence based on scientific method.
George Washington University Constitutional law Professor Turley notes the partisan political interests involved in the issue marijuana for medicinal purposes has resulted in the major political party's acting in a manner that is completely at odds with their traditional view of the Constitution and the prevailing status of the defined Constitutional relationship between Federal and state governments. So too, Georgetown University adjunct law professor Peter J. Cohen, an apparent advocate for marijuana, provides a substantive confirmation of the problem in his Utah Law Review article "Medical Marijuana: The conflict Between Scientific Evidence and Political Ideology (pdf)." (download here) (or here).
Professor Cohen concludes:
(1) "activists on both sides are responsible for the current state of affairs..." Cohen, p. 42 (download here or here)
(2) "... advocacy is a poor substitute for dispassionate analysis" and "popular votes should not be allowed to trump scientific evidence in deciding whether or not marijuana is an appropriate pharmaceutical agent to use in modern medical practice." Cohen, p. 41
(3) ... scientific evidence devoid of political considerations should be allowed to guide future decisions regarding the status of Cannabis sativa when used for medical purposes." Cohen, p.42 .
II. Since the Iowa Pharmacy Board's review of "medical" marijuana is of both State and National importance, facilitating public access to all written evidence and oral testimony is crucial to public trust and conficence in the Board's report to the Legislature.
The Iowa Pharmacy Board's ground braking actions to determine if there is any appropriate medicinal use for marijuana, including any recommendations concerning production, distribution and consumption, will quite rightly be compared (Cohen, p. 42) to the standards and process by which the U.S. Food and Drug Administration approves the human use of any drug. (F.D.A. 1) (F.D.A. 2).
For policymakers and the public to have confidence in the Iowa Pharmacy Board's recommendations, both the recommendations and the process leading to those recommendations must be perceived to be, and actually be material, accurate, valid and reliable.
Moreover, the analysis of both Professors Turley and Cohen make it clear that no matter what the Iowa Pharmacy Board concludes those interests the Board's marijuana recommendations favor will promote the report, while those interests the Board's marijuana recommendations diminish will attack it.
Accordingly, to gain policymaker and public trust and minimize the possibility the Iowa Pharmacy Board's study is hijacked by special interests is if all concerned can review both included and excluded evidence and verify the evidentiary steps leading the Board to its ultimate conclusions.
To date the Iowa Pharmacy Board has shown an appreciated willingness to be transparent in its decision making process. Oral testimony will be transcribed and interested parties are encouraged to submit their views in writing. Most importantly the Board has informed the participants "All oral testimony and written comments received by the Board will be public information."
The concern here, however, is not with the Board's transparency but with access to that transparency. Open hearings are constrained by one's ability to attend them as well as the meeting halls ability to accommodate them. Also, the physical review or duplication of written comments is difficult, time consuming, and the cost may be prohibitive.
III. Given the widespread implications and interest in these hearings and statements however, it is hoped and the Board is asked to:
(1) make the testimony available via a pod cast on its web site or place a downloadable copy of the hearing transcripts on its web site.
(2) Place a downloadable copy of all written comments on its web site.
Showing posts with label medicinal. Show all posts
Showing posts with label medicinal. Show all posts
Wednesday, August 19, 2009
Friday, June 12, 2009
Justice Albin's Senate Confirmation Hearing: What's Marijuana Got to do with it?
The purpose of this post is to submit pose a question to Justice Albin appropriate to his June 22, 2009 Senate confirmation hearing.
The goal is to better understand Justice Albin's views on Constitutional and criminal law as well as legal ethics. This approach was chosen because it is informative as to Justice Albins's impartiality while divorced from any potential charges of partisan inquiry. To accomplish this goal the following detail is divided into three parts. Part one introduces the question and offers a standard for appraising Justice Albin’s answer. Part two discusses why the question is appropriate to the Senate confirmation hearing. Part three seeks to identify some of the elements that one would expect Justice Albin to consider in his answer.
I. The Question for Justice Albin.
Is a state legislator, who is also a state licensed attorney, subject to accountability for misconduct pursuant to the New Jersey Rules of Professional Conduct ("RPC") , Federal District Court Rules, Civ. Rules 101.1, 101.4 (pdf.), and or Federal Rule of Appellate Practice, FRAP 46 (pfd), for acts that facilitate, are accessory to, or actually participates in the production, distribution or consumption of marijuana for medicinal purpose? And if so, does the Court or its Agency have an independent duty to prosecute the infraction(s)?
