Silas "Sy" Bennett was a 28-year-old returning college student studying journalism at Keene State when he was diagnosed with Stage 4 lung cancer in the fall of 2007.
Initially, Bennett thought the pain he was feeling was caused by a pinched nerve, an injury from a house painting job, said his mother, Lorraine Kerz of Greenfield. Then one day, the pain was so bad that he couldn't get out of bed. Bennett ended up at the emergency room, where an X-ray revealed the cancer, which had by then spread to his bones. Doctors needed to operate on his spine, to make sure his damaged vertebrae didn't collapse and paralyze him, before beginning him on a difficult course of chemotherapy.
"It was brutal. He was in terrific pain," Kerz recalled. "I'm watching my son—he was throwing up nonstop for days and days. He was so sick he couldn't keep anything down."
Kerz searched for ways to relieve his suffering. "For me, as his mom, I was thinking about anything, including anything outside the box, if you will," she said. That included alternative therapies, like reiki and reflexology. It also included marijuana.
Sometimes Bennett would ingest the marijuana in food—for instance, to prepare for a chemo treatment. Other times, when he needed more immediate relief, or couldn't keep down any food, he would smoke it. "It helped him almost immediately," Kerz said. The marijuana quelled his nausea, eased his anxiety ("He knew he was looking at his own mortality—that's difficult.") and helped him regain some of the weight he'd lost. And it did so, she added, without the negative side effects of some of the legal drugs doctors put him on.
"There was a quality of life piece that was huge for us," Kerz said. "It really almost stabilized Silas in ways that he was able to be himself, to get outside the cancer a bit. That was absolutely one of the most positive things that came out of this for us."
In the months before his death in May of 2008, Bennett found the energy to document, in photos and on video, his battle with cancer. After his death, Kerz used the footage to make a documentary about her son that she uses to promote "Sy's Fund," a non-profit she established that gives grants to young people with cancer.
She's also lent her support to the campaign to legalize the medical use of marijuana in Massachusetts. On Nov. 6, voters here will have the opportunity to weigh in on a ballot question that, if passed, would allow patients with qualifying medical conditions to obtain marijuana with a written recommendation from a doctor. The measure has the support of the Mass. Bar Association, the Mass. Public Health Association, the ALCU and the Mass. Nurses' Association, among other groups.
On the other side of the issue are a number of anti-drug groups, including the Mass. Prevention Alliance, which argues that the program would be ripe for abuse and that the measure is actually about advancing full legalization of pot. The state's Police Chiefs' Association also opposes Question 3, as does the Mass. Medical Society, which says there's not adequate research showing the medical benefits of marijuana.
Kerz believes that opponents conflate social pot smoking with its medical use, and that patients and doctors should have the right to consider marijuana as one possible way to ease suffering like that her son experienced, without worrying about legal repercussions. (She declined to say how she obtained marijuana for her son.)
"As a mom I would have done absolutely anything for my son. I would take any risk, and I did take the risk," Kerz said. But as long as medical use of marijuana remains illegal, she added, plenty of people who are in pain will suffer needlessly.
Question 3 would allow a patient with a "debilitating medical condition"—defined in the law as cancer, glaucoma, HIV, AIDS, hepatitis C, ALS, Crohn's disease, Parkinson's, multiple sclerosis and "other conditions as determined in writing by a qualifying patient's physician"—to obtain marijuana for personal use at a medical marijuana treatment center. The patient would need a written recommendation from a licensed physician, granted "only in the course of a bona fide physician-patient relationship," and could obtain no more than a 60-day supply at a time.
The treatment centers would be overseen by the Mass. Department of Public Health. The law allows a maximum of 35 treatment centers across the state, with at least one in each of the commonwealth's 14 counties, but no more than five in any one county. After one year, the DPH could increase the number of centers if it determines a need.
In addition, the law includes a provision that would allow a patient who demonstrates that he can't access a treatment center due to financial hardship, physical incapacity or lack of proximity, to grow his own 60-day supply of marijuana. It would protect patients and caregivers from state prosecution for possession of marijuana for medical use if they meet the conditions of the law, and would protect doctors who write valid recommendations for patient use from prosecution.
The Massachusetts Legislature has considered several medical-marijuana bills in the past, but never acted on them. After the most recent bill—sponsored, on the Senate side, by Amherst Democrat Stan Rosenberg—failed to come to a vote before a May deadline, proponents gathered enough petition signatures to put the matter before voters on the November ballot. According to an August poll, 58 percent of likely voters said they favored the question, while 27 percent were opposed.
