MOVEMENT ON 215

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 FRONT

On 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 LAWSUITS

There 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.