Government Shows No Compassion for Medical Pot Consumption
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On the morning of January 13, 2004, Tehama County prosecutor Lynn Strom unexpectedly announced that the state of California was dropping charges against Cynthia Blake and David Davidson for possessing and growing cannabis with the intent to distribute. While the two medical marijuana patients waited in the courtroom, Strom and the defense attorneys disappeared inside the judge's chambers to discuss the motion to dismiss. Moments later, more than a dozen sheriff's deputies pounced on the hapless couple, handcuffed them, and shoved them into an unmarked police car waiting outside the courthouse in the Sacramento Valley town of Corning. They were already en route to jail in Sacramento when Strom informed their lawyers that the state was bowing out because the Feds were taking over the case.
It was a devastating blow for Blake, a retired Federal Reserve employee, and her sweetheart, Davidson, a retail shop owner. Both in their early fifties, they were booked on federal drug charges and transferred to the jurisdiction of the Eastern District office of US Attorney McGregor Scott. If convicted, they each faced a mandatory minimum of ten years to life in prison for exercising a right they thought they had gained with the 1996 passage of Proposition 215, the California ballot measure that legalized cannabis for medical purposes.
Both had a physician's recommendation to ease their ailments with marijuana, and neither had a criminal history. They had been tending three dozen pot plants in a remote garden, which they shared with other patients; their attorneys insist that no money had exchanged hands for the herb. But none of this would matter in federal court, which treated all marijuana as equally illicit, making no exceptions even for the seriously ill.
The well-coordinated Blake-Davidson hand-off was not the first time local authorities in California had turned over a medical marijuana case to federal authorities. But it is perhaps the most dramatic example of ongoing, secret collusion between various levels of government to prevent the implementation of the Compassionate Use Act, as Proposition 215 was called on the ballot.
For the past ten years, state and local officials sworn to uphold the state ballot measure have instead proven to be willing -- sometimes eager -- accomplices in a concerted U.S. attack on a state law. Now, a half year past its tenth birthday, the landmark California law remains under siege.
Within days after Prop 215 was enacted in the fall of 1996, top California law enforcement officials huddled privately with America's drug war high command in Washington, DC, where they plotted to sabotage a voter initiative they were unable to defeat at the ballot box.
On Dec. 3, 1996, in Sacramento, 300 district attorneys, police chiefs, sheriffs, and narcotics officers attended an "Emergency All Zones Meeting," at which they were advised, basically, to continue arresting and prosecuting as before. Then-Attorney-General Dan Lungren and his deputies maintained that the new law did not shield marijuana suspects from arrest but merely provided them with an "affirmative defense" to invoke at a trial. Under Lungren's "narrow interpretation," local narcotics officers could exercise unilateral power in deciding if med-pot growers had more plants than they, the officers, believed justified by their medical condition.
Enforcement of the Compassionate Use Act varied dramatically across California's 58 counties. Where ballot support was strongest, especially in the San Francisco Bay Area, patients could obtain locally issued ID cards and purchase their medicine from storefront dispensaries that had begun opening even before Prop 215 passed. But beyond an hour or so drive from San Francisco, in the Other California -- Red-State California, as it were -- local police and prosecutors conducted a reign of terror against patients and caregivers that went largely unnoticed by the state's metropolitan press corps.
Operating with federal anti-marijuana grants that increased by 50 percent in the first five years after passage of Prop 215, a dozen regional task forces worked with DEA and IRS partners to target marijuana growers regardless of medical use. "Prop. 215 might fly in San Francisco, but not here," a Placer County deputy told the target of a 1998 arrest and prosecution.
Nowhere did local authorities repress medical users more than in the Eastern District, the sprawling federal court district spanning California's San Joaquin and Sacramento valleys and the Sierra Nevada, where Blake and Davidson faced charges.
