OUTGOING CALIFORNIA GOVERNOR SIGNS MEDICAL MARIJUANA GUIDELINES BILL

But Movement Grumbles Over Plant Limits, Caregiver Provisions, More

In a frantic session of last-minute bill-signing before he is replaced
by incoming Gov. Arnold Schwarzenegger, rejected Gov. Gray Davis
signed SB 420, a bill championed by State Sen. John Vasconcellos
(D-San Jose) that was touted as a means of clarifying Proposition 215,
the state's medical marijuana law passed by voters nearly seven years
ago. But while some drug reform groups and activists are claiming a
victory for the movement, others are not so sure, and some are
downright unhappy.

While the bill had always been a subject of debate in California's
contentious medical marijuana community, it marked the culmination of
a four-year effort by Attorney General Bill Lockyer, Sen.
Vasconcellos, and the medical marijuana movement to craft a measure
that would make clear once and for all what Proposition 215 means.
Although the medical marijuana measure has been in effect since 1996,
law enforcement and local government in some areas of the state have
been loathe to recognize the reality of legal medical marijuana. SB
420 was supposed to rectify this situation by setting state-wide
guidelines for the number of plants that could be grown and amount of
medicine that could be possessed, and addressing the issue of
registration cards for certified medical marijuana users.

Much of the discussion in crafting the bill hinged around quantities.
According to Americans for Safe Access (http://www.safeaccessnow.org),
a medical marijuana defense group that has played a key role in the
negotiations, in late August the medical marijuana task force crafting
the bill agreed to guidelines allowing for up to 99 plants, 200 square
feet of garden space, and up to six pounds of prepared marijuana each
year. But, ASA reported, two weeks later, under strong pressure from
law enforcement and Attorney General Lockyer, Sen. Vasconcellos and
his staff unilaterally changed that language. Instead of 99 plants,
only six would be allowed (or 12 immature plants); there is no
provision for indoor grows (garden space allowances); and instead of
six pounds of medicine, only eight ounces per patient will be allowed.
The bill does contain an escape clause allowing local or county
governments to increase the limits, and it includes a provision
allowing doctors to recommend higher amounts of marijuana as medically
necessary, but those clauses have failed to quiet the squawking.

"We worked on this in a cooperative manner for years," said Bill
Panzer, the Oakland attorney who helped craft Proposition 215, "and
one last-minute backroom meeting spoiled all that. Now what we have is
really an anti-medical cannabis bill," he told DRCNet. "The plant
limits have no basis in science or medicine, and worse yet, they are
nonsensical in practice. Think about it: A guy lives in the woods,
grows his six permitted plants, but when he harvests them -- boom,
he's a criminal because he possesses more than eight ounces. Was
anyone thinking logically or scientifically when they came up with
that?" he asked, already knowing the answer.

"If you're growing outdoors, you can't legally harvest your medicine,"
Panzer continued. "If you're growing indoors, you can't grow enough.
Eight ounces of marijuana is less than a gram a day. Hell, even
federal patients get an average of around six pounds a year, but SB
420 says you'll have to make do with eight ounces."

Panzer didn't only have problems with the numbers guidelines. He also
criticized the caregiver provision -- if a caregiver is growing for
more than one patient, all patients and the caregiver must reside in
the same city or county. "So if I'm growing for two patients, one in
Berkeley, and one 100 feet over the line in Oakland, I go to jail?"
asked Panzer. "What does that have to do with medicine? This section
is designed to get rid of the compassion clubs, which fit under Prop.
215's caregiver provisions, but don't now."

Neither was Panzer especially impressed with the voluntary
registration language in the bill. Some reformers saw that language as
a victory, because it would not allow the state to keep a registry of
patients that could potentially be seized by the federal government
and used to harass patients and providers. But for Panzer, the
voluntary program neither protects patients from the feds nor gets the
cops off people's backs. "That a patient could get a card that the
police would honor is a wonderful idea," he conceded. "But we already
have card programs and police don't honor them. Here in Oakland, where
we have rather detailed guidelines for police, they are still tearing
up gardens. I was in court today over one of those cases," he said.

