CANNABIS CONUNDRUM

Medicinal Marijuana Case Shows Vagueness Of Controversial Law

SACRAMENTO -- Last year Steve Kubby was a Libertarian candidate for
governor who trumpeted his efforts to pass a 1996 measure that allows
sick people to use marijuana.

Now he and his wife, Michele, face criminal charges for growing 265
plants at their Lake Tahoe home -- plants he insists he needs to fight
the nearly always fatal adrenal cancer he has survived for 23 years.

"This isn't supposed to happen," he said. "When you pass a law,
they're supposed to follow it."

But prosecutors in Placer County contend it's the Kubbys who are
breaking the law by growing far more pot than they can possibly use.
They have charged the couple with selling marijuana and seven other
felonies that could lead to lengthy jail sentences.

Their case illustrates the failure of California's groundbreaking
Proposition 215 to make a clear distinction between recreational
marijuana users and those who use the weed for medical purposes.

The law is so vague that it allows prosecutors to file charges against
people with just a few plants. At the same time, it allows the Kubbys
to claim they need hundreds of plants for their own use.

The Kubbys' lawyer, Dale Wood, said their case "shows most of all that
the Legislature and law enforcement really have to get down to work
and start passing enabling legislation to make this thing work."

Newly elected politicians in Sacramento are trying to do just
that.

A task force appointed by Democratic Attorney General Bill Lockyer is
working on ideas to create clear guidelines for identifying patients
and distributing pot. "They're trying to figure out how we can reform
a law that was poorly written," Lockyer said.

The law gives patients with a doctor's recommendation a defense
against prosecution for possessing marijuana. But the law doesn't say
how the patients should obtain the pot they need, how much they can
have or how they can avoid arrest altogether.

A federal roadblock

Lockyer, who supported Proposition 215, warns that the biggest problem
is the federal government, which has put the drug on its Schedule 1
list. That classification involves the most dangerous drugs and makes
them virtually impossible to prescribe. Because of this, the federal
government says marijuana is illegal despite Proposition 215.

"It always amazed me that we can give terminally ill people morphine,
but we can't give them marijuana," Lockyer said. "That doesn't make
any sense."

On a trip to Washington, D.C., last month, Lockyer tried to lobby
federal officials to change their view of marijuana, but he received
little encouragement. In fact, drug czar Barry McCaffrey warned that
even state-sanctioned research could violate federal laws.

Previously, Lockyer had talked with Vice President Al Gore about
changing the federal government's view. But in all of his discussions,
the only glimmer of hope he said he received was a commitment to do
more federal research on the possible medical benefits of marijuana.

Still, Lockyer's commitment to making the law work is a striking
contrast to the policy of his immediate predecessor, Republican
Attorney General Dan Lungren.

"Nobody under the former attorney general tried to make it work. They
tried to make it fail," said Bill Zimmerman, the consultant who ran
the Proposition 215 campaign and has led successful efforts to pass
similar measures in other states.

During the 1996 ballot measure campaign, Lungren railed against
Proposition 215, arguing that marijuana is addictive, harmful and that
its benefits are medically unproved.

He used the drug enforcement agents under his command to raid the San
Francisco Cannabis Club, operated by marijuana advocate Dennis Peron.
And, after the law passed, he encouraged the federal government to
launch a legal effort that closed clubs set up to distribute pot to
patients in San Francisco, San Jose and Oakland.

Lungren also issued guidelines suggesting that police throughout the
state could arrest anyone with more than two plants.

Advocates said that total was far too small.

"We call that the Dan Lungren strain of marijuana," Wood said,
"because only he could get a pound per plant. Everyone else can only
get about a quarter-pound."

But even Lungren supported a bill that would fund a large University
of California study on the effects of medicinal marijuana. The bill,
however, died in the Legislature after then-Gov. Pete Wilson, a
Republican, quietly signaled his opposition.

Democratic Gov. Gray Davis, who opposed Proposition 215, said recently
that he supports the University of California study and wants to
devise a clear way of distributing pot to those who need it.

A medical miracle?

