Pot and Prosecution in Montana

Robin Prosser has become Missoula, Montana's poster child for legalizing the medicinal use of marijuana. Two years ago, she sustained a 60-day hunger strike to call attention to the need for legally prescribed marijuana. In May, Prosser, who suffers from severe pain and nausea caused by an immunosuppressive disorder, could no longer endure the chronic pain. She attempted suicide. Police helped her psychologist enter her apartment in order to save her.

They allegedly found pipes and pot residue. On May 10, she was charged with possession of an illegal substance and paraphernalia. Now, Prosser may be off the hook.

On Sept. 2, a deferred prosecution agreement was filed, signed by Prosser and the city of Missoula, by which Prosser's case will be deferred for nine months if she meets certain conditions. She "shall commit no acts that could result in charges for violations of federal, state, or local law." There's one exception: "Defendant's use of treatment recommended by her health care providers for her chronic painful permanent medical condition is not a violation of this subsection."

In short, Prosser may continue to use marijuana. If she complies with the conditions, after nine months "the city of Missoula will not oppose a motion to dismiss" the charges presently pending.

Patients like Robin Prosser may also be relieved from prosecution for possession of marijuana if the Montana Medical Marijuana Act, Initiative-148, passes in November. Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon, Washington and, most recently, Vermont have passed similar measures.

If the initiative is approved, I-148 would authorize the Department of Health and Human Services to issue ID cards to qualifying patients and caregivers and absolve qualifying patients and physicians from prosecution for using or prescribing medical marijuana. Physicians would be able to prescribe marijuana to qualifying patients without being subjected to arrest, prosecution or disciplinary action by the board of medical examiners. Patients like Prosser would be able to treat pain and nausea with marijuana without fear of prosecution.

Relief from MS

Linda Merchant, 42, who lives in the town of Broadus, in Powder River County, is one such patient. She has long wanted to see such legislation.

"I've wanted it to be on the ballot years ago after seeing so many people suffer," she says.

Merchant splits her time between her own home in town and, when she isn't feeling well, her parents' ranch in the country. She suffers from multiple sclerosis (MS), an auto-immune disease that affects the central nervous system.

"There is no cure," she says. There is only management. Over the course of her illness, she has taken Valium, Neurotin, Robaxin, B-12 shots, vitamins, bee pollen and marijuana. She has had extreme adverse reactions to some medications.

"I'm very allergic to all the Betaserons," she says, of a medication commonly used to treat MS.

Other meds she takes in high doses.

"I am on morphine," she says. "Enough to knock a horse off his feet."

Merchant tired of the pills that were supposed to stymie her seizures or increase her appetite. Some made her "walk drunk." Others made her feel worse.

"I would have to take a pill to keep a pill down, you know?" she says.

About eight years ago, she started smoking marijuana for her headaches and nausea. She had used pot recreationally in the past, but she says she hasn't been high in years. "All it does [now] is take away the pain."

The MS causes pressure in Merchant's head, including excruciating eye pain.

"Instantly, when I take a hit, I get relief," she says. "The pressure starts going down."

And her appetite returns a little, to where "Maybe I can keep down half a sandwich."

Broadus is a small town, population 448. Everybody knows everybody else's business, says Merchant. While she's convinced her marijuana use isn't a secret, she doesn't flaunt it. Law enforcement officials, she says, have not troubled her, and she isn't worried about going to jail.

"The cops don't bother me," she says. "They've never seen me, and they won't. If they want to take a sick person like me [to jail] go ahead."

Fear of Prosecution

Teresa Michalski of Helena was worried about jail. Last December, her son Travis died at 29 of non-Hodgkin's lymphoma, a cancer of the lymphatic system. He, too, used marijuana. One evening at the kitchen table, Travis told his parents that using marijuana was helping him through the cancer, says Michalski. It helped with pain, anxiety and appetite. He wanted his parents' permission to smoke in their home, where he was living.

They agreed, says Michalski, but they worried about the law.

"The cops here are right out of the police academy, and they don't ever give any kid a break," Michalski says. While she believes that police should toe the line, she worried that her son would be charged and her family would suffer the consequences. He was never busted, though, and she's glad.

"Our names would have just been drug through the mud," she says.

Travis died in December. Now, Michalski campaigns on behalf of I-148.

"This is something that'll help me heal," she says. Plus, she imagines her son cheering her on: "Go Mom, go."

The argument that upsets her the most is that marijuana is a "gateway drug."

Most people who use marijuana medicinally have a terminal condition, she says. Most, she believes, don't have the strength to leave their own homes.

She views the Medical Marijuana Act as apolitical: "It's one of those issues that, if people are real, it's not a party issue, it's a humane issue."