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June 5, 2001
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The hempire strikes back
By Ann Harrison

Just Say NORML
By Steve Robles 4.20.01

Capitol Hill's cannabis catch-up?

Medical marijuana ruling puts spotlight on pending legislation

By Ann Harrison

The national debate over medical marijuana shifted back to the U.S. Congress last month after the Supreme Court handed down an exceedingly narrow decision allowing federal prosecutors to halt the distribution services of the Oakland Cannabis Buyers Cooperative (OCBC).

The pressure is now on Congress to reconsider a well-traveled House bill that would bring federal drug laws more in line with the will of voters in states that support medical cannabis.

The ruling also focuses attention on pending state legislation, including a bill proposed by California State Senator John Vasconcellos (D-San Jose), which seeks to protect patients from harassment from unsympathetic local authorities.

California's Proposition 215, which permits the medical use of cannabis, was not affected by the Supreme Court's rejection of a medical necessity defense for the OCBC (see "The hempire strikes back").

While California's medical marijuana patients are still protected under state law, federal authorities can, however, prosecute them under federal drug laws. Justice Clarence Thomas, who wrote the majority opinion in the OCBC case, noted that the Supreme Court only interprets federal criminal codes, it does not rewrite them.

"The Supreme Court made it clear that they are not going to get involved in adjusting the law for public opinion, that is a job for Congress," says Bill Zimmerman, executive director of Americans For Medical Rights, the organization that sponsored Prop. 215 and medical marijuana laws in eight other states.

The silver lining in the Supreme Court decision is that it does shift the focus of attention where it belongs: Congress. "Ultimately, this is a political decision and the law will change as a result of political force as well as constitutional arguments," says Zimmerman.

A U.S. House bill, sponsored by Massachusetts Rep. Barney Frank, would compel federal authorities to abide by California's Prop. 215 and medical marijuana initiatives passed in other states. The States Rights to Medical Marijuana Act (H.R. 1344) would also move marijuana from Schedule I of the Controlled Substances Act to Schedule II, which allows for medical use. It directs the National Institute of Drug Abuse to make marijuana available for FDA-approved medical research studies. There is currently no corresponding Senate bill.

"Some were hoping that the court would come out on a more permissive side," says Frank. "But now that it is clear that the court won't allow for medical necessity, people should put their efforts into lobbying Congress."

OCBC attorney Robert Raich notes that the narrow issue before the Supreme Court was whether the Cooperative could supply cannabis to a small group of medical necessity patients under an exception to federal law. Medical necessity patients are those who would die or be severely harmed without consuming cannabis. Raich points out that H.R. 1344 would be broader in scope, letting any patient who has the right to cannabis under state law be free from liability under federal law.

Frank acknowledges that the passage of H.R. 1344 is "an uphill fight" in the Republican-controlled House. This is now the third Congress in which the bill has been presented and Frank says the best solution is a Democrat-controlled House. Next year's congressional elections could deliver the needed majority, but this Congress has kept the bill boxed up.

"The Republicans won't even allow a hearing on the bill," says Frank. "All they did is criticize states that adopted medical marijuana and insisted that the administration go after people using it for medical purposes."

Zimmerman believes that the new Democratic majority in the Senate could clear the way for a Senate Health Committee hearing on medical marijuana that would give patients an opportunity to speak out. Frank says medical marijuana initiatives have already made a big change in public perception of the issue. According to a recent study released by the Pew Charitable Trust, over 70 percent of Americans support medical marijuana.

The Supreme Court's ruling against the Cooperative will ultimately help the passage of H.R. 1344, says Raich, because it demonstrates the urgency of resolving the law for patients.

"The Supreme Court essentially threw this issue in the laps of Congress," said Raich. "It is now obvious to everyone in the country how incumbent it is for our Congress to change this unjust Controlled Substances Act, which prevents patients with dire and immediate medical conditions from obtaining the medicine they need."

