Medical Marijuana under Sharia

By Jomana Bima, a Ph.D. student at the University of Washington School of Law

Marijuana, hemp, or hashish is a psychoactive drug from the Cannabis plant, used for recreational or medical purposes. The main psychotropic ingredient of cannabis is a compound called tetrahydrocannabinol or better known as (THC), a compound responsible for causing an intoxicating effect. Marijuana can be consumed by smoking, vaporizing, within the food, or as an extract. Under Sharia law, marijuana is categorized under narcotics or “Mukhaddirāt.” In Arabic, muhkadirat or narcotics are any substance that makes a person feels sluggish and lazy, deprives sensation, and covers mind.

Regarding the Sharia rule on narcotics, there is no reference to drugs or narcotics in the early years of the Islamic era, even in the holy scripts of the Quran or the Sunna. Classical fuqaha’ (jurists) did not define what narcotic is even though they talked about various types of intoxicants. Instead, they focused on the general principles regarding intoxication to explain rulings. To understand how the jurists extrapolate a judgment regarding marijuana, we need to understand the reason for the prohibition of wine and alcohol beverages. Sharia law prohibits consuming wine and alcohol beverages, considering it as one of the major sins. The majority of the fuqaha’ (Maliki, Shafi’i, and Hanbali schools of thoughts) said that the reason for the prohibition of wine is the intoxication based on the Prophetic hadith states that “Every drink that causes intoxication is forbidden.”[1]

Based on the prohibition of wine, as a general principle, intoxicants that alter an individual’s mind or affect perception, judgment, behavior, and ability to think are impermissible under Sharia. Therefore, recreational marijuana is forbidden.

Medical Use of Marijuana

Under Sharia, it is permissible to use marijuana for medical purposes under the “Doctrine of necessity,” one of the Islamic Jurisprudence principles that states “necessities permit the forbidden.” However, permissibility is not ultimate, several conditions must be met. The purpose of these conditions is to ensure that there is a real and absolute necessity. Using cannabis-based products and narcotics in general for medical treatment is permissible in the following cases:

  1. If the need of using such substance was absolute necessity or “dharura” because necessity is the only exception that can make what originally forbidden to permissible. Relieving symptoms of pain, chronic conditions, or acute severe pain is a medical necessity.
  2. If the medicine is prescribed by a qualified and trustworthy physician who is considered as an expert on the field.
  3. In the absence of alternative lawful medicine that has the same efficiency.
  4. Using minimal amount to meet the patient medical need, and any over need doses considered impermissible.
  5. If the medicine does not cause harm that equal to or greater than the damage that already existed based on the Prophet’s (peace be upon him) saying: “There should be neither harming nor reciprocating harm.”

In summary, using narcotics–including cannabis– for recreational purposes is forbidden under Sharia because it is intoxicant that affects the person’s mind and judgement. Using cannabis for medical reason is permissible as long as the condition stipulated above are met.

[1] Sahih Muslim, Book of drinks, Ch.7, every intoxicant is wine and every wine is forbidden, No. 2001.

Employers and Medical Cannabis: Likely No Duty to Accommodate

By Macee Utecht, second-year student at the University of Washington School of Law.

Twenty-nine states, the District of Columbia, Guam, and Puerto Rico have passed medical marijuana programs. Generally, medical marijuana laws allow for the legal consumption of cannabis as medical treatment after a physician authorizes use, and most states list various medical conditions that may qualify a patient for medical cannabis cardholder status. With over half of the United States implementing medical cannabis programs, the question of whether medical cannabis may be considered a reasonable accommodation under the Americans with Disabilities Act (ADA) has surfaced.

Modeled after the 1964 Civil Rights Act, Congress passed the Americans with Disabilities Act in 1990 to prohibit discrimination of disabled persons. The ADA serves to guarantee disabled persons equal opportunities to obtain employment, to purchase goods, and to participate in state and local government programs. Further, if a disability creates limitations for an otherwise qualified individual, an employer must consider whether “reasonable accommodations” could help alleviate the limitations. Many states also have laws that supplement the ADA.

