Medical Marijuana - New Federal Policy Guidelines

The U.S. Justice Department today issued this memorandum to selected U.S. Attorneys in states authorizing the use of medical marijuana. Hawaii is one of those states. The Department makes clear that it considers marijuana a dangerous drug, and that the illegal sale and distribution of marijuana is a serious crime. It also recognizes that it has limited investigative and prosecutorial resources. Therefore, the memo states:

"As a general matter, pursuit of these priorities should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana. For example, prosecution of individuals with cancer or other serious illnesses who use marijuana as part of a recommended treatment regimen consistent with applicable state law, or those caregivers in clear and unambiguous compliance with existing state law who provide such individuals with marijuana, is unlikely to be an efficient use of limited federal resources. On the other hand, prosecution of commercial enterprises that unlawfully market and sell marijuana for profit continues to be an enforcement priority of the Department. To be sure, claims of compliance with state or local law may mask operations inconsistent with the terms, conditions, or purposes of those laws, and federal law enforcement should not be deterred by such assertions when otherwise pursuing the Department’s core enforcement priorities."

The DEA's position on Marijuana can be read in full here. The position is summarized in this opening statement:

"The campaign to legitimize what is called "medical" marijuana is based on two propositions: that science views marijuana as medicine, and that DEA targets sick and dying people using the drug. Neither proposition is true. Smoked marijuana has not withstood the rigors of science – it is not medicine and it is not safe. DEA targets criminals engaged in cultivation and trafficking, not the sick and dying. No state has legalized the trafficking of marijuana, including the twelve states that have decriminalized certain marijuana use."

While not exhaustive, the Justice Department lists the following examples of situations which may indicate illegal drug trafficking"

*unlawful possession or unlawful use of firearms;
*violence;
*sales to minors;
*financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;
*amounts of marijuana inconsistent with purported compliance with state or local law;
*illegal possession or sale of other controlled substances; or
*ties to other criminal enterprises.

Here is the AP story on the new federal guidelines.

Senator Espero announces members of the private task force to review medical cannabis issues.

Last month, Governor Lingle announced that she would not go forward with a medical cannabis task force to review the issue. (The Legislature passed a bill to create the task force; the Governor vetoed the bill, the Legislature overrode the bill.) A private task force was formed in protest.

Cannabis reform

The Public Safety Committee today held a meeting with "medical marijuana" advocates to discuss cannabis reform strategies.

The following were listed as high priorities for change in the medical marijuana program:

• The medical marijuana program should be under the jurisdiction of the Department of Health not the Department of Public Safety, while making patient list available to the PSD.
• Medical marijuana patients should be able to grow five more plants then currently allowed. (7 plants to 12 plants)
• The program must enhance patient confidentiality.
• Patients need better and safer access to medical marijuana. Distribution centers should be developed.
  
• Allow caregivers to grow a limited amount of marijuana for patients because some patients are too enfeebled to prepare their own crop.
  

A handful of bills relating to "medical marijuana" have been introduced this session and address the concerns of the advocates and lawmakers who attended the briefing:

HB 190 RELATING TO MARIJUANA POSSESSION
Reclassifies possession of less than one ounce of marijuana from a petty misdemeanor to a violation.

HB 226 RELATING TO MEDICAL MARIJUANA
Allows a qualifying patient to possess 12 marijuana plants and 7 ounces of marijuana at one time. Prohibits identification of the site where marijuana is grown on a registry card. Prohibits a certifying physician from naming a patient's particular debilitating condition. Allows a caregiver to grow marijuana for no more than 5 patients.

HB 227 RELATING TO MARIJUANA
Decriminalizes possession of less than 1 ounce of marijuana and makes the possession a civil violation subject to a fine of not more than $100.

HB 308 RELATING TO CONTROLLED SUBSTANCES
Directs the attorney general to coordinate a review of the impact of diverting marijuana and low-level felony drug offenders out of the criminal justice system into treatment.

HB 967 RELATING TO MEDICAL CANNABIS
Amends the term "medical marijuana" to "medical cannabis"; transfers the administration of the program from the department of public safety to the department of health; authorizes a registration fee of $50; establishes the medical cannabis advisory board; provides for the department of health to license producers to dispense medical cannabis.

HB 1192 RELATING TO MARIJUANA
Makes the possession of less than one ounce of marijuana a civil offense and imposes fines. Requires persons under eighteen years of age against whom a civil judgment is entered to complete a drug awareness program.

HB1193 RELATING TO MARIJUANA
Provides that the enforcement of laws related to the personal use of marijuana by adults shall be the lowest law enforcement priority for state and local law enforcement agencies.

