Medical marijuana law leave patients, police in a fog
November 13, 2006
Claudia Rowe, Seattle Post-Intelligencer
In her spacious suburban home, Robin DeBow cleans countertops until they gleam, vacuums the carpets to plush perfection and then turns toward her most pressing chore -- tending the large pot plant budding in her sunny front room.
It's a job DeBow has fought for years to perform. Though not a marijuana user herself, the 44-year-old Lewis County woman has been authorized to provide the potent herb to her son, Chris Chastain, a 27-year-old paraplegic.
Yet despite a state law permitting use of marijuana in certain medical cases -- as well as permission from two doctors -- DeBow was charged with manufacture of a controlled substance in August and faced up to five years in prison.
She's not alone. Legal advocates estimate that in the past five years, at least 100 Washington residents authorized to use or provide marijuana have been charged with drug crimes. Some have done jail time. Others have drained their savings paying for lawyers.
In 1998, when the citizens initiative passed with 59 percent of the popular vote, prosecutors and police made clear their misgivings. To law enforcement, the state's Medical Marijuana Act -- with its imprecise language, gaps in logic and potential for abuse -- was a miserable tangle. Eight years later, many of Washington's 5,000 marijuana-approved patients agree. Eleven states have such statutes on the book, but medical marijuana advocates say Washington's is the worst.
"Anybody who's tried to apply this law has run into problems," said Dan Satterberg, chief of staff for King County Prosecutor Norm Maleng. "It's the collision of two worlds: the medical world and the criminal justice world."
Paul Stanford, executive director of The Hemp and Cannabis Foundation, finds himself in unlikely agreement -- albeit from the opposite side. "Of all the states that have medical marijuana, Washington protects patients the least," he said.
Much of the problem stems from wording that allows police broad latitude in determining just how much pot a patient is allowed. In Seattle, prosecutors have decided that means nine plants and some dried bud. In Yakima, it's zero. The inconsistency has become so troublesome that pot advocates have recently joined with police, the American Civil Liberties Union and at least one legislator to work on amending the law.
DeBow's ordeal began Thanksgiving weekend 2001, when her son, then 22, was in a car that crashed into another on a rainy road and was then run over by a semi. His resulting injuries left the one-time athlete unable to move, speak or feed himself for months.
DeBow quit her job as a trucker to spend every day at Chastain's side, doling out dozens of prescription painkillers, muscle relaxants and anti-spasmodics as he became increasingly depressed.
After six months, without appetite and down to a wraithlike weight, Chastain asked his mother to inquire about marijuana. A physician and researcher at the University of Washington authorized him to use it a few months later.
"Medical marijuana saved our lives," DeBow said. "It helps Chris sleep. It helps him with shakes so he can feed himself. It made it so that he could cope, and when he copes better, we all cope better."
Others had a less sanguine reaction. When DeBow took pictures documenting her new pot-growing operation and sent the film to Wal-Mart for development, the store immediately notified law enforcement. To an average person's eye, the snapshots of Chastain sitting and grinning next to massive, budding plants might indeed look damning.
But when deputies knocked on DeBow's door in early 2005, she promptly showed them into her grow room -- with Chastain's authorization hanging nearby.
"I never hid it," she said. "I didn't have anything to hide."
Few of the plants, just cuttings sprouting in small pots, had produced usable buds at that point. But officers believed DeBow had too many, nonetheless. Also, by embedding some in her outdoor garden, DeBow had violated prohibitions against cultivating pot publicly. The deputies confiscated more than 100 plants and left 24 behind. Beyond what those could produce, DeBow would have to buy pot for her son on the street.
Ten months later, the deputies returned, saying that a tipster had remarked at the "high traffic" coming in and out of the large, ranch-style home. DeBow, who had replenished her plant supply, was again told that she had too many.
Further, Chastain was not the discreet user some might have wished. Two dolls modeled after the pothead heroes Cheech and Chong sat in his bedroom over a bedspread printed with an enormous marijuana leaf. A poster headed with the words "You Know You're a Stoner When ..." hung above it.
On top of that, officers said DeBow failed to show current authorization to grow for him (renewal is required annually).
But the papers appeared, and Lewis County Prosecutor Jeremy Randolph was unable to prove that DeBow had actually done anything illegal. Last month, he dropped the case.
"It's absurd the way the law is being treated by sheriffs and prosecutors and judges in state court -- just really tragic," said DeBow's lawyer, Douglas Hiatt, who is juggling similar cases from Kelso to Grays Harbor County to Everett. Each week, a half-dozen new medical marijuana clients call, asking for help.
