Drug Prosecution in Era of California's New Marijuana Law

Dennis Peron, the exuberant white-haired founder of this city's Cannabis Buyers' Club, steps into the basement and proudly shows off a line of young marijuana plants thriving under grow-lights.

To Mr. Peron, cultivating these plants is now legal under California law following the passage last month of a voter initiative allowing the use of marijuana for medical purposes. But in the eyes of those who enforce the law - the prosecutors and sheriffs - this is still grounds for getting thrown into jail.

California law-enforcement officials are only beginning to grapple with the legal conundrums that have arisen following passage of the medical marijuana initiative. The law challenges the existence of an entire structure of antidrug activities, from programs to eradicate marijuana plantations in the California hills to procedures police follow when they find the weed growing in someone's backyard.

Officials say they have more questions than answers. The federal government too is seeking answers, fearful that the California example, already echoed in Arizona, is going to reverberate nationwide.

"There are a lot of gray areas," says Capt. Berle Murray of the Sheriff's Department of Mendocino County, long known as the center of the state's huge illicit marijuana cultivation industry. "We've been waiting for some direction," he says, complaining that so far, "we're left to our own desserts."

Both advocates and opponents agree there are issues that will probably have to be resolved in the courts. The key points of contention are: What constitutes a legitimate medical need and how you prove it; who is a "primary care giver," who under the law can act on behalf of a patient; and how a medical user can legitimately obtain marijuana that remains illegal to sell.

These questions have grabbed the attention not only of California law-enforcement officials but the federal government as well. California Attorney General Dan Lungren flew to Washington last week to meet with White House antidrug czar retired Gen. Barry McCaffrey to discuss how to respond to the California law. General McCaffrey recommended on Friday that the Drug Enforcement Agency revoke the licenses of doctors who prescribe marijuana. Local police, meanwhile, will arrest for possession.

Both the California attorney general and his federal counterparts were critics of the initiative, dismissing claims of medical efficacy and warning that the law could lead to de facto legalization of the drug. Although he is obligated to enforce the law, Mr. Lungren will likely seek the narrowest interpretation of what is permissible.

Federal laws still make possession of marijuana, for any reason, illegal. But it is unlikely that federal law-enforcement personnel are going to be hitting California streets. "The Drug Enforcement Agency doesn't have the resources, the manpower, or the wherewithal to go out there and arrest small-time users or small-time dealers," says a spokesman for the White House drug czar's office.

Instead, federal officials hope that the threat of revoked licenses will discourage doctors from recommending marijuana to their patients. The DEA currently licenses doctors to prescribe certain controlled drugs, such as morphine, and if McCaffrey's new policy is approved by President Clinton, they may pull that certification if a doctor is discovered recommending marijuana.

Lungren has backed this move to pressure doctors, as have other California law-enforcement officials. Sonoma County Sheriff Mark Ihde, for example, has threatened to report to the DEA physicians who recommend marijuana. Medical pot backers report that doctors are reluctant now to provide documentation to back patient claims. The California Medical Association, which favors scientific tests of marijuana's utility, has urged doctors to be cautious.

Backers of the initiative accuse the attorney general of trying to thwart the popular will. "Dan Lungren is a cry-baby and a sore loser," says Peron.

Loose law

Law-enforcement officials counter that the law is loosely written. "The public has said what they want - unfortunately, they've said it in a way that is very difficult to implement," says Mendocino district attorney Susan Massini.

San Francisco voters passed a similar measure in 1991 and since then city police and prosecutors have basically looked the other way at efforts to distribute marijuana for medical purposes. But last August, state law-enforcement agents raided the Cannabis Buyers' Club, charging Peron and five others with selling marijuana.

San Francisco district attorney Terence Hallinan is one of the few prosecutors to publicly support the new law. In Mr. Hallinan's view, the best response is to create clear procedures for licensing and certifying the distribution of marijuana to patients. "The reality is somebody regulates this thing or it's chaos," he says.

Across the bay, in Oakland, the police have already been working closely with the Cannabis Buyers' Coop to create such a system. The club requires a doctor's diagnosis and a physician's statement of knowledge of medical use before it will provide marijuana. And the coop is issuing a photo ID that Oakland police honor as evidence of medical use.

Both backers of the law and law-enforcement officials agree that in principle, the quantity a user has will be a good test of medical use. "To have 18 or 19 plants for your own medicinal use - that's not going to cut it," says Captain Murray.

First test in court

These issues will likely face their first serious legal test in Sonoma County, where hearings began last week in a case involving a man arrested last August for possession of six plants in his home, grown to help cope with epilepsy.

Probably the most controversial, and potentially groundshaking, issue is that of cultivation. The law allows cultivation by the patient or his "primary caregiver," who is defined as someone who has assumed responsibility for the housing, health, or safety of the person. The common view, including from some medical pot supporters, says this refers to a situation when a patient is too sick to take care of himself.

But Peron interprets this to mean that a patient can assign his cultivation privilege to a grower, such as the coop he is setting up in the basement of the club's building in downtown San Francisco.

This view is not shared by other backers of the law, however. "I don't see, given any rational test, that large-scale cultivation is protected here," says Dave Fratello of Californians for Medical Rights in Los Angeles. He worries that Peron's attempts to "push the envelope" could undermine the efforts of his group to spread the California model to other states.

Peron, whose activism goes back to the 1960s, is undaunted. "It's the law," he says with a smile, pointing to his patch of plants. "We don't want to break the law."