Make patients the priority
April 19, 2007
EDITORIAL, Orange County Register (CA)The hearing Tuesday that led a 4-1 majority of the Board of Supervisors to take some steps toward having the health department issue photo ID cards to medical marijuana patients marked a welcome beginning to discussion and possible reform. It also highlighted the precarious position legitimate patients with a bona fide recommendation from a licensed physician find themselves in, more than 10 years after California voters passed Proposition 215, the Compassionate Use Act. It is almost the case that illicit recreational smokers find it easier to safeguard themselves from unwelcome attention from the authorities than medical users because the rules are clear. Not so for the patient-user, who finds uncertainty and conflict. Here's what we mean: District Attorney Tony Rackauckas, who opposes the ID cards, said his office's position is not to prosecute users with a valid medical recommendation. But the policy of the Sheriff's Department, upon encountering a patient with a valid physician's recommendation, is to confiscate the patient's marijuana and recommendation note, because federal law still prohibits possession. And that would continue to be the department's policy even if the county issued ID cards, Assistant Sheriff Steve Bishop said at Tuesday's hearing. So, the patient is left without the palliative marijuana, awaiting a decision from the D.A., who is not likely to prosecute anyway, and has to endure the stress of wondering whether or not he or she will be further targeted. It wasn't supposed to be this way. The purpose of Prop. 215, as the initiative stated, was 'to ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.' To that end, the voters approved a new state law that specified: 'Section 11357 [of the Health and Safety Code], relating to the possession of marijuana, and Section 11358, relating to the cultivation of marijuana, shall not apply to a patient, or to a patient's primary caregiver.' How hard is it to understand 'shall not apply'? It seems clear that it carves out, for a small number of people, an exception to the laws that prohibit the possession, cultivation and use of marijuana. That the sheriff will confiscate a patient's marijuana strikes us a violation of state law, which sheriffs are sworn to uphold. In fact, confiscation used to be the policy of the California Highway Patrol until the CHP was threatened with a lawsuit. Now the CHP does not confiscate cannabis from patients. The Orange County Sheriff's Department needs to come into compliance with state law without the threat of litigation. Besides facing the threat of having their medicine confiscated, patients report to us that they are uncertain whether their right to cultivate cannabis will be respected. Several patients have had plants confiscated even after showing a valid physician's recommendation. A county-issued ID card should help in this situation, but it needs to be accompanied by a law enforcement policy of leaving patients alone on first encounter, while reserving the right to return and confiscate if further investigation shows that the recommendation was a forgery or otherwise irregular. The law also does not authorize law enforcement officers to make detailed inquiries into the nature of a patient's illnesses and then make a judgment as to whether said patient 'really' needs cannabis. That is between physicians and patients. Senate Bill 420, the state law that requires counties to issue ID cards, also authorizes controlled distribution of medicinal marijuana, without specifying how. If county government decides not to establish a greenhouse to grow cannabis to supply to patients, the county and various cities will have to develop policies that provide responsible but not onerous regulation of growers and dispensaries. These are separate issues from ID cards, but they will have to be addressed. Too many public officials have acted as if the Compassionate Use Act didn't change anything about how the 'war on drugs' would be waged. It did. An exception for medical marijuana use rather than strict prohibition is the law in California now, and there's virtually zero chance that law will be changed. It's time for public officials to come to terms with that and do their duty, so policies are consistent and predictable.