Hemp for Health

by Chris Conrad

  Protecting an operation like a cannabis buyers club requires presenting a general necessity defense. A person is not guilty of a crime who, through necessity, engages in an act that would otherwise be criminal. Necessity is an affirmative defense and is not available in all states. The defendant has the burden of proving by a preponderance of the evidence all of the facts necessary to establish this defense, namely: 1) The act charged was done to prevent a significant and imminent evil, namely, a threat of bodily harm to oneself or another person, or something comparable; 2) There was no reasonable legal alternative to the commission of the act; 3) The harm caused was not disproportionate to the harm avoided; 4) The defendant entertained a good-faith belief that the act was necessary to prevent the greater harm; 5) Such belief was objectively reasonable under all the circumstances; and 6) The defendant did not substantially contribute to the creation of the emergency. These arguments should be advanced to defend medical marijuana providers today.

  The concept of proportionality—the penalty should fit the crime—is a bulwark of the justice system. Judges have a lot of discretion in how they make rulings to better serve the interest of justice. For example, Judge Charles Campbell sentenced a Moorpark, California, city official to only one day in jail plus three years probation for political corruption, saying that the experience of being prosecuted constituted sufficient punishment. “Those involved with it every day forget what it can be like for someone to get pulled into the criminal justice system,” Campbell said. “They forget what it is like to get arrested, booked into jail . . . to have your life scrutinized in the news. This is probably a nightmare he can’t believe he’s in.”21 This philosophy should apply to cannabis cases, particularly those suffering the nightmare of chronic illness. In addition, judges and legal scholars, including Chicago’s chief federal appeals judge Richard Posner, have come out for legalizing cannabis as a way of reducing crime.22 But the war on sick and dying people grinds on, day in and day out.

  A seldom used but potentially powerful weapon in defense of cannabis patients is the right to sue officials and government agencies, both individually and collectively, for civil rights violations. Under U.S. Code Service 42 § 1983, public officials are not immune from such suits. A patient must establish medical necessity and convince a jury in a civil case that the criminal prosecution violated the fundamental human right to medicine, as established under peremptory treaty agreements. It also applies if the prosecution denied them their freedom of speech, religion, peaceful assembly, or any other Constitutional right.

  Under the Religious Freedom Restoration Act of 1993, sacramental use of cannabis is admissible as a First Amendment defense, as long as no commercial activity is associated with the religious use. Medical marijuana is asserted by at least one Christian church to be faith healing, and to deny church members of their faith is a violation of civil rights. Rev. Dennis Shields of the Religion of Jesus Church is using his religious freedom defense in a Hawaii case, based on Genesis 1:29, Ezekiel 34:29, and Revelations 22:1, 2. As an article of faith, medical use does not require scientific proof, being akin to the “laying on of hands” of other churches.

  A jury has a right to acquit any defendant, regardless of the laws or the facts of a case, if it believes that doing so furthers the interests of justice. One juror is all it takes to reject the conviction in a cannabis case.

  PATIENT BUYERS CLUBS

  Many patients grow their own plants, but the garden itself increases their risk, and thereby their anxiety, in using the medicine they find most effective. To minimize their personal risk, patients often group together to form a close-knit community of people they know and trust. They might form a local medical marijuana cooperative or get their herb from a cannabis buyers club that is supplied by commercial growers or importers. Patients and caregivers meet in these self-defined sanctuaries to exchange the herb and share information on their own usage and what they find works best for them. In San Francisco and elsewhere, cases have been monitored by health-care professionals, while clinical research remains blocked at the federal level. As a result, much of the data we have seen in recent years is anecdotal, meaning it comes from the personal experience of an individual rather than a clinical, double-blind study.

  A patient visits a Dutch cannabis garden

  Across the country, local patient-operated “Buyers Clubs” dot the nation and are subject to periodic police raids. Offshore from Seattle, Washington, lies rustic Bainbridge Island. One would hardly think that a paralyzed victim of a traffic accident and her husband, living in a small trailer in the woods, would be of any concern to the government. Unless, of course, she uses cannabis to control her pain and improve her overall physical and mental condition. Not only was Joanna McKee doing this, she and her husband, Stich Miller, defiantly provided herb to other patients through the Green Cross Collective, an underground cooperative network of patients and growers. A multijurisdictional drug taskforce, acting on a tip, raided their home in May, 1995. Joanna and Stich were arrested and prosecuted for cultivation and distribution. Several other patients, including people with AIDS, were arrested in the raid. Media reports of sick and crippled people being hauled away in handcuffs for secretly harboring a few square meters of plants embarrassed state officials. Nonetheless, they stubbornly persisted in prosecuting the case and created a national outcry. The charges were eventually dismissed, and Joanna plans to sue the prosecutors who violated their quiet island home. The case helped inspire the state to adopt a bill in 1996 authorizing its university to study the medical utility of cannabis, but the federal government still refuses to release any cannabis for the research.23

  Seedlings at the San Francisco Cannabis Buyers Club. Courtesy SFCBC.

