Wednesday, June 13, 2001
A waiting game
Providers of medical marijuana are cautious in wake of Supreme Court ruling
June 10, 2001
By Alan W. Bock
The Orange County Register
The U.S. Supreme Court decision that denied the Oakland Cannabis Buyers Cooperative the right to claim a medical necessity defense under federal law on behalf of its patient-members left California's medical marijuana law (and the similar laws in eight other states) intact. But it created areas of uncertainty and possible vulnerability for patients and their caregivers that could take months or even years to sort out.
The STATE ACTS
The California State Senate last week passed legislation that would create a medical marijuana registry for patients who use medical marijuana and caregivers who provide it to patients. Patients and caregivers would be immune from prosecution under state drug laws if they were on the registry. The bill would also protect from state prosecution doctors who recommend medical marijuana, and would allow caregivers to cultivate marijuana collectively under the auspices of the state Department of Health Services. The legislation, which passed the Senate by a 23-8 vote, has not yet been acted on in the Assembly.
Conceptually the problem could be relatively simple. As Justice Department attorney Barbara Underwood acknowledged during the Supreme Court oral arguments March 28, federal law and California law regarding the medical use of marijuana differ. State and local officials are obligated to enforce state law. Federal officials are obligated to enforce federal law - and to make decisions regarding the most effective use of their limited resources.
Before the Supreme Court decision - and before California voters in 1996 made Proposition 215, which protects patients with a recommendation from a licensed physician from prosecution or other sanctions for possession, use and cultivation of marijuana (or cannabis), into Section 11362.5 of the California Health and Safety Code - federal drug enforcement officials seldom went after individual marijuana users. They preferred to concentrate on larger-scale cases involving big-time traffickers or cultivators growing 1,000 plants or more. The small fry they left to state and local enforcement officials.
Since 99 percent of marijuana arrests (according to the Marijuana Policy Project, a Washington-based reform group that conducted a recent study) are made by state and local law enforcement, medical marijuana patients in California should be relatively safe (if they can get a doctor to make a recommendation, a problem that lingers) from law enforcement attention. Maybe.
As Daniel Abrahamson, director of legal affairs for the Lindesmith Center-Drug Policy Foundation in Oakland (and lead attorney in the Conant case which secured an injunction against the federal government hassling California doctors who recommend marijuana) told me, "We knew before the Supreme Court ruled that any possession or use of marijuana was illegal under federal law. The federal government has always had the power to go after any user. In a strict legal sense the court's decision was unsurprising and uninteresting.
"In practice the federal government has not prosecuted patients except in one case where thousands of plants were involved. It has to wonder, now more than ever, whether it could ever get a conviction from a California jury."
Scott Imler, founder of the Los Angeles Cannabis Cooperative, is not quite so sanguine. "We're waiting for the other shoe to drop," he told me last week. "Does the court ruling apply automatically to us or will the federal government have to take some specific action against us? With the Oakland precedent will the government want to flex its muscles, to make an example of one of the existing cannabis dispensaries? As the club that, we believe, has operated most openly, honestly and transparently, we're feeling uncertain and have held meetings to discuss whether we should change how we function."
Marvin Chavez, founder of the Orange County Patient Doctor Nurse Support Group, told me his organization has not been distributing cannabis. He is out of prison while the appeal of his conviction on marijuana sales and other charges is being considered. If his appeal is successful, he had planned to resume distribution along with patient screening, education and training patients in cultivation. With the court ruling he is not quite so sure what he will do.
Dennis Peron, the primary author of Prop. 215, who ran cannabis clubs in San Francisco for several years and moved to rural Lake County a couple of years ago to establish a cultivation cooperative on 20 acres of land, told me he is concerned enough that he isn't growing this year. "I don't trust the feds," said Peron. "Todd McCormick, a cancer patient since childhood, is in federal prison right now. I think with this court ruling they're going to find somebody to hammer to let everybody know who's the boss."
