Weeding out crims from legal tokers
New Zealand Herald (New Zealand)
Saturday September 06, 2008
by Peter Huck

http://www.nzherald.co.nz/section/2/story.cfm?c_id=2&objectid=10530801

Jerry Brown, California's Attorney-General, is an iconic figure in the
Golden State.

The scion of a Democrat dynasty, he has served as the Mayor of Oakland, Secretary of State, and - most famously - a liberal governor whose embrace of environmentalism, opposition to the Vietnam War, promotion of minorities, and rejection of traditional privileges earned him the sobriquet Governor Moonbeam.

So it is perhaps not surprising that the state's top lawman might take a
decidedly unconventional stance on one of California's most contentious
issues, medical marijuana. Brown, who supports medical marijuana, has
just issued an 11-page "road map" to help legal pot smokers to avoid arrest.

Police hope Brown's directive will clear the air about who can legally
use marijuana and who can't, weeding out criminals for whom California
is pot's jewel in the crown.

The state has some 200,000 medical marijuana patients who use the drug to combat the effects of Aids, cancer, glaucoma and other ills. Armed with a doctor's certificate they can buy pot from dispensaries, set up after voters passed Proposition 215, which approved medical marijuana.

But the 1996 voter initiative and the yawning gap between lax state and
tough federal marijuana laws have been exploited by drug cartels.
Brown's road map is intended to address a sharp increase in drug crime.

"California voters approved an initiative legalising medical marijuana,
not street drugs," said Brown, who admitted myriad storefront dispensaries sometimes enrich criminals. "Marijuana intended for
medicinal use should not be sold to non-patients or on illicit markets."

The document defines legal marijuana dispensaries as those run on a
not-for-profit basis. They must keep records of bona fide patients and
cannot buy pot from illegal commercial growers. Individuals can possess
eight ounces (226g) of dried marijuana, plus 6 mature or 12 immature plants.

"These guidelines are very significant," says Kris Hermes of Americans
for Safe Access, a medical marijuana advocacy group. "They represent a
final chapter, we believe, in the implementation of state law in
California."

The crucial thing, he says, is the state recognises dispensaries as law
abiding. "It's never been done before. That is huge."

He says the road map's major practical impact will be to safeguard
patients from the "widespread problem" of wrongful arrest, given
appellate court rulings that support patients rights to possess
marijuana under state law.

"Jerry Brown has laid out a blueprint for local police policies. The next step is to develop those policies."

Besides protecting legal patients from arrest, and their marijuana from
confiscation, the directive could spark raids against facilities that
sell marijuana at a profit.

"The guidelines make it clear to law enforcement what is legal and
illegal in terms of dispensaries," says Fresno police chief Jerry Dyer,
who heads the California Police Chiefs Association. "Many of these
dispensaries have been operating for profit."

Besides defining how much pot patients can possess, Dyer says the road map also protects officers from liability if pot seizures are deemed
illegal.

Medical marijuana advocates say the road map is long overdue. For while
Proposition 215 approved the use and sale of pot for legitimate patients
- a trend embraced by 12 other US states - and a 2003 law set up a
voluntary ID card, some dispensaries boast on-site doctors willing to
write a prescription for almost anyone who visits.

Some 400 dispensaries exist in Los Angeles alone. Many advertise their
wares in local magazines. "Redeem this coupon for a free doobie," offers
one ad. "Free joint, gram or pipe for first time 1/8 buyers," says
another. "Free samples," offers a third.

Prescriptions can be written for chronic pain, migraines, insomnia,
depression, anxiety, a catch-all that probably includes a sizeable chunk
of LA's population.

A recent New Yorker article described a booming marijuana industry and
said the drug was America's biggest cash crop. California's 2006 harvest
is estimated at US$14 billion. The medical marijuana shield lessens the
chance of arrest by state police while federal busts and seizures fuel
prices.

This bonanza is ripe with ambiguity, not least the provenance of medical
marijuana. Amateur growers - fictionalised by the TV show Weeds -
compete with cartels whose murderous savagery has plunged Mexico into open war.

"Proposition 215 was filled with flaws," says Dyer. "It has allowed for
widespread abuse." He says some dispensaries have made millions of
dollars and are linked to cartels.

