Safe Access Now Director's Newsletter
Volume 3 # 2. June 2005
Patient access more important than ever
Safe Access Now (SAN) has been working for several years to establish a reasonable safe harbor for patients at one half the federal IND cannabis dosage plus a proportional garden size based on canopy, consistent with the DEA yield study. Our new booklet explains the process and provides a sample ordinance. The recent Supreme Court ruling makes this safe harbor more important than ever.
This issue of the SAN Newsletter has been waiting for the release of the Supreme Court ruling in Gonzalez v Raich. On June 6, 2005 we got the split decision (click here to download as 172k PDF). While it affects the lives of thousands of patients, it does not change California State laws, either Prop 215 or SB 420. In California, possession, cultivation, sales, transportation and providing a place where medical marijuana is used, cultivated or sold all remain legal under certain limited conditions. (See HS 11362.765 and HS 11362.775.) The federal ruling means that a patient cannot use state law as a defense in federal court. Numerous court proceedings have been on hold to see the outcome of Raich.
The Court declared that the federal narcotics agents still have the power to prosecute patients and providers; but in an unusual move, it ended in a plea for Congress to change the law. Federal cannabis prohibition is premised on the notion that the "commerce clause"* of the US constitution gives Congress blanket jurisdiction over all direct, and indirect commercial activity. Without ruling on the constitutionality of the Controlled Substances Act, the Court said there exists a credible risk that medical marijuana could end up being sold in the illicit market and therefore it upheld federal police powers to arrest patients even where medical marijuana is legal under state law.
* Article 1, Section 8 states, "Powers of Congress: The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". In theory and construct, it does not give federal jurisdiction over intrastate or non-commercial activities but this new ruling.
The majority position did not consider the science or factual issues of therapeutic cannabis use, or whether patients have a medical necessity or due process defense. It did give strong credence to the validity of Raich and Monson's medical benefit. Justice Stevens wrote, "The authority to grant permission whenever the doctor determines that a patient is afflicted with 'any other illness for which marijuana provides relief,' is broad enough to allow even the most scrupulous doctor to conclude that some recreational uses would be therapeutic." (Page 28.) However, the Court's majority held that there are other avenues of relief available without overturning the CSA. "[T]he statute authorizes procedures for the reclassification of Schedule I Drugs. Perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress. Under the present state of the law, however, the judgment of the Court of Appeals must be vacated." (Page 30-31.) Its release just two weeks before Congress votes on the Hinchey / Rohrabacher amendment seems timed to support for the bill.
Three dissenting justices say CSA goes too far
Dissenting justices were unusually critical of the slim majority's position, with both O'Connor and Rehnquist pointing out that such a ruling essentially erases Constitutional limits on federal power. Thomas wrote that "In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana . Respondents are correct that the CSA exceeds Congress' commerce power as applied to their conduct, which is purely intrastate and noncommercial." He continued that, "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."
Where does that put us today?
What does that mean for patients and caregivers? The California Constitution binds state agencies to uphold and defend state law, even if a conflict exists with federal law. Clarification was provided for state law enforcement on April 6, 2005, when Attorney General Bill Lockyer wrote that, "both generally and in the specific context of interpreting the Compassionate Use Act -- it is not the province of state courts to enforce federal laws." Lockyer made this statement in a brief to an appeal on a "return of property" case, where a patient had his medical marijuana illegally seized by state agents under color of federal law. The lower court's ruling stated that the patient's conduct was "illegal under federal law." (Click here to download as a large 5MB PDF file.) Following the Raich ruling, he stated that, "Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday."
A favorable ruling would have had profound effects on the Drug War, effectively bringing an end to federal prosecutions of medical marijuana patients in states where its use has been made legal. The unfavorable ruling simply maintains the uneasy status quo by preserving state law while allowing federal narcotics police to continue to destroy the lives of sick and dying people and those who try to bring them medical relief.
Raich did not directly affect the issue of dispensaries since its argument was premised on the fact that personal medical use is not commercial activity. However, the Raich ruling essentially equates personal medical use with interstate sales by saying neither act is defensible in federal court.
