WEEDING OUT CRIMS FROM LEGAL TOKERS

Jerry Brown, California's Attorney-General, is an iconic figure in
the Golden State.

The scion of a Democrat dynasty, he has served as the Mayor of
Oakland, Secretary of State, and - most famously - a liberal governor
whose embrace of environmentalism, opposition to the Vietnam War,
promotion of minorities, and rejection of traditional privileges
earned him the sobriquet Governor Moonbeam.

So it is perhaps not surprising that the state's top lawman might
take a decidedly unconventional stance on one of California's most
contentious issues, medical marijuana. Brown, who supports medical
marijuana, has just issued an 11-page "road map" to help legal pot
smokers to avoid arrest.

Police hope Brown's directive will clear the air about who can
legally use marijuana and who can't, weeding out criminals for whom
California is pot's jewel in the crown.

The state has some 200,000 medical marijuana patients who use the
drug to combat the effects of Aids, cancer, glaucoma and other ills.
Armed with a doctor's certificate they can buy pot from dispensaries,
set up after voters passed Proposition 215, which approved medical marijuana.

But the 1996 voter initiative and the yawning gap between lax state
and tough federal marijuana laws have been exploited by drug cartels.
Brown's road map is intended to address a sharp increase in drug crime.

"California voters approved an initiative legalising medical
marijuana, not street drugs," said Brown, who admitted myriad
storefront dispensaries sometimes enrich criminals. "Marijuana
intended for medicinal use should not be sold to non-patients or on
illicit markets."

The document defines legal marijuana dispensaries as those run on a
not-for-profit basis. They must keep records of bona fide patients
and cannot buy pot from illegal commercial growers. Individuals can
possess eight ounces (226g) of dried marijuana, plus 6 mature or 12
immature plants.

"These guidelines are very significant," says Kris Hermes of
Americans for Safe Access, a medical marijuana advocacy group. "They
represent a final chapter, we believe, in the implementation of state
law in California."

The crucial thing, he says, is the state recognises dispensaries as
law abiding. "It's never been done before. That is huge."

He says the road map's major practical impact will be to safeguard
patients from the "widespread problem" of wrongful arrest, given
appellate court rulings that support patients rights to possess
marijuana under state law.

"Jerry Brown has laid out a blueprint for local police policies. The
next step is to develop those policies."

Besides protecting legal patients from arrest, and their marijuana
from confiscation, the directive could spark raids against facilities
that sell marijuana at a profit.

"The guidelines make it clear to law enforcement what is legal and
illegal in terms of dispensaries," says Fresno police chief Jerry
Dyer, who heads the California Police Chiefs Association. "Many of
these dispensaries have been operating for profit."

Besides defining how much pot patients can possess, Dyer says the
road map also protects officers from liability if pot seizures are
deemed illegal.

Medical marijuana advocates say the road map is long overdue. For
while Proposition 215 approved the use and sale of pot for legitimate
patients - a trend embraced by 12 other US states - and a 2003 law
set up a voluntary ID card, some dispensaries boast on-site doctors
willing to write a prescription for almost anyone who visits.

Some 400 dispensaries exist in Los Angeles alone. Many advertise
their wares in local magazines. "Redeem this coupon for a free
doobie," offers one ad. "Free joint, gram or pipe for first time 1/8
buyers," says another. "Free samples," offers a third.

Prescriptions can be written for chronic pain, migraines, insomnia,
depression, anxiety, a catch-all that probably includes a sizeable
chunk of LA's population.

A recent New Yorker article described a booming marijuana industry
and said the drug was America's biggest cash crop. California's 2006
harvest is estimated at US$14 billion. The medical marijuana shield
lessens the chance of arrest by state police while federal busts and
seizures fuel prices.

This bonanza is ripe with ambiguity, not least the provenance of
medical marijuana. Amateur growers - fictionalised by the TV show
Weeds - compete with cartels whose murderous savagery has plunged
Mexico into open war.

"Proposition 215 was filled with flaws," says Dyer. "It has allowed
for widespread abuse." He says some dispensaries have made millions
of dollars and are linked to cartels.

