Complete Dust-Up: Day 1 | Day 2
A success, yes, but there are many unintended consequences
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Point: Scott Imler
About four weeks before the 1996 general election, Sen. Diane Feinstein said what would become the mantra of anti-medical marijuana forces. She said Proposition 215 was so poorly written that "you'll be able to drive a truckload of marijuana through the holes in it. While its seems simple, the devil is in the details or, in this particular bill, the lack of details."
The purposes of the Compassionate Use Act were, in reality, as clear as the demagoguery of the opposition and stand as the only authentic standard of the measure's success or failure. They were:
* To ensure that seriously ill Californians have the right to obtain and use marijuana for medical purposes in the treatment of cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraines or any other illness for which marijuana provides relief.
* To ensure that patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.
* To encourage the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need.
Clearly, concerning the right to obtain and use marijuana for any illness for which marijuana provides relief, Proposition 215 -- for better or worse -- has succeeded beyond anyone's wildest imagination. It is estimated that more than 200,000 Californians have received approval from their physicians to use marijuana for conditions ranging from the ridiculous to the sublime, many of which were not enumerated in the language of Proposition 215.
Likewise, state courts, following the letter of the law, have ruled time and again in favor of patients with even the most minor of afflictions. While this fact continues to draw its share of ridicule, the authors of Proposition 215 were not in a position to play doctor -- or God -- when it came to marijuana's potential therapeutic applications.
As to protecting patients, their caregivers and physicians from criminal prosecution or sanction, Proposition 215 has been a mixed bag. Immediately following its passage, the feds publicly threatened to revoke the DEA license of any physician who prescribed marijuana. Not a group to take threats lightly, physicians won a speedy injunction in federal court on 1st Amendment grounds to protect themselves against DEA action, but the chill had already set in. To this day, despite a federal court order protecting the confidentiality of doctor-patient communications, many legitimate physicians fear writing prescriptions for medical marijuana.
Patients, however, have proved easier pickings for law enforcement set on business as usual. While many patient prosecutions have been stopped in the earliest phases, raids, arrests, confiscations and legal retainers are forms of "sanction" in their own right. This problem was addressed six years after Proposition 215 passed, when Gov. Gray Davis signed SB 420, the Medical Marijuana Protection Act, which established an identification card system for medical marijuana patients. The ID cards give police the confidence they need to walk away from a medical marijuana patient. Even though some counties are still resisting implementing the ID system, I would consider SB 420 a qualified success.
I'm less enthusiastic about SB 420's achievement in regulating access. Other than making explicit what was implicit in Proposition 215 under existing doctrines of "free association" -- namely, collective cultivation of marijuana -- when coupled with SB 420's ambiguous language about "caregiver" profits and its lack of any reference to "dispensaries," Feinstein's truck-sized hole suddenly found its commercial application.
If, as the senator says, the devil is in the details, when it comes to the third purpose of Proposition 215 -- encouraging state and federal cooperation to resolve the medical marijuana problem -- the devil has been and remains in the context.
The fact is, with the charitable community-based programs basically destroyed by initial federal actions, Proposition 215 and SB 420 have largely failed in their overarching goal of delivering patients from the high costs and indignities of the black market and the criminal justice system. Proposition 215's intent was to liberate patients from the expensive but questionable products from dubious sources.
With federal law enforcement seeking to undermine Proposition 215 and with much of the marijuana legalization movement seeking to exploit it for commercial and political gain, state and federal cooperation never had a chance. This has, sadly, institutionalized the black market in the medical marijuana business.
We didn't write Proposition 215 in a vacuum; rather, we responded to a specific set of legal problems faced by patients. Where implementation has gone wrong, and it's not yet clear that the Obama administration understands this, is in the enabling of a largely unregulated medical marijuana industry that lurks somewhere between the shadows of folklore and a multimillion-dollar criminal enterprise.
Despite the promise of a new day, last week's announcement by U.S. Atty. Gen. Eric H. Holder Jr. doesn't move us much closer to solving the medical marijuana problem. It could, in fact, only make things worse in the short term as a new wave of "Johnnie come legal" black-marketeers feel emboldened to open up shop.