If the question passes, Massachusetts would join 17 other states—including, in New England, Connecticut, Maine, Vermont and Rhode Island—and the District of Columbia in legalizing medical marijuana. A similar question will appear on the ballot in Arkansas. Medical marijuana bills are also pending before several state legislatures.
California was the first state to legalize medical marijuana, after voters approved a ballot proposition in 1996. Sixteen years later, it remains a contentious issue there; over the past year, federal agents have shut down hundreds of dispensaries in the state as part of a campaign to crack down on commercial enterprises where so-called patients can easily obtain the drug for recreational use.
"We're not concerned with prosecuting patients or people who are legitimate caregivers for ill people, who are in good faith complying with state law," Benjamin B. Wagner, a United States attorney in California, told the New York Times this summer. "But we are concerned about large commercial operations that are generating huge amounts of money by selling marijuana in this essentially unregulated free-for-all that exists in California."
Other cities have also attempted to crack down on illegal distributors; this summer, the City Council in Los Angeles—described in a recent NPR report as a "mecca for medical marijuana dispensaries," where "anyone with a doctor's recommendation could stop in at chic storefronts offering cannabis-laced desserts"—passed a ban on dispensaries in the city. The Council recently reversed that decision in response to public pressure.
What's happening in California underscores the tension between state governments that have legalized medical marijuana and the federal government, which classifies it as an illegal controlled substance. In 2009, the Justice Department released a memo saying that, in order to "[make] efficient and rational use of its limited investigative and prosecutorial resources," it would not "focus federal resources in ... States on individuals whose actions are in clear and unambiguous compliance" with local medical-marijuana laws.
But critics say the feds have been overzealous in their efforts, leading to the shutdown of legal dispensaries and sending legitimate patients to find marijuana illegally.
Proponents say Massachusetts' Question 3 is written to avoid the abuses and excesses seen in other states. "This will be absolutely nothing like California," said Jennifer Manley, a spokesperson for the Committee for Compassionate Medicine, the group behind Question 3. The drafters of the question, she said, looked at the experiences of other states, incorporating tight restrictions that will head off the problems seen elsewhere. That includes a requirement that the recommending doctor have a legitimate, established relationship with the patient; restrictions on the number of dispensaries; and DPH oversight of the program, she said.
In addition, Manley noted, the Massachusetts law includes penalties for those who commit fraud under the system, ranging from a $500 fine to up to five years in state prison.
"I think it's a well-crafted, solid measure. It avoids the kind of abuses we saw in California," said Dick Evans, a Northampton attorney who's fought for marijuana law reform for decades. "We're not going to see pot docs with sandwich boards on sidewalks."
The Mass. Prevention Alliance, a statewide group based in Acton, is leading the fight to defeat Question 3. Heidi Heilman, MAPA's chair, warns that if the question passes, it would create an infrastructure of easy access to marijuana and lead to crime, increased drug use and other problems in the areas near the dispensaries—which, she added, she expects to see concentrated in poor neighborhoods in cities like Springfield and Worcester. "It's going to be these vulnerable communities that have these pot shops," she said.
And with DPH underfunded and without leadership after the recent resignation of its director, Heilman questioned how prepared that department will be to oversee the new program.
Heilman believes that the law's wording is too vague, with no age limits for patients, no expiration dates for doctors' recommendations, and no limits on the number of refills. "It's a lifetime membership to smoke pot once you get a card," she said. "If this is medicine, then treat it like medicine. But this is about making [marijuana] more acceptable." Making medical decisions through the ballot box, she added, "puts our public health at risk."
Kevin Sabet, a former senior adviser at the White House Office of National Drug Control Policy who now directs the Policy Solutions Lab, a drug policy consulting firm in Cambridge, is a MAPA spokesperson. "The ballot question is not about compassion. It's not about medical marijuana. It's really about the legalization of marijuana, really, for anyone, for any reason," Sabet told the Advocate, noting that much of the support for the measure comes from legalization advocates. "That should tell you something," he said. (See sidebar for information on the ballot question's funding.)
Sabet disputes proponents' position that the Massachusetts law is written tightly enough to ensure that the state won't suffer the same problems as other states. "That's a good talking point for them," he said. "But the bottom line is, it would open up 35 medical marijuana dispensaries in the first year alone. That doesn't sound tight to me."
