Only state could shield medical pot

February 05, 2003

Bob Egelko - SF Chronicle,

When the federal government charged prominent marijuana advocate Ed Rosenthal with illegal cultivation, California's medical marijuana law proved useless as a shield. With Rosenthal now convicted and facing prison, and federal charges pending against other purveyors of medicinal pot, some advocates say it's time to strengthen the shield -- ideally, by putting the state government in charge, as either the overseer of marijuana distribution or the official supplier. "You need the state to step in before the feds are going to blink," Dave Fratello, spokesman for the Campaign for New Drug Policies, said Wednesday. Or, as Rosenthal attorney William Simpich put it last Fridayafter a federal jury in San Francisco returned the guilty verdicts: "It's time for states and for cities in California to do it themselves. They can't put the government in jail." Proposition 215, the 1996 initiative that legalized marijuana for medical purposes in California, left distribution virtually unregulated, specifying only that patients and their caregivers could possess and grow marijuana. Local advocates, police, prosecutors and municipal agencies have filled the gap with a hodgepodge of agreements covering who can obtain the drug, how much and from what sources. The arrangements often depend on semi-official dispensaries as well as growers like Rosenthal -- entities that have proved too big for federal prosecutors to ignore, but too small to withstand a legal onslaught. Seven other states have legalized medical marijuana since 1996, and nearly all have more state regulation than California, including such measures as statewide patient registries and strict eligibility standards. There has been virtually no federal interference in those states. Advocates for a controlled distribution system, operated by either the state or local governments, say it would make participants less vulnerable to federal prosecution -- politically, and perhaps legally as well. "If the (state or local) government is helping with the distribution of medical marijuana and also taking great pains to ensure that it does not cross state lines, the federal government may not have jurisdiction," said Dan Abrahamson, legal director of the Drug Policy Alliance. But any attempt to amend Prop. 215 faces an obstacle in Gov. Gray Davis, who has opposed the initiative from the beginning. He has already blocked two bills to set statewide standards for enforcement of the law. The governor still believes that "if there are to be changes, they need to be at the federal level," spokeswoman Hilary McLean said Wednesday. Attorney General Bill Lockyer and state Sen. John Vasconcellos, D-Santa Clara, author of the bills, said they would try to change Davis' mind this year. Vasconcellos said he would reintroduce his measure, which would create a statewide patient marijuana registry and ID card, establish state-licensed patient cooperatives and let the state set standards for the number of plants a patient could possess. He said he would also support involving state and local governments in distribution, and, like Simpich, said federal authorities would shy away from jailing public officials. But Richard Meyer, spokesman for the U.S. Drug Enforcement Administration in San Francisco, said local and state government officials who grew or supplied the drug would be no more immune from prosecution than Rosenthal. "Regardless of the individual or institution, cultivation and distribution of marijuana is illegal, and anyone who engages in it is in harm's way," Meyer said. He added that any building where marijuana was grown, including government buildings, would be subject to forfeiture. That scenario could get its first test in San Francisco, where Proposition S, approved by voters last November, directs city officials to study growing and dispensing marijuana for medical purposes. The unusual aftermath of Rosenthal's trial -- four jurors' public disavowal of their verdict and criticism of the trial judge for excluding defense evidence showing that Rosenthal was growing marijuana for medical use -- was only the latest manifestation of many Californians' displeasure at the unyielding federal stance. A DEA raid on a medical marijuana club in Santa Cruz last September drew objections even from Davis, prompted a City Hall protest from local officials and led San Jose's police chief to withdraw his officers from a DEA task force. Rosenthal, facing at least a five-year sentence under federal law, will ask for a new trial in mid-March and appeal his conviction if he loses. The appeal will challenge U.S. District Judge Charles Breyer's refusal to allow evidence that Rosenthal grew marijuana for medical purposes and that the city of Oakland had deputized Rosenthal as an official supplier to a local marijuana cooperative. Defense lawyers say the designation made Rosenthal a law enforcement officer, a category that is expressly exempted from prosecution under federal drug laws. A related court test is pending before another federal judge in San Francisco. It is a suit by two patients and two caregivers who argue that the federal government has no authority over their medical marijuana because it never crossed state lines. (The Chronicle interviewed me for this article, but didn't report my own view, which is that the problem is federal, not state law. The feds could shut down a state program just as easily as a private one - probably more easily, in fact - they would halt it with an injunction before it even started. The situation might change if we get a favorable ruling from the 9th Circuit, but under present federal law a state program would in my opinion be a dead end - D.G.) E-mail Bob Egelko at begelko@sfchronicle.com.

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