Welcome to Hempfest '09
I get one question at least once a day lately. Here’s
the answer:
No, it’s still not legal to open a
dispensary for cannabis in Washington.
But, we have a new president who
smoked it. Our new drug czar
is the same Seattle Police Chief whose city hosts a fest for it, where a
quarter million people gather in a downtown urban park to celebrate and
consume it with virtually no arrests, and on Monday, the world is still
spinning and the press hasn’t noticed.
It’s the place where a police officer once told me
“Jeff, I smell pot now and then at
Hempfest, but my eyes are just so old I can’t seem to spot it.”
(I’ll bet he was high on Almond Roca.)
We can relax a little.
These are hopeful signs, no?
No
Our new President’s line, now spoken by our formerly tolerant and
open minded police chief is that not only should cannabis not be
legalized, but it has no
legitimate medical value.
Did he really say that? If
this administration can make demonstrably deceptive statements like that
with a straight face, (I say “deceptive because it’s too late to claim
ignorance) it’s clear we have a long way to go. Phew!! For a while there
I was afraid they’d put me out of business.
But no, liberty is always unfinished business.
Not just for cannabis, but for all of us.
The information contained in this website is, evidently and
sadly, still relevant to survival in the year 2009.
When I began writing some of the pieces on this site I hoped it
would be of only historical and academic interest by now.
So, having punctured your balloon, what are the pressing issues
of the day?
For better or for worse, the Number One seems to be Medical Marijuana.
I don’t believe it’s proper English these days to write it
without capitalizing it.
Such a compelling, even seductive issue, yet so full of lurking dangers.
In this, I know, many of my dearest friends and associates differ
from my view, and I will do my best to present both sides:
On the one hand Medical Marijuana is compelling.
The science is now clear beyond dispute.
In fact science is now at the point now where it can be argued
that even the healthy have a right to cannabis use for
disease prevention.
Anyone who’s had any contact with the patients, many of whom are also
activists, knows in almost quantitative terms the amount of suffering
that is relieved by cannabis.
It’s not hyperbole to say that by any “measure” of the amount of
good done by a substance we ingest–whether or not the amount of “harm”
is calculated in the balance -- cannabis tops the pharmacopeia as the
best do-gooder. (The other end of
the spectrum from the evildoers).
The patients and patient/activists that I meet are a group that
criminal lawyers would otherwise rarely encounter.
They are model citizens, many of
them suffering enormously and crusading bravely.
This is a cause you just have to support.
The problem is, until the plant is free, none of us will be free.
Joanna Mckee, the eponym for the brave and dedicated patient/
activist, told me that.
There are a number of reasons why she is right.
Were it legal, we could all grow it for practically nothing. Corn
goes for 5 cents an ear if you don’t have to hide it.
Pot is no more difficult to grow in Seattle than corn, and you
don’t even have to protect it from the raccoons.
But the prohibition inflates the price.
So long as even patients have to pay in excess of $200 per ounce
there will be a “black market” attracting not just those looking for an
honest job in a legitimate “green” field, but also the carpetbaggers. Do
you know that word? It comes
from the Civil War when Yankees flocked to the South carrying the
current version of a suitcase, a carpetbag, and hoping to make a profit
from the desperation of the citizens of the South.
Capitalism is fine, but it’s hard to control it in an industry
that serves the vulnerable and is beyond the reach of any oversight by
its customers or the public.
The road from legitimate capitalism to rampant greed and exploitation is
very much shorter than we may think.
We are fortunate that there are many in Seattle who take the
responsibility seriously and do not exploit the patients.
Generically, though, it is an inevitable problem so long as the
plant must remain in the closet for all but those privileged enough to
have a doctor who will make the recommendation.
Carpetbaggers are one problem.
Another is law enforcement. Not the dedicated ones who see their
job as protecting the public from real danger.
Those folks are on our side. You’ll see a few of them at
Hempfest, making sure some unwelcome drunk doesn’t mar our event.
It’s ok to make them feel welcome.
Just don’t stick your pot in their faces or otherwise dis them.
You don’t want to live in a society without them.
No, the ones I mean are the ones who can’t let go of the
opportunity to bully someone over what is obviously harmless conduct.
How is it we’ve tolerated these bullies among our otherwise high
quality police? It’s a
puzzle for sure, and only the police understand the blue line.
You’d think the good ones would enforce some manners on the bad
ones. . . . But I digress,
. . .
Law enforcement has at least enough bullies among them that the
medical marijuana patient, no matter how ill or vulnerable, can’t really
feel safe from arrest and incarceration. For some separation from their
life support systems or prescriptions means enormous suffering or death.
Some cops don’t care, and they are the ones I hear about.