David Fawcett of Ontario, who a few weeks ago was something of a poster child for patient protection, has now become more of a poster child for patient vulnerability. Diagnosed with the viral disease shingles in the 1980s, he had a doctor tell him on a don't-quote-me basis to try marijuana. It helped. After Prop. 215 passed he grew cannabis in his yard for himself and another patient. He was arrested by San Bernardino County's West End Narcotics Enforcement Team in October 1999.
"If I had known then what I know now I would have handled the case better, but I had never been in trouble with the law or even been in court," he told me a couple of weeks ago. He was convicted of cultivation for sale (though he denies selling) and showed up for sentencing with marijuana cigarettes in his pocket, saying he would need his medicine while in jail. The judge said if he could get a doctor's note to that effect there might be something to talk about and continued the proceeding.
Fawcett returned to court with a letter from his doctor saying this patient needed marijuana every day. The judge suspended his sentence and signed an order authorizing him to grow cannabis while on probation. After the Supreme Court ruling the Inland Valley Daily Bulletin did a news story on his situation, in which he was quoted as saying "We've got to get past this drug-war mentality in this country, especially when it comes to marijuana. The so-called 'drug war' has ruined so many people's lives."
A couple of days later, on May 23, a police car stopped him for what they said was a traffic violation. His car was immediately surrounded by police cars containing narcotics officers and he was handcuffed and taken back to his home for a probation search. He wasn't concerned until they left him in the car with the windows closed while they searched his house. The police dismissed his doctor's note and court minutes as something anybody could have faked and arrested him, seizing some 47 plants.
"They told me they were acting as federal officers upholding the federal law," Fawcett told me a few days later, after his wife had borrowed money to raise bail. "When I reported to my probation officer she told me that the probation department had strongly advised the police not to arrest me because I am a legal and documented medicinal user." Fawcett was charged with violating state law, not federal law. He is seeking an attorney to sue the Ontario Police Department.
Amid all this uncertainty state Sen. John Vasconcellos of San Jose is moving ahead with this year's version of a state-level patient registration system to be run by the state health department, a concept he has tried and failed to pass into law every year since Prop. 215 passed.
The week before last Attorney Gen. Bill Lockyer's task force on medical marijuana reconvened to discuss SB 187, Vasconcellos' bill, and to suggest some tweaks like using the ID card system now in place in San Francisco, which is considered more respectful of patient privacy than previous proposals.
Some patients support Vasco's efforts but Dennis Peron and his partner John Entwhistle, along with the American Medical Marijuana Association, founded by Steve Kubby and now headed by Dr. Jay Cavanaugh, oppose it as an attempt to amend the initiative and create a database of patients that police and who knows-who-else will eventually get access to. Last Wednesday the state Senate passed the amended bill 23-8. It is now in the Assembly, which has until mid-July to act on it; no hearings have yet been scheduled.
Amid all this, the drug reform movement has, if anything, been invigorated by the Supreme Court ruling. Dan Abrahamson spoke to me from Albuquerque, where the Lindesmith Center-Drug Policy Foundation was beginning its 14th annual drug reform conference. The conference was held in New Mexico because Republican Gov. Gary Johnson (a tax-cutting, voucher-supporting conservative) had sparked interest by criticizing the drug war, come out for legalizing marijuana and reconsidering other illicit drugs, and had pushed three modest reform bills through the state legislature. Gov. Johnson keynoted the conference and liberal Democratic Los Angeles Rep. Maxine Waters spoke, along with Republican and Democratic New Mexico legislators and Salt Lake City Mayor Rocky Anderson. The conference drew double the usual number of registrants.
"The feeling here is that the Supreme Court decision has solidified support and clarified the issues," Mr. Abrahamson told me. "Everyone understands that the real battle will be played out not in the federal courts but in the political arena, in Congress and in the states. The people understand that the drug war is a failure; look at the 61 percent margin for Proposition 36, which mandates a different approach. Now it's time for the politicians to understand that they live in a democracy and start to catch up with what the people want."
Alan W. Bock is an Orange County Register editorial writer.
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