Passage of state medical cannabis legislation has created a tension between employers who wish to maintain drug-free workplace policies and those who seek to employ medical cannabis as a reasonable accommodation for their disability under state and federal disability legislation like the ADA. While there have been some favorable decisions for medical marijuana cardholders, a majority of states do not force employers to allow medical marijuana as a reasonable accommodation.

In most states, those who validly consume cannabis for medical treatment may still be lawfully terminated by their employer. Even in a state like California, which initially pioneered medical cannabis legislation, does not require employers to accommodate employees who use medical cannabis. Washington, Oregon, and Colorado also allow employers to terminate without providing reasonable accommodations for medical marijuana use.

On the other hand, some states like Arizona, Delaware, and Minnesota provide protections that prohibit discrimination in hiring, termination, or any other condition of employment based on medical cannabis cardholder status. The Massachusetts Supreme Court recently held that “the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication.” And even in states like Michigan, where employees may be lawfully terminated for medical cannabis use, cardholders may still receive unemployment benefits.

While case law across the nation indicates that most states do not require employers to accommodate medical marijuana use, some employers choose to do so anyway. It may be beneficial for cardholders to begin a dialogue with their employer or potential employer to determine whether appropriate accommodations can be made. Choosing to transfer employees that use medical cannabis outside of positions that present a potential safety risk creates opportunities for accommodation of medical cannabis users- for example, allowing an employee to occupy a position that does not require the operation of heavy machinery may be a reasonable solution.

For now, cardholders should err on the side of caution: lawful use of medical cannabis does not always mean that employers must accommodate that use.

 

Dual Licenses and the Rohrabacher Amendment Protection

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

Consider this hypothetical: Jane, a Washington state proprietor, holds both a license for the sale of recreational and medical marijuana. She keeps all records in exact compliance for both medical and recreational sales as required by Washington State. The DEA obtains a warrant for Jane’s business, confiscating her product and business records. As the federal trial proceeds, the court orders a McIntosh evidentiary hearing to determine compliance with Washington’s medical marijuana laws that would shut off funding for the DOJ to prosecute Jane. Is Jane protected by the Rohrabacher Amendment?

From one perspective it would appear the Rohrabacher Amendment would protect only those participating in the sale of medical marijuana. However, it’s likely that some of these businesses are operating with dual licenses, especially when you consider the Washington Administrative Code that addresses the medical marijuana endorsement as if it is an add-on to the retail license. Statistics from Washington’s Department of Health show recognition cards, certified consultants, and active medically endorsed stores have continued to increase over the course of a year starting in July, 2016.

So we know medical marijuana is still a thing in Washington’s economy where recreational marijuana has been around for a while, so how do we separate one operation from another? The traceability requirements of the recreational side is pretty intense, tracking from “seed to sale” on the system designated by the Washington State Liquor and Cannabis Board (“WSLCB”). This would lead me to believe that it would be easier to disentangle, at a practical level, any product or sales that are clearly designated for recreational purposes and those that are for medical purposes. But what would that mean for our hypothetical retailer, Jane?

Criminal charges wouldn’t be filed for violation of the different state laws; they would file a charge to cover all of her plants and products. This is a bit of an oversimplification, but I think the point is intact. Let’s further assume Jane’s business is exactly 50% medical and 50% recreational. She’s proven that she’s compliant with the guidelines for medical marijuana, which would trigger the protection from the Rohrabacher Amendment. But that was only 50% of her business, and only 50% of the charges. It is not at all clear how this would get resolved in court, but I can see three main potential outcomes based on Jane’s strict compliance with Washington’s medical marijuana rules:

  • The whole business is not strictly compliant; no protection at all
  • Protects the medical portion; allows prosecution for the recreational
  • The business is all one thing; everything is protected

The closest case on point in the Ninth Circuit was not published, specifically called out as not suitable for precedent. For the moment, this is a big open question. If I were a practitioner in this environment, I would find it difficult to advise a client on what the best course of action would be.