Targetting the Pot Docs
Drug War strategists had pegged physicians as the weakest link in the med cannabis supply chain. Gen. Barry McCaffrey, Clinton's drug czar, took aim at the doctors first, threatening to revoke the licenses of those who approved cannabis use by patients. A group of physicians and patients, with help from the ACLU and the Drug Policy Alliance, promptly sued the U.S. government on free speech and privacy grounds. The suit, called Conant v. McCaffrey , resulted in a federal injunction issued on First Amendment grounds upholding the doctors' right to discuss cannabis as a treatment option.
So the Feds passed the baton to the California Attorney General's office, via its agents in the state medical board's enforcement division, to crack down on physicians specializing in cannabis consultations. Despite specific language in Proposition 215 exempting doctors from retaliation by state officials, the Medical Board launched legal proceedings against several physicians based on evidence gathered by local undercover narcs who feigned symptoms to obtain a medical recommendation.
Unable to gag the doctors, the Clinton administration paid for anti-marijuana advertising and filed federal civil actions against a half dozen cannabis dispensaries in Northern California. It was the opening salvo of a seesaw legal battle, which culminated in a unanimous U.S. Supreme Court decision against the Oakland Cannabis Buyer's Cooperative (OCBC) in April 2001. As a result, some of the six clubs stopped selling medical marijuana, but others remained in business in open defiance of federal law.
The OCBC ruling gave the Bush administration its first chance to escalate the federal assault on California's fledgling medical marijuana infrastructure. Assisted by local narcotics units, the Ashcroft Justice Department went after dispensaries, medicinal grow-ops and high-profile activists up and down the state.
Federal agents may have overreached when they raided the Santa Cruz cannabis hospice led by Valerie and Mike Corral. Elderly disabled patients were handcuffed to their beds, while men in paramilitary gear tore apart their gardens and living quarters. Local officials rallied behind the patient collective, openly distributing marijuana on the steps of City Hall the day after the heavy-handed bust in September 2002. This was followed by another public-relations fiasco a few months later, when Americans for Safe Access, a newly formed grassroots organization, convinced Bay Area jurors to denounce their own guilty verdict in the federal trial of cannabis cultivation expert Ed Rosenthal, who ended up with a one-day sentence.
Suddenly, it seemed like the government's bare-knuckled crusade against medicinal cannabis was foundering. Optimism increased among California med-pot activists, who were buoyed by several federal and state court rulings in 2003. In December, the Ninth Circuit U.S. Appeals Court ruled in favor of Angel Raich and Diane Monson, two California women who had sued the Justice Department for the right to use medical marijuana.
But just as the momentum appeared to shift in favor of the med-pot cause, the federal government launched a concerted rollback effort. Leading the rollback has been McGregor Scott, who was appointed by President George W. Bush to head the U.S. Eastern District, one of four federal jurisdictions in California, in March 2003.
Scott was known to medical marijuana activists as the overzealous Shasta County DA who prosecuted Rick Levin, a disabled contractor who had been cultivating for personal medical use. (Levin prevailed.) But Scott's elevation to U.S. attorney was welcomed by California law enforcement officials. "It's going to be nice to have a U.S. attorney who has a local perspective," said Sacramento District Attorney Jan Scully.
Scott had been active in the California District Attorneys Association (CDAA). A board member for three years, he also chaired the CDAA small counties committee. When he assumed his new office, Scott appointed the CDAA's veteran executive director, Lawrence Brown, as his chief assistant. Brown, who hired his successor at the CDAA, would become Scott's point-man on medical marijuana.
Scott promptly met with the district attorneys of all 34 counties in the Eastern District to lay out the federal position on medical marijuana and other issues. He also sought to influence the state medical board. Joan Jerzak, the chief of the board's enforcement division, acknowledged at an August 2003 meeting that she had conferred with Scott regarding medical marijuana, and that he wanted a closer working relationship. "A management group will probably be the interface," Jerzak said as she asked the board not to reformulate its policy on medical marijuana until the Supreme Court ruled in the Raich case.
