San Diego County Public Defender Juliana Humphrey spent a year defending a woman charged with possessing 17 "scraggly" marijuana plants, the source of relief for the woman's persistent migraines. The case, said Humphrey, was eventually thrown out, but not after a year's worth of anxiety had taken its toll on her client.
Humphrey said the case taught her a lot about the efficacy of medical marijuana. She ended up heading the city's medical marijuana task force, formed in May 2001, charged with drawing up citywide guidelines to alleviate qualified patients' fear of being prosecuted for possession and to better inform law enforcement of which individuals are allowed to have marijuana and from whom a qualified patient can obtain it.
Like many state initiatives, Prop. 215-the medical marijuana initiative approved by voters in 1996-was vaguely worded, failing to detail how much pot qualified patients and caregivers can possess, both in dried and plant form. That vagueness has resulted in confusion and, oftentimes, undue police searches and subsequent prosecution.
In February, the San Diego City Council approved a set of guidelines allowing a patient to legally possess 1 pound of marijuana and 24 indoor plants. (Based on its research, the task force wanted it to be 3 pounds and 20 outdoor or 72 indoor plants). Caregivers-those qualified to provide marijuana to patients-can have on hand 12 pounds of pot and up to 90 plants.
"Guidelines," explained Humphrey, "provide patients with a safe harbor so police don't prosecute whomever." Guidelines also let people know ahead of time-rather than after an encounter with police-what's expected of them, she added.
So far San Diego is the only city in the county that has approved medical pot guidelines. For doing so, the City Council drew the ire of the county Board of Supervisors, who condemned the city for its action.
While the supervisors have no jurisdiction over action taken by the City Council, their position on medical cannabis sets a tone-one that medical marijuana supporters hope can be righted by the county's top law enforcer.
Nearing the end of her seventh month in office, District Attorney Bonnie Dumanis has yet to take a strong position on medical marijuana, preferring instead to evaluate any potential prosecution of patients on a case-by-case basis. At this point, she said in a statement provided to CityBeat, she's not prepared to draft a set of countywide guidelines but plans to study the issue.
During her campaign, Dumanis distinguished herself from incumbent Paul Pfingst by saying she believes a DA should develop guidelines for law enforcement to follow in cases involving medical marijuana. And, last week during a joint press conference with federal Drug Czar John Walters, here to promote the President's stepped-up war on drugs, Dumanis, when asked by a reporter how she plans to handle medical marijuana cases that come her way, diplomatically stated that it's her job to uphold California law.
Damon Mosler, the head of the DA's newly formed narcotics division, said that though his boss hasn't pinned down exact guidelines, there's an inner-office policy as to what sort of cases get prosecuted. "There's no way someone who has AIDS or cancer is going to get arrested for having marijuana," he said. "Most of the time when the police get involved, there's a search warrant that's based on other activity, and it could be sales."
Mosler said he plans to meet with Humphrey this week to discuss whether guidelines are necessary-Humphrey said she's going to encourage the DA to get some sort of policy out to the public.
Mosler said that during his tenure with Dumanis, he's only seen five or six medical marijuana-related cases. The biggest issue, he said, is not unnecessary arrests of medical marijuana patients but instead police confiscating pot and plants and electing for lawyers to sort out whether a patient is qualified to possess marijuana and how much. Unlike other law enforcement in the county, San Diego police now have guidelines, courtesy of the City Council, to inform their decisions.
One of the cases on Mosler's desk involves Dion Markgraaff. Last December, the 33-year-old was visited by a couple dozen San Diego police officers who confiscated 2 pounds of marijuana and, Markgraaff estimates, 50 to 70 plants. Police also found and confiscated more than $12,000 in cash, $11,000 of which belonged to Markgraaff's roommate, a musician and promoter who, Markgraaff said, gets paid in cash.
Markgraaf started up the city's first medical cannabis club in 1997 (it was shut down in 1998), and is both a qualified caregiver and patient. He said he's found that marijuana relieves the nerve pain and nausea caused by Type 1 diabetes. Markgraaff's roommate also has a doctor's recommendation to use marijuana.
Under the city's guidelines-voted in two months after Markgraaff's home was raided-the amount of pot he and his roommate possessed was well within what's allowed. It's the cash-which points to drug sales-that's kept Mosler debating whether or not to recommend the DA press charges.
Markgraaff-who incidentally worked on Dumanis' campaign-told CityBeat that he wasn't selling pot. Well-versed in the legal ins and outs of medical marijuana, Markgraaff said he's met with Mosler and got the sense Dumanis' office could benefit from an education in medical marijuana. "With the change of power from Pfingst to Dumanis, there hasn't been any indication about what, as far as numbers, how much people can have, how many plants they can grow," he said.
"Basically, from my meeting with Mosler, he's starting from the ground floor as far as knowing anything about [medical marijuana]." However, Markgraaff added that he was impressed with Mosler's openness and willingness to learn.
In the Fall of 1999, while campaigning for the presidency, George W. Bush announced that while he didn't approve of medical marijuana use, he supported a state's right to decide whether to allow individuals with a doctor's recommendation to possess and use cannabis.
"I believe each state can choose that decision as they so choose," he said eloquently.
Fast forward a few years and toss in the post-9/11 shift to hard-line federal policies. Last week the Bush administration announced it would ask the U.S. Supreme Court to pass a law that would revoke the prescription license of doctors who recommend marijuana to their patients. While the law would apply to all states, California, the medical marijuana flagship state, has been on the federal Drug Enforcement Administration's radar and several doctors have already been targeted.If the Supreme Court sides with the feds, the ruling would render state medical marijuana laws meaningless, since patients need a doctor's recommendation to legally possess marijuana.