  The nation’s largest buyers club was organized in San Francisco by Dennis Peron in the wake of the AIDS epidemic, after the federal IND program was ended in 1991.24 Activists put together a City voters’ initiative which was passed by voters three-to-one in 1992, expressing support for medical marijuana. Using that vote as a shield, Peron went on to establish his patient-operated club in a five-story building in the heart of the city, with over twelve thousand members and a staff that serviced thousands of clients each week in a casual smoking environment; part clinic, part social organization. To join, patients submit a note from their doctor with a diagnosis of a serious health problem likely to be helped by cannabis. Many people are rejected for insufficient documentation, and bouncers make sure that nobody gets in without a photo ID card. City and county police refused to go after the club, which was prominently featured in many news reports. Activists met there to plan activities. Police operatives under Attorney General Dan Lungren infiltrated the club using forged papers, bought cannabis they claimed was for other patient buyers clubs, and brought minors into the building with them, then secretly videotaped their own illegal conduct. Using this evidence, agents got a warrant and conducted a heavily armed raid of the facility early one Sunday morning, with over one hundred agents, many armed with laser-guided automatic weapons. They humiliated patients and staff, took all the medicine and money, and closed the club to make sure it would serve no more sick and dying people. When the patients turned to the streets, several clergy members of the city opened the doors of their churches to help make up for the shortage. In January 1997 a judge allowed the club to reopen.

  Across the bay in Oakland, another model was being developed. This one involved working directly with city officials to seek an element of protection and support. A group of activists, including myself, met with the Public Safety committee to express our concern that a medical emergency exists for certain patients. Discussions led to a hearing on the need for a buyers club, and the staff was instructed to develop a list of options. Ultimately, the city agreed to recognize and protect at least one facility, which now operates as a nonsmoking dispensary and requires a high level of medical documentation for its clients. Since federal law prohibits the prescription of cannabis, a diagnosis of serious il
lness is the core of their evaluation process. The club not only provides cannabis, it helps patients get started in growing their own plants to promote independence, in compliance with the statewide initiative that passed in 1996. Its organizers participate in an advisory committee with members of the city staff and the police departments to implement the letter and spirit of the law.

  CALIFORNIA FRONT LINES

  California decriminalized cannabis in the 1970s. In 1993 the legislature adopted a joint resolution calling on the federal government to reschedule cannabis as a Schedule II prescription drug. In 1994 and 1995, it passed two bills by large majorities recognizing medical marijuana and exempting doctors and certain patients from state laws forbidding the use of cannabis, both of which were vetoed by the governor. Voters and communities have taken the issue into their own hands by adopting local measures to protect patients and clubs. The bills which Governor Pete Wilson vetoed would have allowed cannabis use only by seriously ill patients suffering from AIDS, cancer, and multiple sclerosis—a very limited category. The California Medical Association and the California Academy of Family Physicians gave their qualified endorsement of the drug for these uses, but the governor disagreed, claiming that the medical use of cannabis would “serve no useful purpose.”25 The only recourse was to turn to the voters.

  Momentum had been building in the state for years to develop comprehensive hemp initiative that would legalize industrial hemp and medical marijuana, and set an age of consent for adult social use. In 1992 the effort had gathered 75,000 signatures and in 1994 250,000, all on a shoestring budget. In 1995, I joined activists around the state at a series of meetings and conferences where a large majority agreed to get behind a single-issue, medical reform initiative to express compassion and support for the seriously ill. The general thrust of the measure is that “patients and their primary caregivers who obtain and use marijuana for medical purposes upon the recommendation of a physician are not subject to criminal prosecution or sanction.” This includes cultivation of an unspecified number of plants. When it came time to collect the required three-quarters of a million signatures, however, there was no money and the entire steering committee resigned en masse. With only a few months to go, we had to create a whole new political structure. Just as things were on the verge of collapse, a group of philanthropists with an interest in the issue formed Californians for Medical Rights. CMR hired a professional campaign manager to oversee the effort. My wife, Mikki, and I were designated to coordinate the community activist aspect of the petition drive, while professional signature gatherers collected the balance. In a monumental effort involving thousands of dedicated people, citizens gathered more than the necessary signatures in just eight weeks in early 1996.

  The initiative officially qualified for the ballot and got a number: Proposition 215. Since the polls showed that the public already supported medical use, our strategy was to not make waves. Unfortunately, the prison guards and narcotics police formed an opposing campaign committee. Drug police raided two offices of the campaign, at the San Francisco and Los Angeles Cannabis Buyers Clubs. The official ballot argument against Proposition 215 was signed by Sheriff Brad Gates, asserting in all capital letters that “Proposition 215 is marijuana legalization—not medicine,” and the ballot argument signed by the President of the California District Attorneys Association also stated “It is marijuana legalization.”26 Dan Lungren’s office stated that “passage would be tantamount to de facto legalization of marijuana.”27 Since making “unfair, deceptive, untrue, or misleading” advertisement is illegal under California law, the assumption must be made that they believe these comments, and would testify to that effect if subpoenaed in a legal case. The federal drug czar made four trips to the state to attack the initiative at taxpayers’ expense. The federal Secretary of Health and Human Services, numerous police groups, etc., all similarly ignored the Hatch Act and spared taxpayers no expense in their campaign against the measure, but failed to list these in-kind donations on the campaign report—an elections code violation. Even the Doonesbury comic strip got into the campaign, at which point Lungren unsuccessfully asked newspapers to censor it for criticizing him. Opponents of the initiative argued that allowing doctors to recommend cannabis was tantamount to legalizing marijuana completely, and would open the floodgates of drugs into our schools.

