MONITORING MARY JANE

The Difficulty In Regulating Medicinal Pot

California voters approved Proposition 215 back in November 1996, but
law enforcement personnel and district attorneys are still trying to
determine how to administer the legal use of marijuana for medical
treatment.

In Marin, District Attorney Paula Kamena organized a committee of
local law enforcement officials last month to tackle the dicey task of
figuring out exactly how much pot is legitimate for medical patients
to grow and possess.

In Sonoma, District Attorney Mike Mullins and the Sonoma Medical
Association got together and produced a program that allows medical
patients to have their conditions reviewed by a panel of doctors,
which then approves the patients' use of marijuana, consistent with
Prop 215 guidelines and protocols. In the Sonoma scenario, patients
who receive authorization from the medical panel can notify the
district attorney, who then notifies law enforcement officials that
under county policy the patients have a legitimate need for pot and
are allowed to cultivate and possess marijuana.

Developing guidelines to determine how much marijuana patients should
be allowed to cultivate and possess, and exactly how patients should
qualify to cultivate and possess the drug, are two major headaches
Proposition 215 has triggered due to its vague wording.

Newly elected Attorney General Bill Lockyer has formed a statewide
committee of law enforcement personnel to tackle the same issues that
Marin and Sonoma currently are wrestling with. Mullins and Tiburon
Police Chief Pete Hurley serve on that committee.

Marin's efforts to deal with the matter made the rounds in Sacramento;
Hurley showed the attorney general a memo received from the Marin
district attorney regarding the county's efforts to find an equitable
way to deal with Prop. 215. The memo underscored for Lockyer the need
to develop medical marijuana guidelines.

"I had no idea the internal memo would end up being circulated in Sac-
ramento," says Kamena. "The memo was trying to set up some guidelines
on how law enforcement officers should handle situations involving
medical marijuana, and how we would look at things here in the office."

Kamena, Mullins and other district attorneys across the state have
been left to their own devices when deciding whether to prosecute
medical pot cases, in large part because former Governor Pete Wilson
and former Attorney General Dan Lungren opposed the passage and
implementation of Prop. 215, also known as the medical marijuana
initiative. Rather than deal with the formation of guidelines, Lungren
and Wilson sidestepped the whole issue while they finished their terms.

The committee that Marin District Attorney Kamena set up last month
includes Tiburon Police Chief Hurley, Assistant Marin District
Attorney Ed Berberian, Rob Nelson from the Marin Drug Task Force and
officer Mark Sooy from the California Highway Patrol. In addition to
these members, the committee has an open seat filled by various
members of the Marin County Department of Health and Human Services.

The primary focus of the committee is to set up practical guidelines
that the district attorney's staff and cops on the street can use to
determine whether to prosecute cases - or to give them a pass. "We
need to get some sort of idea on how many plants a patient can have,
and even what kind of shape the plants are in," Kamena says. "For
instance, there is a big dif-ference between finding five plants in a
home that are small and barely hanging on, and finding five plants
under grow lights that are 7 feet tall."

Darcie McKay runs Marin RX, a cooperative marijuana growing operation
that supplies patients in Marin with medical marijuana. "Deciding how
much is hard," she says, "because Prop 215 doesn't say. If you say a
patient can only have an ounce, then [he or she has] to be growing
that next ounce all the time. And one patient might need more than
another patient with similar symptoms. And there are people who simply
can't grow it themselves and must buy it instead. Putting limits on
all this will make everything more complicated."

Don't get McKay wrong. She applauds Kamena's efforts. "Any step toward
a common-sense decision is good," she says. "I've talked in the past
with Paula, and I have been very heartened, the wider picture
regarding the future of Prop 215 is not nearly as clear. After the law
passed, clinics opened in many Bay Area cities and began supplying
medical mari-juana that the state said was legal. But Prop 215 still
contradicts federal law, which states that pot is a dangerous drug -
and an illegal one under federal drug statues. The United States Drug
Enforcement Agency has moved to shut down some of the pot clinics in
the Bay Area, but not all of them. The Marin Alliance in Fairfax has a
case pending against it for selling pot to undercover agents(even
though the agents allegedly had documentation that authorized use of
medical marijuana).

The concern that that Alliance and(to a lesser extent) Marin RX have
about whether the feds are ready to unleash the full power of the U.S.
Attorney General's Office on them is justified, according to
Berberian. Because no matter what guidelines county committees and
district attorney's offices decided to implement, "The people who have
exposure are the people who have always had exposure under Prop 215,
the patients." Berberian says.

That's because federal drug laws always will supersede local law, and
even if the state and the counties set policies regarding the amount
of marijuana patients may possess, if federal agents arrest a patient,
the local policy will make no difference.

McKay says that from a practical perspective, the federal drug
enforcement bureaucracy will have little interest in going after
patients who grow or possess only enough pot for themselves. But, she
adds, just the fear of a federal prosecution can weigh heavily on
someone battling a life threatening disease. "I deal with very sick
people," McKay says, "and the stress they have over worrying about
getting their medicine or being arrested for growing is something that
really hurts them. While Prop 215 was very poorly written, the intent
is clear: to put medical marijuana in the hands of those who are ill
and need it."

McKay says a bill authored by Democratic Congressman Barney Frank
would protect medical marijuana patients in California, and any other
state whose voters approve measures similar to Prop 215. Frank's bill
would pro-hibit federal law enforcement personnel from prosecuting
people who cul-tivate pot for the sole purpose of providing marijuana
for their legit-imate medical use. But McKay and other proponents of
medical marijuana know that Frank's bill has almost no chance of
passage. "It's a good idea," she says, "but even his office knows it
is a very long shot."

Berberian remarks that although Marin has set no timeline to put a
local medical marijuana policy in place, he is confident the
committee's efforts will produce a finished product soon. "We want to
move as quickly as we can," he says.

Mullins sways members serving on the attorney general's committee hope
they also will soon be able to finish work on their guidelines, which
the counties then can use to create a homogeneous statewide policy
toward medical marijuana.