Though there are exceptions such as King County’s boldly
exemplary Dan Satterberg, many prosecutors don’t seem disturbed by the
arrest of legitimate patients.
Small wonder.
This is what they are taught. Pamela Loginsky, of the Washington
Association of Prosecuting Attorneys wrote the instruction manual,
“Confessions, Search, Seizure, and Arrest A guide for Police Officers
and Prosecutors.” Here’s the
link:
https://fortress.wa.gov/cjtc/www/led/Articles/May_2008_SS.pdf
Her advice to police:
when presented with a medical marijuana situation, arrest and let
the lawyers work it out.
Here are her words:
“A suspects’s claim of a
defense, even if supported by evidence, does not negate probable cause
and does not prevent the execution of a search warrant by officers.
See State v. Frye, 142
Wn. App. 456 (2008). The production of a document purporting to be a
medical marijuana use authorization did not negate probable cause;
officers properly continued their search of the defendant’s home as
authorized in the warrant.”
In other words, search the house, arrest the
residents, no matter how ill, and let the lawyers sort it out.
The citation to a case means a court of appeals has approved this
conduct. This legal theory,
though it is not universally accepted in Washington, creates quite a
risk for a seriously ill patient to use Medical Marijuana, should they
happen to be in one of the less friendly counties of Washington.
The courts have been stingy, ruling, among other things that a
doctor who stated that marijuana “may” be of medical use to his patient
had not said enough to support the defense. The doctor needed to say it
would “probably” or “likely” be useful.
“May” is too weak.
A more recent case State v. Otis, decided August 11,
2009 shows a ray of hope.
Arising out of a Clallam County case where the court refused to allow
the patient to put on his medical necessity defense, this case rules
that a patient’s authorization from a doctor need not recite the exact
words of the law to be valid.
This has been a stumbling block for other patients who have tried
unsuccessfully to raise what they thought was a legitimate defense, only
to be told by the courts that the language of their doctor’s attempt to
authorize them was inadequate.
Funny I never heard of any court examining the words of a
prescription for narcotics.
The court also ruled that the “valid documentation”
that a patient must have does not need to list the patient’s condition.
Such a requirement would conflict with “one or more purposes of the
patient-physician confidentiality statute.”
In reaching this decision, the court relied on the
rather expansive “purposes of the act” as set out in the original
legislation:
The people of Washington state
find that some patients with terminal
or
debilitating illnesses, under their physician's care, may benefit
from the medical use
of marijuana. . . .
The people find that humanitarian compassion necessitates that
the decision
to authorize the medical use of marijuana by patients with
terminal or debilitating
illnesses is a personal, individual decision, based upon their
physician's
professional medical judgment and discretion.
Therefore, the people of the state of Washington intend that:
Qualifying patients with terminal or debilitating illnesses who,
in the
judgment of their physicians, would benefit from the medical use
of marijuana,
shall not be found guilty of a crime under state law for their
possession and limited
use of marijuana;
Persons who act as primary caregivers to such patients shall also
not be
found guilty of a crime under state law for assisting with the
medical use of
marijuana.
The defendant’s conviction was
reversed and the case was sent back for a trial that this defendant had
been denied. That’s a pretty
good start, so as of today, I’m going to ratchet my skepticism down by
one notch.
Another danger I fear is that medical marijuana leaves
the movement vulnerable to criticism from the Patrons of Prohibition and
to dissipation of its energies and its momentum. The critics can say
“look at the excesses in medical marijuana – we can’t let it get any
further.” Some of the unrestrained capitalism in some of the medical
marijuana states is starting to become a target for our opponents to
ridicule and exploit. But
there’s another weakness.
At the same time we will be told by the patrons of
prohibition “Look, we’ve given you your medical marijuana, and we’re
even enduring the excesses of it, but that’s as far as it goes. Now go
home and stop causing trouble—legalization is not in my vocabulary—not
on my radar.”
So those are some of my reasons why I fear that
Medical Marijuana may an attractive box canyon if it comes to dominate
the reform movement.
On the other hand is my office mate, Douglas Hiatt, a fiercely
dedicated medical marijuana activist/lawyer.
His theory is simple:
At some point in this period of savage and unfathomable
injustice, the public will become both appalled by the brutality
of the prohibition, and persuaded by their own experiences with legal
medical marijuana that it should be legalized.
He’s probably right.
Maybe I’m just tired of seeing all the martyrs terrorized by the
bad side of medical marijuana and I don’t have the patience to watch any
more suffering patients abused by the criminal justice system.
History will tell.
And, now that you’ve waded through this year’s cogitations, here
are some answers to the most frequently asked questions this week.
For that I refer you to the next article, written by Douglas
Hiatt, than whom no one knows more about Medical Marijuana in the state
of Washington.