cannabisnews.com: Movement on 215!





Movement on 215!
Posted by FoM on April 11, 1999 at 21:48:00 PT
another excellent article!
Source: MAP Inc.
IN THE COURTS AND THE CAPITALS,THE CASE IS MADE FOR MEDICAL MARIJUANA More than two years after California voters passed the medical marijuana initiative, Proposition 215 - now Section 11362.5 of the state's Health and Safety Code - the law still has not been implemented. 
Despite the desire of voters in California and elsewhere to make marijuana available to people whose doctors believe they could benefit from it, patients in California - especially if they prefer not to use the black market-face constant risk from law enforcement. People like David Herrick and Marvin Chavez in Orange County have gone to jail for trying to implement Prop. 215 in their own ad hoc fashion. But the times may be changing. Federal and state developments are converging in ways that could make for reasonably dramatic break-throughs in the medical marijuana movement. For starters, the state's top law enforcement officer and de facto leader on the matter is Attorney General Bill Lockyer. He supported Prop. 215 during his campaign and wants to implement it, though he reports continuing intransigence at the federal level.Any rationale for federal stubbornness, however, was undermined by a report, released in March, from the government's Institute of Medicine, which summarized and evaluated current scientific evidence on medical uses for marijuana. The report was ordered by federal "drug czar" Gen. Barry McCaffrey. In what seems to have been a surprise to McCaffrey, the report noted several current and potential medical uses for the plant. Meanwhile, a petition asking that marijuana be taken off the Drug Enforcement Administration "schedule" reserved for uniquely dangerous drugs with no known medical uses, is wending its way through the federal bureaucracy and will be ripe for action soon. That would free states and others to better study the plant and its effects. And a lawsuit challenging the authority of the federal government to nullify state laws on medical marijuana should see court action within a few months. Here's how those seemingly disparate events are coming together - and what they could mean for medicinal use of marijuana in the future. ON THE LEGAL FRONTOn the legal front the news is decidedly mixed. Some patients who have been arrested have managed to avoid jail and Placer County authorities may have bitten off more than they could chew when they arrested 1998 Libertarian Party candidate for governor, Steve Kubby, and his wife Michele for drug trafficking.David Herrick of San Bernardino and Marvin Chavez of Santa Ana, two early leaders of the Orange County Patient Doctor Nurse Support Group, are in jail, although their convictions on sales and distribution charges are being appealed. A third local activist, Jack Schachter of Garden Grove, also faces criminal charges. In Los Angeles both Todd McCormick and Peter McWilliams face federal charges for growing marijuana in quantities larger than deemed suitable by authorities. McCormick was the "Bell Air mansion" grower, a certified patient who had more than a thousand plants in his rented house, claiming he was growing so many for research purposes, to see if different strains had different effects on different illnesses and conditions. McWilliams, a long-time publisher and author ("Ain't Nobody's Business of You Do," Prelude Press) told authorities he had set McCormick up in the house to do research (results are on McWilliams' website, at www.petertrial.com). No good deed goes unpunished. McWilliams, who used marijuana to counter the "wasting syndrome" associated with AIDS, was arrested as a drug "kingpin." McWilliams was released on bail (his brother and mother mortgaged their houses to cover the $250,000) but one of the conditions of bail is that he's not allowed to use marijuana - though he has recommendations from four different physicians - and he's drug-tested regularly. So the court battle means he can't use the medicine he and his doctors believe is prolonging, perhaps even saving his life. He has filed an urgent appeal to allow him to do so before his case comes to trial, now scheduled for September. In San Diego, Steve McWilliams (no relation) has just completed a promising plea-bargain with the San Diego district attorney. He was arrested for distribution as he and a friend were bringing a plant to a paraplegic patient. He pleaded guilty to a single count and got probation. He will be allowed to run his growing facility in downtown San Diego and will work with police to develop procedures for acceptable cultivation. Unlike some of the "cannabis clubs" that have been formally closed, Steve McWilliams does no distribution. He simply has a place where patients, with a doctor's recommendation, can bring their own seeds or plants and get help, advice and some sense of security as they grow. THE KUBBY CASE The case that has attracted the most publicity statewide involves Steve Kubby and his wife, Michele, in Tahoe City. Steve Kubby played a role in getting Prop. 215 passed and was the Libertarian Party candidate for governor in 1998. During the campaign he told audiences up and down the state about his diagnosis of adrenal cancer more than 20 years ago, and his conviction that marijuana had somehow kept the cancer (almost always fatal in six months), in remission and helped to control his high blood pressure. He had a signed recommendation from a licensed physician. In January more than a