As for protecting patients from the feds, Panzer pointed out that
while the state would not have a list of names - only patient numbers
- - each county will have a list. The Justice Department could attempt
to gain access to that data, said Panzer, although he found the idea
unlikely. "I'm not too worried about that," he told DRCNet, "because
if the feds started going after individual patients it would be the
best thing for the movement."

ASA, which had worked to help craft the legislation, ended up making
no recommendation to its members for or against the bill. "Our members
are split down the middle on this," said ASA executive director Steph
Sherer. "When we heard about the six-plant limit, we did everything we
could to change it. We drove to Sacramento and walked the halls of the
capitol trying to lobby for a change back to the original language.
But it didn't work," she told DRCNet. "As of January 1, when this
takes effect, a lot of us who are legal now will become criminals.
Now, our position is that we need to make the best of it and we need
to prepare ourselves for a new period of indecision."

Sherer is personally affected, she told DRCNet. "I go through four
pounds a year for the tincture I use," she said. "My caregiver
previously worked under no guidelines, but now he can only grow six
plants. As soon as he harvests for me, he becomes a criminal. I'm
thinking of taking the overage to Sen. Vasconcellos and asking him to
hold it for me."

That will mean new arrests and new test cases, both Panzer and Sherer
said. "If you look at the history of Prop. 215," said Sherer, "there
were several court cases that began to allow it to take form. I assume
it will be the same with SB 420."

"I think that more people will be arrested and there will be further
in prosecutions to resolve this," Panzer concurred. "There will be
huge problems. Forget the plant limits for a minute and think about
doctors recommending larger amounts. How does the doctor determine how
many plants are necessary? I can already foresee litigation on that
issue. Doctors are already scared to recommend it, but now they have
to become marijuana grow experts. They don't have that expertise," he
said.

Still, said Sherer, the bill could bring progress to some parts of the
state where local authorities have been particularly reactionary. "In
some areas, this will be the first step toward implementation the
county will have taken, in San Bernadino, for instance, or Riverside,
or even Orange County. We've seen judges in Orange County saying
'there is no Prop. 215 in my courtroom.' Now there will be. That will
be something real for those areas," she said.

But even that positive effect could be countered by negative responses
in areas that had previously been medipot-friendly, like San
Francisco. "I'm afraid San Francisco law enforcement will see this as
a green light to arrest anyone who has more than six plants if we
don't get higher guidelines in place by January," she said. "We are
working hard right now to get those higher guidelines."

Even the Drug Policy Alliance, which described Gov. Davis' signing of
the bill as "a surprising and important victory" and "a crucial step
forward for reform" conceded that it will require a close eye and
continuing political pressure to ensure that the bill works for - and
not against - patients and caregivers. DPA will "monitor its
implementation to ensure compliance from the government and law
enforcement." DPA will also seek to encourage local governments to
enact higher plant limits, the group said in a press release lauding
the bill's signing.

But the fight won't just be political. Panzer and others are looking
into legal challenges beyond those that will be generated by arrests
down the road. "I have been contacted by some people about mounting a
constitutional challenge to the law," Panzer said. "Under California
law, an initiative cannot be repealed or restricted by legislative
fiat unless the initiative provides for that. Many do, but 215
didn't," he explained. "This is one angle. To what extent does this
violate the constitutional ban? I would argue that some sections of
the bill do, especially the plant limits. Prop. 215 says patients have
the right to obtain and use marijuana for medical reasons. Limiting
the amount they can have legislatively is like saying aspirin is
legal, but you can only have as much as fits on the head of a pin."

Similarly, said Panzer, "with the caregivers it seems like we have a
situation where someone was legal under Prop. 215, but is now illegal.
That looks to me like good evidence the bill is in fact restricting
Prop. 215. I'm researching this right now."

So, as of January 1, California's medical marijuana scene will change,
and some feel more for the worse than the better. Medical marijuana in
California remains a work in progress and many challenges remain.
"There will have to be more arrests, more court cases to straighten
this out," said ASA's Sherer. "This isn't the dream bill we all hoped
it would be to save patients from arrest."

Visit http://www.safeaccessnow.org/article.php?id=721 to read the bill
and ASA's detailed analysis of it.