Medical Marijuana Measures Pass November 5th Ballots in California and Arizona, Legal Distribution Systems Debated


December 1996

Proposition 215, California's Compassionate Use Act, and Proposition 200, Arizona's Drug Medicalization, Prevention and Control Act, became laws when voters approved the measures on November 5th (Mark Evans, Associated Press, "Marijuana For Medical Use OK'd,", November 6, 1996).

The new California law, which passed 56% to 44%, allows for the cultivation, possession and use of marijuana by people to relieve the symptoms associated with AIDS, cancer and other illnesses who have "written or oral permission" from a physician. Arizona's new law, which passed 65% to 35%, would allow doctors to prescribe marijuana or any controlled substance to terminally and seriously ill patients. Arizona doctors must document scientific research that justifies prescribing the drug, and must get a second opinion from another doctor. Other provisions of the new Arizona law mandate education and treatment programs, instead of prison, for nonviolent persons convicted of personal possession or use of drugs. (The text of both initiatives are being mailed with this issue of NewsBriefs.)

"It's about time," said 73-year-old Mary Rathbun, a San Francisco resident nicknamed "Brownie Mary," who for many years has given marijuana brownies to AIDS patients. Steve Kubby, suffering from abdominal cancer, said, "I told my wife Monday night that this is the last night I'll have to break the law to get my medicine." Kubby uses marijuana to help relieve the symptoms associated with his cancer. Sam Vagenas, campaign coordinator for Arizonans for Drug Policy Reform, said, "We are not decriminalizing marijuana. We are treating it as a public health issue."


General Barry McCaffrey, director the Office of National Drug Control Policy, said the new laws "could not be a worse message to young people." He said the administration will take steps to discourage such legislation in other states, adding, "We don't think either state understood what was going on." McCaffrey met with U.S. Attorney General Janet Reno and California Attorney General Dan Lungren after the new laws passed to discuss how the laws would affect federal anti-drug enforcement. He said the Justice Department will take action "when the evidence merits," but did not say if federal officials will try to block the initiatives or prosecute doctors who prescribe or recommend marijuana. Eric E. Sterling, President of the Criminal Justice Policy Foundation, criticized McCaffrey, saying, "There is an arrogance and contempt for the voters who have supported Proposition 215. The power to write the laws flows from the people, not from the top" (Faye Fiore, "U.S. Drug Czar Calls State Marijuana Measure 'Tragedy,'" Los Angeles Times, November 16, 1996, p. A21; Jennifer Brown, Associated Press, "Drug Chief Attacks Pot Laws," 5Fdate, November 15, 1996).

The new laws leave unanswered questions about how patients will legally obtain marijuana. "We still have a federal law that says marijuana has no medical value, and that it is against the law to grow it, distribute it and prescribe it as medicine," said McCaffrey. Doctors' prescriptions can be used as a legal defense by patients if they are arrested, but filling the prescriptions is against federal law. "You can talk to your doctor today," said Dave Fratello, spokesman for California's Yes on 215 campaign. "But I can't tell you where to get it. I can only tell you you're not subject to prosecution if it's prescribed" (Mark Evans, Associated Press, "Marijuana Law Leaves Questions,", November 7, 1996).


Arizona state-licensed cannabis dealer Peter Wilson, chairman of Arizonans for the National Organization for the Reform of Marijuana Laws (AZ4NORML), offered to work with Arizona Governor Fife Symington and Maricopa County Sheriff Joe Arpaio to come up with a marijuana dispensing system. Governor Symington said he was meeting with legislators soon to discuss the implications of the law and that AZ4NORML representatives "aren't in our playbook right now." Wilson, who bought a marijuana license and tax stamps under a 1983 Arizona law designed to fight marijuana trafficking with heavy tax penalties, successfully argued in 1995 that requiring marijuana dealers to get a license and then prosecuting them was double jeopardy (State v Wilson, No. 95-02094 (Northwest Phoenix Justice Court), November 1, 1995; "Arizona Judge Finds Prosecution for Marijuana After Defendant Purchased Tax Stamps To Be Double Jeopardy," NewsBriefs, January 1996) (Associated Press, "Arizona Deals With Drug Law," %3Cevent%5Fdate, November 9, 1996).


In California, the Berkeley Prescription Cannabis Growers and Buyers Club has set up an Internet site offering cannabis to potential medical marijuana customers. Web browsers can choose from a range of grades -- from "B grade imported" to "AA grade California green." "We've always been an informal group of disabled people helping each other obtain marijuana, but now we can be more out front about it," said Ted Tuk, temporary director of the 10-year-old group. Tuk admits not caring about the federal laws against selling and distributing marijuana, but some police caution that Federal criminal penalties still apply. Berkeley police Sergeant Michael Stafstrom said, "Along with supplying and selling marijuana, which are felonies, I imagine you could cook up something extra for using the Internet." The medical marijuana Web site is located at (San Francisco Examiner, "Marijuana club takes potshot at the Internet," Miami Herald, November 24, 1996, p. 5A; Associated Press, "Medical marijuana club to offer pot over the Web," +NEWS++marijuana, November 14, 1996)

(Under Federal law, for persons with no prior conviction for a drug offense, distributing or conspiring to distribute less than 50 kg of marijuana without a DEA registration for Schedule 1 carries a prison term of up to 5 years and a $250,000 fine. Distributing, or participating in a conspiracy to distribute, between 50 kg and 100 kg of marijuana carries a sentence of up to 20 years imprisonment and a $1 million fine. Such an offense involving between 100 kg and 1000 kg carries a minimum of 5 years up to 40 years in prison and a fine of $2 million. Offenses involving more than 1000 kg are subject to a minimum of 10 years imprisonment up to life, and a fine of up to $4 million. Amounts in multiple transactions are accumulated and witness testimony of quantity is equal to actual seized contraband. Penalties are doubled for a second offense. -- EES)


Supporters of the new laws say federal opposition to medical marijuana not withstanding the California or Arizona law is hypocritical since the federal government supplies medical marijuana to eight patients through the Compassionate IND (Investigational New Drug) program administered by the FDA. The Compassionate IND program, which began in 1978, was closed to new applicants in 1992 -- partly due to a huge increase in applications from AIDS patients. Thirteen patients already receiving marijuana shipments were allowed to continue in the program. Five have since died and the remaining eight will be supplied the drug for as long as they need it (Helen O. Neill, "U.S. Supplies 8 Pot Smokers," %5Fdate, November 17, 1996).

U.S. Representative Frank Barney (D-MA) introduced legislation last year to provide for the medical use of marijuana (H.R. 2618). Supporters promise to lobby for federal medical marijuana legislation again next year ("Medicinal Marijuana Organizers Lobby for House Bill," NewsBriefs, Summer 1996).

For more information about the Arizona and California initiatives, see: "Medical Marijuana Initiative Qualifies for November 5th Ballot in California, Court Says Opponents were 'Misleading,'" NewsBriefs, September 1996; "Drug Czar Says 'No' to California's Medical Marijuana Initiative, Polls Show Support for the Proposition," NewsBriefs, October 1996; "Arizonans to Vote on Drug Decriminalization and Control Measure," NewsBriefs, October 1996.