Editorial: Guidelines for medicinal pot
September 03, 2008
Twelve years ago, California voters passed Proposition 215, which exempts sick people who use marijuana recommended by their physician from being held criminally liable under state law.
However, under federal law, marijuana use is still illegal. That has put sick Californians who follow California law in the untenable position of still violating federal law and still being subject to arrest.
The Star is among many groups, including the U.S. Supreme Court, that has urged Congress to address this Catch-22 and move marijuana from its classification as a Schedule 1 drug, meaning it has no accepted medical use in treatment, to a Schedule 2 drug, meaning it does have an accepted medical use in treatment. Even cocaine is a Schedule 2 drug.
Congress has still not acted, so California law enforcement and ill people have been left in legal limbo.
Finally, although not a complete solution, California Attorney General Jerry Brown, on Aug. 25, released "Guidelines for the Security and Non-Diversion of Marijuana Grown for Medical Use." The 11-page document was issued to help law enforcement and patients by addressing voluntary registration of qualified patients and their caregivers through a statewide ID system and physician requirements. It also draws a distinction between for-profit and nonprofit dispensers of medicinal marijuana.
The guidelines highlight aspects of the Medical Marijuana Program Act, enacted by the state Legislature in 2004, which established a voluntary statewide identification card system; set limits on the amount of medical marijuana cardholders can possess; and set rules for medical marijuana cultivation by collectives and cooperatives.
Some 200,000 Californians are doctor-qualified cannabis users, according to Americans for Safe Access, a group that welcomed the guidelines, which are a must-read for patients, doctors, law enforcement and city government officials.
The guidelines also make a fine legal point by addressing what is referred to as "the incongruity between federal and state law" regarding marijuana.
In regard to the federal Controlled Substances Act, Attorney General Brown states: "No legal conflict exists merely because state law and federal law treat marijuana differently. Indeed, California's medical marijuana laws have been challenged unsuccessfully in court on the ground that they are pre-empted by the CSA. Neither Proposition 215, nor the MMP, conflict with the CSA because, in adopting these laws, California did not legalize' medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition."
One of the stickiest issues local governments have had to address is medical-marijuana dispensaries operating in city limits. According to the attorney general, they must be not-for-profit collectives or cooperatives. He notes it is his office's opinion that for-profit dispensaries "are likely operating outside the protections of Proposition 215 and the MMP, and that individuals operating such entities may be subject to arrest and criminal prosecution under California law."
Ever since Proposition 215 was passed, there has been much confusion, for which some sick people and their providers have paid a heavy price. Until Congress acts, the attorney general's guidelines are a necessary and welcome stopgap.