Pubdate: Sun, 11 Jan 2015
Source: Seattle Times (WA)
Copyright: 2015 The Seattle Times Company
Contact:  http://seattletimes.nwsource.com/
Details: http://www.mapinc.org/media/409
Author: Alison Holcomb
Note: Alison Holcomb recently transitioned from drug policy director 
of the ACLU of Washington to director of the national ACLU's Campaign 
to End Mass Incarceration.

CLEAN UP THE MEDICAL-MARIJUANA MESS

AS medical marijuana heads back to Olympia, legislators are bracing 
for a rerun of last session's drama of makeshift dispensary operators 
and self-appointed patient advocates decrying any effort to rein in 
abuses of the law.

Lawmakers face many competing priorities, but it's important they 
clean up Washington's medical-marijuana mess. Before licensed 
marijuana retail stores began opening last summer, legitimate reasons 
existed to tolerate some of the commercial activity that's been 
squeezing itself into gaps in the medical-marijuana law. Now, 
however, it's time to stop winking and nodding.

Everyone who wants to make money selling marijuana ought to play by 
the same rules, and we finally have a set of rules under Initiative 502.

I-502 did not legalize "recreational" marijuana.

I-502 created a system for regulating commercial marijuana activity, 
regardless of the intended use of the product.

Products for patients with terminal and debilitating medical 
conditions arguably should be held to higher standards, which could 
be added to I-502's baseline.

But it's time for businesses not willing to comply with at least the 
same requirements as I-502 producers and retailers to close up shop, 
and the Legislature needs to make that explicit under the 
medical-marijuana law.

To be fair, the current medical-marijuana mess grew out of real and 
desperate necessity.

Before drafting Initiative 502 and working with legislators on 
multiple medical marijuana, decriminalization and legalization bills, 
I represented medical-marijuana patients, providers, casual users, 
growers and international smugglers in city, state and federal courts 
across Washington for more than a decade.

In 1996, I defended a man tried in King County Superior Court on 
felony charges for growing marijuana in his home for his own personal 
use. He had been involved in a near-fatal motorcycle accident 10 
years earlier that had permanently damaged his skeleton, larynx and 
optic nerve.

Marijuana alleviated his debilitating pain and spasms, and made it 
easier for him to swallow, speak and work as a carpenter. But because 
growing marijuana was a felony under Washington state law, his home 
was raided, and he was tried.

The jury ultimately deadlocked. Two years later, Washington citizens 
passed Initiative 692, our state's medical-marijuana law.

The problem with I-692 was that it didn't provide either legal or 
practical access to marijuana.

Technically, the initiative gave patients nothing more than a 
codified version of the medical necessity defense my client had raised.

Despite legislative amendments in 2007, 2010 and 2011, today's 
Medical Use of Cannabis Act still only provides an affirmative 
defense patients can raise at trial - after search, seizure, arrest 
and prosecution. However, the practical impact of I-692' s passage 
was much greater.

Most sheriffs, police chiefs and prosecutors don't want to waste time 
bringing cases a jury is likely to throw out, and I-692' s 59 percent 
majority vote sent a strong message that voters don't want sick and 
dying people treated like criminals over marijuana.

The trick has been sorting out who is truly sick and dying, and that 
challenge has spawned a vibrant "gray market" medical marijuana 
industry. According to RAND researchers, approximately 750,000 
Washington residents - 1 out of every 9 men, women and children - 
likely have used marijuana in the past month.

Before I-502' s passage, all of them were considered criminals under 
the law. However, medical-marijuana authorizations, like 
prescriptions for "medicinal whiskey" during Prohibition, offered 
marijuana users a new legal defense.

Moreover, authorizations allow people to grow as many as 15 marijuana 
plants and possess much more than I-502' s limit of a single ounce - 
up to 24 ounces, or 1.5 pounds. It's easy to see the financial 
opportunities for doctors with loose authorization practices, and 
questionable "patients" willing to sell their surplus to unregulated 
dispensaries holding themselves out as "collective gardens."

One option some legislators have considered for discouraging fraud 
and enhancing enforcement is the creation of a state registry of 
qualifying patients and their authorizing physicians - a system 
similar to the prescription monitoring program administered by our 
state Department of Health. Washington remains the only 
medical-marijuana state that does not have some form of government 
registry of patients.

Setting aside the questions of cost and actual enforcement efficacy, 
many Washington patients understandably object to the idea of a 
registry. In addition to piercing physician-patient confidentiality 
and compromising medical privacy, most registries create lists of 
individuals engaged in federal crimes, easily obtainable via 
subpoena. In Michigan, a judge ordered the state to turn over 
registry records in a federal criminal investigation. In Hawaii, a 
reporter obtained registry information just by asking for it.

The simpler path forward is to eliminate differences between I-502 
and the medical-marijuana law that undermine the former and 
incentivize abuses of the latter.

Allow all adults to grow and possess the same small amounts of 
marijuana, regardless of whether they use it for medical purposes or pleasure.

Colorado, Oregon, Alaska and Washington, D.C., all now allow adults 
to grow their own marijuana. Amend the 1,000-foot location 
restrictions for licensed stores, or license home delivery for everyone.

Collapse the three-tier tax structure into one tax that would be 
levied at the point of sale, and keep licensing producers and 
retailers to increase supply and drive down prices.

Once these changes are made, all adults would have the same option to 
grow their own marijuana or purchase it from a store, and they won't 
need a medical authorization for either.

Then, the medical-marijuana law could be retooled for patients not 
accommodated by I-502 - those under the age of 21. A stronger 
argument can be made for state agency oversight of the medical use of 
marijuana by young adults, teens and children.

Providing patients access to quality marijuana products and advice 
does not require, and should not be used to justify, rewarding gray 
market entrepreneurs with unfair competitive advantages over peers 
who are complying with state licensing and regulatory requirements. 
The point of passing I-502 was to replace prohibitionist policies and 
practices with an aboveboard regulatory approach - and that approach 
is broad and flexible enough to encompass all businesses.
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MAP posted-by: Jay Bergstrom