"We've seen a lot of Mexican cartels cross the border and set up
marijuana gardens on federal lands." And while the road map has
helped to clear the air, he says there are many grey areas,
specifically what constitutes profit. The state allows "reasonable
compensation" for dispensaries. Quite what this means is unclear.
Dyer says it will have to be determined by police detectives
following the money trail.

Officially, marijuana is a Schedule 1 drug, defined as having no
medical value. Critics insist medical marijuana is a Trojan horse to
legalise the drug. Advocates say the law emphasises marijuana's risks
and ignores its benefits, such as encouraging Aids sufferers, who
sometimes face death through malnutrition, to eat. The American
College of Physicians wants the US to expedite research into possible benefits.

Given the Bush Administration's refusal to reclassify marijuana, and
pervasive reluctance in Washington to tackle a controversial subject,
this is a symbolic gesture. While a few physicians prescribe pot,
most remain on the fence.

BUT the health issue is ancillary to the legal standoff. It is a moot
point whether Brown's road map will help to resolve a legal turf war
that pits state against federal law.

"Hopefully the feds will back off in instances where people are
really following these guidelines," Brown said.

The legal contest puts dispensaries and patients in the front line.
In a typical episode, on August 1, agents from the US Drug
Enforcement Administration - which enforces the nation's drug laws -
raided a Culver City dispensary. Some 25 people were handcuffed
during the four-hour raid. Agents confiscated marijuana, computers, and money.

"We might as well have just got robbed by a bunch of thugs downtown,"
Brian Birbiglia, who identified himself as a former US Marine with a
prescription to use marijuana to help with a foot injury, told the
Los Angeles Times.

This cut no ice with the Feds. "Marijuana remains a controlled
substance, and it is illegal under federal law to possess, dispense
or cultivate marijuana in any form," said a DEA spokeswoman, Sarah
Pullen. The DEA has ratcheted up pressure by warning over 150 Los
Angeles landlords they risk losing their property and face arrest if
they rent to marijuana dispensaries. Pullen says this violates US laws.

Such tactics have exacerbated a tense situation, as state courts
fight back. On the same day as the Culver City raid, a San Diego
court ruled that federal law does not trump state law allowing
medical marijuana.

On August 5, in a closely watched federal criminal case in Los
Angeles, a jury convicted Charles Lynch, the owner of a Morro Bay
medical marijuana dispensary, of violating federal drug laws,
including selling pot to minors. He faces a lengthy prison sentence.

Lynch claimed support from local officials and a DEA agent. Local
support counted for naught under US law and Lynch was unable to
provide proof of DEA support.

Under state law, he was a legitimate, tax-paying businessman. Under
federal law, he was a drug dealer. Given the apparent impossibility
of reconciling state and federal law can Brown help navigate this
legal swamp? Yes and no. US law allows for a "public authority defence".

What this means, says Rebecca Lonergan, a former federal prosecutor
who teaches law, is that when a legal authority - such as
California's Attorney-General - says what you're doing is lawful,
that's a possible defence.

Then there's the "medical necessity" defence. Brown issued his road
map because Proposition 215 stipulates securing marijuana grown for
medical use. He also argues state law is not in conflict with federal
law due to the US constitution's "supremacy cause". This says states
are free to enact any laws that do not conflict with US law.

The problem is that the US Supreme Court, in a 2001 case involving an
Oakland dispensary, rejected medical necessity, saying pot has no
medical value under US law.

Essentially, Brown has ignored that judgment. Nonetheless, by issuing
the guidelines he provides defendants in medical marijuana cases with
plausible belief that what they are doing is legal. This may make it
hard for prosecutors to find jurors who are sympathetic.

Ultimately, the only way for the courts to square the circle is for
Congress to revisit the marijuana law.

The Los Angeles Times believes Brown's road map may pave the way for
more sensible federal marijuana policies. This means proving
marijuana is beneficial. Given America's other pressing problems,
this seems unlikely any time soon.

"It's more of a hot topic in California than on the national level,"
says Lonergan. "So I think we'll continue to have a bit of a mess
here in California."

Meanwhile, medical marijuana patients have Moonbeam's road map.

* 200,000 Medical marijuana patients in California

* 8 Ounces of pot - the amount a bona fide patient can possess

* 400 Outlets in Los Angeles dispense the drug. Many advertise "free samples".