More than four years after Californians gave a resounding yes to medical marijuana, the struggle to implement the state's Compassionate Use Act, as Proposition 215 is now known, remains contentious, undecided and painful for patients and their supporters. But the news is far from all bad.
While the nation's mass media have focused on the Oakland Cannabis Co-op case argued before the Supreme Court on Wednesday, often mistakenly portraying the narrow question before the justices as a judicial referendum on state medical marijuana laws, the meaningful action is taking place in trench warfare across the state.
There have been some encouraging trial outcomes in recent months, and a jury in Petaluma, north of San Francisco, is hearing evidence in what is believed to be the state's first jury trial involving suppliers to a medical marijuana dispensary. Meanwhile, several cities, including Berkeley and San Jose, have passed ordinances that set guidelines for distribution as well as for police supervision designed to prevent abuses.
The resolve of patients and their backers is firm and in some areas stronger than ever, with activists mounting recall efforts aimed at ousting district attorneys whom they believe are not upholding the law. But a noncommittal state government and ongoing law-enforcement intransigence ensure that an end to the struggle is not yet near.
The California branch of NORML (National Organization for the Reform of Marijuana Laws) estimates that the state's 58 counties are home to between 10,000 and 20,000 medical marijuana users. Its web site (http://www.canorml.org) lists 40 patients' cooperatives and support groups, although the level of activity among these groups varies widely.
California's medical marijuana battle is not one fight but many skirmishes, mostly at the county level, that almost always raise one of two key questions that Prop. 215 left unanswered: how to distribute marijuana to patients, and how much marijuana patients and their caregivers can grow or have. Since the Compassionate Use Act became law, defendants in 23 criminal cases have used it as a defense, with 16 of these cases resulting in acquittal on possession charges.
"This is a waning war between patients and recalcitrant law enforcement people who are unwilling to accept the law," said J. David Nick, an attorney who defends medical marijuana patients. "Over the last 18 months in the state, it's become clear that the government is going to lose. Law enforcement has yet to win a single victory in the courts," he told DRCNet.
Nick cited a recent decision in federal district court on the legal principle of qualified immunity, which gives police wider latitude in their behavior if a law is unclear. "A very conservative judge ruled that a policeman's judgment or belief that a crime is being committed is not enough," said Nick. "This means the police will have to be more reasonable in their conduct than they frequently have been."
Ryan Landers of Sacramento knows something about unreasonable police conduct. He's been HIV positive for almost six years and suffers from weak appetite and chronic pain, but his illness hasn't kept him from being an activist.
"They raided my house, complete with the helicopter and bright lights," Landers told DRCNet. Landers said one officer also opined that Prop. 215 shouldn't have passed. "One problem is that each county sheriff or DA makes the call on how 215 will be implemented," Landers said. By contrast, Landers told DRCNet, when several of his neighbors vandalized his property in a separate incident, the police told him that "we don't enforce vandalism laws."
That lack of consistency has been apparent since the Compassionate Use Act became law -- and may have been a factor in a March 14th announcement from the California State Supreme Court. According to The Recorder, the court agreed to decide whether the Compassionate Use Act provides immunity from prosecution or only an affirmative defense once a person faces charges.
That case involves Myron Mower, a seriously ill, blind diabetic resident of Tuolumne County, who has used marijuana to control nausea and stimulate his appetite for more than 20 years. Mower had been convicted for marijuana cultivation in 1993 and placed on probation. After Prop. 215 passed, law enforcement officials went to his home at least twice and found 31 plants, which is well beyond the county's three-plant rule.
Mower's attorney, Richard Runcie of Fresno, told DRCNet, "Each of the 58 counties has its own standards as to a threshold number of plants which a qualified patient may cultivate or possess before he or she becomes subject to prosecution, usually initiated by an arrest and/or confiscation of the 'excess' plants."
But some experts consider the entire notion of counting plants to be flawed, including Chris Conrad, longtime activist, author of Hemp for Health and court-designated expert witness on marijuana cultivation. "I work with patients across the state and with growers in Europe and elsewhere," Conrad told DRCNet. "Each grower, each garden, every seed is different."
"The best rule of thumb is that indoor cultivation will yield about a quarter to a half an ounce per square foot. Outdoors, an average grower might get half an ounce per square foot. As in everything else, some people are just better at it, and outdoors they might get three-quarters of an ounce per square foot," said the cannabis expert.
Conrad pointed out that these yields are in line with the National Institute on Drug Abuse's results from cultivation at its marijuana garden in Oxford, Mississippi. They're also consistent with the Drug Enforcement Administration's published results from a 1993 study, said Conrad.
However, solid research and experience don't keep overzealous prosecutors and narcotics officials from making extraordinary claims in court. Conrad recalled the first case in which he testified, when a member of California's Marijuana Eradication Project claimed that each plant would produce a kilo (2.2 pounds) of marijuana. "The jury didn't buy that at all," Conrad said. "Now they sometimes say one pound per plant. The police have a tendency to look at 'High Times' magazine-type photos and assume that that's how it is."
In this context, Conrad sounded a cautionary note regarding the March 2nd reduction of activist Steve Kubby's felony drug convictions to misdemeanors and the dismissal of all remaining marijuana counts against Kubby. "A news report said that the district attorney said he'd welcome guidance from the state legislature on plant counts," said Conrad. "This misses the point entirely." It is not just the number of plants, according to Conrad, but other factors, such as growing conditions and the skill of the gardener, that determine the amount of usable marijuana.