Much of the current cannabis policy is based on attitudes and impressions, so patients and providers must now wait and see how local governments and state officials respond to this new federal challenge. In any interpretation, there is not much to cheer in the court's decision.
Congressional relief still possible
Two things now appear clear. One, we must pressure Congress to pass HR 2087, the States' Rights to Medical Marijuana Act and the Hinchey Rohrabacher Amendment to the federal spending bill. The other is we must get the State of California to enact laws that will reign in renegade law enforcement officials who seek to apply federal law or to turn cases over to federal jurisdiction, or better yet to regulate all marijuana sales to adults and thereby remove the role of local and state police in investigating such situations.
The President, Attorney General and head of the DEA can also end the ban through ordering a simple administrative law change.
The day after the Raich Ruling was received, the Alameda County Board of Supervisors voted to permit three dispensaries in the unincorporated parts of the county as Sheriff Plummer promised to see to it that the feds leave the dispensaries alone. The decision does not grandfather in any of the seven existing clubs, and requires the locations to be spread throughout the county rather than all being localized in a cluster, as they had naturally sprung up. The policy approved on June 7 was a watered down version of a bill that was introduced by Supervisor Nate Miley.
When Stephan Pasalaqua ran against then-incumbent Michael Mullins for Sonoma County District Attorney, he claimed to be a more compassionate supporter of medical marijuana. Some patients doubted his integrity, and backed Mullins, who originated the compromise safe harbor for 3 pounds of bud plus a garden of up to 99 plants within 100 square feet of canopy that has since come to be known as the Safe Access Now (SAN) Guidelines. Other patients were angry with Mullins for previous prosecutions and wanted to give someone new a chance, and the county got a change.
Most local law enforcement respect the county policy as simple and effective, but some continued to gnaw away at the fledgling DA. Almost from the onset, DA Pasalaqua proved to be less than trustworthy for medical rights and more than willing to ditch the agreement. Last year a media expose and pressure from the Sonoma Alliance for Medical Marijuana (SAMM) and other patients shamed him out of reducing the amounts. Whether inexperience makes Pasalaqua unqualified or he simply lied about supporting the guidelines, this spring the DA caved-in. Ignoring SAMM's request to either drop plant numbers altogether or keep the status quo of 99 plants, he kept the 3-pound and 100 square-foot provisions but slashed the number of plants allowed within the canopy to a measly 25. His office has stated that those who exceed the limits do not automatically face charges and will be considered on a case-by-case basis. Unfortunately, this does not give any clear direction to law enforcement and leaves the patients in fear of what will happen when faced with narcotics officers eager to destroy their plants.
To his credit, Pasalaqua, held onto the core elements of the guidelines. He also recognizes that a physician's note creates an exemption to the plant limit, consistent with state law. However, he did manage to create bad will with the patient advocacy community and damage his own chance of re-election. The community is now looking to see what Pasalaqua does to make up for his failings and who steps up to challenge him in the next election, but most see him as a bad risk and a worse leader. SAMM and Americans for Safe Access ASA are working together to resolve this problem before the prosecutor further damages the compassionate legacy of his predecessor.
A new dispensing collective serves patients in Sacramento.
It must be springtime, because cannabis dispensaries are popping up throughout the state. California NORML lists well over 100 on its website (http://www.canorml.org), and more seem to crop up every week. Beginning in 2004, SB 420 (HS 11362.7) created limited immunity from prosecution on charges of possession, cultivation, sales, transportation, intent to distribute and keeping a place where marijuana is sold or used. That covers most of the activities at a patient dispensary, however the law did not legalize sales outright. The definition of "primary caregiver" creates a difficult standard to overcome, and "profit" is forbidden but charging fees for the cost of goods or services are legal. Meanwhile, the state Board of Equalization has ruled that medical marijuana is not a prescription drug but an over-the-counter drug like aspirin and therefore taxable. In a worrisome development, federal and state tax auditors have swarmed over the financial records of several facilities and are assessing back taxes along with large penalties. This puts the dispensaries in a quandary; fly under the radar and hope not to be scrutinized, or keep the records and pay the taxes with the risk of creating a federal case against themselves.