  Somehow the voters saw through the special interests and continued to support the measure. On November 5, 1996, California voters passed Proposition 215 by a 12-point margin, 56 to 44 percent. 4,870,822 Californians voted for Proposition 215, as compared with 4,675,552 votes for Bill Clinton and 3,444,493 for Bob Dole. In a less noticed but still significant vote, California voters also overwhelmingly rejected Proposition 205, a jail and prison construction bond bill. With these two decisions, voters sent a clear message to government that they favor reform. But the nonsense did not end when the voters spoke. “The law is so badly crafted, so loosely drafted, that it effectively legalizes the sale of marijuana,” Governor Wilson said.28 Lungren declared the situation “legal and law enforcement anarchy.” Proposition 215 proponent Dennis Peron simply replied that, “My opponents said that if people vote for this they vote for the legalization of marijuana, so you can read into it what you want.”29 Even the Los Angeles Times opined that the DEA “should review the logic behind its drug schedules. In the meantime, California’s only bulwark against marijuana abuse will be the good judgment of its citizens and their physicians.”30 Enabling legislation was drafted, but in the first case of a patient covered by the initiative, Sonoma epilepsy patient Al Martinez, the judge ignored the vote and took the prosecutor’s side on every point. The issue may go before the appeals court. Meanwhile, the San Francisco CBC defendants still face trial over the earlier raid.

  Lungren said, “We tell people, ‘If you don’t like a law, go use the process and change it.’ Well, despite my best efforts, they changed the law. And we’re going to have to live with it.”31 Lungren did add his own spin on the initiative, however, claiming that it would permit use of cannabis “as a last resort,” a principle that is not in the law. After a meeting with federal officials, he called on the FDA to step up research, and said that the state’s drug police will concentrate on pursuing doctors, growers, and distributors rather than patients. He expressed his concern that the clubs not sell cannabis to persons under the age of 18, to secure parental consent.32

  RESEARCH OPTIONS

  What makes medical marijuana controversial is the fact that it works, and both patients and doctors know it. Otherwise, the federal government would not feel obligated to waste billions of dollars in an absurd effort to deny its medical utility. Few people would argue that prison is better for patients than cannabis, but the mantra of the medical community is that we need more research. The day after Proposition 215 passed, the California Medical Association announced plans to encourage the federal government to conduct controlled studies on the efficacy and safety of cannabis for medical purposes. “The huge voter support of Proposition 215 is really a mandate to the federal government that marijuana must be studied for any medical benefits,” said CMA President Jack E. McCleary, M.D. “The CMA will work to encourage research facilities, such as the National Institutes of Health, to conduct studies on the medical value of smoked marijuana to patients.” The need for controlled studies is not the only concern of the nation’s largest state medical association. The CMA is worried about the threat of federal prosecution of any and all physicians who recommend cannabis. Under the initiative patients need the oral or written recommendation or approval of a physician to possess or cultivate cannabis. It also contains a provision which protects physicians from prosecution under state law; however, physicians may still be subject to serious liability under federal law. “Proposition 215 has absolutely no effect on federal law that makes it a crime to use, distribute, dispense or possess marijuana,” Dr. McCleary said. “Proposition 215 may not protect physicians who, in good faith, recommend cannabis for
seriously ill patients or compassionate end-of-life care.”

  Sick and dying people, however, can’t wait for political expediency. A medicine grows as a resinous flower on a garden-variety herb, and it is available around the world, and people will continue to use it. Doctors should, therefore, be allowed to oversee it. The AMA’s Code of Medical Ethics states, “In the making of decisions for the treatment of seriously disabled newborns or of other persons who are severely disabled by injury or illness, the primary consideration should be what is best for the individual patient and not the avoidance of a burden to the family or to society. Quality of life, as defined by the patient’s interests and values, is a factor to be considered in determining what is best for the individual.”33

  Without calling for a complete decriminalization of cannabis, a group of scientists on November 15, 1994, called on the federal government to expedite research into the plant’s medicinal use for the seriously ill. In a petition to Health and Human Services, the Federation of American Scientists pointed out that whole cannabis is already in clinical use by patients suffering a variety of illnesses, including AIDS and epilepsy. The statement read, “based on much evidence from patients and doctors alike on the superior effectiveness and safety of whole cannabis . . . we hereby petition the Executive Branch and the Congress to facilitate and expedite the research necessary to determine whether this substance should be licensed for medical use by seriously ill persons.”34 Their request was rejected, like all the others. And yet, when the issue reached the ballots, the same government agencies opposed allowing its use on the grounds that there has not been enough research.