CRIMINAL JUSTICE - WAITING TO INHALE

Proposition 215, the medical marijuana initiative passed by California
voters by a 56-44 percent majority in 1996, is now Section 11362.5 of the
California Health and Safety Code.Except in a few areas,however, it would be
stretching it to say that it is now the law of the land in practice.

No more then a few doctors are willing to write recommendations that
patients use marijuana. Even in the few cities that have cannabis clubs of
one sort or another, it is quite unlikely that a patient will receive
cannabis from a fully licit source in a safe and unthreatening fashion.

The picture isn't entirely bleak. In the Northern California city of Arcata
and the Southern California city of West Hollywood, distribution systems
have been created with patients at the center that could serve as models for
other cities.

But both those cities have reputations - somewhat deserved - as something
like hipster havens. Until a city or area with a more middle-class image
develops a similar implementation plan, which is not out of the question but
hasn't happened yet, Proposition 215 will remain a law in name only in most
of the state.

That isn't the way it was supposed to be. The initiative specified that the
new law was designed "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 need of marijuana."

Creating such a "white market" for medical marijuana shouldn't be that
difficult given even a minimal amount of good will.

Some grumbling or ironic mumbling from police officers who are called upon
to issue or check certificates for people who are legally entitled to use
marijuana instead of busting them might be expected. But as law enforcement
officials say - at least I'm old enough to remember when they used to - "I
don't make the laws, I just enforce them. I f you've got a gripe, take it up
with the legislature." Or, in this case, the people.

With proper implementation, citizens might expect a few patches of marijuana
growing with impunity all over the state - in the back yards of patients
with a green enough thumb to do it themselves (and whose medical condition
allows them to undertake cultivation or to wait until it matures), and some
larger patches for people or organizations designated as "primary
caregivers" under the new law. Those patches would almost certainly be
strictly supervised and possibly highly regulated by local governments, with
police free to pop in unannounced and check the books to make sure none of
the weed is diverted to non-medical purposes.

Likewise, we would expect some marijuana dispensaries. Some patients, of
course, would want to have their own personal, individual caregiver to
provide medical marijuana, but for many it would be easier and more
efficient to designate a larger-scale dispensary as caregiver, just as many
patients with other illnesses find it desirable or cost-effective to go to a
large clinic.

While these dispensaries might be connected to growing operations in other
parts of the state, in most cases they would probably have their own growing
facilities, either inside in some kind of a greenhouse set-up, or nearby.

These dispensaries, of course, would be closely supervised and regulated.
Local police would want to be able to inspect the copies of doctor's
recommendations that would almost certainly be required to be kept on file,
and do spot-checks (at least) on whether those issuing recommendations were
indeed licensed physicians.

They would want to make sure the dispensary was not too lax, that it was not
giving out marijuana to people without a recommendation or with only a
verbal recommendation.

And they would insist on procedures to ensure that the marijuana given out
at the medical dispensaries didn't find its way into the local black market
for strictly recreational uses - or at least to minimize this possibility.

As far as I know, the only place in the state where such a program has been
fully implemented, codified into the municipal code by a vote of the City
Council with the cooperation of the police department, is in Arcata, near
Eureka in Humboldt County.

The key figure there is Robert Harris, who has been a lobbyist in Sacramento
and signed on as advocate for the Humboldt Alliance for Medical Rights to
obtain an implementation ordinance in Arcata.

In West Hollywood, Scott Imler seems to have done a responsible job of
running his cannabis club and has received notable cooperation from city
authorities.

Dennis Peron in San Francisco has the support of many local officials but
has gotten plenty of flak from state and federal authorities. Berkeley,
Oakland and Santa Cruz have made good-faith efforts but aren't as far along
as Arcata. San Jose started out on a promising course but ran into trouble.

In Orange County, of course, Marvin Chavez has done his sincere best to
operate a bona fide medical marijuana dispensary at the Orange County
Cannabis Co-op, but a combination of sometimes inadvertent and sometimes
silly mistakes and the hostility of local officials has him in jail at this
very moment.

