Marijuana patients caught in a cloud of confusion
October 20, 2007
Edie Lau and Josh Farley, Kitsap Sun (WA)Steve Sarich had just finished watering hundreds of marijuana cuttings and stepped into the shower in January when he heard a commotion downstairs. He managed to slip on a bathrobe before a cop walked through the door.
It was Roy Alloway, a drug detective from Kitsap County, armed with a search and seizure warrant for Sarich's crop of about 1,500 marijuana plants.
Sarich wasn't surprised. As executive director of CannaCare, a medical marijuana advocacy group in Everett that supplied patients with clippings to grow their own, Sarich thought he might run afoul of the law one day.
Washington, like 11 other states, allows marijuana to be used as medicine. But the state law doesn't say how much marijuana a resident can possess.
Sarich is confident that his operation was legal. Alloway, a member of the West Sound Narcotics Enforcement Team, or WestNET - tasked with carrying out what many say is an ambiguous law - begs to differ.
Nearly a decade since Washington voters legalized marijuana as medicine, the issue remains clouded in confusion and controversy. Counties interpret the law inconsistently. In medical circles, the subject is awkward to the point of taboo, with few doctors willing to recommend marijuana for patients. And patients live in a clandestine world, fearful to say where they got their medicine, or even that they use it at all.
An overarching problem is that the federal government does not recognize a medical value to Cannabis sativa, the plant from which marijuana is derived. The state law also is fuzzy on logistics. For example, while a patient with a doctor's note may legally possess marijuana, there is no clear way to obtain the drug.
"It's a pretty odd law, from my perspective," said Jim Carlson, director of pharmacy, clinical health and plan services for Group Health, the state's largest medical provider. "It's one of the only laws that I am aware of that states that something is legal, in the face of there being no legal way to do what is legal."
CLARIFYING THE LAW
Recognizing the conundrum, the state Legislature this year amended the law, tasking the state Department of Health with resolving two basic questions: What is a 60-day supply of medical marijuana? And how can patients safely obtain it?
The initiative's "60-day" language is a failing peculiar to Washington - other states that allow marijuana as medicine specify limits on both numbers of plants and ounces of usable plant material.
Because of the state law's ambiguities, law enforcement agencies in all of the state's 39 counties take situations on a case-by-case basis and likely consult their respective prosecutor's offices for advice.
"Obviously a search warrant served at a house where 200 plants are found would hardly be a medicinal use case," said Al Townsend, chief of the Port Orchard Police Department. "But until the law gets fixed to make it more clear for us on how we will proceed with these cases, we will continue to look at each of them individually."
WestNET's bust of CannaCare, for example, was rooted in its own interpretation of the medical marijuana act. The team follows a study done by Detective Alloway who drew from several studies, including federal ones defining a 60-day supply as a maximum of 27 plants: nine starts, nine growing, and nine budding at any one time.
Alloway had "received an inquiry" from an assistant U.S. attorney in August 2006 about CannaCare members. The drug task force, which often tracks leads well outside Kitsap County, conducted the search and seizure. "Our job is to dismantle mid- to high-level drug trafficking organizations," WestNET Sgt. Carlos Rodriguez said.
Under Alloway's definition, the 1,500 plants at CannaCare was a clear violation. The case, still pending, was referred to the U.S. Drug Enforcement Administration, which views as illegal the possession of marijuana in any amount, anywhere.
"From a legal standpoint, it makes no difference under federal law if you have a two-day supply, 60-day supply or 60-year supply," said Jeff Sullivan, U.S. Attorney for Western Washington.
As a former elected prosecutor of Yakima County of 25 years, however, Sullivan said he empathizes with state prosecutors and police wanting a clearer medicinal marijuana law. He called the Washington Department of Health-led effort "a great one that should have been done a long time ago."
The health department's answers are due July 1. Last month, it held four public meetings around the state to gather ideas and comments. Testimony from a gathering in Seattle, which drew about 100 people from both sides of Puget Sound, underscored the difficulty of producing tidy answers.
For example, one idea for a 60-day supply is 99 plants or fewer, a figure driven not by science but practicality - federal law imposes a mandatory five-year prison sentence on those with 100 or more plants.
But counting plants isn't sensible, Sarich said. At the Department of Health's meeting, the CannaCare director, who has yet to be charged in the January bust, held up a potted plant to make his point.
"Take a guess how many pounds of tomatoes that plant can produce," Sarich said. "We don't know when we start a plant what we're going to get off it. A plant is a zero-day supply of medication."
Mason County Prosecutor Gary Burleson believes patients' individual situations vary far too much to apply a one-size-fits-all solution. "Anybody can come up with quantifiable term," Burleson said in an interview. "But come on, is that really going to be meaningful?"