A key development was the October 2003 enactment by California lawmakers -- after 11th hour concessions to the state Bureau of Narcotics Enforcement -- of Senate Bill 420. SB 420 was written to "clarify" Prop 215 and protect patients from law enforcement's arrest-first policies. Sponsored by Sen. John Vasconcellos, the bill set a statewide minimum number of permissible plants and ordered counties to issue ID cards to qualified patients to shield them from arrest. The new statute also created more protection for caregivers, allowing them reasonable compensation for their time and services, and gave groups of patients the right to grow and distribute as collectives or cooperatives.
Although the California District Attorneys Association made sure SB 420 prohibited anyone from making a profit from pot, entrepreneurs opened more than 100 new storefront dispensaries within a year, many in previously unthinkable locations. Medical cannabis users in many rural communities came out of the closet. They started new patient groups or allied with statewide groups, and spoke out on behalf of public access to cannabis at storefront dispensaries before city councils and boards of supervisors.
SB 420 set the stage for the current battle over the proliferation of patient-run dispensaries. For the first time, local elected officials in scores of cities and counties were forced to take a stand on the issue, as increasing numbers of activists applied for permits to open dispensaries and local law enforcement objected -- or lobbied for preemptive moratoria and prohibitions. More than 100 California jurisdictions have proceeded to ban dispensaries, but another three dozen have expressly allowed and regulated the storefront distribution of medical marijuana.
SB 420 was the ultimate product of a task force created by Vasconcellos and Attorney General Bill Lockyer, a Democrat elected in 1998 to succeed the unpopular Lungren (who got only 39 percent running for governor against Gray Davis). Although Lockyer said he had voted for Prop 215 -- and would submit an amicus brief supporting Raich -- he was unwilling to rein in hostile local officials. Responding to an August 2000 plea for uniform county standards by the North State Sheriffs Association ("...the law desperately needs clarification"), Lockyer declined to issue new plant and possession guidelines, washing his hands of how local jurisdictions should act.
California police and prosecutors opposed to medical marijuana turned away from the state's top lawyer for advice about medical marijuana and instead looked to the state's private law enforcement associations. If ordered by a court to return pot to a defendant, "I have the counsel for the California Sheriff's Association telling me I'm committing a felony," remarked El Dorado Sheriff Jeff Neves at a meeting with patient advocates. In 2002, Yuba Sheriff Virginia Black had the California State Sheriffs Association ask other sheriffs to write letters to Ashcroft and DEA Administrator Asa Hutchinson asking them to "resolve" the conflict between state and federal law. ("I urge you to contact your local DEA office," Hutchinson replied.) The same year, Martin Mayer, general counsel of the California State Sheriffs Association, issued an alert following a California Supreme Court ruling that overturned the conviction of Myron Mower, a 31-year-old blind diabetic arrested in his hospital room. "Does this mean that law enforcement should no longer arrest one in possession of marijuana if, for example, he or she has a note, letter, or prescription from a doctor?" Mayer asked, before declaring: "Absolutely not!"
At its 2005 Summer Conference, the California District Attorneys Association secretly issued a new opinion about SB 420 in a closed executive session. While the CDAA had inserted language in SB 420 prohibiting cooperatives from making a profit, now the CDAA went a step further and told the state's district attorneys that no money could change hands when a cooperative distributed medicine to a patient.
A Pandoraâ€™s Box
If SB 420 had opened a Pandora's box of neighborhood marijuana dispensaries, the U.S. Supreme Court's June 2005 decision in Gonzales v. Raich gave federal authorities a powerful tool in their effort to close it. While the 6-3 decision against Angel Raich and Diane Monson -- whose medical cannabis had been grown and consumed within California -- did not overturn the law created by Prop 215, the justices reaffirmed the federal government's authority to enforce federal law.
