Outgoing California Governor Signs Medical Marijuana Guidelines Bill, But Movement Grumbles Over Plant Limits, Caregiver Provisions, More 10/17/03

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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.

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