For instance, different marijuana strains produce different amounts of THC, or delta-9-tetrahydrocannabinol, the chief psychoactive ingredient in pot. And people respond differently to the drug: Some need more pot than others to feel its effects.
Another wrinkle: Smoking, while the most potent, fast-acting way of delivering the effects of marijuana, is only one way to take it. Patients also inhale its vapors, eat it in food, drip tinctures under their tongues, rub ointments into their skin, even soak in bubble baths made from marijuana. Each application has its own dose.
"How are you going to plug those kinds of things into health standards?" Burleson asked.
CLUBS ON THE LEGAL FRINGES
The question of access is equally tricky. State law allows each patient to grow his or her own marijuana plants or designate a caregiver to grow on his or her behalf. Medical marijuana advocates say the provision presumes that all patients have the know-how and energy to grow their own.
Carolyn Welch of Seattle was diagnosed with advanced ovarian cancer this summer. She said she was fortunate to have a friend in the medical marijuana movement who helped her obtain the tinctures, rubs and foods she needed to cope with the effects of surgery and chemotherapy.
"I couldn't grow my own," Welch told state health representatives. "I had two days from the time I got out of the hospital until I started chemotherapy. ... I don't know how much green stuff I need to make a tincture or a massage oil. ... I was a mess."
Even for people who feel well enough to garden, growing pot is not a simple exercise, said Monte Levine, a 61-year-old Bremerton resident experienced in cultivating marijuana to combat fatigue caused by Hepatitis C.
"It's very complicated," Levine said. "Growing plants indoors requires special light bulbs. ... The electricity's expensive. There are different plant strains for different ailments. You have to know how to fertilize them. How to get a good strain. These are all issues."
So, again, are vagaries in the law. Levine was the target of busts in 2001 and 2002. First local authorities, then federal agents, raided his two-bedroom home in Bremerton, where he grew marijuana in an attic over the garage. Charges in both cases were dropped, but the threat of prosecution continues to loom.
A letter from Assistant U.S. Attorney Douglas Whalley to Levine's lawyer in 2002 warned: "... if we receive a new marijuana case referral concerning your client ... from state or local authorities, we will accept the case for federal prosecution no matter what quantity of marijuana is involved."
Many medical marijuana advocates say "group grow" is the way to go forming clubs or cooperatives where patients share their marijuana and knowledge. But as the CannaCare raid illustrates, keeping marijuana in substantial quantities, whether as plant cuttings or dried, ready-to-ingest medicine, is legally risky.
Of a half-dozen or so cannabis clubs in Washington, most are in Seattle because of that city's philosophy of tolerance, as expressed by Initiative 75, a measure approved by voters in 2003 that makes arresting and prosecuting individuals with less than 40 grams of marijuana the "lowest law enforcement priority."
One club in Seattle is Emerald Cross, managed by Sue Watson of Port Orchard. Watson said she wanted to locate the club in Kitsap County, but the county prosecutor's office told her the operation violated the one patient-one caregiver rule and therefore would not be welcome.
"In a co-op arrangement, where more than one patient is supplied, or a patient shares his or her 60-day supply, they are in violation of the statute," Kitsap County Prosecutor Russ Hauge confirmed in an interview.
Emerald Cross occupies the second floor of a nondescript office building in an industrial zone in the shadow of Interstate 5. About 900 people belong to the club, Watson said, all patients with doctor's notes. Staffers are patients who volunteer their time in return for medicine. The other members pay for their medicine by donation, Watson said, because selling medical marijuana is illegal.
The club has a conference room, a playroom for patients' children, a dispensary and a lounge where members may use their marijuana, relax and visit with others. A cabinet near the dispensary is filled with dozens of colorful glass pipes that tinkle like wind chimes when someone opens the drawer.
Through the open door of her office, Watson watches people come in and out of the lobby. "Usually when they walk out, they're smiling," she said, smiling herself.
Watson's experience with medical marijuana began about 20 years ago after two car accidents injured her back and uncovered a spinal birth defect that makes her prone to vicious headaches.
"I couldn't do anything except cover my eyes, cry and throw up, and have someone take me to the hospital to take something to knock me out," said Watson, 56.
At one point, Watson said, she was taking three Vicodin a day, which caused such severe constipation that not even a tub of prunes could help.
Now she takes no prescription painkillers; she uses just marijuana, smoking an average of a fourth of an ounce a day. She also takes pleasure in inventing new forms of the medicine, including ointments to rub on the skin and, most recently, bubble bath.