dozen armed officers from the local-federal-state North Tahoe Task Force barged into the Kubbys' rented house. They found more than a hundred marijuana plants in various basement rooms - but they also found recommendations from physicians for both Steve and Michele (who has a funny-sounding but extremely debilitating condition known as irritable bowel syndrome) and copies of the protocols and guidelines worked out by the Oakland Cannabis Buyers Club, which had worked closely with city officials before the feds closed it down. No matter. After consultation with the DA's office both Kubbys were arrested and taken to jail (fortunately a neighbor was able to take care of their 2-year-old daughter). They are charged with conspiracy, cultivation trafficking, distribution and possession of other illegal drugs. Their trial confirming date is April 26; the trial could begin in May or June. The local district attorney has made their conviction a personal crusade. Steve Kubby thinks his position is strong. He built his "growroom" according to guidelines developed for the Oakland club, which in turn are based on the quantities of marijuana the federal government supplies (at tax-Payers' expense) to the eight patients who received authorization in the early 1980s. Federal patients get seven pounds a year and the Kubbys had enough plants, they say, to produce seven pounds of marijuana bud over the course of half a year for the two of them. They plan to produce expert witnesses and medical authorities who will discuss the relationship between marijuana and adrenal cancer. The Kubbys have told me they didn't sell, give away or in any way distribute marijuana, and so far the prosecutors have not produced evidence that they did. So under Sec. 11362.5 they should have been immune from prosecution.THE LOCKYER TASK FORCE As various court cases move forward, there is also movement - we'll see if it's progress - on the official front. Attorney General Bill Lockyer has appointed a medical marijuana task force headed by state Sen. John Vasconcellos of San Jose, also and early supporter of 215. The task force, co-chaired by Santa Clara District Attorney George Kennedy, includes enforcement officers, cannabis providers, doctors and other interested parties (although there's no medical marijuana patient, an inexcusable omission) has met twice but is not likely to offer a program until its next meeting in May. It has discussed numerous ideas, from a voluntary patient identification system, guidelines for possession and cultivation (possibly a statewide standard for how many plants a patient can cultivate) and the creation of a legal supply system. The task force's job has been complicated by the federal government's intransigent attitude toward state medical marijuana laws. When Lockyer visited with "drug czar" Barry McCaffrey and U.S. Attorney General Janet Reno in March, Lockyer told reporters that "both were very clear that medical marijuana use violates federal laws," and that McCaffrey suggested that a years-long period of research would be needed before that status would change. In fact, McCaffrey told Lockyer that if Lockyer sponsored research in California that Lockyer believes is authorized by California law, he would be risking arrest.In my discussions with people in Lockyer's office, I haven't heard that Lockyer called the bully's bluff, telling him that if federal officers came to arrest him there would be TV cameras and he would see him in court. Instead, Lockyer's comments were to the effect that California would have to move to get procedures and protocols in place so it would be prepared if and when the federal government moved to change the legal status of marijuana at the federal level.That's difficult to understand. Lockyer was elected by the people of California to enforce California's laws. Barry McCaffrey and Janet Reno are appointed federal officials attempting to nullify a law put into place by the people of California. Lockyer's loyalty should lie with the people who elected him and voted for Prop. 215. The federal government had every opportunity to challenge Prop. 215 in court. It chose not to do so. To try to nullify it by administrative fiat is despicable. FEDERAL LAW AND SCIENCE There are reasons to believe that if Locker took a firmer position with the federal government he would be on solid legal ground. A compelling case can be made that the federal government's policies toward marijuana, and particularly medical marijuana, are in violation of federal law. The Controlled Substances Act of 1970 sets out "schedules" with progressively tighter regulations and distribution rules for various drugs. The criteria for Schedule I, drugs that may not legally be prescribed by doctors or dispensed by pharmacists, are as follows: "(A) The drug or other substance has a high potential for abuse. (B)The drug or other substance has no currently accepted medical use in treatment in the United States. (C)There is a lack of accepted safety for the use of the drug or other substance under medical supervision." That's what the law says. According to the Institute of Medicine Report released March 17 - commissioned by "drug czar" McCaffrey hoping it would support his view that "there is not a shred of scientific evidence that shows smoked marijuana is useful or needed" - marijuana doesn't fit any of those criteria. It shouldn't be on Schedule I. More specifically, the report (available at www.nap.edu/readingroom/books) noted that "Although few marijuana users develop dependence, some do," and that