A MAN CAUGHT IN A KAFKAESQUE TRAP

The Situation:Register senior columnist Bock is closely following the trial
of Marvin Chavez in connection with Proposition 215,the medical marijuana
law approved by California voters.

The main reason Marvin Chavez is standing trial before Judge Thomas
J.Borris in Orange County's West Court in Westminster this week is
that the government failed-in most cases quite stubbornly and in
conscious and purposeful defiance of the people's will-to do its job.
If this were a world imbued with some Platonic ideal of justice, Dan
Lungren, Brad Gates and others would be sitting at defense tables with
their lawyers desperately trying to explain how the actions they took,
presumably in good faith, did not constitute willful violations of the
law.

There are other reasons, of course, that the implementation of
Proposition 215, which made it legal for patients with a
recommendation from a licensed physician to use, possess and cultivate
marijuana, has been difficult in California. The initiative was
imperfectly drafted, with ambiguities and omissions that have since
given fits to courts and medical marijuana advocates alike. Some of
those who have tried to implement the law have made mistakes, some
owing to problems in the law and some owing to an excess of
enthusiasm. And not all those who have tried to form a medical
cannabis distribution system for patients with a doctor's
recommendation have acted ethically or wisely.

But the main reason has been the government's failure - except in a
few cities, such as Oakland and Arcata - to even try to implement the
law responsibly. Among the purposes of Prop. 215, right there in the
language of the initiative, was "to encourage the federal and state
governments to implement a plan to provide for the safe and affordable
distribution of marijuana."

That's not an absolute mandate, but the responsible thing to do in
light of that language and the passage of the initiative would have
been to accept the will of the people (however reluctantly) and either
set up or facilitate an ethical distribution system for those with a
certified need.

Perhaps it could have been sold through existing pharmacies. Perhaps
the government could have started a small growing plot itself, set up
a system of ID cards and protocols to govern private organizations
seeking to fulfill the distribution function.

Instead Dan Lungren, as state attorney general, at first urged the
federal government to pull the licenses of physicians who recommended
marijuana, based on the fact that marijuana was (and still is) illegal
under federal law and has been placed on Schedule 1 in the
pharmacopeia, which means it can't be prescribed.

Then he issued a set of restrictive guidelines - not for those who
sought to furnish marijuana but for law enforcement officials
determined to discourage and harass them.

Then he declared war against existing cannabis clubs, a war the
Clinton administration cheerfully joined and then took over.

Even if they had not faced outright law enforcement hostility,
patients and their families and friends would have faced serious
problems. Prop. 215 (now Section 11362.5 of the California Health and
Safety Code) specifically created a defense for patients and primary
caregivers against charges of possession, use and cultivation. It did
not create an explicit defense against charges of sales, furnishing or
transportation, which were and are still illegal under California
state law. (Although appellate court decisions have acknowledged the
need for some leeway in enforcing these laws in light of 11362.5, they
still haven't offered specific guidelines.) And nobody really knew

what a "primary caregiver," the term used in the new law, was or how
the courts would define or refine the term in the future.

For various reasons, many patients who were now legally entitled to
have and use cannabis had no practical way to acquire it. It takes
about six months to grow cannabis from seed to usable bud, and not
everyone knows how to grow it or acquire seeds. There's a flourishing
black market, of course, but acquiring it that way is still illegal.

Doctors were now authorized to recommend cannabis. But except for a
handful, physicians in the United States know almost nothing about the
real or alleged therapeutic effects, side effects or consequences of
cannabis use.

The caution growing from that lack of knowledge was reinforced
powerfully by the federal government's announcement that it would pull
the licenses or the authority to write prescriptions from doctors who
were so bold as to try to implement California's new law. Even though
a restraining order now prevents the feds from doing this, very few
doctors are willing to stick their necks out and write recommendations
for cannabis, even if they believe it would help some of their patients.

Prop. 215 had been written by people who ran a cannabis club in San
Francisco, so it should have been logical to assume that it authorized
such clubs. But the drafters were not lawyers. Subsequent court
decisions suggest rather strongly that they failed to write it in such
a way as to authorize their own operations or to define themselves as
"primary caregivers." But nobody knew this at the outset.

For all these and other reasons, people like Marvin Chavez were fated
to go through a long and difficult process of trial and error.

Chavez, who now lives in Santa Ana, had discovered a few years ago
that cannabis relieved the pain of a rare genetic spinal disorder
(ALS) more effectively and with fewer debilitating and depressive side
effects than the boatload of prescription drugs he had been taking.
Using cannabis also helped him to come out of his shell - he had been
a virtual recluse for years - and he became an activist on behalf of
Prop. 215 and took the first steps toward forming an Orange County
"cannabis co-op."

When the initiative passed, he hoped he would be in a position to work
cooperatively with local officials to facilitate the distribution of
cannabis to patients who needed it and to educate patients and doctors
about cannabis cultivation and use. He set up the Orange County Doctor
Patient Nurse Support Group, paid for and got a business license from
the of Garden Grove, made contact with a few doctors and nurses who
agreed to help and started holding regular educational and support
meetings.

He created forms and agreements among patients and the group. He set
up a group of nurses to check on the validity of doctor
recommendations. He started growing a few plants and acquired
marijuana wherever he could. He wrote to Sheriff Brad Gates to offer
cooperation and ask for guidelines to avoid operating outside the law
- - and got no response, he tells me.

Aware that some "patient" groups with sites on the Internet and
elsewhere were charging higher-than-black-market prices, he adopted a
policy of not selling cannabis, but giving it to certified patients
and suggesting a donation of $20 per quarter-ounce. He gave some away
with no donation ever received and got some donations unconnected to
marijuana transfers.

He acknowledges that he made some mistakes along the way, but says he
was trying as conscientiously as he knew how to operate ethically and
within the law.

In an ideal world, local officials would have worked with him, going
over his forms and contracts and suggesting changes to make sure they
were really legal, inspecting his premises from time to time to see
how things were working and perhaps to offer suggestions so he could
make changes before he ran afoul of the law, warning him in advance of
potential pitfalls.

But it's not an ideal world. Instead of working with Chavez, local law

enforcement officials arrested him.

Now he could be found guilty of selling marijuana and go to prison.
It's hard to see how that will move Californians any closer to
careful, responsible and ethical implementation of Prop. 215 by
creating a small "white market" - the number of patients who can
truly, unambiguously get therapeutic benefit from cannabis is fairly
small, but for most of them the improvement in the quality of their
lives is dramatic - for medical cannabis.

Checked-by: Rich O'Grady