 

Water Access and Marijuana: Federal water access rights and Washington State growers

 By Kristopher Choe, first-year student at the University of Washington School of Law

Water is the driving force of nature. Like all other flora and fauna, the marijuana plant also needs water to thrive. Eight states and the District of Columbia have thus far legalized marijuana for recreational use. Twenty nine states and the District of Columbia legalized marijuana for medical use. Marijuana growers in these states face the issue of where and how to access to water for their plants. The legal question at hand is whether or not federal water can be used to irrigate marijuana.

The short answer: no, growers cannot use federal water sources to irrigate marijuana plants.

Despite the increasing trend of legalization, marijuana remains a Schedule I drug under the Controlled Substances Act. This means that marijuana has: 1) high potential for abuse, 2) no currently accepted medical use, and 3) lack of any accepted safety for use.

Since marijuana is a controlled substance, the United States Bureau of Reclamation subsequently issued a policy statement prohibiting the use of reclamation facilities and water to irrigate marijuana crops in states with “legal” marijuana.

How does this decision affect growers in Washington State?

In Washington, this policy statement greatly affects marijuana growers because it drastically reduces the amount of available water for irrigation purposes. The Bureau of Reclamation controls the supply of up to two-thirds of the state’s irrigated land. A drive over the Cascades reveals the prominence of the federal government’s involvement in Washington’s water ways. Many of the dams erected along the mighty Columbia and its tributaries are managed and regulated by the federal government. (See picture below)

Photo courtesy of U.S Bureau of Reclamation

So, if federal water usage is out of the question, then how and where are licensed growers accessing water?

Washington water rights law states that if you need more than 5,000 gallons of water per day, then a water right permit is needed. This applies to both surface water and groundwater. But that is easier said than done. The process of obtaining a new water right is difficult, to say the least.

However, if a grower needs less than 5,000 gallon of water per day, then a grower may qualify under the “groundwater permit exemption.” This exemption allows growers great latitude to grow marijuana really anywhere there is groundwater available. The groundwater permit exemption allows for the following uses:

1)     Domestic uses of less than 5,000 gallons per day

2)     Industrial uses of less than 5,000 gallons per day

3)     Irrigation of lawn or non commercial garden, a half-acre or less in size

4)     Stock water

Basically, small withdrawals of groundwater are exempt from the permitting process. However, according to the Washington State Department of Ecology, growers should be approach with caution because there still may be local rules or requirements related to a new permit-exempt well. Overall, the exemption is one way for growers to access while the federal government continues its prohibition.

In sum, federal water cannot be used to irrigate marijuana plants for licensed growers. However, in Washington State, growers are able to get around this restriction through either applying for a water right permit, or if the planned use is quite light, then growers could make their own well and extract groundwater.

Interstate Cannabis

By Silvan Schuttner, first-year student at the University of Washington School of Law

Image used under the Creative Commons Zero License

The states that have legalized cannabis—as a matter of state law—have generally been allowed to operate without much federal involvement. However, transportation of state-licensed and produced cannabis to other states is beginning to change that. Cannabis remains illegal under federal law, regardless of changes in any particular state’s laws, and federal law also prohibits transporting Schedule I drugs across state lines under the Controlled Substance Act. Why is this now an issue when it hasn’t been much of a problem in the past? The answer: a confluence of rising cannabis overproduction and interstate transportation have combined with the tension between state and federal law.

A potential increase in federal attention on cannabis may result from Attorney General Jeff Sessions rescinding the Cole memo, which had been a guide for states to limit federal involvement. However, preventing cannabis from crossing state borders was one of the “particularly important” enforcement priorities for the federal government laid out in the Cole Memo. Making it crucial for states to find a way to address this issue.

Due to an overproduction of state-legal cannabis, the black-market in states that have yet to decriminalize or legalize is attracting some of the excess cannabis. As was feared from the outset, states with state-legal cannabis regimes seem to have indeed become an easy source to supply black-market demand in non-legalized states. Washington sought to limit production to only enough cannabis and derivative products to satisfy in-state legal markets. California attempted to address this problem with laws against taking cannabis out of the state. Of course once cannabis leaves a state there is little that state can do to prosecute. The fact that state legal cannabis is finding its way to other states where it is still illegal is driving federal prosecutors to focus on the issue.