On August 1, 2005, McGregor Scott sent a letter to all California's district attorneys, sheriffs and police chiefs interpreting the Supreme Court decision. Local law enforcement had asked the U.S. Attorney's office for "possible enforcement action against 'medical marijuana' dispensaries," Scott stated, before citing the CDAA summer conference opinion as proof that the dispensaries violate California as well as federal law. Scott encouraged local agencies to first consult with their own district attorney regarding the potential for local prosecution. He also attached a copy of an article about SB 420 that ran in the Prosecutor's Brief , a quarterly CDAA publication.
Scott's anti-cannabis campaign set the stage for increased cooperation with local prosecutors, who have transferred a number of difficult medical marijuana cases to federal authorities, especially in the Eastern District. Armed with Scott's letter and the secret CDAA opinion, law enforcement opposed the opening of new dispensaries and pushed city councils and county supervisors to enact moratorium ordinances. The California Police Chiefs Association lobbied officials with the League of California Cities, and on a few occasions DEA agents or a DEA counsel attended city council meetings at the invitation of local police.
Relocated to the foothills of El Dorado County, McGregor Scott took a personal interest in the public discussion of a marijuana dispensary ordinance in the gold-rush town of Placerville, the county seat. After watching public-access television coverage of a city council hearing, Scott phoned the town manager, John Driscoll, to commiserate. The U.S. attorney told him the advocates who spoke at the meeting were simply in it for the money, Driscoll reported to associates.
Showdown in Southern California
In 2005 San Diego county supervisors refused to authorize the patient ID program mandated by SB 420, and filed suit to overturn the law. In December '06, a San Diego Superior Court judge rejected this suit (which was joined by two other counties) and upheld California's law permitting the use of marijuana for medical purposes. San Diego Country officials have appealed the decision, and the case is pending.
Today there are 200,000 authorized medical marijuana users in California, which is the only state (among twelve that have legalized medical marijuana) with a significant aboveground pot business. Thirty-three of 58 counties have initiated ID card programs. But an ID card doesn't prevent searches of med-pot patients by local and state law enforcement officers, who still target medical marijuana providers and users in California, where doctors who recommend cannabis do so at their own risk.
Hardly a week goes by without another raid against med-pot dispensaries by the DEA in cahoots with unreconstructed drug warriors in one county or another. Southern California has been hit particularly hard in recent months with anti-med-pot sweeps in San Diego, the Los Angeles area, Bakersfield, Palm Springs, Morro Bay, Riverside and Orange County, and dozens of other cities.
Activists and patients hope the San Diego lawsuit and subsequent raids will be the last gasp of an ultimately futile effort to snuff out California's burgeoning medical marijuana scene, which continues to gain momentum. There are currently almost 400 med-pot storefronts and delivery services unevenly distributed throughout the state -- with 200 concentrated in the LA area. In North Hollywood alone, there are more pot clubs than Starbucks.
In April '07, the state Board of Equalization served notice that sellers of medical marijuana must pay state and local sales tax - a stipulation not applied to conventional pharmaceuticals. But the state has yet to meet its responsibilities by establishing commonsense rules and procedures to protect those involved in prescribing and distributing marijuana to the sick.
Thus far, there has been little decisive action from Attorney Gen. Jerry Brown and Gov. Arnold Schwarzenegger, who persist in deferring to recalcitrant state and local law enforcement, which have been adamantly opposed to any legal sale of marijuana, even nonprofit exchanges, since the passage of the Compassionate Use Act. Even today, the California Narcotics Officers Association features on its website a position paper asserting: "There is no justification for using marijuana as a medicine."
As the drug warriors wage their war of attrition against medical marijuana, the human toll continues to rise. Facing the prospects of a decade in federal prison, David Davidson left Cynthia Blake and is now a fugitive. She agreed to plead guilty to a single felony that carries a maximum sentence of 20 years in custody. Prosecutors offered leniency provided she testify against Davidson and reveal her erstwhile partner's whereabouts. In September, Blake was sentenced to 18 months in federal custody.
A version of this article originally appeared in O'Shaughnessy's, the journal of the Society of Cannabis Clinicians.