Lockyer's commitment to making the law work doesn't extend to helping
the Kubbys. He declined the Libertarian Party's request to intervene
in their case. For the 52-year-old Kubby, marijuana is more than just
an effective painkiller. He says it's a lifesaver.

In 1976, he was diagnosed with terminal adrenal cancer. The cancer
produces so much noradrenaline that it raises blood pressure and could
cause a heart attack at any time.

Kubby went through two surgeries, chemotherapy and tried numerous
medications for blood pressure. Still, he was vulnerable to sudden
blood-pressure attacks that caused blinding headaches and tunnel vision.

About 21 years ago, he discovered his unorthodox cure with a cannabis
cult figure.

While smoking a joint with his former college roommate, Richard Marin,
better known as Cheech -- half of the bumbling, pot-smoking Cheech &
Chong comedy duo -- he noticed that his condition improved.

His blood pressure improved and his attacks stopped. So he continued
smoking every day.

"When you're in a desperate situation, you go with whatever works,"
Kubby said.

The success of his self-styled marijuana therapy sparked his interest
in the medicinal marijuana movement. In 1996, he helped line up
wealthy donors to pay to gather the signatures needed to qualify
California's ballot measure.

Two years after the measure passed, Kubby used his role in passing
Proposition 215 as the centerpiece of his Libertarian candidacy for
governor.

His prominent role reunited him with his former physician, Dr. Vincent
DeQuattro, a professor of cardiology at the University of Southern
California medical school. DeQuattro found out about Kubby by reading
his voter guide listing the candidates for governor.

DeQuattro, who specializes in treating adrenal cancer, hadn't seen
Kubby in 12 years and assumed he had died -- as had all the other
patients he was treating along with Kubby.

"I describe it as a miracle," he said. "Faith healers would go
ecstatic over this one."

DeQuattro has recently re-examined Kubby and discovered that his tumor
still exists. He believes there may be something in marijuana that has
kept the symptoms in check.

He won't prescribe it for other patients now, but wants to do further
study -- especially because another patient with the disease reported
that his symptoms improved while smoking marijuana.

"It deserves a further look," he said.

Law officials unimpressed

But law enforcement officials in mountainous Placer County, which
covers much the Lake Tahoe area where the Kubbys live, weren't
impressed with his recovery. After watching their home for several
months, they arrested the Kubbys earlier this year, confiscated the
computer the couple used to publish their online outdoor magazine and
sent them to jail. Without his marijuana, Kubby said, his
blood-pressure attacks resumed for the first time in years.

The district attorney in Placer County has charged the Kubbys with
seven felonies and two misdemeanors, including possession of marijuana
for sale, possession of illegal hallucinogenic mushrooms, possession
of peyote and possession of an item with cocaine residue.

Deputy District Attorney Christopher Cattran acknowledges that he has
no direct evidence that the Kubbys were dealing drugs, but he says the
265 plants provide circumstantial evidence.

"It's a heck of a lot of marijuana for personal use," he
said.

In addition, Cattran said his investigators found a list with
wholesale prices corresponding to various plants found in the Kubbys'
indoor growing room.

Kubby acknowledges that they had lots of plants, but said they were
following the guidelines developed by the now-defunct Oakland Cannabis
Club, which allows 144 plants per person.

He said half his plants were seedlings, and that extra plants are
needed to overcome the difficulties of indoor growing.

Furthermore, he said, his wife smokes marijuana each night to control
irritable bowel syndrome.

Kubby charges that he is being prosecuted because of his high-profile
role as an advocate of medicinal marijuana use and as a former
candidate for governor -- something Cattran denies.

Kubby said he has been forced into bankruptcy by the confiscation of
his computer.

Now he and his family are living in Laguna Beach until his May trial
and actively raising money for their defense from Libertarians and
medicinal marijuana advocates. So far, they have collected $15,000.

As a backer of Proposition 215, Kubby said he looks forward to his
trial, despite the possible jail sentences he faces.

"This is our opportunity to force these issues to the table where they
can be decided by people, not politicians."