Of them all, it is Harris of Arcata who is perhaps the closest thing to a
hero in the struggle to achieve implementation of Section 11362.5. Working
with City Council members and local police, he achieved just that, and in
January Arcata's City Council unanimously passed a new ordinance designed
"to recognize and protect the rights of qualified patients and primary
caregivers through implementation as provided under the Compassionate Use Act."

THE ARCATA MODEL

Arcata City Councilman Bob Ornelas told me this week that the city, whose
residents had voted overwhelmingly for Prop.215, might have ben more ready
for implementation than some other places. Humboldt County, after all, is a
hotbed of illicit marijuana cultivation and Prop. 215 received an
overwhelming 74 percent majority vote in the city. But it was important to
have medical use advocates who were willing to cooperate and take the
concerns of the police and officials into consideration.

"Police Chief Mel Brown was especially interested in having a simple
ordinance everybody could understand," Ornelas said. "And Bobby Harris and
Jason Browne, representing patients, crafted an ordinance from which we
could pick what we like, and were always willing to keep talking so the
process wouldn't stall."

The Arcata ordinance recognizes - as have the courts, even when they have
issued temporary injunctions shutting down cannabis clubs - the legitimacy
of medical marijuana associations and "recognizes that lawful remuneration
consistent with state law may occur between qualified patients and primary
caregivers." It defines its terms carefully and sets up a procedure for
certifying the status of patients and caregivers through the police
department. It has a clause protecting physician/patient confidentiality,
sets out guidelines for permissible cultivation and transportation and sets
up procedures when police have questions about whether somebody in
possession of marijuana has a legitimate medical need.

The accomplishment is significant and has hardly been publicized or
recognized at all. But, as Robert Harris told me this week, "we think we
have the only viable interpretation of Prop. 215 upon which local government
implementation can be authentically premised, in the face of inevitable
legislative paralysis on this topic."

The legislative paralysis is real enough. State Sen. John Vasconcellos, the
San Jose Democrat who is the most sympathetic and informed state legislator
on this topic, had wanted to include an implementation plan in legislation
authorizing the University of California to do independent studies on
medical marijuana last year. But he found virtually no support for
implementation plans - indeed, he found no stomach for even discussing it -
and the bill became a research-only bill.

I doubt if California voters had a very concrete idea of precisely how
Section 11362.5 would be implemented. But those who thought beyond the
obvious issue at stake in the campaign - if a doctor is willing to recommend
marijuana to an ill person and the person is willing to take whatever risks
are involved and use it, then of course they ought to be able to do so
without being arrested - probably had something like Arcata or West
Hollywood in mind.

Putting together distribution plans hasn't been easy. Almost as soon as the
law was passed, state and federal officials were working actively to
discourage or prevent, rather than to encourage, any plan for safe and
affordable distribution. Federal officials, until reprimanded by a court,
threatened to yank the licenses of doctors who recommended marijuana.

FEDERAL LAW

Under federal law, cannabis is listed as a Schedule I drug, a classification
supposedly reserved for drugs with uniquely dangerous properties that have
no known medical uses, and therefore unavailable for doctors to prescribe.

Whether it really fits that description is beyond the scope of this article.

California Attorney General Dan Lungren didn't tell federal officials that
the law of California now said, "no physician in this state shall be
punished, or denied any right or privilege, for having recommended marijuana
to a patient for medical purposes," and that as the state's chief law
enforcement officer he was sworn to uphold that law whether or not he agreed
with it.

Instead, he aided and abetted the feds and embarked on a campaign designed
to close all cannabis clubs in the state, with a particularly heated battle
now playing out in San Francisco courts.

It's almost as if Lungren, federal drug czar Barry McCaffery and others were
determined not to find a way to make distribution for medical purposes work,
but to prove that it can't work.

