Marijuana and the Law

Recently, the medical marijuana movement suffered a one-two punch, beginning with a 6-to-3 decision of the United States Supreme Court that even personally grown marijuana consumed for medical purposes can subject a grower or user to federal criminal penalties. At the same time, local governments in California are calling for tighter regulations.

The threat of federal prosecutions casts a long shadow over the efforts by states to develop new methods of marijuana control. Ham-handed federal intervention was the rule during Pres. George W. Bush’s first term. At the justice department, former Attorney General John Ashcroft had the DEA target political activists and reformers who had organized the 1996 referendum that enacted the California medical marijuana program. These persons had literally spent decades persuading the public that patients should receive the benefits of marijuana.

One notorious Ashcroft-era prosecution involved Ed Rosenthal, an author whose books on growing cannabis remain in print year after year. In 2003, he was convicted of federal drug offenses. Prosecutors called him a dealer and the judge prohibited the defense from mentioning medical marijuana. The jurors were outraged when they learned of Rosenthal’s background after reaching their verdict. A majority of the jurors told the judge that if they had all the facts, they would have found Rosenthal innocent. After public protests and sympathetic news stories, Rosenthal’s sentence was a slap on the wrist.

Other leaders of the medical marijuana movement were also targets of prosecution. Well-respected members of the community were treated like drug dealers. The California Medical Board disciplined a prominent physician, Tod Mikuriya, for his recommendations concerning cannabis.

These prosecutions sidelined many of the leaders of the medical marijuana movement, who from the start had pushed for marijuana availability only for those suffering from serious illnesses.

Proposition 215, the initiative that brought medical marijuana to California, envisioned a system where non-profit cooperatives would dispense the drugs. But the DEA under Ashcroft insisted on charging that these co-ops were drug distributors. The Wo/Men’s Alliance for Medical Marijuana, or WAMM, a Santa Cruz collective, was a model for medical marijuana distribution. But the feds, over the objections of local officials, raided the facility. California officials were openly critical of the raid; Attorney General Bill Lockyer wrote a letter to the DEA calling the prosecution “harassment.” Santa Cruz County officials were so upset that they joined in a lawsuit against the federal government.

Similarly, when the Los Angeles Cannabis Resource Center in West Hollywood was prosecuted, Los Angeles County Sheriff Lee Baca protested. These pioneers of the medical marijuana movement were not criminals, but political activists supporting a different marijuana policy, one approved by the state’s voters. Local law enforcement knew how to draw distinctions that eluded federal enforcers.

These misguided prosecutions knocked the true believers in medical marijuana out of the box, and helped open the doors to less principled businesses willing to sell marijuana to people far more interested in the recreational aspects of smoking herb.

This new breed of dispensaries sold weed to anyone who had a physician’s recommendation. To be sure, politics and misguided enforcement only helped pave the way, with the most important incentive being money. The dispensaries are popular and do a brisk business. The not-for-profit collectives are no longer the biggest players. In Oakland, in one area dubbed Oaksterdam because of its many cannabis stores—real estate owners like the program because it turns their non-descript neighborhood into a destination for marijuana buyers taking the subway from San Francisco. The arguments over medical marijuana have become entwined with the staples of local politics—zoning and public order.

Neighborhood residents complain about thoughtless individuals who smoke joints in front of the dispensaries or divide up their purchases in full view of the neighborhood. Local officials are responding by tightening regulations and closing distributors who generate the complaints. In other words, medical marijuana is dealing with a second generation of problems, but there is very little evidence that California cops are arresting users and burdening the criminal justice system with court cases. A reduction in arrests or the threat of arrests for pot smokers is one the prime benefits of the medical marijuana program.

Leading supporters of medical marijuana recognize that at some point reform of marijuana laws will have to go beyond medical use and support adult recreational use. However, this next step is a problem, said Dale Gieringer, director of the California chapter of NORML, the marijuana reform organization.

“Most politicians are not comfortable with this development,” he said in a published interview.

While public officials from both parties are comfortable with the medical marijuana issue, adult recreational use enjoys no broad support among elected officials.

Nonetheless, in 2004 Oakland voters approved a local referendum endorsing a tax and regulate framework for adult marijuana use.

Meanwhile, the medical marijuana movement continues to grow across the nation. In a matter of days after the adverse decision by the U.S. Supreme Court, the House of Representatives rejected an amendment that would have stopped federal dollars from financing medical marijuana prosecutions. But the 161 votes in favor of the amendment represented the largest vote tally ever in favor of medical marijuana. Representatives from New York State voted for a cut-off in funds by a 20-9 margin.

It is apparent that the popularity of medical marijuana is unaffected by the Supreme Court decision. After the court’s ruling, the Rhode Island Legislature passed a medical marijuana bill by lopsided majorities, but the governor vetoed the measure.

Marijuana sales generate problems, but society can choose the kinds of problems it will face. Do we want constant criminal prosecutions of people, many of whom are free spirits who gravitate toward activities that challenge the rules, or do we want to argue about the regulations governing the sale of marijuana, and what is appropriate behavior if a person decides to smoke?

My preferences are for letting persons smoke in a legal environment with the least intrusion by government because it comports with my preferences about liberty and privacy. In the end, the medical marijuana movement, and the tax and regulate model for adults, is about respecting individual choice and privacy. Choosing a permissive solution does not make all problems disappear, but it would give mediation and compromise a bigger role in regulating this behavior. I would reserve criminal sanctions for those situations where the injury to others is obvious and our tolerance for the behavior deemed criminal is minimal.

Stay tuned. This issue will stay on the radar screen for a long time.

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