RPC 8.4(b) reads:
Moreover, it appears that in New Jersey, an actual criminal conviction is not necessary to invoke disciplinary action.
II. Why the Question is Appropriate for the Senate Confirmation Hearing.
First, "assuring impartiality does not require that the judge pretend to lack views on important topics of constitutional law.' Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'" Chief Justice Rehnquist (pdf.). And, see: Laird v. Tatum, 409 U.S. 824 (1972).
Thus, questions concerning criminal as well as civil law are appropriate because they fall under the Constitution's domain and Justice Albin's experience raises the expectation he has a high level of proficiency in this area.
Additionally, the Supreme Court Justices are ultimately responsable for resolving ethical controversies that arise within the legal profession.
And finally, questions concerning participation in past cases, while appropriate,
provide no potential basis for muddling his responses or the lack thereof. And, as the questions are not case specific there is no danger to the future review of cases that may come before the Court.
Second, "The people's confidence is not an inalienable right bestowed upon the Court either by the Constitution or the creator. That confidence is a matter to be earned by every public official, but especially unelected life-tenured judges who are generally unaccountable to the public. Sometimes this unaccountability protects integrity. But sometimes, it invites bad behavior." Lazarus, Point 5, Paragraph 27.
Public "Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. ... Although judges should be independent, they should comply with the law ... Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation ... diminishes public confidence in the judiciary and thereby does injury to the system of government under law. Model Code of Judicial Conduct, Canon 1 commentary.
In short, while it is important to ascertain whether Justice Ablin's view of the law reflects mainstream thought, it is less important that he agree with established law. What is important, however, is that he is informed by it, acknowledges it and, until changed, respect its. Republican Party of Minnesota v. White, 536 U.S. 765, 772 (2002).
Third, it is said "A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice." As a member of the Supreme Court, Justice Albin is responsible for the ethical conduct of those involved in the profession. Just as legislators are accountable to ethical constraint, lawyers are also subject to ethical constraint.
Thus, Justice Albin's views on ethical rules, such as misconduct that rises to the level of professional misconduct and hence Supreme Court sanction, are also appropriate to the public's confidence and trust in the integrity of the judicial institution.
III. Elements One Would Expect Justice Albin to Consider in His Answer About Malpractice.
PREMISE I: Since the Congress makes the law, the Executive enforces the law (as opposed to a case) and the judiciary is the arbitrator of disputes arising under the law, State "medical marijuana" laws appear to thumb their nose at the Constitution, the Congress and the Supreme Court. Moreover, such enactments create a constitutioanl crisis between the nations and state governments and between the Executive branch and Congressional and Judicial branches. Accordingly, as every state judge and justice has a duty to make the Constitution the supreme law it seems appropriate to ask Justice Albin his views on the law as it stands concerning "medical marijuana."
PREMISE II: THE CONTROLLED SUBSTANCES ACT ("CSA") IS THE "LAW OF THE LAND."
The main oblectives of Title II of the Comprehensive Drug Abuse Prevention and Control Act., the CSA, are to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. GONZALES v. RAICH, 545 U. S. 1, 12 (2005)[pfd] ... Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. Vol. 545 U. S. 12-13 ... To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. ... The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). Vol. 545 U. S. 13.
PREMISE III: INVOLVEMENT IN OR FACILITATING THE PRODUCTION, DISTRIBUTION OR CONSUMPTION OF MARIJUANA FOR ANY PURPOSE, INCLUDING MEDICAL USE, IS A FEDERAL CRIME.
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). ... Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). ... By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§ 823 (f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001). Vol. 545 U. S. 14.
PREMISE IV: THE SUPREMACY CLAUSE DEPRIEVES EVERY STATE GOVERNMENT OF ANY POWER FROM WHICH TO AUTHORIZE ITS MEDICAL USE.
The question before [THE COURT] is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Vol. 545 U. S. 9. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Vol. 545 U. S. 30.
The fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Vol. 545 U. S. 27.
When [Congress] enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U.S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. Vol. 545 U. S. 22. When Congress decides that the “‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154– 155 (“ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E. g., Lopez, 514 U. S., at 558 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted). Vol. 545 U. S. 17.