Frank agrees that the Supreme Court decision will benefit H.R. 1344 by spurring citizens to mobilize and lobby Congress – especially conservatives who say they support states' rights. Frank is seeking cosponsors for the bill and is planning to circulate a letter with conservative Republican Ron Paul asking for support. In a nod to libertarians, Frank is also redrafting the language of the bill to make it clear that H.R. 1344 does not insist on federal funding for medical cannabis research.

"The strongest argument that we have is states' rights and libertarians are on our side," said Zimmerman. He notes that before entering office, President Bush said he supported the right of states to choose their own medical cannabis policies.

"We have to convince conservatives to build the majority that we need to win and for conservatives, states rights is more compelling than compassion issues," says Zimmerman.

Zimmerman says he agrees with Frank's strategy of continuing to reintroduce H.R. 1344 every session of Congress in an effort to seek more sponsors and more votes. But politicians are still afraid of being labeled soft on drugs in reelection campaigns, says Zimmerman. Until they feel confident that their own constituents support medical cannabis, he says Frank will have a tough time getting them to respect the will of voters who have already settled the matter in state referendums.

California Senate Bill 187

While Prop. 215 exempts medical cannabis patients from being convicted on state drug charges, it does not shield sick people from arrest, pretrial hearings, and the need to hire a lawyer to get the charges dismissed.

Angel McClary, a medical cannabis patient and OCBC member, points out that local law enforcement authorities are also happy to ignore provisions of the California Constitution, health and safety codes, civil codes, and the federal Americans with Disabilities Act which exempt patients from prosecution under state laws."

"There are still lots of arrests of medical marijuana patients by local prosecutors here in the state. We are wasting tax dollars," says McClary. She notes that many patients live on social security benefits and run the risk of getting an inept or overburdened public defender who prolongs the draining machinations of the criminal justice system instead of a competent attorney who understands the law.

California State Senate bill S.B. 187, proposed by State Senator John Vasconcellos, establishes a voluntary registry and identification card system for persons who are legitimate users of medical marijuana and their primary caregivers. According to the bill, the card would immunize the holder from arrest and prosecution for possession, transportation and cultivation of marijuana for medicinal purposes.

Under this system, cardholders would be required to submit their name, address, telephone number, date of birth, proof of residence, and information from their physician documenting the illness they treat with cannabis. Primary caregivers would need to submit similar personal data and physicians would provide their names, office address, office telephone number, and California medical license number.

An amendment to the bill omitted language that would have required county health departments to store the information contained in the application for a registry identification card. It also removed the cardholders name, data of birth and home address from the card. As proposed, the card now contains a photo of the cardholder and a unique ID number which can be checked with the registry to ensure that it is still current.

This is an important change because as originally written, SB 187 would have required that the county health department provide the information about the cardholder to the state Department of Health Services (DHS). It also directed DHS to pass the information to the California Law Enforcement Telecommunications System (CLETS), the Department of Justice’s tracking system universally accessible to law enforcement officers.

Critics were worried that federal authorities would somehow get access to registry information and use it to target patients for prosecution. "I am aware that there is a concern and that is why we looked for a way to obviate the concern," said Vasconcellos who has been working on SB 187 for five years and helped carry the bill before the passage of Prop. 215 when it was vetoed by then governor Pete Wilson. Vasconcellos says it would be unconstitutional for the feds to attempt to collect registration information. "Even if they did it would be tossed out of court," he says.

McClary argues that it's not enough for the state to issue ID cards if rogue police officers and district attorneys can continue to arrest patients.

"The state needs to take it a step further and say that any agency that is found doing so will be disciplined and prosecuted for depriving people of their rights under the law," she says.

But supporters of S.B. 187, including the California District Attorney's Association, say the registry is the solution to protecting patients. They argue that S.B. 187 will allow law enforcement officers to access the information quickly from their squad cars and spare the patient the process of arrest.

Dale Gieringer, coordinator of California NORML, says he supports SB 187 and is more concerned about the feds getting access to lists of patients through cannabis clubs. Both he and Zimmerman, who also supports the bill, say the system works in Oregon and patients are happy with it. Last week, the Colorado Department of Public Health began accepting applications for ID cards based on an amendment state voters passed last year which set up a registry system.

