Heidi Groover, The Stranger
Lawmakers in Olympia are currently debating lots of questions about marijuana. Among them: If we believe medical pot should remain cheaper than the recreational stuff in order to allow access for people who are sick and dying, then how should the state verify that those buying medical marijuana are truly sick? Some lawmakers think they’ve found the answer in a mandatory patient registry. Under a registry regime, if you’re a patient and you want cannabis at reduced prices, you would have to agree to let your doctor enter your information into a statewide database managed by a third party.
That is a terrifying idea.
Aside from the fact that the registry would cost nearly $2 million and require sick people to volunteer their private medical information, it’s vulnerable to federal intervention since marijuana is still federally illegal. Think that’s overblown since the Feds are letting us move forward with this whole legalization experiment? Think again.
The federal government is not done going after medical marijuana growers—even in Washington State.
In a letter Wednesday urging state senate leaders to avoid a registry, the ACLU’s Alison Holcomb (who authored our pot legalization law) wrote that patients are still facing federal prosecution, which means their records in a state database could be subpoenaed and used against them. She cites a case happening right now called United States of America vs. Rhonda Lee Firestack-Harvey, et al.
I wrote about this case at my last job and can tell you it is completely fucked. A family of five medical marijuana patients is being prosecuted for growing pot in the woods of Eastern Washington. There are disputes about how many plants they had, and the Feds are accusing them of selling on the side (although their evidence of that so far is flimsy). But bigger than all of that stuff is this: Because the family owned three guns they say they used for hunting—remember, it’s Eastern Washington—they’re facing mandatory minimums of 10 years each. For marijuana. In 2015. Americans for Safe Access, a medical marijuana advocacy group working with their defense attorneys, estimates the Feds have spent $3 million on the case so far. When I added up estimates about how much it costs to house federal prisoners, I found that putting the family away for 10 years would cost another $1.45 million. But guns are a red line for the Feds. "You may have a small amount of marijuana that wouldn't otherwise be prosecuted, but if you've got a gun, we're going to look at the case very, very seriously,” US attorney for Eastern Washington Michael Ormsby, whose office is prosecuting the Harvey case, told me.
Cases like this are evidence, Holcomb argues, that “the privacy interests of medical marijuana patients are particularly acute as, unlike with prescription medications, the possession and growing of marijuana remain federal crimes.”
It’s not unheard of for the Feds to subpoena lists of patients from states that do have registries. In a 2007 medical marijuana case, federal prosecutors requested information about 17 people from Oregon’s patient registry. That state, joined by a medical dispensary represented by Holcomb, fought back and won when a judge ruled that turning over registry details would require Oregon to violate its own privacy rules and could discourage people from signing up for the registry in the future. (In her letter, Holcomb tells members of the Washington State Senate they “may wish to contact the Oregon State Attorney General to obtain an estimate of the staff hours and costs expended in that matter.”)
Oregon's outcome was a good one, but it’s not guaranteed for other states. In California, Mendocino County pushed back when the Feds requested “all records” related to the county’s medical marijuana program and struck a deal to only release records without personal identifying information. And in 2013, as federal agents investigated Oregon growers suspected of dealing in the black market, the Feds requested and reportedly received “names, addresses, telephone numbers, birthdates, Oregon Driver’s License numbers, or other Government Issued ID number for Patients, Growers, and Caregivers in the Oregon Medical Marijuana Program database or files,” according to SeattlePI.com.
The good thing about patient registries is they can keep people from getting arrested at the state level. If state or local cops come kicking in patients’ doors, a registry gives those patients a way to prove their medical need and avoid arrest. For that peace of mind, or new benefits like tax exemptions, some patients may want to joint a registry despite the risks. (Every state with medical cannabis except Washington has one, though some are optional.)
Washington tried to strike a middle ground on this with an optional registry back in 2011, but that was one of many pieces of the state’s medical pot law then-governor Christine Gregoire vetoed because she was afraid of the Feds.
Holcomb actually supported the 2011 registry idea because it was voluntary and involved serious privacy protections. But, again, that registry would have been voluntary. What's being talked about in Olympia right now is not a voluntary registry. And to require all patients to put their name in a state database is forcing them to spell out the extent to which they’re breaking federal law with no guarantee they’ll be protected from those federal authorities who get to decide when they feel like going after pot.
Olympia has to figure this out. If they're committed to a registry, lawmakers can't ignore the reality of federal enforcement. Patients should have a choice about putting themselves at risk. Better yet, legislators could take Holcomb’s advice and "decriminalize the growing of a small number of plants for personal use by any adult, regardless of his or her medical status. Then, no patient would be required to register with the state."