Patients come from all over the state to Emerald Cross. Stevan Hall drives from Silverdale to Seattle once a month to pick up medicine for himself and his wife. Hall, 52, was a plumber before he was disabled by an arthritic back. His wife also has a bad back and glaucoma.
"It helps us," he said after fetching a small brown bag from the dispensary. "In the days of our youth, it was to get high, but it's gotten a lot further than that."
Like Hall, many marijuana patients freely admit to having smoked recreationally before using pot as medicine. Although that is not true of every patient one advocate estimated that one-third start out as "naive" users - the fact that some have smoked pot for fun diminishes the credibility of pot as medicine.
Roger Roffman, a University of Washington professor of social work with expertise in addictive disorders, said the medical marijuana movement is hampered by its ties to the movement to legalize marijuana for all uses.
"While there's enormous legitimacy to this issue - many, many patients, I think, really benefit from the use of marijuana - on the other side, there is enormous potential for this issue to be co-opted as a way of getting ultimate legalization of marijuana for recreational use," Roffman said. "The fact that they're not being done separately, I think, has been part of the controversy."
The lure of marijuana for illicit uses also endangers patients. One Kitsap County patient said that after word got out in her small town that she used marijuana to control chronic pain, she was approached by strangers who wanted her to get them drugs.
Levine, the Bremerton patient, said patients who grow their own marijuana are particularly vulnerable. "The first three rules of growing are: Don't tell anyone. Don't tell anyone. Don't tell anyone," he said. "You open yourself up to thievery."
DOCTORS FEARFUL, TOO
Dr. Robert Killian, a physician in Seattle who wrote Washington's medical marijuana initiative, is proud of the law but disappointed in two ways over how it's played out.
In an exchange by e-mail, Killian said he had hoped that the states' push to make marijuana available as medicine would influence the federal government to do the same, setting consistent standards nationwide and giving patients reliable access to the medication. That hasn't happened.
Fellow doctors have let him down as well. "I am disappointed in my colleagues within medicine that have not educated themselves and who avoid this issue," Killian said. "I am very disappointed that my medical colleagues who refuse to protect their patients by not signing the necessary forms are putting their fears above protecting their patients from prosecution."
Third-year UW medical student Sunil Aggarwal, who hopes to write his doctoral thesis on medical marijuana, said he's heard repeatedly from physicians that they'd rather not get involved. "They just don't know what the repercussions are," he said.
In Poulsbo, Narinder Duggal is a rare physician willing to write recommendations for medical marijuana and discuss it publicly. An internist and pharmacologist, Duggal was trained in Canada, where marijuana is legal as medicine. Duggal said he treats marijuana like any other potentially addictive pain drug. He asks patients to sign agreements that they will not abuse the drug and not visit multiple doctors - a common ploy to score extra medication. He runs urine tests to screen patients' drug levels and requires frequent visits for close monitoring.
"I've never in my life been in fear (of prosecution) because I never sell a drug," Duggal said. "I think you feel vulnerable if you're not educated enough."
Duggal said he would like to see a discussion among doctors, lawyers and law enforcement on the topic "so they can all be on the same page. There should be a collaboration," he said. "I wouldn't center the stage on marijuana, I'd center the stage on pain control. That would be a great forum to have."
It's not a forum the Washington State Medical Association has ever considered, said spokeswoman Jennifer Hanscom. "There hasn't been a lot of interest," she said. "We just don't get calls from physicians struggling with the issue."
The few physicians who do inquire are told that "they are at their own risk if they recommend medical marijuana," Hanscom said. "We give them all the information that the state allows (it), but they are forewarned about the federal law, as well."
Because of the federal prohibition, anything the state does to address shortcomings in its law will fall short, Killian said. "The only improvements will come when federal laws are changed to allow for access and distribution of this drug," he said, adding that the state changes "are trivial, but necessary because law enforcement in general has never been a supporter of this law."
Despite the flaws in the system, medical marijuana advocates are not discouraged. "It's slowly getting more and more open and legal, and patients don't have to be afraid," said JoAnna McKee, who runs Green Cross, a medical marijuana information clearinghouse in Seattle.
McKee has been at the leading edge of Washington's medicinal cannabis movement since before it was legal. She used to run an impromptu cannabis club out of a trailer on Bainbridge Island, supplying about 70 patients until police raided the place in 1995. She continued the work in Seattle for a while. Today, she said, she supplies only information, not marijuana, from her home in the city.
From McKee's perspective, things are much improved. "When we first started, if I was talking about medical marijuana, I had to be careful I wasn't overheard because somebody might get the wrong idea and call police," she said. "I don't think the law is as good as it could be right now, but it's better than it was 10 years ago."