Overproduction in states such as Oregon has brought up a question about the state’s ability to deal with the regulatory process alone. As US attorneys try to figure out how to proceed with this problem, a continued increase in cannabis crossing state borders could garner more attention and subsequently federal enforcement. It is difficult to predict how federal involvement would manifest, if at all, but it is all but certain if states continue to struggle controlling production and transportation out of state.

Overproduction and interstate transport is an example of the challenges around a bottom-up approach to legalization. Issues that states which have legalized cannabis face will require a careful, considered approach. It’s true that being at the vanguard of change is difficult, but hopefully this is a problem that the states can solve without too much federal directive.

Federal Budget Protections for Medical Marijuana Growers

By Sean Hyde, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

The barrier standing between state law compliant medical marijuana growers and prison is money, but not because they need a pricey attorney to fight back. The federal budget has been at the top of headlines the past several months as Congress fights to decide what programs get funded for the rest of fiscal year 2018. The resolutions that have kept the spending at the status quo, until the final deal reached on February 7th, upheld a safeguard in the Federal budget under the Rohrabacher amendment. The amendment, or rider, says that the Department of Justice (DOJ) can’t spend any funds to interfere with the medical marijuana laws of the named states (almost all of them). This sounds like very good news, but it isn’t technically as good as you might initially think.

The manufacture, distribution, and use of medical marijuana is still a federal crime, so it’s under the DOJ’s jurisdiction to enforce those laws. The rider has not prevented them from filing new charges against violators, but it has had some efficacy in the 9th Circuit in halting prosecution. A 2016 case compelled an evidentiary hearing to allow the defendant to show they were strictly compliant with state law (US v. McIntosh). Once outside of those laws, even on small technical details, the rider doesn’t apply, and the DOJ can continue to fund the prosecution. But if you are fully compliant with state law, then you’re home free, right?

Unfortunately, the lack of funding doesn’t necessarily require the DOJ to drop the charges against you. There is no indication that they will have to release any seized plants, or to reimburse you for the expense incurred while defending the charges. It could be argued that keeping case files, storage of evidence, and review of case management systems constitutes spending that interferes with the ability of the state to implement laws. But that argument has not come up so far as my research has taken me. And who knows, maybe this rider has kept people from being arrested.

Last week the 9th Circuit Court of Appeals in Seattle heard a post-conviction appeal requesting an evidentiary hearing under the McIntosh rule. The contention was that the lower court had expressly forbidden the use of Washington State law as an affirmative defense against prosecution, so evidence was not provided at trial to support compliance. Presumably, if the evidentiary hearing finds that the defendant was in strict compliance with state laws, then the prosecution was pursued when it should have been prohibited for a lack of funding. It’s not clear what remedy would be available if the evidentiary hearing found that the defendant was in strict compliance with state law. If the court ordered release of the defendant from prison, aren’t they just postponing his incarceration if and until Congress turns the tap on for the DOJ again?

The problem here is a temporal one. In a strictly technical sense, the DOJ shouldn’t have funding to prosecute before there is an evidentiary hearing to determine compliance. Because they have to spend money to find out if they have money to spend, this part of the process is unavoidable. This is why the rider is only a half-measure solution. What if you continue following the state laws and they add those acts to the previous charges, in a way “allowing” you to continue illegal behavior which they will later charge you for? As it is now, there is no answer to that question.

For now, the Rohrabacher amendment is in place until March 23rd. It remains to be seen what Congress will do for the rest of FY18 and beyond.

Vacating Misdemeanor Pot Convictions: Seattle’s Necessary But Insufficient Step Toward Restorative Justice Says Mayor Durkan

By Jevan Hutson, first-year student at the University of Washington School of Law.

Image used under the Creative Commons Zero License

Following similar announcements in San Francisco and San Diego, Seattle became the latest major U.S. city to vacate past pot convictions. Earlier this month, the city of Seattle moved to vacate all misdemeanor pot possession convictions that were prosecuted before the legalization of recreational marijuana in 2012.

