Dr. Mikuriya's Medicine

In November 1996, the voters of California passed Proposition 215, the Compassionate Use Act. That law permitted patients throughout the state to use, possess and grow cannabis – and their caregivers to possess, grow and provide cannabis – on the recommendation of a physician.

One month later, in response to what the federal government saw as an erosion of cannabis prohibition in California, then-drug czar Barry McCaffrey held a press conference to discuss the new law. One of his props was a large flip-chart at the top of which was printed: "Dr. Mikuriya's Medicine." Below it was a long list of ailments for which Dr. Tod Mikuriya, a respected Berkeley, Calif. psychiatrist and co-author and medical advisor of Prop 215, was alleged to have claimed cannabis was beneficial. Along with glaucoma, cancer and AIDS were zingers like "Recovering Forgotten Memories," and "Writer's Cramp," that made the whole list suspicious.

"This isn't medicine." McCaffrey cracked. "This is Cheech and Chong medicine."

The press conference was the first salvo in the government's war against pot patients, caregivers and doctors who write medical marijuana recommendations. Chief among the targets was Mikuriya, who has written more than 7,000 such recommendations, more than 10 percent of the total number of recommendations written statewide.

The Set-Up

More than six weeks prior to McCaffrey's nationally televised news conference, the drug czar's office convened a meeting to decide how to handle the now-legal cannabis smokers in California. At that meeting, a range of responses to Prop 215 was considered. Among them were filing a suit claiming that federal law pre-empts the state propositions; a plan to initiate federal criminal prosecution of medical marijuana users; federal support of state and local arrests and seizures based on violation of federal law; and developing a strategy for taking action against physicians.

The feds decided in favor of the latter option. The plan was spelled out during McCaffrey's Dec. 30 press conference, when HHS Secretary Donna Shalala announced that doctors who recommended marijuana risked having their federal DEA licenses to prescribe controlled drugs revoked, and worse, criminal prosecution and being excluded from Medicare.

While this tactic scared most doctors out of making such recommendations, many others saw the threat for what it was: an infringement on doctors' First Amendment right to discuss whatever they choose with a patient, as well as their ability to make reasonable medical recommendations, which might include the use of medical marijuana – something doctors had been quietly doing long before Prop 215 passed.

One of those doctors, AIDS specialist Dr. Marcus Conant, sued the federal government in January 1997 over its infringement of his right to speak freely with patients. Conant was joined by 14 other doctors and patients in the class-action lawsuit (initially Conant v. McCaffrey, and later, Conant v. Walters – John Walters, McCaffrey's successor), which resulted in an injunction against the federal government's planned course of action. The case eventually went to the Supreme Court in 2003, which held that the government could not threaten or intimidate doctors for recommending marijuana to patients. The feds were trumped.

That should have been the end of the harassment of California's physicians.

But on Oct. 28, 1997, California Attorney General Dan Lungren's office, heading by senior assistant DA John Gordnier, sent out a notice to all law enforcement personnel and county district attorneys in the state that included this request: "If your jurisdiction has received recommendations signed by either Dr. Eugene Schoenfeld or Dr. Tod Mikuriya, please notify John Gordnier."