He also objected to the language of the law, which lists certain qualifying medical conditions but also unnamed "other conditions" as determined by a doctor—an open-ended phrase that would allow "any person with a hangnail" to access medical marijuana, he said.
"You're going to have a handful of unscrupulous doctors making a lot of money writing recommendations," Sabet predicted.
"We see there's obviously a lot of money coming from pro-legalization advocates to this initiative, so they're going to be able to tug on [voters'] heartstrings, so to speak," Sabet said. But he's confident voters will reject the measure: "I think Massachusetts voters are smart. They'll see this is not about compassion. It's about a pot shop in your neighborhood."
The cannabis plant has been used for medical purposes for thousands of years, across many cultures; the first recorded use was reportedly in 2737 B.C. in China, where it was used to treat gout, malaria and rheumatism.
While first embraced in Asia, the Middle East and Africa, cannabis became a commonly used painkiller in the West in the 19th century; the BBC reports that Queen Victoria used it to treat menstrual cramps. It first appeared in the U.S. Pharmacopoeia, which lists and set standards for medicines, in the middle of that century, and remained in the book until the 1940s. (Its removal came on the heels of the anti-marijuana campaign of the 1930s—the era of "Reefer Madness"—which some historians attribute to a concurrent campaign against Mexican immigrants, who were associated with pot use.)
Congress designated marijuana, under the Controlled Substance Act of 1970, a Schedule 1 drug, defined as a drug with a high potential for abuse and no known medical benefit—a classification that places marijuana in the same category as heroin and LSD, among other drugs, and in a stricter category than cocaine, opium and methamphetamines, all of which are Schedule 2 drugs considered to have valid medical uses.
Nonetheless, some healthcare professionals maintain that marijuana offers valid medical benefits while posing minimal risks. Among the higher-profile proponents is Lester Grinspoon, professor emeritus of psychiatry at Harvard Medical School, who has written several books on the topic.
"Cannabis is remarkably safe," Grinspoon testified before a Congressional hearing in 1997. "Although not harmless, it is surely less toxic than most of the conventional medicines it could replace if it were legally available. Despite its use by millions of people over thousands of years, cannabis has never caused an overdose death."
In states where medical marijuana is legal—and extralegally in many other places—the drug is used to treat nausea in patients with cancer, AIDS and other diseases; to relieve ocular pressure in people with glaucoma; to control seizures in patients with epilepsy and similar conditions; and to address pain caused by a long list of conditions. But doctors remain split on the drug's effectiveness and safety. At a Statehouse hearing last April, Karen Munkacy, an anesthesiologist, testified that marijuana works on brain receptors to "decrease pain, decrease muscle spasms, and decrease nausea and vomiting" and also increases appetite. Her testimony was countered by that of Louis Fazen, chair of the Mass. Medical Society's Committee on Public Health, who told legislators he's concerned about the lack of research into the drug. "It is very difficult for physicians to prescribe something they don't have any information on," Fazen testified.
In May, the MMS' House of Delegates passed a resolution opposing the legalization of medical marijuana. "We're a proponent of evidence-based medicine," MMS President Richard Aghababian told the Advocate. While supporters offer anecdotal evidence of the plant's medical benefits, "that alone is not enough," he said. "We would want that to be verified by science, by carefully documented clinical trials, as with any other drug or intervention. ... We're not going to get ahead of the science."
And therein lies a problem: because the federal government classifies marijuana as a Schedule 1 drug, "that prohibits us not only from prescribing it, but also people from doing the studies," Aghababian said.
To that end, the MMS passed at its May meeting a resolution calling on the Drug Enforcement Agency to reclassify marijuana "so that its potential medicinal use by humans may be further studied and potentially regulated by the U.S. Food and Drug Administration." The group also voiced support for "the development of non-smoked, reliable delivery systems for cannabis-derived and cannabinoid medications for research purposes." (As Aghababian explained: "We don't think anyone should smoke anything. Smoking is bad.")
But getting the government to reclassify marijuana is a hard battle, as Lyle Craker knows all too well.
Craker, a professor in the Department of Plant, Soil and Insect Sciences at UMass Amherst, has spent 11 years fighting for permission to grow marijuana for research purposes, to no avail. The DEA has refused his application, saying a government-run lab at the University of Mississippi—the only facility with permission to grow marijuana for research purposes—can provide the plant to researchers. Craker says that facility doesn't produce enough of the drug for researchers and that the plant it does produce is not strong enough for use in research.