Highlighting a report from the Drug Policy Alliance, Mayor Durkan’s office said  “[m]arijuana possession arrests in Washington rose sharply . . . from 4,000 in 1986 to 11,000 in 2010, totaling 240,000 arrests . . .” and that “[i]n Washington State, African Americans were arrested at 2.9 times the rate of whites. Latinos and Native Americans were arrested at 1.6 times the rate of whites.”

As a step toward redressing the disparate impact of the war on drugs on communities of color, Mayor Jenny Durkan and City Attorney Pete Holmes estimate that between 500 and 600 criminal convictions will be erased from court records. The cases were prosecuted between 1997 and 2009, which represents the period when Seattle’s municipal court had authority to prosecute misdemeanor pot cases. Before 1997, misdemeanor marijuana prosecutions were handled in county court, where city officials have no jurisdiction.

Unlike the San Francisco District Attorney’s Office, which will be reviewing, recalling, and resentencing upwards of  4,940 felony marijuana convictions dating back 43 years, the Seattle City Attorney’s Office does not oversee felony marijuana convictions. In Seattle, felony marijuana convictions are handled by King County Prosecutor Dan Satterberg. Despite being sympathetic to the city’s initiative, Satterberg says his office does not have the resources to vacate or reduce all past convictions:

“If a case is more than three years old, we have to go to the warehouse where we hold our old files, pull them out, and figure out if the felony was a $10 sale or a 1,000-plant grow house,” Satterberg said. “If the county wanted to make this a priority and devote some resources to it, it could be done, but I don’t want to do it at the expense of the mainline criminal cases that are coming in every day.”

Despite being at the forefront of marijuana legalization, Seattle’s latest efforts follow the lead of cities like San Francisco, San Diego, and Oakland. Although Seattle’s move to vacate misdemeanor pot possession convictions is an important and necessary step forward, Mayor Durkan highlighted how it is alone insufficient to redress the historical injustices of the war on drugs on vulnerable and minority communities:

“Addressing decades of unjust convictions – and particularly the damage wrought on communities of color – won’t happen overnight. We must provide more effective alternatives to prosecution and incarceration through drug and mental health courts, restoring rights and supporting re-entry.”

Beware Fraud in Cannabis Investment

By Jeff Bess, third-year student at the University of Washington School of Law.

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State-legal cannabis is a booming business and further state-level moves toward legalization and regulation are likely on the way. Though legalization has most famously resulted in economic growth and increased state and local tax revenues, it has also come with its fair share of problems. As Seattle-based cannabis business attorney Hilary Bricken wrote earlier this month: “[L]ike any new and high growth industry with complicated and constantly changing rules and regulations, the marijuana industry is chalk full of scammers and con artists.” A recently reported, ongoing cannabis fraud investigation in Oregon – the first of its kind in the state – illustrates one way that less-than-scrupulous investment in the cannabis space can potentially present significant pitfalls for investors and entrepreneurs alike.

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On the DEA’s Decision to Not Reschedule & Open Up Research

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

At a month old, the news has already long been out. In a press release on August 11 the U.S Drug Enforcement Agency (DEA) declined requests to reschedule marijuana under the Controlled Substances Act, along with opening up an important avenue to further marijuana research. The decision to not reschedule is no surprise to me, as I had predicted this back in April. The DEA has had a singular stance on this issue for 45 some-odd years, and just because there’s been reform at the state level and a change in public sentiment towards the substances does not mean the federal government will be so quick to reform its laws. A mere 9 months ago DEA Chief Chuck Rosenberg called the idea of marijuana being considered medicine a “joke,” so predicting a lack of policy reform wasn’t too difficult.

Image in public domain

Image in public domain

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CLPP’s 2nd report for WSLCB is out, concerning cannabis-infused edibles & access to children

By Sam Méndez, Executive Director of the Cannabis Law and Policy Project

Today our second report for the Washington State Liquor & Cannabis Board (WSLCB) was released, announced by UW Today. The report is titled “Concerning Cannabis-Infused Edibles: Factors That Attract Children to Foods” and it seeks to provide WSLCB with a research foundation for regulating cannabis-infused edibles with children in mind, supporting some of their already established policies on the subject and providing the potential for new ones.

Photo: leafscience.com

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