What a long, strange trip for state's medical marijuana law

November 04, 2006

Patrick McCartney, Sacramento Bee

Ten years after California voters approved Proposition 215, a landmark medical marijuana law, many qualified patients still run a gantlet of federal drug agents and hostile police and prosecutors.

This year, DEA agents, assisted by local law enforcement agencies, have busted dozens of storefront cannabis dispensaries, while city councils across the state have voted to prohibit the facilities.

Proposition 215 meant to exempt patients from prosecution for possession of medical marijuana with a doctor's approval. But elected officials have been reluctant to implement a measure that conflicts with federal law and is still largely opposed by the state's law enforcement community.

Earlier this year, San Diego County supervisors sued to overturn the voter initiative, as well as a 2003 statute that required counties to make voluntary ID cards available to patients and caregivers, and established minimum plant and possession guidelines. San Bernardino and Merced county supervisors have voted to join the suit in San Diego Superior Court. Attorneys with the ACLU and drug-policy groups will represent the patients when the case is heard Nov. 16.

Even if many of its goals remain unrealized, the Compassionate Use Act of 1996 spawned a grassroots political movement that is gaining momentum despite opposition from local, state and federal authorities.

As many as a quarter-million Californians have obtained physician approval to use medical marijuana. As Dr. Stephen Ellis, a San Francisco cannabis consultant, put it, cannabis is not a miracle drug pushed by pharmaceutical companies but a traditional folk medicine rediscovered by patients who use it.

Scientific interest has grown, too. In the decade since 56 percent of California voters passed Proposition 215, thousands of medical studies have been published about cannabinoids, the compounds unique to marijuana, and the role they play in human health.

Public acceptance also has increased. A 2004 Field Poll showed that nearly three out of four Californians support a patient's ability to choose marijuana as their medicine. Eleven other states and the District of Columbia followed California's lead and have approved medical marijuana laws. All of the states limit use to a shorter list of medical conditions than California's activist-written measure, and none has created a public distribution system.

Since Senate Bill 420, carried by former Sen. John Vasconcellos, D-Santa Clara, allowed patients to form cooperatives, more than 200 storefront dispensaries and delivery services have opened across the state, many in previously unthinkable jurisdictions. With a physician's recommendation, patients outside of the Bay Area for the first time now can exercise choice in how they obtain medical marijuana.

Few of the gains came easily after the passage of Proposition 215. Unfortunately, implementation of the controversial law would fall to the same California police and prosecutors who campaigned against the measure.

Days after the initiative passed, a delegation of California law enforcement officials huddled with federal anti-drug officials in Washington, D.C., to coordinate a response. Two weeks later in Sacramento, then-Attorney General Dan Lungren met with 300 California law enforcement officials, including district attorneys, police chiefs, sheriffs and narcotics officers, in Sacramento. Lungren declared that the law should be applied "as narrowly as possible" and gave the green light to arrest marijuana growers and prosecute them for cultivation. Lungren's office maintained that the new law provided only an "affirmative defense" for marijuana suspects to invoke at trial, an interpretation the state Supreme Court declined to review.

Enforcement varied dramatically across the state's 58 counties. Where ballot support was strongest, patients could purchase medical marijuana from storefront dispensaries that sprang up before Proposition 215 passed. But an hour or so from San Francisco, police continued to arrest patients and caregivers. Some of the sick, impoverished by chronic illnesses, were hauled into court, where they pleaded guilty to felony charges in exchange for light sentences.

The fortunes of the patients, caregivers and doctors waxed and waned with court decisions and turnover of state and federal officeholders. The Clinton administration launched anti-marijuana advertising with an annual budget of hundreds of millions of dollars, threatened physicians who approved medical marijuana and filed suits against cannabis dispensaries. The Bush administration followed with more raids against dispensaries and more criminal prosecutions.

Veteran state lawmaker Bill Lockyer succeeded Lungren as California's attorney general in 1998, and defended the Compassionate Use Act with an amicus brief in a U.S. Supreme Court case brought by two California patients. More sympathetic to medical marijuana, Lockyer appointed a stakeholders group of advocates and law enforcement opponents to hash out an implementation bill, something the polarized factions could not manage before the passage of SB 420 five years later. Until an embattled Gov. Gray Davis signed SB 420 in 2003, Lockyer declined to issue new guidelines on possession and cultivation.

As the number of arrests by state and federal authorities grew, patients networked, protested and planned emergency responses. In early 2003, Americans for Safe Access gave the federal government a public-relations black eye, convincing Bay Area jurors to denounce their own guilty verdict in the trial of pot cultivation expert Ed Rosenthal. The Oakland-based advocacy group has since used persuasion and the threat of litigation to win concessions from recalcitrant state agencies and local jurisdictions.

With SB 420, locally elected officials have been drawn into the conflict. City and county governments are confronting Proposition 215's call for "safe and affordable distribution of marijuana" in weighing whether to regulate or prohibit cannabis dispensaries. Nearly a hundred jurisdictions have prohibited marijuana outlets, but three dozen cities and counties have adopted ordinances to regulate their operation.

California law enforcement associations have lobbied against the facilities, citing federal law. Some in the state's law enforcement community have grudgingly accepted the reality, if not the desirability, of medical marijuana. Others remain opposed to the very notion, preferring to view dispensaries and caregivers as traffickers.

"There is no justification for using marijuana as a medicine," declares a position paper on the Web site of the 7,000-member California Narcotics Officers Association.

As the U.S. Supreme Court noted in its 2005 ruling in the California case, only Congress can amend the Controlled Substances Act to declare a cease-fire in the nation's war on medical marijuana.

A decision in San Diego's lawsuit may settle whether state agencies -- including police and prosecutors -- must comply with a state law that conflicts with federal law. Appeals will likely delay the outcome for years. But after a decade, it's time California law enforcement officers stop siding with the feds and defend the state law.

And lawmakers should adopt sensible regulations for dispensing medical marijuana so local and state officials can honor the intent of voters: Protect patients and provide them safe and affordable access to their medicine.

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