The goal is to better understand Justice Albin's views on Constitutional and criminal law as well as legal ethics. This approach was chosen because it is informative as to Justice Albins's impartiality while divorced from any potential charges of partisan inquiry. To accomplish this goal the following detail is divided into three parts. Part one introduces the question and offers a standard for appraising Justice Albin’s answer. Part two discusses why the question is appropriate to the Senate confirmation hearing. Part three seeks to identify some of the elements that one would expect Justice Albin to consider in his answer.
I. The Question for Justice Albin.
Is a state legislator, who is also a state licensed attorney, subject to accountability for misconduct pursuant to the New Jersey Rules of Professional Conduct ("RPC") , Federal District Court Rules, Civ. Rules 101.1, 101.4 (pdf.), and or Federal Rule of Appellate Practice, FRAP 46 (pfd), for acts that facilitate, are accessory to, or actually participates in the production, distribution or consumption of marijuana for medicinal purpose? And if so, does the Court or its Agency have an independent duty to prosecute the infraction(s)?
RPC 8.4(b) reads:
"It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;..."
Moreover, it appears that in New Jersey, an actual criminal conviction is not necessary to invoke disciplinary action.
"Under RPC 8.4(b), all that is required for discipline is a finding that there was a criminal act. There need not be a conviction or even an indictment for the crime in order for discipline to be imposed. See Matter of Hasbrouck, 140 N.J. 162, 166-167, (1995). Indeed, even an acquittal on criminal charges do not bar the imposition of discipline from the same allegations. Matter of Rigolosi, 107 N.J. 192, 206 (1987); In re Pennica, 36 N.J. 401, 418 (1962). Nor does it matter that the attorney was given immunity from criminal prosecution. In re Tumini, 95 N.J. 18 (1983). Nor does the attorney's admission into a pretrial intervention program bar discipline for the acts giving rise to the underlying charge. Matter of Asbell, 135 N.J. 446 (1994). See also New Jersey Court R. 1:20-13(b)(3) (providing that, although a temporary suspension will be lifted on a reversal of a conviction, disciplinary proceedings will not be terminated)."
II. Why the Question is Appropriate for the Senate Confirmation Hearing.
First, "assuring impartiality does not require that the judge pretend to lack views on important topics of constitutional law.' Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.'" Chief Justice Rehnquist (pdf.). And, see: Laird v. Tatum, 409 U.S. 824 (1972).
Thus, questions concerning criminal as well as civil law are appropriate because they fall under the Constitution's domain and Justice Albin's experience raises the expectation he has a high level of proficiency in this area.
Additionally, the Supreme Court Justices are ultimately responsable for resolving ethical controversies that arise within the legal profession.
And finally, questions concerning participation in past cases, while appropriate,
provide no potential basis for muddling his responses or the lack thereof. And, as the questions are not case specific there is no danger to the future review of cases that may come before the Court.
Second, "The people's confidence is not an inalienable right bestowed upon the Court either by the Constitution or the creator. That confidence is a matter to be earned by every public official, but especially unelected life-tenured judges who are generally unaccountable to the public. Sometimes this unaccountability protects integrity. But sometimes, it invites bad behavior." Lazarus, Point 5, Paragraph 27.
Public "Deference to the judgments and rulings of courts depends upon public confidence in the integrity and independence of judges. ... Although judges should be independent, they should comply with the law ... Public confidence in the impartiality of the judiciary is maintained by the adherence of each judge to this responsibility. Conversely, violation ... diminishes public confidence in the judiciary and thereby does injury to the system of government under law. Model Code of Judicial Conduct, Canon 1 commentary.
In short, while it is important to ascertain whether Justice Ablin's view of the law reflects mainstream thought, it is less important that he agree with established law. What is important, however, is that he is informed by it, acknowledges it and, until changed, respect its. Republican Party of Minnesota v. White, 536 U.S. 765, 772 (2002).
Third, it is said "A lawyer is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice." As a member of the Supreme Court, Justice Albin is responsible for the ethical conduct of those involved in the profession. Just as legislators are accountable to ethical constraint, lawyers are also subject to ethical constraint.
Thus, Justice Albin's views on ethical rules, such as misconduct that rises to the level of professional misconduct and hence Supreme Court sanction, are also appropriate to the public's confidence and trust in the integrity of the judicial institution.