"With a registration card they can show the arresting officer, it can exempt them from horrible experiences," says Zimmerman who also supports the bill. "The system works very well in Oregon and patients are happy with it."

Zimmerman acknowledges, however, that it is difficult to control the actions of local officials through the apparatus of California state government.

"We are dealing with 58 different counties where the sheriff of each county makes determinations of how they will deal with issues like medical marijuana," says Zimmerman. "The attorney general can issue guidelines, but they are generally not orders."

OCBC attorney Raich is worried that last minute pressure from lobbyists will create mandatory registration or that law enforcement officers will pressure patients to register.

An additional provision in S.B. 187 would require DHS to develop guidelines for the amount of marijuana that can legally be possessed for medicinal purposes.

According to Zimmerman, law enforcement officials are increasing the amount of cannabis they find acceptable for patients, partly because they have gotten the message that juries won't convict. He noted the recent acquittal of medical cannabis grower Ken Hayes who was charged with possessing some 800 plants in Sonoma County.

Raich says he is concerned that the DHS may not approve adequate cannabis for patients who have chronic illnesses. But he is encouraged by comments from the governor’s staff that the governor does not want DHS to get involved with determining quantity.

At a conference last weekend on drug policy reform sponsored by The Lindesmith Center and the Drug Policy Foundation, Vasconcellos said there needs to be more discussion about determining proper amounts of medical cannabis for patients. "We should get it scheduled," said Vasconcellos. "The legislature is not competent to make that determination, we should have public hearings."

On May 31st, S.B. 187 passed the Senate Appropriations Committee which was attempting to bring the cost of implementation down from the original estimate of $2.2 million. It will be heard next on the Senate floor and will go the state assembly for a vote within the next two weeks before governor Davis is asked to sign it. Vasconcellos says the governor is opposed to the bill. "I am trying to get law enforcement to get him to sign it," he says.

Pending bills in Maine and Nevada

While the Supreme Court's OCBC decision may have encouraged a closer look at S.B. 187, it has slowed down the momentum of two additional pending medical marijuana bills in Maine and Nevada.

According to Zimmerman, inaccurate reporting of the OCBC ruling in Maine hurt the passage of a bill which would have created a pilot distribution center for medical marijuana that could ensure supply to patients if the clubs are shut down.

"The impact of the Supreme Court decision was to reduce support for the bill among legislators mostly because the press corps got the story wrong," said Zimmerman. "Most of the headlines in the Maine papers after the decision made a lasting impression on legislators who were made to believe that they were being asked to consider a bill that was unconstitutional, even though that was not true."

Zimmerman says Americans for Medical Rights is now negotiating with legislators in Maine to put the bill on the November ballot. If the bill comes before the voters, Zimmerman says he is confident that it will win. But he says supporters of the bill have still not convinced legislators to place it on the ballot.

"We haven't won that battle yet," says Zimmerman. Americans for Medical Rights may present state distribution as a referendum question in Maine. He says Americans for Medical Rights is also thinking about sponsoring another medical marijuana referendum in Washington D.C. that would force the issue before Congress, which refused to initially let the votes be counted when the measure was passed by voters in 1998.

On May 23 the Nevada assembly passed a bill to create a patient registry and allow patients to use cannabis under state law. It also defelonized possession for recreational use in Nevada, which remains the only state in the country where someone can receive a felony charge for the possession of one joint and do time in state prison. The bill still has to pass the state senate and be signed by the governor.

But Zimmerman says the state has not yet moved to create a required medical cannabis distribution system and there are only days left before adjournment.

"It doesn't look good for achieving some state distribution systems in Nevada during this legislative session," says Zimmerman. "We are exploring our options even if we have to go into court to force the state to comply with the initiative."

Ann Harrison (ah@well.com) is a San Francisco based science journalist.

Also see:

The hempire strikes back

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