Hawaii Gov. Benjamin Cayetano signed the state's medical marijuana bill into law in June, but no one is legally smoking it yet. It is business as usual in Hawaii until the state writes and implements rules governing the program.
The state law is the first in the nation to come via the state legislature instead of the citizen initiative process.
But it did not provide for distribution of sale of medical marijuana, nor did it provide for certified patients to obtain seeds or clones to grow their own supplies.
The Hawaii Department of Public Safety, which, under the new law, is responsible for administering the medical marijuana program, is developing rules for its use, but is not expected to implement them until year's end, Keith Kamita, head of the department's Narcotics Enforcement Division told the Honolulu Herald Tribune.
The department has now completed a draft of the proposed rules and has scheduled a public hearing for November 22nd. The draft is available online at http://swat.state.hi.us/VRC.htm (once there, see Title 23-PSD).
Medical marijuana activists are scrutinizing the proposals and will testify at the hearing. Pamela Lichty of the Drug Policy Forum of Hawaii (http://www.drugsense.org/dpfhi/), told DRCNet that her organization has several concerns.
"There is a ban on inter-island travel," she told DRCNet, "meaning that even a qualifying patient could not carry his medicine by plane between islands (which is essentially the only way to travel)."
The islands are all part of the state of Hawaii.
Nor, wrote Lichty, would "sales" be permitted, presumably including transactions between registered patients.
Lichty was also concerned by possible breaches in the wall between medicine and law enforcement. She cited language "permitting state, local and even federal agencies to launch an investigation into either medical malpractice or fraud issues which is vague and broad and therefore troubling."
In a similar vein, Lichty, who is also President of the American Civil Liberties Union of Hawaii, pointed to "language about additional 'discretionary' information being required of patients -- at the discretion of the department [Department of Public Safety's Narcotic Enforcement Division], that is."
Part of the problem lies in the legislation itself. The fact that the law also leaves the registration of patients and administration of the program in the hands of a police agency makes medical marijuana advocates uneasy.
Lichty told DRCNet the medical marijuana law "was the result of lots of political compromise, of course, so we're not thrilled with it, but feel it can be made to work."
One of the problems in the law, wrote Lichty, was that medical marijuana regulation is to be administered by law enforcement instead of the Hawaii Department of Health. She told DRCNet legislators hesitated to end police involvement with marijuana and health officials were reluctant to oversee the program.
Volcano surgeon Dr. William Wenner, who has recommended patients for medical marijuana use without waiting for the administrative rules to be implemented, told the Hawaii Tribune Herald he feared that the department would turn over users' and doctors' names to the US Attorney, who could still prosecute under federal law.
Honolulu US Attorney Steve Alm told the Tribune Herald that in his view, "Nothing has changed. It's still against federal law." But he added that his office prosecutes only a few large marijuana cases and he will not use the registry of users and physicians to enforce the federal marijuana laws.
"I'm just not going to do it," he said.
Still, Wenner worried. "It's not going to be confidential," he said.
Lichty also pointed to the language limiting the amounts of marijuana permitted, calling the limits "too low."
They law defines an "adequate supply" as three "mature" marijuana plants, four immature plants, and three ounces of usable marijuana.
Under the law, patients suffering from cancer, glaucoma, HIV/AIDS, or conditions causing weakness, severe pain or nausea, seizures, and severe muscle spasms characteristic of multiple sclerosis or Crohn's disease are allowed to use medical marijuana.
Potential patients must have a physician's certificate stating that they have an eligible condition and that the benefits of medical marijuana would outweigh the health risks. "Primary caregivers" also gain protection under the law. The doctor's certificate must be renewed annually and would cost $25.
If the legislature's approval indicates broad approval of medical marijuana, there are signs that the island's illegal marijuana industry has also garnered a base of public support. In a national first, Hawaii County (the state's Big Island), has returned a $265,000 DEA drug enforcement grant. The action was forced upon it by local activists, who effectively overturned the council's earlier 5-4 vote approving the grant.
The funds were dedicated to the state's "Green Harvest" marijuana eradication program, which, if the police are to be believed, has been effectively crippled by the action.
By their own count, with the DEA-funded Green Harvest program, police seized 200,000 cultivated pot plants last year on the Big Island, compared to nearly 170,000 plants in the rest of the islands. This year, police told West Hawaii Today, they have done no eradication missions for lack of the DEA grant.
The money would have paid to hire helicopters for Green Harvest eradication operations. Police spokesmen said that while they would still have access to DEA helicopters to spot marijuana crops, they would no longer have choppers available for dropping eradication teams directly onto the site. Instead, officers will have to trek in on foot.
Lt. Henry Tavares Jr. of the Honolulu Police Department's Vice Section told the Herald Tribune, "(the county council) has taken away our tools."
Tavares claimed local marijuana supplies are already increasing because of the decrease in seizures as a result of the council action.
Marijuana advocate Roger Christie ridiculed Tavares' claim, pointing out to the Herald Tribune that supply is up because harvest season has arrived.
Christie can take some credit for the council's action. He has filed impeachment petitions against Mayor Stephen Yamashiro and the council members over its support of Green Harvest. It was the council's response to the threat of impeachment, rather than principled opposition to Green Harvest, that killed the grant.
Under the Hawaii County Charter, officials must pay their expenses to fight impeachment petitions. Worried about that prospect, before voting narrowly to receive the DEA grant, the council added language calling for some of the grant to be used to provide "impeachment insurance."
They couldn't find any insurers, and without the insurance, the grant went unspent.
Explaining the decision, Council Chairman Ron Arakaki told the Herald Tribune, "I'm against marijuana cultivation, but it's incumbent for the government to provide protection for government officials who are doing their job."
The petition-wielding Christie was by no means alone in opposing Green Harvest. West Hawaii Today reported on a July 26th public hearing than lasted for six hours of heated discussion. Forty-two residents of the Big Island testified, 18 supported it and 24 were in opposition.
Opponents of Green Harvest at the hearing attacked the program on both nuisance and harm reduction grounds. Some residents complained of noise and harassment by the police choppers; others argued that concentrating on the local marijuana harvest diverted resources from hard drug problems and that in a shortage, marijuana would be replaced by methamphetamine or crack.
The four council members who voted against the program all along also cited growing constituent complaints about noisy, low-flying helicopters breaching their privacy and disturbing their tranquility.