Mollie Fry, a physician and cancer survivor, isn't surprised when prosecutors miss the point. She and her colleagues see 20 to 30 patients every day at her clinic in Cool, California, and Fry is outspoken in her support for medical marijuana. "There's no medical reason at all why marijuana is illegal," she told DRCNet. "The DAs in rural California don't know the first thing about this. Doctors should be able to provide the least toxic substances they can. I'm operating in a completely legal way -- the Probation Department sends people to us."
Dr. Fry's spunk may have caught the police off guard when they came to her house in August 1999 and threatened to arrest her for growing a few marijuana plants. "I ripped my shirt off and said to them, "Do you think any woman would have these cut off for fun?" Dr. Fry currently writes recommendations for patients and testifies in court when asked. "We're in a war," she said. "But I think we're about to emerge into a whole new situation on medical marijuana in the state."
Mary Pat Beck, a caregiver at the Sonoma (County) Alliance for Medical Marijuana (SAMM), shares some of Fry's optimism. There is probably no county in the state that demonstrates the medical marijuana conflict more vividly than Sonoma, home of lush vineyards, cozy bed and breakfast inns and seven medical marijuana dispensaries.
"We do advocacy and education," Beck told DRCNet. "We don't distribute." For that reason, perhaps, "the sheriff's department and district attorney show us a lot of respect." Beck and her partners work closely with the county's medical association to verify approvals and recommendations for medical marijuana, as well as with attorneys and physicians who support the cause.
Beck was ecstatic over the late-January acquittal of Alan MacFarlane of Santa Rosa on felony cultivation charges. MacFarlane is a disabled Vietnam vet who, according to the Santa Rosa Press Democrat, smokes and eats about 2.5 ounces of pot per week to alleviate chronic pain from the removal of his cancerous thyroid about 25 years ago. A county drug task force had seized 73 plants in May 1999. Thirty-six plants were confiscated three months later.
MacFarlane was the first medical marijuana patient in Sonoma County to have a jury trial, and defense attorney Sandy Feinland called his acquittal "a huge victory for the compassionate use of marijuana in this county."
It's unlikely that attorney William Panzer is as sanguine about Sonoma County as the folks at SAMM. In nearby Petaluma, Panzer, who helped draft Prop. 215, is defending Ken Hayes in his current trial. Hayes was the executive director of CHAMP (Cannabis Helping Alleviate Medical Problems), a San Francisco dispensary that served more than 1,200 people. The prosecution contends that Hayes and his partner, Michael S. Foley, were running a marijuana-selling operation for profit.
"I can't go into the details, but this trial is a damned circus," said Panzer. He told the San Francisco Chronicle that "(District Attorney) Mike Mullins is like Captain Ahab, going after the great white whale of medical marijuana. He honestly believes there is no medical benefit. He doesn't want reasonable regulation and is giving business to drug dealers." For his part, Mullins told the Chronicle that he knows of no research that supports the medical benefits of marijuana.
Mullins is far from the only district attorney to have sparked anger among medical marijuana backers. The American Medical Marijuana Association (AMMA), founded and directed by the recently acquitted Kubby, is leading an effort that could result in recall elections in as many as six counties.
"We see recall actions as a means of convincing local prosecutors to comply with Proposition 215," Kubby told the Washington (DC) Times.
One recall is already underway. In Marin County, across the Golden Gate bridge from San Francisco, DA Paula Kamena faces a May 22nd recall election, ordered by the county Board of Supervisors, after nearly 20,000 people signed a petition for a recall. The petition drive actually started almost a year ago after a series of court decisions in cases involving child custody disputes.
The Rev. Lynnette Shaw heads up the Marin Alliance for Medical Marijuana and is active in the recall effort. "Paula Kamena gave the green light to the cops," Shaw told the Los Angeles Times. "They're harassing these poor patients to death."
Shaw claimed that District Attorney Kamena "misrepresented her views" to get elected and has been "completely two-faced" in her campaign against medical marijuana. "We have a lot of public support and a great issue," Shaw said. "We also have a great candidate who is running against Kamena in Tom Van Zandt," whom Shaw described as "a brilliant attorney."
Kamena's backers say she has been fair, pointing to her work to adopt guidelines to help police in Marin distinguish medical users from others. "If you possess an amount consistent with personal use, we don't prosecute. If you are a woman with breast cancer or an AIDS patient, we don't prosecute," Kamena told the LA Times. But the recall effort continues.
The court trials, police actions and efforts to implement the Compassionate Use Act will almost certainly continue. The US Supreme Court's decision may clarify some narrow questions about a federal medical necessity defense, but attorney Bill Panzer is skeptical, calling the case "much ado about nothing." His great fear, he told DRCNet, is that the Court will rule against the Oakland club and that the press will then report that the Court "has ruled against Prop. 215."
No matter what happens in that case or any other, the fight to help very sick patients attain relief through marijuana will continue. For more than four years, the outrages that patients and activists have endured have strengthened their resolve to fight on. The federal government, with the tacit complicity of California public officials, is equally determined not to yield, with President Bush this week announcing he opposes medical marijuana.
As author Dan Baum pointed out in Smoke and Mirrors, marijuana is the linchpin of the drug war, and retreat on this front is not an option for drug warriors. But as Orange County Register columnist Alan Bock, author of "Waiting to Inhale," told a Washington audience awaiting the Supreme Court oral arguments this week, "It's already too late; medical marijuana is here to stay." While thousands suffer needlessly, the federal government and recalcitrant local officials wage their hopeless symbolic war.