"Judges have done things like put an AIDS patient in jail, things that just make you sick," Hiatt said.
Problematically, the law allows possession of marijuana but makes no provision for obtaining it, forcing patients or caregivers to buy from drug dealers, which is illegal.
Nor does it specify exactly how much marijuana a person may hold.
Further, it puts the burden on patients to prove they are legitimate users.
"So even if you are authorized and you have your paperwork, you can still be arrested, charged with a crime and made to go all the way through the criminal justice process to a trial before you can establish that medical marijuana defense and be acquitted," said Alison Holcomb, a defense attorney and director of the Washington ACLU's new Marijuana Education Project, which gives the public information about marijuana laws.
Holcomb, Hiatt and officials from the Washington Association of Sheriffs and Police Chiefs met recently with state Sen. Jeanne Kohl-Welles, D-Seattle, who has tried repeatedly to amend the law.
"When people think about voting on a bill that has 'marijuana' in the title, some of our more conservative legislators have a very difficult time with it," she said. "They think it could come back to haunt them."
There are a number of possible fixes, each with benefits and potential risk: Creating a registry of medically approved users would help law enforcement, but could present privacy problems. Allowing group-grows, where patients could legally obtain their treatments, might be another -- though that may clash with federal drug laws. Easier, perhaps, would be clarifying exactly how much pot falls under the law's stated limit of a "60-day supply."
"I don't know what a 60-day supply is -- what's a 60-day supply of gasoline to somebody that's driving an old beater truck versus somebody driving a hybrid?" said David Thompson, chief criminal deputy in the Yakima County Sheriff's Office, who wishes the law would be repealed.
Like many law enforcement officers, he believes it was simply the first milepost in a march toward outright legalization.
"The activists' plan of attack was to play on the sympathy of the voters by calling it a medical initiative," Thompson said. "And they were successful. But it sent a bad signal. When you talk to kids at junior high school about the harm that marijuana does, they can't quite understand it. They say, 'but they legalized it for sick people.' "
Confusing matters further, a decision by the U.S. Supreme Court last year ruled that medical marijuana is not a valid defense in federal court.
For prosecutors, the trick is separating legitimate users from those who use medical claims to cloak illegal activity. But at times, the two may overlap. Last Thursday, Kenneth Stone of Vashon Island was sentenced to five years in prison after pleading guilty to federal drug charges.
Government lawyers described him as the ringleader of a large pot-dealing operation that included 800 plants and a half-dozen people. But Stone and several of his co-defendants say they had a doctor's permission to use the drug.
"We do not consider this a medical marijuana case," said Emily Langlie, a spokeswoman for the U.S. Attorney's Office. "There was an attempt to use medical marijuana status as shield, but that was inappropriate. The amount of marijuana involved was far beyond what any personal use for a medical condition would be."
Federal law puts marijuana in the same category as heroin and LSD, listing them as drugs with no medicinal value. But Steve Newman, who has multiple sclerosis, insists the government is misguided. He sat, gaunt but resolute, in a wheelchair outside the U.S. Department of Health and Human Services building in Seattle recently, rallying to make the drug available to the truly sick. On the days he is without it, Newman said, his physical condition is close to unbearable. Still, fear of prosecution has discouraged him from growing his own.
"Look at us -- we're all in wheelchairs, and we need help," he said, gesturing toward about 25 other gathered patients. "We need a place we can legally go to get medical marijuana. Otherwise, we're at the mercy of drug dealers."
Robin DeBow understands that well. Weary of growing more than a plant or two after two raids by sheriff's deputies, she has been forced to turn to friends, acquaintances and street dealers to keep her son medicated. The state law hasn't solved her problems.
"I wish it was written so the police would just leave patients alone," she said. "They're not doctors -- they don't know how much Chris needs. ... I really believe that should be left for his doctors to decide. Beyond that, it's none of their business."
POT LAW CONTROVERSY GROWS
Several areas of the state's Medical Marijuana Act have caused problems for police, prosecutors and patients. At least one legislator is working to amend the law.
The law allows for possession of marijuana, but does not specify how the patient is supposed to get it. "Assisting with the medical use of marijuana" doesn't give much direction.
Similar to a self-defense argument in cases of homicide, this section allows patients to use their medical approval as a legal defense -- though this would be impermissible in federal court.
The "60-day supply" is among the most problematic parts of the law. Needs vary from patient to patient. But currently, law enforcement determines what constitutes a 60-day supply -- with considerable differences from county to county.
Primary caregivers are allowed to provide pot to only one patient, an inefficient system, say critics. They prefer the idea of "group-grows" with a client list. Such operations in California have clashed with federal drug laws.