MARIJUANA AND THE LAW

Recently, the medical marijuana movement suffered a one-two punch,
beginning with a 6-to-3 decision of the United States Supreme Court that
even personally grown marijuana consumed for medical purposes can subject a
grower or user to federal criminal penalties. At the same time, local
governments in California are calling for tighter regulations.

The threat of federal prosecutions casts a long shadow over the efforts by
states to develop new methods of marijuana control. Ham-handed federal
intervention was the rule during Pres. George W. Bush's first term. At the
justice department, former Attorney General John Ashcroft had the DEA
target political activists and reformers who had organized the 1996
referendum that enacted the California medical marijuana program. These
persons had literally spent decades persuading the public that patients
should receive the benefits of marijuana.

One notorious Ashcroft-era prosecution involved Ed Rosenthal, an author
whose books on growing cannabis remain in print year after year. In 2003,
he was convicted of federal drug offenses. Prosecutors called him a dealer
and the judge prohibited the defense from mentioning medical marijuana. The
jurors were outraged when they learned of Rosenthal's background after
reaching their verdict. A majority of the jurors told the judge that if
they had all the facts, they would have found Rosenthal innocent. After
public protests and sympathetic news stories, Rosenthal's sentence was a
slap on the wrist.

Other leaders of the medical marijuana movement were also targets of
prosecution. Well-respected members of the community were treated like drug
dealers. The California Medical Board disciplined a prominent physician,
Tod Mikuriya, for his recommendations concerning cannabis.

These prosecutions sidelined many of the leaders of the medical marijuana
movement, who from the start had pushed for marijuana availability only for
those suffering from serious illnesses.

Proposition 215, the initiative that brought medical marijuana to
California, envisioned a system where non-profit cooperatives would
dispense the drugs. But the DEA under Ashcroft insisted on charging that
these co-ops were drug distributors. The Wo/Men's Alliance for Medical
Marijuana, or WAMM, a Santa Cruz collective, was a model for medical
marijuana distribution. But the feds, over the objections of local
officials, raided the facility. California officials were openly critical
of the raid; Attorney General Bill Lockyer wrote a letter to the DEA
calling the prosecution "harassment." Santa Cruz County officials were so
upset that they joined in a lawsuit against the federal government.
Similarly, when the Los Angeles Cannabis Resource Center in West Hollywood
was prosecuted, Los Angeles County Sheriff Lee Baca protested. These
pioneers of the medical marijuana movement were not criminals, but
political activists supporting a different marijuana policy, one approved
by the state's voters. Local law enforcement knew how to draw distinctions
that eluded federal enforcers.

These misguided prosecutions knocked the true believers in medical
marijuana out of the box, and helped open the doors to less principled
businesses willing to sell marijuana to people far more interested in the
recreational aspects of smoking herb.

This new breed of dispensaries sold weed to anyone who had a physician's
recommendation. To be sure, politics and misguided enforcement only helped
pave the way, with the most important incentive being money. The
dispensaries are popular and do a brisk business. The not-for-profit
collectives are no longer the biggest players. In Oakland, in one area
dubbed Oaksterdam because of its many cannabis stores-real estate owners
like the program because it turns their non-descript neighborhood into a
destination for marijuana buyers taking the subway from San Francisco. The
arguments over medical marijuana have become entwined with the staples of
local politics-zoning and public order. Neighborhood residents complain
about thoughtless individuals who smoke joints in front of the dispensaries
or divide up their purchases in full view of the neighborhood. Local
officials are responding by tightening regulations and closing distributors
who generate the complaints. In other words, medical marijuana is dealing
with a second generation of problems, but there is very little evidence
that California cops are arresting users and burdening the criminal justice
system with court cases. A reduction in arrests or the threat of arrests
for pot smokers is one the prime benefits of the medical marijuana program.

Leading supporters of medical marijuana recognize that at some point reform
of marijuana laws will have to go beyond medical use and support adult
recreational use. However, this next step is a problem, said Dale
Gieringer, director of the California chapter of NORML, the marijuana
reform organization.

"Most politicians are not comfortable with this development," he said in a
published interview.

While public officials from both parties are comfortable with the medical
marijuana issue, adult recreational use enjoys no broad support among
elected officials.

Nonetheless, in 2004 Oakland voters approved a local referendum endorsing a
tax and regulate framework for adult marijuana use.

Meanwhile, the medical marijuana movement continues to grow across the
nation. In a matter of days after the adverse decision by the U.S. Supreme
Court, the House of Representatives rejected an amendment that would have
stopped federal dollars from financing medical marijuana prosecutions. But
the 161 votes in favor of the amendment represented the largest vote tally
ever in favor of medical marijuana. Representatives from New York State
voted for a cut-off in funds by a 20-9 margin.

It is apparent that the popularity of medical marijuana is unaffected by
the Supreme Court decision. After the court's ruling, the Rhode Island
Legislature passed a medical marijuana bill by lopsided majorities, but the
governor vetoed the measure.

Marijuana sales generate problems, but society can choose the kinds of
problems it will face. Do we want constant criminal prosecutions of people,
many of whom are free spirits who gravitate toward activities that
challenge the rules, or do we want to argue about the regulations governing
the sale of marijuana, and what is appropriate behavior if a person decides
to smoke?

My preferences are for letting persons smoke in a legal environment with
the least intrusion by government because it comports with my preferences
about liberty and privacy. In the end, the medical marijuana movement, and
the tax and regulate model for adults, is about respecting individual
choice and privacy. Choosing a permissive solution does not make all
problems disappear, but it would give mediation and compromise a bigger
role in regulating this behavior. I would reserve criminal sanctions for
those situations where the injury to others is obvious and our tolerance
for the behavior deemed criminal is minimal.

Stay tuned. This issue will stay on the radar screen for a long time.