RESISTING THE LAW

In November 1996 California voters passed Proposition 215, which then became
Section 11362.5 of the California Health and Safety Code. In so doing the
people expressed a strong desire for government authorities to create or at
least to facilitate a small "white market" for seriously ill people whose
doctors believed they could benefit from the use of marijuana.

Indeed, one of the purposes of the initiative was: "(C) To encourage the
federal and state governments to implement a plan to provide for the safe
and affordable distribution of marijuana to all patients in medical need of
marijuana."

Most California law-enforcement officials opposed Prop. 215 when it was on
the ballot. But as officials sworn to uphold the law as it is, not as they
might prefer it, they could have been expected to shrug off the electoral
defeat and then try to find a way to implement the law with as little harm
as possible.

The initiative didn't mandate, for example, setting up a government program
to grow, check for the validity of physicians' recommendations and
distribute medical marijuana, although that would be one possibility. But it
clearly asks law-enforcement officials to make a good-faith effort to
cooperate with those who are trying to implement the law, perhaps even
working with them to develop reasonably clear guidelines to distinguish
between a good-faith effort to provide marijuana to sick people and ordinary
street sales.

Looking at the way local officials have chosen to deal with Marvin Chavez,
leader of a group he calls the Orange County Cannabis Co-Op, and former San
Bernardino County Sheriff's Deputy David Lee Herrick, a volunteer with the
Co-Op, it is difficult to avoid the suspicion that local officials are doing
the opposite. Instead of making distinctions and trying in good faith to
implement a law that will undoubtedly require a trial-and-error process,
they are refusing to make distinctions.

"I don't see any difference between Mr. Herrick and a street dealer," said
Orange County Deputy District Attorney Carl Armbrust after Mr. Herrick was
sentenced Friday to four years in prison for selling marijuana. He has been
in jail since March 18, 1997. Mr. Herrick had in his possession several
baggies identified as those of the Orange County Cannabis Co-Op, with a
large "NOT FOR SALE" label. Superior Court Judge William Froeberg, who heard
Mr. Herrick's case and imposed the sentence, refused to let the jury hear
any arguments regarding California's medical-marijuana laws, although the
jury had requested such information.

To the outside observer, this approach looks more like an effort to prove to
Californians that Prop. 215 was a mistake than a good-faith effort to
implement it without strengthening the black market.

Mr. Armbrust is using a clever ploy. Prop. 215 specifically stated that for
medical patients and caregivers a physician's recommendation creates a
defense against charges of possession and cultivation, but it doesn't
mention sales. So the D.A.'s office contends that any time money changes
hands - even if it's called a voluntary donation and there's no evidence
anywhere in the police reports or the court record that the stuff is being
distributed to anybody but people with a bona fide physician's
recommendation - it's a sale and it's a crime.

But the most relevant appeals court case on medical marijuana, People v.
Peron, was clear on the matter: "Although the sale and distribution of
marijuana remain as criminal offenses under section 11360, bona fide primary
caregivers for section 11362.5 patients should not be precluded from
receiving bona fide reimbursement for their actual expenses ..."

Mr. Herrick's conviction and extraordinarily stiff sentence will be
appealed, of course. Sharon Petrosino, his attorney, told us there were
issues of possible prosecutorial misconduct, plus the fact that the judge
forbade any testimony on either Prop. 215 issues or medical necessity
issues, that should make an appeal be considered favorably.

Meanwhile, David Herrick has been sentenced to four years, essentially for
trying to help implement Prop. 215 and being honest about it when some
police came to his motel room by mistake. Outrageous.

The case highlights our long-held belief that local officials need to work
conscientiously and soberly to implement the will of the people rather than
laboring to prove that Prop. 215 was foolish. As we read the polls, almost
everybody in California believes this except a few zealous prosecutors. Will
even an appeals court decision get their attention?

Checked-by: Melodi Cornett