Like any other plant with potential health benefits, marijuana should be subject to scientific investigation, Craker maintains. "We need to have honest clinical trials to determine whether this is a good medicine. The people deserve that," he said. And, as a professor at a public university, he added, it's part of his job to do research for the public good.
Since he first took up his fight, Craker has heard from many people who say that marijuana helped them or a loved one with a medical condition. While he's not unsympathetic to their stories, he told the Advocate, "As a scientist, lay evidence is almost worthless. This is not to say it doesn't work; this is not to say they're not telling the truth. But science is built on replicated trials with adequate controls. ...
"I think that if you ask anyone—well, not anyone—but probably the vast majority of scientists would say this should be investigated like anything else. If it turns out it's bad for people, let's really ban the material," Craker continued. "But if it has any medical benefits, we should try to develop it into medical materials, as we do with many other plants."
But that scientific impulse has been thwarted by competing political interests. "The government has demonized [marijuana], very much so, by its campaigns and its war on drugs and all these type of things, which makes people sensitive to this whole concept that it's worthless," Craker said. "And then by not allowing any research to be done on it, that can be perpetuated."
Craker dismisses the government's arguments that marijuana is a "gateway" drug—"I don't know of any real evidence that's true, either"—and that legalizing its medical use will "open up the gate, and we'll be a drugged-out nation—if we're not already," he added, pointing to studies showing that about half of all Americans take at least one prescription drug every day.
Craker says he's never smoked pot and opposes its recreational use. "I don't want my airplane pilot under the influence of marijuana," he said. But, he added, "with all the things to worry about in the world, this is not one them. I can't see how scientifically testing this material is going to create a big revolution in marijuana use for recreational reasons."
Craker's case with the DEA is now before a federal appeals court, where he doesn't expect to prevail. He suspects the DEA is looking at his age—he's 71—and hoping to wait him out. But even if he never wins his case, the pressure on the DEA to relent will increase as medical marijuana is legalized in more and more states, he said: "I don't know when common sense will prevail."
Evans, the Northampton attorney and activist, believes it's up to citizens to reform marijuana laws. He points to state legislators' refusal to consider the medicalmarijuana bill co-sponsored by Sen. Rosenberg even in the face of earlier, non-binding public-policy ballot questions showing that their constituents supported it. "They ducked it entirely," Evans said.
Lawmakers, like the general public, have long been fed the message that marijuana not only has no medical utility (a position Evans called "disingenuous"), but also that any use of the drug amounts to abuse (a claim, he said, that "is not only incorrect, it's almost delusional"). "A lot of people just can't accept the idea of marijuana as medicine because it runs directly counter to prohibitionist dogma," he said.
But public opinion is swinging the other way, Evans believes. "I'm of the view that most people have an opinion on this subject already and don't really need to be educated," he said. "They need to be liberated, so to speak, or given the opportunity to express their opinion, and the only time they can express that opinion truthfully and safely, without risk, is in the privacy of the voting booth."
One elected official who openly backs Question 3: Rosenberg, who contends that the law would provide access to more healthcare options. (Rosenberg has recently undergone treatment for skin cancer, although he's said that his personal experience has not influenced his position on the issue.)
With medical marijuana already legal in 17 other states and D.C., it makes sense for Massachusetts to follow, Rosenberg told the Advocate. "We've learned a lot from the mistakes of the early states. We're not repeating those mistakes," he said.
Which is not to say that Rosenberg considers the ballot question perfect. He preferred the bill he co-sponsored to the ballot measure; the latter, he said, is too broad on the question of which patients and medical conditions qualify, which could lead to abuse. Rosenberg would like to see the law include a clearly defined list of qualifying conditions, with the possibility of adding other conditions "through a reasonable public process using the best science." If the law passes, the Legislature could rewrite portions of it, "although that can be controversial," Rosenberg noted.
His misgivings about portions of the ballot question aside, Rosenberg believes its time has come. "Given that the Legislature is reluctant to act on the bill, I don't want it to languish session after session after session. ... I'd be very happy now to have it become law through the ballot question," he said.
"Drugs are a third-rail issue in the Legislature," Rosenberg added. "My personal opinion is, it's an irrational fear on the part of legislators. But it's a fear nonetheless."
To Lorraine Kerz, arguments over legalizing marijuana and other broad drug policy issues distract from the purpose of Question 3. "I'm not involved in any of those politics. But I have to stand by what I saw with my son," she said. "I saw a young man who was quickly losing his life. ... This is something that helped him, and helped him tremendously."