Medical Marijuana Progress

--------------------------------------------------------------------------------08/29/2008

When we read the first headlines, we were concerned that California Attorney General Jerry Brown had become part of the campaign to subvert California's medical marijuana laws by recommending that police go after so-called medical marijuana dispensaries more aggressively. Having read the actual guidelines, however, we believe they are not perfect but potentially useful â?? at least to state law enforcement people who want to do their job properly rather than seeking to nullify the law.

Our main problem with Mr. Brown's guidelines has to do with his contention, as stated in the summary, that the "guidelines affirm the legality of medical marijuana collectives and cooperatives, but make clear that such entities cannot be operated for profit." Proposition 215, the initiative approved by voters in 1996, does not ban profit, and that law can only be changed by a vote of the people, not by a legislative enactment or a set of guidelines from the attorney general.

That issue will no doubt be settled through litigation, as have many of the issues that created the circumstances that made it advisable for the attorney general to issue guidelines to clarify the legal climate. California courts have already affirmed, for example, that limits on the number of plants a patient may possess amount to an illegitimate amendment of Prop. 215 and therefore have no legal standing. The stipulation in the attorney general's guidelines that dispensaries must be nonprofit cooperatives or collectives rather than profit-making enterprises is likely to suffer the same fate.

That quibble aside, Mr. Brown's guidelines are useful and constructive. They make it clear that California law permits patients with a valid recommendation from a physician to possess, use and acquire marijuana, and that dispensaries that keep proper records and exist to serve patients rather than being fronts for illicit drug distribution are also legal. Kris Hermes of the patient advocacy group Americans for Safe Access says he thinks most dispensaries already follow Mr. Brown's guidelines, and some that don't will require only a few tweaks to be completely legal.

The main problem is that marijuana is still completely prohibited by federal law, and federal agents still have the power to enforce that law. As the U.S. Supreme Court and several lower courts have acknowledged, however, the fact that federal law is still utterly unreasonable has not invalidated California law. State and local officials are duty-bound to enforce state law, not federal law.

Attorney General Brown's guidelines should make this admittedly sometimes confusing task a little easier. Now it is up to local law enforcement agencies to follow them in good faith and leave federal law enforcement to the feds.


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