It's been a good year for medical marijuana. Michigan became the 13th medical marijuana state, Massachusetts passed a decriminalization measure, and yesterday a medical marijuana bill made it out of subcommittee in New Jersey.
It's easy amongst all of this progress to forget about California, the mother of medical marijuana, whose voters passed the first such initiative in 1996. The institution here has been under various attacks, and recent legal developments put California at a crossroads in the continuing statewide implementation of the first medical marijuana law in the country.
On November 24, 2008, the California Supreme Court gutted the Compassionate Use Act's (CUA) caregiver defense in People v. Mentch. This defense extended the exemption from state prosecution for marijuana cultivation and consumption beyond the patient to those they designated as their primary caregiver. Under the statute, a primary caregiver is someone that has "consistently assumed responsibility for the housing, health, or safety" of the patient.
Mr. Mentch argued that in counseling five medical marijuana patients about the best strains for their ailments, among other services, he qualified for the primary caregiver instruction at his trial for possession and cultivation of marijuana. The DPA submitted an amicus brief signed by Dr. Marcus Conant urging the need for counseling on strains and methods of ingestion, and Mr. Mentch's lawyer persuasively argued that Mr. Mentch was performing a vital service for patients unintiated to medical marijuana use.
The Supreme Court held that the primary caregiver must have a relationship to the patient "independent of the administration of marijuana." They "have no doubt our interpretation of the statute will pose no obstacle for...[the] spouse or domestic partner...[or] the child caring for his parent."
It's nice to make a decision with no doubt, but there are plenty of reasons to doubt the court's judgment. Medical marijuana patients are not likely to be married to or have children that are cultivators and experts in marijuana. A spouse or child cannot pick up a sick patient's medicine.
The practical effect of the holding eliminates what threadbare protections growers of marijuana had under state law (we like to believe that our dispensary marijuana arrives from the Humboldt fairy) and forecloses options for patients too sick to pick up their medicine.
It's worth noting that the statutory language of the CUA is horrible. Subsequent medical marijuana bills in states like New Mexico have removed the inexplicable ambiguity laden in the CUA's caregiver language. I understand that the drafters of the CUA were under a lot of political pressure to write an initiative that would pass, but fail to see how the caregiver language offered any help in that regard. This is the part where a rational and compassionate judiciary comes in and resolves the CUA's ambiguity in a meaningful way- in the same jurisdiction as the Humboldt fairies.
Now up to bat in California's 4th Appeals district is Qualified Patients Association v. Anaheim, which asks whether it is illegal for cities and towns to ban medical marijuana dispensaries. This is an important question. Beyond certain enclaves in the Bay area and southern California, medical marijuana is not welcome in many of our cities and towns, an inexplicable posture in fiscally strained times when the estimated aggregate annual sales tax revenue paid by the approximately 400 dispensaries in California is $100 million.
The marijuana community has been feeling a lot of- what should I call it?- hope lately. Obama has said that he will stop DEA raids on legitimate medical marijuana operations but has already made clear that his administration will not be one of "tax and relax" where the U.S. government finally sees the light with regards to recreational marijuana.
After the tortured logic that our highest court applied in People v. Mentch, there is reason to worry. When it comes to medical marijuana access it's becoming apparent that California giveth, and California taketh away.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The D'Alliance
Author: J. Gibson Verkuil
Contact: Drug Policy Alliance Network
Copyright: 2008 Drug Policy Alliance Network
Website: California, Humboldt Fairies and Compassionate Judiciaries
It's easy amongst all of this progress to forget about California, the mother of medical marijuana, whose voters passed the first such initiative in 1996. The institution here has been under various attacks, and recent legal developments put California at a crossroads in the continuing statewide implementation of the first medical marijuana law in the country.
On November 24, 2008, the California Supreme Court gutted the Compassionate Use Act's (CUA) caregiver defense in People v. Mentch. This defense extended the exemption from state prosecution for marijuana cultivation and consumption beyond the patient to those they designated as their primary caregiver. Under the statute, a primary caregiver is someone that has "consistently assumed responsibility for the housing, health, or safety" of the patient.
Mr. Mentch argued that in counseling five medical marijuana patients about the best strains for their ailments, among other services, he qualified for the primary caregiver instruction at his trial for possession and cultivation of marijuana. The DPA submitted an amicus brief signed by Dr. Marcus Conant urging the need for counseling on strains and methods of ingestion, and Mr. Mentch's lawyer persuasively argued that Mr. Mentch was performing a vital service for patients unintiated to medical marijuana use.
The Supreme Court held that the primary caregiver must have a relationship to the patient "independent of the administration of marijuana." They "have no doubt our interpretation of the statute will pose no obstacle for...[the] spouse or domestic partner...[or] the child caring for his parent."
It's nice to make a decision with no doubt, but there are plenty of reasons to doubt the court's judgment. Medical marijuana patients are not likely to be married to or have children that are cultivators and experts in marijuana. A spouse or child cannot pick up a sick patient's medicine.
The practical effect of the holding eliminates what threadbare protections growers of marijuana had under state law (we like to believe that our dispensary marijuana arrives from the Humboldt fairy) and forecloses options for patients too sick to pick up their medicine.
It's worth noting that the statutory language of the CUA is horrible. Subsequent medical marijuana bills in states like New Mexico have removed the inexplicable ambiguity laden in the CUA's caregiver language. I understand that the drafters of the CUA were under a lot of political pressure to write an initiative that would pass, but fail to see how the caregiver language offered any help in that regard. This is the part where a rational and compassionate judiciary comes in and resolves the CUA's ambiguity in a meaningful way- in the same jurisdiction as the Humboldt fairies.
Now up to bat in California's 4th Appeals district is Qualified Patients Association v. Anaheim, which asks whether it is illegal for cities and towns to ban medical marijuana dispensaries. This is an important question. Beyond certain enclaves in the Bay area and southern California, medical marijuana is not welcome in many of our cities and towns, an inexplicable posture in fiscally strained times when the estimated aggregate annual sales tax revenue paid by the approximately 400 dispensaries in California is $100 million.
The marijuana community has been feeling a lot of- what should I call it?- hope lately. Obama has said that he will stop DEA raids on legitimate medical marijuana operations but has already made clear that his administration will not be one of "tax and relax" where the U.S. government finally sees the light with regards to recreational marijuana.
After the tortured logic that our highest court applied in People v. Mentch, there is reason to worry. When it comes to medical marijuana access it's becoming apparent that California giveth, and California taketh away.
News Hawk- Ganjarden 420 MAGAZINE ® - Medical Marijuana Publication & Social Networking
Source: The D'Alliance
Author: J. Gibson Verkuil
Contact: Drug Policy Alliance Network
Copyright: 2008 Drug Policy Alliance Network
Website: California, Humboldt Fairies and Compassionate Judiciaries
