CAPITOL HILL'S CANNABIS CATCH-UP?

Medical Marijuana Ruling Puts Spotlight On Pending Legislation

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 is a San Francisco based science journalist.