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Dust-Up

Medical marijuana in California: a history

Have the state's efforts to legalize and regulate medical marijuana been successful? Scott Imler and Stephen Gutwillig debate.

March 6, 2009

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Today's topic: Have California's efforts to legalize and regulate medical marijuana -- including Proposition 215, the 1996 voter initiative -- been successful? Scott Imler and Stephen Gutwillig will finish their discussion on Monday.

Complete Dust-Up: Day 1  |  Day 2

A success, yes, but there are many unintended consequences
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.

Only federal rescheduling, licensed quality-controlled production and well-regulated prescription access can fulfill the true promise of Proposition 215 and the aspirations of normalcy for those for whom it was intended.

The Rev. Scott Imler was coauthor of Proposition 215 and founder of the Los Angeles Cannabis Resource Center, Southern California's first patient-based medical marijuana cooperative.


Problems? Sure. But there's no denying the incredible success
Counterpoint: Stephen Gutwillig

Is Proposition 215 vaguely worded? Yes. Are there instances where the system is abused? Yes. Could the laws be improved? Of course. But what Proposition 215 has accomplished in the 13 years since its passage is nothing short of incredible.

Almost 200,000 patients in California are now able to obtain medical marijuana to treat a variety of medical conditions and relieve pain. Hundreds of legitimate collectives provide patients with safe, effective and affordable medical marijuana. Many patients no longer have to risk arrest by turning to the black market. Twelve other states have followed California's lead to enact laws of their own, allowing patients to obtain medical marijuana safely far beyond California's borders.

A major criticism of Proposition 215 -- as you point out, Scott -- is its vague wording. I agree. However, the law has since been clarified through several rulings of the California Supreme Court and through the passage of subsequent laws by the Legislature. Additionally, many cities and counties have enacted local laws and regulations aimed at creating guidelines and models to suit differing communities' needs. Finally, just last year, California Atty. Gen. Jerry Brown issued guidelines that further clarify the specifics of the medical marijuana laws. These guidelines serve to advise patients, caregivers, collectives and law enforcement.

Another criticism of Proposition 215 is that anyone can obtain a recommendation for medical marijuana at any time for practically any ailment, as you suggest. Of course there have been abuses, but doctors and patients have largely been successful in figuring out how and when medical marijuana is appropriate. Unfortunately, as the result of federal prohibition and interference with medical marijuana research, there has not been extensive research into the effectiveness of medical marijuana for many medical conditions. Thus, California doctors and patients are charting their own course.

The best evidence that medical marijuana laws are working well and not causing serious problems is that public support for medical marijuana has actually increased in states with medical marijuana laws. Proposition 215 received 56% of the vote in 1996. Now, according to several polls, about 75% of Californians support medical marijuana.

Scott, you and I certainly agree that Holder's announcement that the federal government would allow the states latitude to run their medical marijuana programs is good news. But while you are concerned that a lack of federal pressure may encourage "black marketeers" to swoop in and abuse the system, I am convinced that this move will lead to greater state control, not less, over medical marijuana in the long run.

This is because the biggest obstacle to the successful regulation of state medical marijuana programs has always been federal law and federal law enforcement. State medical marijuana laws were drafted primarily in an effort to avoid conflicts with federal law and to make it least likely that patients would become victims of federal raids and prosecutions. States will closely regulate medical marijuana if the federal government will let them -- as it now appears it will.

Now that patients and providers no longer face the risk of prosecution and arrest by the federal government, California can begin an open and honest dialogue about how to best improve state-level medical marijuana laws and how to best create a system that places patients' needs and safety first.

Stephen Gutwillig is California director for the Drug Policy Alliance.