Medical marijuana at a crossroads 10 years later

November 02, 2006

David Kravets, Associated Press

SAN FRANCISCO (AP) -- A decade ago Californians passed the nation's first medical marijuana law, but the future of that statute is no clearer now than when voters headed to the polls on Nov. 5, 1996. The federal government still refuses to recognize Proposition 215, the Compassionate Use Act approved by 56 percent of voters. And U.S. authorities have won nearly every major legal battle over the measure, from the Clinton administration to the Bush administration.

"We refer to it as marijuana, not medical marijuana, regardless of its reported destination or use," said Drug Enforcement Administration spokeswoman Casey McEnry, noting that marijuana is an illegal controlled substance under federal law.

The government's war on drugs has also prompted a civil war of sorts within California: three of the state's 58 counties, headed by San Diego County, claim in a lawsuit filed in state court that the measure is illegal.

A hearing is set for Nov. 16 in the lawsuit, which threatens to derail the state's legal tolerance for the medicinal use of a drug that federal law places in the same category as heroin, cocaine and LSD. A victory for those renegade counties might also set legal precedent undermining medical marijuana laws in 10 other states -- Alaska, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Rhode Island, Vermont and Washington. Voters in South Dakota will consider a medical marijuana measure on Tuesday.

"The state cannot authorize somebody to do something that breaks federal law," said Thomas Bunton, senior deputy counsel for San Diego County.

Medical marijuana is used by thousands of people suffering from AIDS, cancer, anorexia, chronic pain, arthritis, migraines and other illnesses, according to the Marijuana Policy Project. The nation's medical marijuana laws generally allow those with a doctor's recommendation to grow or possess small amounts of the drug.

In 1999, a branch of the National Academy of Sciences expressed concerns about the health risks of smoking marijuana, but acknowledged in a report that "there is no clear alternative for people suffering from chronic conditions that might be relieved by smoking marijuana, such as pain or AIDS wasting."

Later research suggests it might reduce tumor proliferation and a study this year by the University of California at San Francisco showed marijuana "may offer significant benefit" to those suffering from hepatitis C.

The Food and Drug Administration does not recognize marijuana as having medical benefits.

California is the epicenter of the federal-state medical marijuana battle.

Communities including Los Angeles, San Francisco, Oakland and West Hollywood have authorized storefront medical marijuana dispensaries

Proposition 215 does not expressly allow dispensaries, but Americans for Safe Access, a pro-marijuana lobbying group, estimates there are about 200 operating in California. For many backers of the law, it's an imperfect way for patients to get pot.

"I thought we would have had more of a standardized distribution system by now," said William Panser, an Oakland criminal defense lawyer who was among the handful of attorneys that crafted the proposition.

Federal agents have raided more than two dozen California dispensaries over the past decade, according to Americans for Safe Access. Some communities are now assisting in the crackdown, including San Diego, which recently shuttered thirteen.

A dozen dispensaries found on the Internet and contacted by The Associated Press declined comment or did not return messages.

William Dolphin, spokesman for Americans for Safe Access, said dispensaries are also operating secretly in other states, even though they are illegal. "I know they are operating in Oregon, Washington and Colorado. It's underground," he said.

So far, the federal government has taken a piecemeal approach to enforcing federal drug laws, cracking down on a few scattered dispensaries.

"The dispensary issue is a fascinating study in sociology," Panser said. "It's like the speed limit, and everybody is breaking the law but it's being tolerated."

Nowhere is medical marijuana more accepted than in San Francisco, birthplace of the movement. The city's top prosecutor, Kamala Harris, steadfastly supports Proposition 215.

"Sick people using medical marijuana as it relates to Proposition 215 are not criminals and will not be prosecuted," she said.

But she acknowledged that a handful of San Francisco dispensaries raided by federal agents "were out of control" because they were selling pot to customers without a doctor's recommendation.

"There were some abuses," Harris said.

The DEA says it is targeting dispensaries and other large-scale growing and selling operations, whether the marijuana is for medical or illicit use. Federal authorities say they might seize individual users' marijuana, but likely wouldn't arrest medicinal users because they are focused on the supply chain.

"Our mission is to come into contact with the cultivators and the distributors of marijuana," said the DEA's McEnry. "We don't target users."

One such user is Angel Raich, who already lost one case before the U.S. Supreme Court and is likely headed back.

The 41-year-old mother of two from Oakland suffers from scoliosis, a brain tumor, chronic nausea and other ailments. On her doctor's advice, Raich uses marijuana every couple of hours to ease her pain and bolster a nonexistent appetite. She smokes it, vaporizes it and cooks it into her food.

Last year, the Supreme Court came down against Raich in the court's second ruling against medical marijuana since 2001. Because Congress decided marijuana was illegal under the 1970 Controlled Substances Act, the justices ruled, users and suppliers could be prosecuted for breaching federal drug laws, even if they lived in a state where medical marijuana was legal.

With that ruling, the legal issue has narrowed to the so-called right to life theory: that marijuana should be allowed if it is the only viable option to keep patients alive. Raich and her doctor say without marijuana, she would likely die.

Ten years after the medical marijuana revolution began, Raich never envisioned that she would still be living with the fear of being arrested, or that her supply chain might be cut off.

"It's so scary," she said. "I thought that the feds would just leave us alone."

David Kravets has been covering state and federal courts for more than a decade.

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