HB1194 RELATING TO MEDICAL MARIJUANA
Requires department of health to grow, manage, operate, and dispense medical marijuana collectives to qualifying patients. Requires department of public safety to provide security for marijuana growing facilities and for transportation of marijuana. Limits each qualifying patient to 1 caregiver. Allows no more than 4 ounces of marijuana to each patient for every 30 calendar days.

Marijuana and George Soros?

Thanks to the Ballot Box, Governing.com's political blog, for this interesting post on marijuana initiatives on the ballot this year. Their analysis shows an interesting, but unexplained connection between 2 of the 3 initiatives and well-known philantropist and billionaire George Soros.

In California, Proposition 5 proposes to replace criminal penalties with fines for small amounts of marijuana, and expands drug treatment programs. Soros is known as a major supporter, although most municipal leaders oppose it, as does the Chamber of Commerce.

In Massachusetts, Question 2 removes criminal penalties for small amounts of marijuana. Possession of less than an ounce would result in a $100 fine. Again, Soros is financially backing the proposal, but Governor Deval Patrick and law enforcement officials are in opposition.

In Michigan, Proposal 08-1 allows people with debilitating medial conditions to use marijuana legally. Governor Jennifer Granholm is opposed.

Medical marijuana bill changes not yet ready

 A decision on a medical marijuana bill that we blogged about in a previous post was supposed to be made today, but the health committee chair deferred the measure until next Wednesday. Work is still in progress to create an effective vehicle that would help patients get better access to the medicine. Neither HB2675 nor HB2434 will be passed as is; however, the Committee on Health will make a decision next week about the future of a revised measure whose "primary concern is access for people who are sick."

Results of medical marijuana bill hearing

The Committee on Health discuss important issues revealed by testifiers for and against the medical marijuana bills. From L-R: Rep. Josh Green, chair; Rep. Jon Mizuno, vice chair, Rep. Gene Ward, Rep. Joe Bertram III.

The House Committee on Health has deferred two medical marijuana bills until next week Wednesday, when members will discuss and vote on them. No testimonies will be heard on that date.

Rep. Josh Green D-6 (N. Kona), committee chair, recommended that the introducers and authors, including Rep. Joe Bertram D-11 (Maui), revise the bills to focus on the issue that Hawaii patients are unable to access legal medical marijuana while visiting another county, rather than focusing on complicated measures that may interfere with federal law.

One of the measures, HB 2675, would make medical marijuana certificates from other states valid in Hawaii. The other, HB 2678, would authorize the establishment of a secure medical marijuana growing facility in Maui.

The main arguments from supporters of the bills were that patients want to abide by the laws and not buy illegal marijuana, but found it difficult without sufficient access. They noted that the medical marijuana card holders can't be prosecuted for having illegal marijuana in Hawaii.

The Star-Bulletin interviewed Keith Kamita, chief of the state Narcotics Enforcement Division, who opposes the bills, in an article in today's paper:

Keith Kamita, chief of the state Narcotics Enforcement Division, which administers the medical marijuana law, said a growing facility would violate federal law.

Also, because the bill mandates the DOH to control the facility, he said in an interview, "Now it's a state agency sanctioning marijuana. Say there's a bad batch and people die or get sick, the state would be liable for distributing a contaminated product."

Marijuana is still a Schedule 1 controlled substance, with no medical use allowed under federal law, and growers would have to obtain a research permit from the federal and state governments, he said.

Although medical marijuana is legal in Hawaii, federal law makes it illegal to transport any kind of marijuana from one island to another.



To stress his point against HB 2675 that medical marijuana laws vary by state, Keith Kamita, chief of Narcotic Enforcement Division showed committee members what the difference between state legal limits of medical marijuana possession looks like with real bags of pot. Left: 24 oz, the legal limit in Oregon; Right: 3 oz, the legal limit in Hawaii.


Mentioned the Star-Bulletin article was an Allan Dougherty, 84, who has a criminal record for trying to bring his medical marijuana to Oahu from the Big Island. Here's an excerpt:

Dougherty, 84, said he comes to Honolulu at times for treatment at Tripler Army Medical Center and brought some marijuana with him on a recent trip because of pain in an injured foot.

It was seized at the airport, and six months later Hawaii County prosecutors charged him with transporting a detrimental drug, he said. He received a six-month suspended sentence and is on probation, he said.

He said the law restricts use of marijuana to a person's own house. "You can't take it or get it any place. I certainly hope that will be corrected so we can get our medical marijuana without all this hassle."

He said county prosecutors and the police "ignore marijuana as a medicine. They consider it to be a detrimental drug. That is a bad misnomer."

The discussion on medical marijuana lasted over an hour and a lot of good points were made. It seems highly unlikely that the two bills above will be passed in its current form; however, on Wednesday we will see if new language changes will push the issue forward for more discussion.