Pubdate: Thu, 16 Dec 2004
Source: Missoula Independent (MT)
Copyright: 2004 Missoula Independent
Author: Carlotta Grandstaff
Cited: Initiative 148 ( )
Cited: Raich v. Ashcroft ( )
Bookmark: (Cannabis - Medicinal)

No Prescriptions


Proponents of Initiative 148, the so-called medical marijuana law,
were successful in convincing red state voters to allow terminally and
chronically ill patients to alleviate their suffering by smoking a
substance the federal government outlawed more than three decades ago.
Or, to put it another way, opponents of medical marijuana never
launched a credible defense of the status quo.

However you parse it, the use of marijuana for medical reasons became
law immediately after the voters approved it 276,042 to 170,579.

The question now is, how will the law be put into effect? Don't ask
your doctor. It's very likely he or she has no idea how, or under what
circumstances, to recommend marijuana to a chronically ill patient.
But ask other medical and legal authorities and you'll receive answers
laden with emotion--frustration, caution and amused

The task of actually putting the law into practice falls on Roy Kemp,
the licensing bureau chief of the Montana Department of Public Health
and Human Services. It's Kemp's job to create a registry for the
DPHHS. Under the law, a patient must have a written
recommendation--not a prescription--from a doctor stating that the
patient has a debilitating medical condition and would benefit from
marijuana. Those conditions are spelled out individually in law and
include cancer, glaucoma, HIV, severe or chronic pain and severe
nausea. The patient, or a designated caregiver, would then register
with the DPHHS and may grow up to six plants, or have no more than one
ounce in possession. The doctor cannot use a prescription pad, but
must write a recommendation for marijuana. "Without that, everything's
dead in the water," says Kemp.

Though he says emphatically that he is not frustrated with setting up
the registry, he clearly sounds it. "Am I frustrated? No, I'm not
frustrated," he says, quickly adding, "Vermont had four months to
implement its [medical marijuana] law." Montana's law went into effect
immediately upon passage. "It's been difficult to put aside other
things and get this registry ready. But we'll be able to look at it
this week."

The registry is confidential, though law enforcement can call the
department and ask whether John Doe is registered. The department may
answer yes or no, but may not offer any more information.

That may put a small extra burden on Montana's city police officers
and county sheriff's deputies investigating whether people suspected
of marijuana violations are registered with the state and thereby
covered by I-148. But for the U.S. attorney's office, it's business as

Bill Mercer is the attorney responsible for prosecuting violations of
federal law in Montana. As far as the U.S. Department of Justice is
concerned, marijuana, no matter how it's used, is still an illegal,
Schedule I drug as designated by Congress in 1970, and users are still
subject to prosecution, Initiative 148 notwithstanding. Mercer, like
U.S. attorneys in the 10 other states where voters have approved
medical marijuana laws, is awaiting a final decision about the
legality of those laws from the U.S. Supreme Court, which heard oral
arguments in the case Nov. 29. "In the interim," he wrote in a
carefully worded e-mailed response, "enforcement of drug laws
criminalizing the distribution of illegal drugs, including marijuana,
is one of the top three priorities of the U.S. Department of Justice."

Like Mercer and his colleagues at the Department of Justice, doctors
who work at Montana's Veterans Affairs hospital and outpatient clinics
also are federal employees. Unlike the U.S. attorney, however, VA
doctors have a quite different mandate. Teresa Bell, spokeswoman for
the Fort Harrison VA Hospital in Helena, is cautious when she
describes how the state law affects federally employed doctors and
their service-connected veteran patients. "[Doctors] will look at the
patient and their condition and talk about the best course of
treatment," she says. If marijuana is recommended, "they'll have to
cross that bridge when they come to it."

Jim Shockley would like to see more medical research of marijuana.
Shockley is the state senator from Victor and an attorney who helped
write the argument against I-148 for the voter information pamphlet.
Noting the strong support for the initiative, even in conservative
Ravalli County, where it passed 11,856 to 7,621, Shockley says,
laughing, "I guess I got my ass kicked." When Shockley speaks about
his opposition to I-148, it sounds as if his heart isn't in it. That
may be, he says, because the initiative's natural opponents, Montana's
cops and county attorneys, never really voiced strong opposition once
they sensed the strong support from polling.

"I do believe there are some people who can benefit from it," he says,
"but I think it's a small number."

And for that number, getting a doctor's recommendation is only part of
the process. The other part, of course, is actually getting ahold of
marijuana. Though the law says you can grow your own, some patients
may not have the time or expertise to grow their own. "If you need it
for something like relieving nausea from chemotherapy," says I-148
spokesman Paul Befumo, "your treatments are going to be over before
you can grow it and cultivate it. Cultivation is clearly not going to
work immediately. But there's a fairly healthy black market for
marijuana everywhere in the country."

Though marijuana distribution is a felony in any amount in Montana,
sellers or distributors may not be at risk. Even felony distribution
is covered under the Medical Marijuana Act. "[Distributors] would have
an affirmative defense," says Befumo, adding, "It doesn't mean it will
be a successful defense." But with patient/buyer medical
recommendations, swaying a jury shouldn't be too difficult. "Jurors
aren't stupid," he says.
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