III. Elements One Would Expect Justice Albin to Consider in His Answer About Malpractice.
PREMISE I: Since the Congress makes the law, the Executive enforces the law (as opposed to a case) and the judiciary is the arbitrator of disputes arising under the law, State "medical marijuana" laws appear to thumb their nose at the Constitution, the Congress and the Supreme Court. Moreover, such enactments create a constitutioanl crisis between the nations and state governments and between the Executive branch and Congressional and Judicial branches. Accordingly, as every state judge and justice has a duty to make the Constitution the supreme law it seems appropriate to ask Justice Albin his views on the law as it stands concerning "medical marijuana."
PREMISE II: THE CONTROLLED SUBSTANCES ACT ("CSA") IS THE "LAW OF THE LAND."
The main oblectives of Title II of the Comprehensive Drug Abuse Prevention and Control Act., the CSA, are to conquer drug abuse and to control the legitimate and illegitimate traffic in controlled substances. GONZALES v. RAICH, 545 U. S. 1, 12 (2005)[pfd] ... Congress was particularly concerned with the need to prevent the diversion of drugs from legitimate to illicit channels. Vol. 545 U. S. 12-13 ... To effectuate these goals, Congress devised a closed regulatory system making it unlawful to manufacture, distribute, dispense, or possess any controlled substance except in a manner authorized by the CSA. 21 U. S. C. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812. The drugs are grouped together based on their accepted medical uses, the potential for abuse, and their psychological and physical effects on the body. §§ 811, 812. ... The CSA and its implementing regulations set forth strict requirements regarding registration, labeling and packaging, production quotas, drug security, and recordkeeping. Ibid.; 21 CFR § 1301 et seq. (2004). Vol. 545 U. S. 13.
PREMISE III: INVOLVEMENT IN OR FACILITATING THE PRODUCTION, DISTRIBUTION OR CONSUMPTION OF MARIJUANA FOR ANY PURPOSE, INCLUDING MEDICAL USE, IS A FEDERAL CRIME.
In enacting the CSA, Congress classified marijuana as a Schedule I drug. 21 U. S. C. § 812(c). ... Schedule I drugs are categorized as such because of their high potential for abuse, lack of any accepted medical use, and absence of any accepted safety for use in medically supervised treatment. § 812(b)(1). ... By classifying marijuana as a Schedule I drug, as opposed to listing it on a lesser schedule, the manufacture, distribution, or possession of marijuana became a criminal offense, with the sole exception being use of the drug as part of a Food and Drug Administration preapproved research study. §§ 823 (f), 841(a)(1), 844(a); see also United States v. Oakland Cannabis Buyers’ Cooperative, 532 U. S. 483, 490 (2001). Vol. 545 U. S. 14.
PREMISE IV: THE SUPREMACY CLAUSE DEPRIEVES EVERY STATE GOVERNMENT OF ANY POWER FROM WHICH TO AUTHORIZE ITS MEDICAL USE.
The question before [THE COURT] is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Vol. 545 U. S. 9. The notion that California law has surgically excised a discrete activity that is hermetically sealed off from the larger interstate marijuana market is a dubious proposition, and, more importantly, one that Congress could have rationally rejected. Vol. 545 U. S. 30.
The fact that marijuana is used “for personal medical purposes on the advice of a physician” cannot itself serve as a distinguishing factor. Id., at 1229. The CSA designates marijuana as contraband for any purpose; in fact, by characterizing marijuana as a Schedule I drug, Congress expressly found that the drug has no acceptable medical uses. Vol. 545 U. S. 27.
When [Congress] enacted comprehensive legislation to regulate the interstate market in a fungible commodity, Congress was acting well within its authority to “make all Laws which shall be necessary and proper” to “regulate Commerce . . . among the several States.” U.S. Const., Art. I, § 8. That the regulation ensnares some purely intrastate activity is of no moment. Vol. 545 U. S. 22. When Congress decides that the “‘total incidence’ ” of a practice poses a threat to a national market, it may regulate the entire class. See Perez, 402 U. S., at 154– 155 (“ ‘[W]hen it is necessary in order to prevent an evil to make the law embrace more than the precise thing to be prevented it may do so’ ” (quoting Westfall v. United States, 274 U. S. 256, 259 (1927))). In this vein, we have reiterated that when “ ‘a general regulatory statute bears a substantial relation to commerce, the de minimis character of individual instances arising under that statute is of no consequence.’ ” E. g., Lopez, 514 U. S., at 558 (quoting Maryland v. Wirtz, 392 U. S. 183, 196, n. 27 (1968); emphasis deleted). Vol. 545 U. S. 17.
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