Putting Pot In its Place

Proponents of Initiative 148, the so-called medical marijuana law, were successful in convincing red state voters to allow terminally and chronically ill patients to alleviate their suffering by smoking a substance the federal government outlawed more than three decades ago. Or, to put it another way, opponents of medical marijuana never launched a credible defense of the status quo.

However you parse it, the use of marijuana for medical reasons became law immediately after the voters approved it 276,042 to 170,579.

The question now is, how will the law be put into effect? Don't ask your doctor. It's very likely he or she has no idea how, or under what circumstances, to recommend marijuana to a chronically ill patient. But ask other medical and legal authorities and you'll receive answers laden with emotion – frustration, caution and amused resignation.

The task of actually putting the law into practice falls on Roy Kemp, the licensing bureau chief of the Montana Department of Public Health and Human Services. It's Kemp's job to create a registry for the DPHHS. Under the law, a patient must have a written recommendation – not a prescription – from a doctor stating that the patient has a debilitating medical condition and would benefit from marijuana. Those conditions are spelled out individually in law and include cancer, glaucoma, HIV, severe or chronic pain and severe nausea. The patient, or a designated caregiver, would then register with the DPHHS and may grow up to six plants, or have no more than one ounce in possession. The doctor cannot use a prescription pad, but must write a recommendation for marijuana. "Without that, everything's dead in the water," says Kemp.

Though he says emphatically that he is not frustrated with setting up the registry, he clearly sounds it. "Am I frustrated? No, I'm not frustrated," he says, quickly adding, "Vermont had four months to implement its [medical marijuana] law." Montana's law went into effect immediately upon passage. "It's been difficult to put aside other things and get this registry ready. But we'll be able to look at it this week."

The registry is confidential, though law enforcement can call the department and ask whether John Doe is registered. The department may answer yes or no, but may not offer any more information.

That may put a small extra burden on Montana's city police officers and county sheriff's deputies investigating whether people suspected of marijuana violations are registered with the state and thereby covered by I-148. But for the U.S. attorney's office, it's business as usual.

Bill Mercer is the attorney responsible for prosecuting violations of federal law in Montana. As far as the U.S. Department of Justice is concerned, marijuana, no matter how it's used, is still an illegal Schedule I drug as designated by Congress in 1970, and users are still subject to prosecution, Initiative 148 notwithstanding. Mercer, like U.S. attorneys in the 10 other states where voters have approved medical marijuana laws, is awaiting a final decision about the legality of those laws from the U.S. Supreme Court, which heard oral arguments in the case Nov. 29.

"In the interim," he wrote in a carefully worded email response, "enforcement of drug laws criminalizing the distribution of illegal drugs, including marijuana, is one of the top three priorities of the U.S. Department of Justice."

Like Mercer and his colleagues at the Department of Justice, doctors who work at Montana's Veterans Affairs hospital and outpatient clinics also are federal employees. Unlike the U.S. attorney, however, VA doctors have a quite different mandate. Teresa Bell, spokeswoman for the Fort Harrison VA Hospital in Helena, is cautious when she describes how the state law affects federally employed doctors and their service-connected veteran patients. "[Doctors] will look at the patient and their condition and talk about the best course of treatment," she says. If marijuana is recommended, "they'll have to cross that bridge when they come to it."

Jim Shockley would like to see more medical research of marijuana. Shockley is the state senator from Victor and an attorney who helped write the argument against I-148 for the voter information pamphlet. Noting the strong support for the initiative, even in conservative Ravalli County, where it passed 11,856 to 7,621, Shockley says, laughing, "I guess I got my ass kicked." When Shockley speaks about his opposition to I-148, it sounds as if his heart isn't in it. That may be, he says, because the initiative's natural opponents, Montana's cops and county attorneys, never really voiced strong opposition once they sensed the strong support from polling.

"I do believe there are some people who can benefit from it," he says, "but I think it's a small number."

And for that number, getting a doctor's recommendation is only part of the process. The other part, of course, is actually getting ahold of marijuana. Though the law says you can grow your own, some patients may not have the time or expertise to grow their own.

"If you need it for something like relieving nausea from chemotherapy," says I-148 spokesman Paul Befumo, "your treatments are going to be over before you can grow it and cultivate it. Cultivation is clearly not going to work immediately. But there's a fairly healthy black market for marijuana everywhere in the country."

Though marijuana distribution is a felony in any amount in Montana, sellers or distributors may not be at risk. Even felony distribution is covered under the Medical Marijuana Act. "[Distributors] would have an affirmative defense," says Befumo, adding, "It doesn't mean it will be a successful defense." But with patient/buyer medical recommendations, swaying a jury shouldn't be too difficult. "Jurors aren't stupid," he says.

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