while "a distinctive marijuana withdrawal syndrome has been identified, it is mild and short-lived." So much for (A). The report also concluded: "Scientific data indicate the potential therapeutic value of cannabiniod drugs, primarily THC, for pain relief, control of nausea and vomiting, and appetite stimulation." So much for (B). And it concluded that "except for the harms associated with smoking [some respiratory problems have been documented and smoke from the plant does contain carcinogens, though the report noted there are no known cases of cancer attributable to marijuana smoking] the adverse effects of marijuana use are within the range of effects tolerated for other medications." So much for (C)Therefore, according to the report McCaffrey commissioned, there is no justification for keeping marijuana on Schedule I. In fact, it is illegal under federal law to keep it there. It is the Drug Enforcement Administration, McCaffrey and Reno who are breaking the law. Bill Lockyer should tell them so and challenge them to see him in court. TWO IMPORTANT LAWSUITSThere is a less confrontational course available. John Gettman of Virginia filed a petition in 1995 to have marijuana rescheduled at the federal level, raising safety and risk issues rather than the medical efficacy issues that had been rejected in previous administrative proceedings. Gettman's petition is ripe for action by the Department of Health and Human Services. Lockyer should endorse it and urge swift action to bring federal policy in line with the Institute of Medicine's findings. In addition, another lawsuit, drafted by life extension scientists Durk Pearson and Sandy Shaw along with doctors in several states and several medical research organizations, is currently before the U.S. District Court for the District of Columbia. It contends that federal officials lack the constitutional authority to nullify state medical-marijuana laws in California and elsewhere. Such dictates violate physicians' First Amendment free speech rights, and the right of the state under the 9th and 10th amendments to regulate the practice of medicine. Furthermore, the lawsuit contends, the U.S.Constitution's Commerce Clause - the power under which the drug war is perpetrated - does not give the federal government power or authority to regulate commerce or medical practices within a state. Lockyer's office has copies of this lawsuit (you can read it and download it at www.emord.com/complain/htm). He should file an amicus curiae brief on its behalf and put the full weight of the California attorney general's office behind it. For that matter the Vasconcellos-Kennedy task force could take an official position on the Gettman petition and the Pearson-Shaw lawsuit, even before they develop guidelines for implementation of Prop. 215. There is plenty of disagreement on just what kind of guidelines should be promulgated.Some say implementation should be left to the local level, with cities and counties urged to pass ordinances similar to a law passed last year by the northern California city of Arcata, under which the police set up a confidential list of patients and a cultivation center is open to law enforcement inspection. Others say the Arcata ordinance is too restrictive. Some want the state government to set up a distribution system. Others prefer authorizing pharmacists to distribute marijuana along with other drugs. Prop. 215 has some shortcomings - I wish it didn't include the legally ambiguous and vulnerable to pernicious courtroom interpretation term "primary caregiver," for example - but its most important fault is that it doesn't create exemptions for patients from state laws against distribution, transportation and sale of marijuana. One of the task force's most important jobs, therefore, should be to draft careful exclusions for doctors, pharmacists, patients and maybe for distribution cooperatives from those laws - perhaps only for patients who agree to be placed on a state registry with confidentiality safeguards - and urge the legislature to pass them.That wouldn't be an amendment to Prop. 215 requiring another vote of the people, simply revisions to current law that are in the spirit of Prop. 215 and fully within the legislature's power to undertake. It's helpful to remember, however, that while these decisions have legal aspects, they occur in a political climate. The fact that five states besides California have passed initiatives authorizing access to marijuana for patients has changed that climate, but not enough to eliminate the intransigence of local, state and federal officials who see any flexibility on this issue as a threat to their precious and lucrative drug war.Medical marijuana advocates and patients will have to be more persistent and more intelligent in their argumentation and lobbying. This is a long-haul struggle.Meanwhile, the intransigent ones, from Barry McCaffrey down to local prosecutors, would do well to consider another possibility. The general attitude has been that yielding on medical marijuana could be the sign of weakness that brings the entire war on drugs to a halt. But if the people repeatedly demand that marijuana be available to patients whose doctors believe they could benefit from it and the authorities repeatedly resist this modest and reasonable reform, they could decide simply to legalize marijuana - to put it on the same legal status as, say, oregano.And that might really lead to an end of the entire drug war. MAP posted-by: Don Beck 
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