The Bay Area Reporter - November 10, 1998
Matthew Sharp, ACT UP/Golden Gate Writers Pool

The people of Alaska, Colorado, Nevada, Oregon, Washington, and the District of Columbia approved new ballot initiatives that determine whether doctors in those states can prescribe marijuana for seriously ill patients who would benefit from such treatment. Additionally, Oregon voters overturned the Legislature's 1997 decision to recriminalize personal possession of marijuana. In Arizona, voters also overturned two ballot measures that accepted the Legislature's alterations to a 1996 voter-approved drug policy reform initiative. Overall the nationwide victory is apparent, and may send a message to Congress that the people truly have spoken.

Since 1970, 35 states have passed laws supporting the use of medicinal marijuana and protecting patients from prosecution for using and growing pot for therapeutic use. However, since marijuana is prohibited by federal law, the state laws have little clout. California's Proposition 215 allowing patients and their caregivers to grow their own marijuana, which passed in 1996, was the most effective state-based effort to provide marijuana because it was instituted through the referendum process. Proposition 215 was recently threatened by the U.S. Department of Justice, which forced three marijuana buyers' clubs to close. On October 19 the Oakland buyers club shut its doors as a result of these threats. Even though state laws allowed medical marijuana, the feds stopped the access mechanism.

Similar, but different

Each initiative that passed is similar in scope, though all are written differently. All of the state referenda include provisions that give patients and caregivers a legal defense in court. Initiatives that would create patient registries also have provisions that would protect non-registered patients and caregivers if a doctor has advised a patient that marijuana would be beneficial in his or her treatment.

All of the initiatives cover medical conditions that can be treated with marijuana, but also allow for the addition of other conditions. The Washington, D.C., initiative lists specific medical conditions, but also covers "other serious or chronic illnesses."

With the exception of the Washington state referendum, all of the initiatives would establish a confidential patient registry and identification card system. Such systems would protect patients from being arrested and give law enforcement a means of verifying whether a person is a legitimate medical marijuana patient. In Arizona, Washington state, and Washington, D.C., no patient registry is required, but a doctor must recommend that a patient use marijuana to treat a serious illness. Furthermore, Washington state patients are required to present their documentation to a law enforcement agent if asked to do so.

The Washington state initiative allows persons to possess a two-month supply. Other referendums follow similar guidelines, but give a patient a legal defense in court if he or she can prove that the greater amount of marijuana was needed to treat an illness. For the most part, the initiatives did not stipulate supply issues except that patients are allowed to grow their own limited supply. The one exception is the Nevada initiative, which requires the Legislature to authorize "appropriate methods for supply of the plant to patients." The Washington D.C. initiative is most progressive in that it allows nonprofit corporations to be established to grow, supply, and distribute medical marijuana. Interestingly, it also requires the eventual supply of "safe and affordable" marijuana to patients enrolled in Medicaid- or Ryan White CARE Act-funded programs.

While it is significant that all these propositions passed last week, there are weaknesses in all of them. Of course, restrictive provisions were most likely written in so that the initiatives would gain more votes. Confidentiality of the patients in registries raises serious concerns. The registries could open up violations of confidentiality in regards to criminalization and HIV status. Anytime a list is mandated in regards to people with HIV, one should be worried because of discrimination. If a registry is used there should be laws protecting the names which seems unlikely, given the rash of HIV names reporting laws passing recently.

Some initiatives limiting the amount of possessed marijuana could force people to buy remaining supplies from black market sources, defeating the purpose of the legislated medical marijuana laws. Fortunately, there is an "escape clause," whereby patients have a defense if they can prove that the larger amount of marijuana was necessary for medical treatment.

Besides the initiatives passing, other important election victories occurred November 3 with some anti-medical marijuana politicians being defeated and other supporters winning. In California we have the opportunity to have Proposition 215 implemented the way it should have been with the ouster of Attorney General Dan Lungren and the victory of Bill Lockyer in that post; and, of course, Governor Pete Wilson has been replaced by the more moderate Gray Davis.

D.C. = 'Don't Count?'

In a frustrating move, Washington D.C. officials have kept the results from their initiative secret because of a Congressional decision to amend a district budget bill to forbid spending money on the referendum. Congress obviously opposes legalization of marijuana. The American Civil Liberties Union said it would file a Freedom of Information Act request to get the vote results released.

If the ACLU succeeds and the initiative wins, Congress can still veto the measure by a majority vote in both houses.

The victories also came at a cost. AIDS activist and ACT UP member Steve Michael, organizer of the grassroots effort to get the D.C. initiative on the ballot, died before he could see his work to fruition. Unfortunately the initiative may never happen because of a conservative Congress that may veto all of his successful work.
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