Photo by Debra DiPaolo
“I have no idea what’s going on,” says a frustrated state Senator John Vasconcellos (D–Santa Clara), summing up the purgatory in which California’s medical-marijuana policy is mired. Like characters in a Samuel Beckett play, patients and advocates anxiously await the arrival of a humane resolution, only to learn that the elusive Godot may yet again be waylaid by reefer madness, this time in the form of Governor Gray Davis.
The continuing legal limbo was announced almost as an aside in the July 14 edition of the San Francisco Chronicle, when Davis’ press secretary, Michael Bustamante, was queried about Senate Bill 848, which would codify regulations to legally protect the sick and dying who use cannabis. Bustamante responded that “given the governor’s long-standing position, I would be hard-pressed to see him sign it.” Bustamante cited federal law, which schedules pot as a dangerous and medically useless drug.
Vasconcellos, who authored 848, was irate. Not only had he learned of the governor’s position by reading it in a newspaper, but he says that Mike Gotch, Davis’ legislative secretary, went behind his back to Assemblyman Martin Gallegos (D–Baldwin Park), chairman of the Assembly Health Committee, and tried, to no avail, to persuade Gallegos to postpone a vote on the bill (calls to Gotch and Gallegos were not returned). “If I’m going to tamper with your stuff, I’ll always tell you first,” said Vasconcellos in a phone interview. What about the feds? “I have some word of what [Clinton drug czar Barry] McCaffrey’s position is. The czar,” Vasconcellos muttered, then added, “This is not Russia. Press secretaries and czars have no place in my world.”
Vasconcellos’ anger is rooted in the tortuous history of the state’s med-mar policy. After Proposition 215 passed in 1996, former Governor Pete Wilson vetoed corollary legislation, and then–Attorney General Dan Lungren refused to enforce the new law, leaving the choice of whether to recognize it to local cops and district attorneys. While federal agencies moved to close several cannabis clubs serving medical users, local authorities tended to honor the new state law, though many patients, particularly in rural counties, continued to be busted and/or had their medicine confiscated.
When Davis and Bill Lockyer replaced Wilson and Lungren this year, medical-marijuana users were hopeful that the state would finally challenge the federal authorities and honor Prop. 215’s mandate to “implement a plan to provide for the safe and affordable distribution to all those in need of medical marijuana.” Lockyer had supported 215 (citing the cancer deaths of his mother and sister as the primary motivation for his compassion) and got labeled soft-on-dope for it during last fall’s campaign. Davis, who as lieutenant governor had opposed 215 and who had participated in an anti-215 press conference with drug czar McCaffrey, was more of a question mark. Vasconcellos moved to test the new political waters with Senate Bill 848, which puts forth regulations to legally protect the sick and dying who use cannabis. “All we knew was, we did not have to deal with Pete Wilson,” recalls Rand Martin, Vasconcellos’ chief of staff.
Almost immediately after his inauguration, Lockyer — with Vasconcellos — convened the Medical Marijuana Task Force, a pluralistic committee of three dozen, representing historically unbridgeable biases (patients, cops, D.A.s, doctors, lawyers) with the goal of protecting sick people from erratic and ambiguous enforcement of 215. The task force released a set of recommendations on July 12, the heart of which is a patient-registration card. The recommendations were promptly slotted into SB 848, which had already passed the Democratic state Senate (along with its companion, 847, which calls for up to $3 million for med-mar research in the UC system). But Bustamante’s declaration threw into doubt hopes for a cogent new state approach.
In an interview with the Weekly, Bustamante stood by his statement to the Chronicle: “The federal laws still make the possession and use of marijuana illegal, and the state shouldn’t be in the business of sanctioning it.” Bustamante said that Davis opposed 215 in part because “at the time, which was two and a half years ago now, there really wasn’t any scientific evidence that would demonstrate the medical use of marijuana.” But Scott Imler of the Los Angeles Cannabis Resource Center isn’t buying this. “Just because Davis still thinks the world is flat doesn’t mean there isn’t scientific evidence to the contrary.”
Imler, a co-author of 215 and one of two patients on the task force, maintains that the federal-vs.-state argument is another nonissue: “It’s not the state’s job to enforce federal law. California’s always in court with the feds over something. So why is this any different? Because it’s marijuana. The governor is playing games with people’s lives.”
Under SB 848, county health departments would process applications for patients and their caregivers and require written documentation by physicians of the condition. Patients and caregivers who qualify would receive a photo identification card. Qualified patients/caregivers can collectively cultivate, allowing for tightly restricted versions of cannabis cooperatives. The state Department of Health Services (DHS) would issue regulations to ensure quality, noncontamination and nondiversion of medicine, and county health departments would have the right to inspect cooperatives in order to ensure compliance.
It was a solution designed to cover all bases. “In most situations, patients want the registry because they want to avoid arrest,” says Bill Zimmerman, a task force member and executive director of Americans for Medical Rights, the advocacy group that coordinated the 215 campaign and five other state med-mar initiatives (Alaska and Oregon currently have statewide registries, and one is under consideration in Washington state). “As it happens, the cops also want the registry because they want to be able to tell in the field who’s a legitimate patient.”
But already, the coalition backing 848 is beginning to splinter. Some law-enforcement authorities have serious problems with the registration system, which is voluntary and allows smoking anywhere cigarettes are permitted (except within 1,000 feet of a school or while driving a car). “Unless it becomes some kind of compulsory reporting by doctors so that we know who is entitled to medicinal marijuana and that it be [smoked] discreetly — not in open places — it’s not gonna have the governor’s endorsement,” says a highly placed source in Sacramento who spoke on the condition of anonymity.
To assuage law enforcement and the governor, five amendments have been drafted, including a ban on smoking in public and a mandatory requirement that doctors notify the health department “that a qualified patient has a serious medical condition for which the use of medical marijuana is appropriate.”
That mandatory provision is now drawing fire from med-mar advocates. “I think that amendment is a misuse of the health department, because there’s no public-health purpose to that reporting — it’s for legal purposes so that police can trace patients to see if they are bona fide users,” says Dr. Jane Marmor, the California Medical Association’s med-mar point person and a member of Lockyer’s committee. “I suspect that health officers and the CMA will not support this bill with that in it.”
Nor is there any guarantee that Davis would respond favorably. “Let’s see what the amendments look like, but the governor is not inclined to support something like this,” says Bustamante. Adds Hilary McLean, Davis’ deputy press secretary, “Until it’s in front of him we can never say it’s final, but I think it’s unlikely that he would sign it.”
Lost in the political wrangling and ideological perspectives is the desperate medical raison d’être that informs this issue. Tim Weltz is a 38-year-old terminal-lymphoma patient with a legitimate doctor’s recommendation who’s been raided and had his medicine confiscated twice in one year. The last visit by the San Bernardino County Sheriff’s Department was on June 2. Detective Michael Wirz explained that his officers can’t determine whether a patient is legitimate or not, nor can they “allow release of a person that violates a law based on him giving us a note saying it’s okay.” Wirz admitted that when his deputies entered Weltz’s residence, the dying man was hooked up to an intravenous morphine drip, that a home health-care worker was present and that Weltz presented his doctor’s letter as prescribed under 215.
Weltz is currently bedridden and “has very few days left,” according to his wife, Brenda. “The patients are not the ones who get thought of,” she says. “There’s nothing more traumatic than watching somebody die and knowing there’s things out there which can help them eat and feel a little better. Unfortunately the people in politics don’t seem to be human.” Her husband had a question for the governor: “I’d like to look Governor Davis right in the eye and ask him, ‘If it was your family member or you, would you still hold the same position?’”