Cannabis conundrum: Enforcement uneven as medicinal pot test case opens
By Claire Cooper
Bee Legal Affairs Writer
(Published March 26, 2001
The new plants went into the ground last week at a Santa Cruz medical marijuana cooperative where the members grow their own pot -- with the cooperation of the local police.
"People take what they need and give what they can," said Valerie Corral, an epilepsy patient and founder of the Wo/Men's Alliance for Medical Marijuana, which distributes its crop to more than 200 members.
But official tolerance of medical pot is anything but even across the state.
A hundred miles up the coast, Sonoma County is prosecuting Petaluma pot farmers who supplied a San Francisco medical cooperative. San Francisco's top prosecutor plans to testify for the farmers.
And in Oakland, a city-sponsored cooperative issues identification cards that are honored by medical marijuana organizations selling openly in other cities.
But the Oakland Cannabis Buyers' Cooperative sells no pot.
At least, not now. The cooperative is the defendant in a Proposition 215 test case that's set for oral arguments Wednesday in the U.S. Supreme Court. A ruling is expected by early summer.
Proposition 215, California's medical marijuana initiative, allows pot use by people who can prove they have a "medical necessity." It also covers their care
givers and physicians.
After the measure's passage in 1996 by 56 percent of the state's voters, a variety of cooperatives opened to dispense the drug.
Federal undercover agents infiltrated some of them and used phony IDs and doctors' recommendations to make buys. Then the government went to federal court in San Francisco for an order to shut them down.
The Oakland cooperative resisted. The case went back and forth in the courts, landing in the Supreme Court for what is likely to be a critical ruling for the future of state medical marijuana laws.
Santa Clara University law professor Gerald Uelmen,who will argue the defendants' case Wednesday, said the Oakland cooperative put strict controls on its sale and verification practices when it was adopted by the city in 1998.
The Santa Cruz cooperative polices itself and expels members who violate the law, said Corral. "I've seen people rise to the occasion," she said. "They want to do the right thing. They've been so ill."
But the federal government isn't pinning its case on abuses of Proposition 215.
The government's main argument is that the 1970 Controlled Substances Act, the federal ban on marijuana, leaves no room for Proposition 215. It allows no exemptions for medical need, the argument goes, because Congress declared the drug useless except for federally approved research.
While there's been little approved research so far, the picture may soon change. Pressure for better data has been building for years in the national scientific community.
University of California researchers are hoping to launch a $3 million research program, already approved by the state. Whether it will happen hinges on federal authorization of access to the only research-grade pot grown in the country -- at a federal farm in Mississippi.
A report prepared two years ago at the request of the White House Office of National Drug Control Policy concluded that, for some patients, smoking pot may be the best medical option.
The California Medical Association is among the organizations that has filed briefs in support of the Oakland cooperative.
California Attorney General Bill Lockyer also has asked the Supreme Court to uphold Proposition 215. He urged the justices to respect "the traditional state interest in regulating for the health, safety and welfare of its citizens."
On the other side are the Family Research Council, which calls marijuana "a gateway drug," and the Institute on Global Drug Policy of Drug Free America, which calls medical pot "a Trojan horse."
The movement to legalize marijuana for medical use "is well-funded by a couple of billionaires. Their interest is really in legalizing all drugs," said David Evans, a lawyer for the institute, an umbrella for 50 organizations and individuals. He named George Soros and others who have financed drug decriminalization campaigns around the country.
The Supreme Court's decision is likely to affect the eight states with medical marijuana laws -- California, Nevada, Oregon, Washington, Alaska, Hawaii, Colorado and Maine.
The federal government's brief estimates that about two dozen cooperatives are functioning in the Western states. Only the Oakland cooperative is covered by the Supreme Court's interim order barring pot dispensing until the case is decided.
Elsewhere in California, Proposition 215 is being enforced with a patchwork of local arrangements and controls.
All jurisdictions are "sensitive to the dictates of Proposition 215," said Nathan Barankin, Lockyer's chief spokesman. The disagreement is over how much marijuana is suitable for personal medical use.
In Mendocino County, voters last fall passed a measure forbidding police interference with growers of 25 or fewer plants.
In other counties, formal or informal policies have been adopted by governing boards or police.
According to a report issued last fall by the Marijuana Policy Project in Washington, D.C., at least 17 California jurisdictions are allowing medical pot users to grow their own supplies -- from two outdoor plants in Shasta County to 30 in Oakland.
Oaklander Mike Alcalay, a physician, says he grows the drug to control the wasting associated with AIDS and the nausea he gets from a combination of AIDS drugs. "I take it to keep my weight up and my pills down," he said.
In Placer County, Steve and Michele Kubby were prosecuted after 265 pot plants were found in a raid of their home. But the jury balked, deadlocking 11-1 in favor of acquittal. Steve Kubby, the Libertarian candidate for governor in 1998, said he uses the drug in fighting cancer.
According to Barankin, federal law enforcement in California has been subdued while the Oakland test case has been pending.
Nevertheless, California Department of Justice figures show that in the past decade marijuana arrests have increased steadily.
Barankin predicts more vigorous anti-pot enforcement at all levels of government if the initiative is overturned.
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