Eliminate the differences between I-502 and medical marijuana law

Monday, January 12, 2015

This op-ed first appeared in the Opinion section of the Seattle Times.

As medical marijuana heads back to Olympia, legislators are bracing for a rerun of last session’s drama of makeshift dispensary operators and self-appointed patient advocates decrying any effort to rein in abuses of the law.

Lawmakers face many competing priorities, but it’s important they clean up Washington’s medical-marijuana mess. Before licensed marijuana retail stores began opening last summer, legitimate reasons existed to tolerate some of the commercial activity that’s been squeezing itself into gaps in the medical-marijuana law. Now, however, it’s time to stop winking and nodding. Everyone who wants to make money selling marijuana ought to play by the same rules, and we finally have a set of rules under Initiative 502.

I-502 did not legalize “recreational” marijuana. I-502 created a system for regulating commercial marijuana activity, regardless of the intended use of the product. Products for patients with terminal and debilitating medical conditions arguably should be held to higher standards, which could be added to I-502’s baseline. But it’s time for businesses not willing to comply with at least the same requirements as I-502 producers and retailers to close up shop, and the Legislature needs to make that explicit under the medical-marijuana law.

To be fair, the current medical-marijuana mess grew out of real and desperate necessity. Before drafting Initiative 502 and working with legislators on multiple medical marijuana, decriminalization and legalization bills, I represented medical-marijuana patients, providers, casual users, growers and international smugglers in city, state and federal courts across Washington for more than a decade.

In 1996, I defended a man tried in King County Superior Court on felony charges for growing marijuana in his home for his own personal use. He had been involved in a near-fatal motorcycle accident 10 years earlier that had permanently damaged his skeleton, larynx and optic nerve. Marijuana alleviated his debilitating pain and spasms, and made it easier for him to swallow, speak and work as a carpenter. But because growing marijuana was a felony under Washington state law, his home was raided, and he was tried. The jury ultimately deadlocked. Two years later, Washington citizens passed Initiative 692, our state’s medical-marijuana law.

The problem with I-692 was that it didn’t provide either legal or practical access to marijuana. Technically, the initiative gave patients nothing more than a codified version of the medical necessity defense my client had raised. Despite legislative amendments in 2007, 2010 and 2011, today’s Medical Use of Cannabis Act still only provides an affirmative defense patients can raise at trial — after search, seizure, arrest and prosecution. However, the practical impact of I-692’s passage was much greater. Most sheriffs, police chiefs and prosecutors don’t want to waste time bringing cases a jury is likely to throw out, and I-692’s 59 percent majority vote sent a strong message that voters don’t want sick and dying people treated like criminals over marijuana.

The trick has been sorting out who is truly sick and dying, and that challenge has spawned a vibrant “gray market” medical marijuana industry. According to RAND researchers, approximately 750,000 Washington residents — 1 out of every 9 men, women and children — likely have used marijuana in the past month.

Before I-502’s passage, all of them were considered criminals under the law. However, medical-marijuana authorizations, like prescriptions for “medicinal whiskey” during Prohibition, offered marijuana users a new legal defense. Moreover, authorizations allow people to grow as many as 15 marijuana plants and possess much more than I-502’s limit of a single ounce — up to 24 ounces, or 1.5 pounds. It’s easy to see the financial opportunities for doctors with loose authorization practices, and questionable “patients” willing to sell their surplus to unregulated dispensaries holding themselves out as “collective gardens.”

One option some legislators have considered for discouraging fraud and enhancing enforcement is the creation of a state registry of qualifying patients and their authorizing physicians — a system similar to the prescription monitoring program administered by our state Department of Health. Washington remains the only medical-marijuana state that does not have some form of government registry of patients.

Setting aside the questions of cost and actual enforcement efficacy, many Washington patients understandably object to the idea of a registry. In addition to piercing physician-patient confidentiality and compromising medical privacy, most registries create lists of individuals engaged in federal crimes, easily obtainable via subpoena. In Michigan, a judge ordered the state to turn over registry records in a federal criminal investigation. In Hawaii, a reporter obtained registry information just by asking for it.

The simpler path forward is to eliminate differences between I-502 and the medical-marijuana law that undermine the former and incentivize abuses of the latter. Allow all adults to grow and possess the same small amounts of marijuana, regardless of whether they use it for medical purposes or pleasure. Colorado, Oregon, Alaska and Washington, D.C., all now allow adults to grow their own marijuana. Amend the 1,000-foot location restrictions for licensed stores, or license home delivery for everyone. Collapse the three-tier tax structure into one tax that would be levied at the point of sale, and keep licensing producers and retailers to increase supply and drive down prices.

Once these changes are made, all adults would have the same option to grow their own marijuana or purchase it from a store, and they won’t need a medical authorization for either. Then, the medical-marijuana law could be retooled for patients not accommodated by I-502 — those under the age of 21. A stronger argument can be made for state agency oversight of the medical use of marijuana by young adults, teens and children.

Providing patients access to quality marijuana products and advice does not require, and should not be used to justify, rewarding gray market entrepreneurs with unfair competitive advantages over peers who are complying with state licensing and regulatory requirements. The point of passing I-502 was to replace prohibitionist policies and practices with an aboveboard regulatory approach — and that approach is broad and flexible enough to encompass all businesses.