"We've seen a lot of Mexican cartels cross the border and set up
marijuana gardens on federal lands." And while the road map has helped
to clear the air, he says there are many grey areas, specifically what
constitutes profit. The state allows "reasonable compensation" for
dispensaries. Quite what this means is unclear. Dyer says it will have
to be determined by police detectives following the money trail.

Officially, marijuana is a Schedule 1 drug, defined as having no medical
value. Critics insist medical marijuana is a Trojan horse to legalise the drug. Advocates say the law emphasises marijuana's risks and ignores
its benefits, such as encouraging Aids sufferers, who sometimes face
death through malnutrition, to eat. The American College of Physicians
wants the US to expedite research into possible benefits.

Given the Bush Administration's refusal to reclassify marijuana, and
pervasive reluctance in Washington to tackle a controversial subject,
this is a symbolic gesture. While a few physicians prescribe pot, most
remain on the fence.

BUT the health issue is ancillary to the legal standoff. It is a moot point whether Brown's road map will help to resolve a legal turf war that pits state against federal law.

"Hopefully the feds will back off in instances where people are really
following these guidelines," Brown said.

The legal contest puts dispensaries and patients in the front line. In a
typical episode, on August 1, agents from the US Drug Enforcement
Administration - which enforces the nation's drug laws - raided a Culver
City dispensary. Some 25 people were handcuffed during the four-hour
raid. Agents confiscated marijuana, computers, and money.

"We might as well have just got robbed by a bunch of thugs downtown,"
Brian Birbiglia, who identified himself as a former US Marine with a
prescription to use marijuana to help with a foot injury, told the Los
Angeles Times.

This cut no ice with the Feds. "Marijuana remains a controlled substance, and it is illegal under federal law to possess, dispense or cultivate marijuana in any form," said a DEA spokeswoman, Sarah Pullen. The DEA has ratcheted up pressure by warning over 150 Los Angeles landlords they risk losing their property and face arrest if they rent to marijuana dispensaries. Pullen says this violates US laws.

Such tactics have exacerbated a tense situation, as state courts fight
back. On the same day as the Culver City raid, a San Diego court ruled
that federal law does not trump state law allowing medical marijuana.

On August 5, in a closely watched federal criminal case in Los Angeles,
a jury convicted Charles Lynch, the owner of a Morro Bay medical
marijuana dispensary, of violating federal drug laws, including selling
pot to minors. He faces a lengthy prison sentence.

Lynch claimed support from local officials and a DEA agent. Local
support counted for naught under US law and Lynch was unable to provide proof of DEA support.

Under state law, he was a legitimate, tax-paying businessman. Under
federal law, he was a drug dealer. Given the apparent impossibility of
reconciling state and federal law can Brown help navigate this legal
swamp? Yes and no. US law allows for a "public authority defence".

What this means, says Rebecca Lonergan, a former federal prosecutor who teaches law, is that when a legal authority - such as California's
Attorney-General - says what you're doing is lawful, that's a possible
defence.

Then there's the "medical necessity" defence. Brown issued his road map because Proposition 215 stipulates securing marijuana grown for medical use. He also argues state law is not in conflict with federal law due to the US constitution's "supremacy cause". This says states are free to enact any laws that do not conflict with US law.

The problem is that the US Supreme Court, in a 2001 case involving an
Oakland dispensary, rejected medical necessity, saying pot has no
medical value under US law.

Essentially, Brown has ignored that judgment. Nonetheless, by issuing
the guidelines he provides defendants in medical marijuana cases with
plausible belief that what they are doing is legal. This may make it
hard for prosecutors to find jurors who are sympathetic.

Ultimately, the only way for the courts to square the circle is for
Congress to revisit the marijuana law.

The Los Angeles Times believes Brown's road map may pave the way for
more sensible federal marijuana policies. This means proving marijuana
is beneficial. Given America's other pressing problems, this seems
unlikely any time soon.

"It's more of a hot topic in California than on the national level,"
says Lonergan. "So I think we'll continue to have a bit of a mess here
in California."

Meanwhile, medical marijuana patients have Moonbeam's road map.

* 200,000 Medical marijuana patients in California
* 8 Ounces of pot - the amount a bona fide patient can possess
* 400 Outlets in Los Angeles dispense the drug. Many advertise "free
samples".