In San Francisco Lungren found a convenient foil. Dennis Peron, who had
already started a medical cannabis club and was one of the chief authors of
Prop. 215, makes no bones about the fact that he considers medicalization a
step toward full legalization.

While he has run his cannabis club with some measure of control, he is also
a flamboyant, confrontational character who doesn't mind smoking a joint
while the TV news cameras are rolling.Having crossed swords with Lungren
numerous times and had his club closed and reopened several times, he filed
to run against Lungren for the Republican gubernatorial nomination.

Dennis Peron has the support - some voiced, some tacit - of most local
officials and police officials in San Francisco. But San Francisco might
tolerate flamboyance better than many California cities.

In San Jose, arguably a more middle-class municipality than San Francisco,
city officials were ready to cooperate with efforts to create a small, licit
medical marijuana market. But last month the police arrested Peter Baez, who
had run the club that ensued, charging him and the club - apparently with
some justification - with selling marijuana to numerous people who had no
doctor's recommendation and making hefty profits in the process. In other
words, with being a dope dealer who operated under the cloak of
medical-marijuana respectability.

Whether those charges are true, of course, will be taken up in court
proceedings. A grand jury is said to be active on the issue.

What has been missing except in a couple of localities are advocates and
organizers - like Robert Harris - who are willing to consult and cooperate
with local officials, take their concerns into account and put together a
medical marijuana distribution system that does things properly.

Perhaps it took some confrontational personalities to raise the profile of
the issue and to put together a political campaign. Implementation will
require a more low-key cooperative approach.

THE BLACK MARKET

Local officials should consider that unless provisions are made for
providing medical marijuana under controlled conditions, the supplies will
come from the black market.

Not that the small amount of marijuana likely to be used for legitimate
medical purposes under Health and Safety Code Section 11362.5 will have a
huge impact on the black market, but to the extent that it does, it will
strengthen it and pad the incomes of black marketeers.

That will be the inevitable result of resisting efforts to set up legal
cultivation centers.

There's a plot growing in Arcata that has already had a harvest. In West
Hollywood, city officials actually recognized that the cannabis club would
be putting money into the black market and asked Scott Imler to start
growing it on-site. Imler told me this week that last year they grew about
11 percent of what they distributed, this year they hope to have it up to
around 50 percent and eventually they want to grow everything themselves.
Dennis Peron to me recently that the San Francisco club has a plot of land
in Lake County and hopes to start growing soon.

Other than those few exceptions, patients who, under the law, have a right
to possess and use marijuana for medical purposes have no choice but to get
it from the black market. Even if they go to a local cannabis club, the club
has almost certainly gotten its supplies from black market sources.

IMPLEMENTATION

Advocates, police and government officials all have an interest in the kind
of low-key implementation work necessary here.

As Scott Imler told me, "we have an obligation to implement the law we
passed, not the law we might wish had passed." That means quality control,
checking recommendations scrupulously, screening out those without medical
justification and thinking about patients more than publicity, There are
plenty of people who don't want to see Section 11362.5 work. Those who do
need to work all the more responsibly.

If local officials don't cooperate, it could backfire on them as well. The
people want patients to have access to medical marijuana. The passage of
Prop. 215 and every subsequent poll reinforces this perception.

If the law they passed to permit patient access doesn't work - if law
enforcement and local officials are seen as abstructing implementation -
they might just get impatient enough to go for outright legalization.

There are plenty of advocates with plausible arguments for that course, and
at least one group is circulating a proposed initiative for signatures.

A year and a half after the passage of Prop. 215, most of California has
failed implementation abominably. But in Arcata and West Hollywood models
have been built that could be replicated around the state. San Jose
officials are already looking at the Arcata model.

The burden, however, will fall on local governments and local advocates.

That means implementation is likely to be spotty for a while, but if enough
local government s step up to the challenge responsibly, Californians can
make Health and Safety Code 11362.5 a reality rather than just a hope.