Various news sources, including the New York Post and MSNBC, have reported that Bridget Brennan, the Special Narcotics Prosecutor for New York City, has stated her opposition to the proposed medical marijuana law. I have not yet seen the actual text of the letter, but the news reports suggest a willful misreading of the proposed law.

Brennan’s opposition appears to particularize to three issues: (a) the threat of uncontrolled spread of dispensaries, (b) the lack of any mechanism of testing the cannabis – which could be laced with other substances, and (c) the lack of any requirement that a prospective patient meet with a physician.

I ask why the matter of a proposed medical marijuana law is relevant to the office of the Special Narcotics Prosecutor the function of which is prosecuting major drug crimes.

Uncontrolled spread of dispensaries
As to (a), which includes the statement that dispensaries have become magnets for crime in other states, this statement appears to be entirely disingenuous, unless Brennan actually intends to say that the state Department of Health is incompetent. The fundamental point of the second generation laws is to require that supply-side market participants obtain licenses from the state before commencing operation. Under the statute, those applications must include the proposed address of the dispensary. Therefore the Department of Health implicitly possesses discretion to determine whether a dispensary is appropriate for the area in which it proposes to operate. This comment by Brennan seems to repeat the classic formula of drug control, which is the claim by law enforcement that it and only it can be trusted to regulate controlled substances – in this case because the Department of Health cannot responsibly process dispensary applications.

At the outset, therefore, it borders on nonsense to compare the proposed regulatory scheme with, e.g. California or the old system in Colorado (which is now in flux), since ALL NY DISPENSARIES MUST OBTAIN STATE APPROVAL PRIOR TO DOING BUSINESS.

Having said that, it may be appropriate to work in to the scheme some kind of local comment or participation in the location of dispensaries. Should there be local public hearings and comments on proposed dispensary applications? Should the dispensaries be treated by like bars or like pharmacies? A provision of the law allowing for local participation in the process would make the New York law more a hybrid between the NJ/RI model, in which regulation occurs at the state level, and the California model, in which local governments regulate dispensaries. However, while this may be a valid question, it is not apparent to me why it is any more an appropriate question for the Special Narcotics Prosecutor than the issuance of a liquor license to a nightclub or licensing of a pharmacy.

Testing of cannabis
As to (b), why is it any business of the Narcotics Prosecutor as to whether the law requires purity testing of the merchandise? Is this not a matter for the Department of Health to consider as a basis for revoking an offending dispensary’s registration – or denying a renewal application? Is this not, in the alternative, a matter for the Department of Consumer Affairs? Again, we see the classic pattern of law enforcement claiming a monopoly over the ability to regulate psychoactive substances (other than alcohol, tobacco, and caffeine) to the exclusion of any executive branch administrative agency.

As to (c), again, why does the Narcotics Prosecutor presume to comment on the practice of medicine unless to say that the state Office of Professional Medical Conduct will be incompetent to do its job? Why should the legislature need to write in to the bill that a prospective patient meet with a physician?

I ask:

– What is the evidentiary support for the Special Narcotics Prosecutor’s claim that dispensaries create crime?

– The function of the New York City Office of the Special Narcotics Prosecutor is major drug trafficking. Why is the Prosecutor presuming to comment on a proposed medical marijuana law to be administered by the New York State Department of Health?

As stated above, I have not yet seen the actual text of the letter and I will attempt to refine my comments as necessary after I see it.