Following the Raich decision, federal prosecutors in California indicated that they will continue to focus on methamphetamine and large-scale drug traffickers, but already one major statewide chain of dispensaries has found itself under federal scrutiny. There is no indication that medical sales will be treated any less seriously than before.
Americans for Safe Access offers a model ordinance to be proposed in cities or counties where patients intend to open up a dispensing collective. Click here to see a copy.
A histrionic chorus of naysayers managed to impel the Ukiah City Council in Mendocino County to violate patients' right to cultivate, possess and use medical marijuana by banning outdoor medicinal gardens. They have no authority under state law to do so and such a ban is not likely to survive a court challenge, but the Council did manage to fan the flames of neighborhood feuds. If the ban is allowed to stand, it could set a precedent that leads to a ban on the use of manure fertilizers because they smell bad, barbecuing meats in your own yard if your neighbor is a vegetarian and smoking cigarettes in the backyard, or anything else your neighbor doesn't like to smell. Shouldn't it, to be fair, ban everything with a fragrance? Then, what if people don't like hearing the music played by their neighbors, will the Council step in and ban music? Ban everything that makes a sound?
This is a can of worm Ukiah officials were truly foolish in opening. If patients are not allowed to grown their own medicine, how is the city going to make sure they have it, will taxpayers be forced to buy and distribute medicine and pay damages for loss of health? Or will common sense replace the impaired thinking of prohibition?
The Medical Marijuana Patients Union (http://www.mmpu.org/) is proposing a more rational policy of good neighbor gardening, in which cannabis is grown in a contained area and kept away from property lines to prevent such arguments from erupting. To review a copy of their counter proposal to the repressive position taken by City Council, send an email to firstname.lastname@example.org.
Cannabis intended for medical use only.
The City and County of San Francisco are still wrestling with setting policies and regulations for medical marijuana dispensaries and, as a result, continues to put at risk patients who exceed the SB420 guidelines of six plants and eight ounces of bud. While DA Kamala Harris has been using charging guidelines similar to those proposed by Safe Access Now, the DA, Supervisors following the lead of Ross Mirkarimi. and Mayor Newsome are all working parallel tracks to set guidelines and have yet to hammer out an agreement. However, it is clear that there is strong support for medical access in San Francisco and that its officials plan to keep dispensaries and private gardens safe. Hopefully we'll have a better idea of what's in store there for our next issue of this newsletter.
SAN is a non-partisan organization dedicated to the proper implementation of uniform guidelines in all of California's counties in compliance with H&S code 11362.5, the Compassionate Use Act of 1996. It was founded by Chris Conrad with Ralph Sherrow and has activists in about half the counties of California. We are an educational and activist organization only, and in no way supply medicine. Our proposal has been to stop the arrests as well as the prosecution of patients by creating a safe harbor of presumed compliance with the law.
We work with all levels of government to achieve this goal.
Since the federal government's IND program has established more than six pounds per year of marijuana as a safe and effective standard, with some patients receiving even more, SAN proposes that patients should be allowed to cultivate and consume that amount as a reasonable level of compliance. However, since many patients use less than that amount, we offer a compromise of allowing up to 3 pounds of processed cannabis bud per patient per year, which typically requires a canopy area of 100 square feet. Any amount of plants could be grown to fill in this area without exceeding the yield, but since a 5 year federal sentences is mandatory for growing 100 or more plants, we advocate 99 plants as the voluntary ceiling for patients. In addition, our proposals allow a physician to write a note that will exempt patients who need more from being bound by these figures. See our website http://www.safeaccessnow.net/ for more details.
Safe Access Now does not charge for the time and materials we expend to advance the safe harbor proposal for patients, but that does not mean it does not cost money to run this campaign. If you can help with a donation of any size, please send it to our financial coordinator, Chris Conrad, with a note saying it is intended for Safe Access Now work. If you plan to donate $100 or more and want a tax deduction, we can arrange a fiscal sponsor. Cash is great, but something of a mailing risk.
We do not have a bank account in our name, so please make checks out to either Chris Conrad or Family Council on Drug Awareness, and mail to:
Safe Access Now, PO Box 1716, El Cerrito CA 94530.
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