Who's Minding the Rights of California's Sick and Dying?

September 16, 1999

By: Peter McWilliams

Yet another attempt by the valiant California state senator John Vasconcellos to get medicine to the sick has died an undignified death. In 1994 and 1995, Vasconcellos (pictured) good-shepareded medical-marijuana bills through the legislature, only to watch them shot down by then-governor Wilson. These failures necessitated going directly to the people, who enthusiastically passed Proposition 215, the California Compassionate Use Act of 1996.

This year Vasconcellos carefully crafted a bill to implement the Act, including the recommendations of Attorney General Lockyer's taskforce of police, prosecutors, judges, physicians, legislators, and patients.

Vasconcellos, however, was forced to withdraw the bill because Governor Davis threatened a veto. According to his spokesperson, Davis' "concern from the outset was that under federal law the use of marijuana is illegal. The governor did not want to see the state of California acting in conflict with federal law."

Perhaps the good governor "from the outset" should have read the California Constitution. Article III Section 3.5 would have informed him that he "has no power . . . to declare a statute unenforceable or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination." Not nine months ago he solemnly swore to support and defend "the Constitution of the State of California against all enemies, foreign and domestic."

Proposition 215 has no greater "domestic" enemy than the federal government. I should know. I currently face 10 years to life in federal prison for treating my cancer and AIDS with medical marijuana. I did nothing that is not legal under California law. How naive of me to believe that California's elected officials might protect me.

But Davis is a beloved friend of 215 compared with U.S. Senator Diane Feinstein. The Compassionate Use Act directed "the federal and state governments to implement a plan to provide for the safe and affordable distribution of marijuana to all patients in medical need of marijuana."

Not only has she rebuffed California law by not working to gain federal exemption for medical marijuana, on the two occasions since the passage of 215 that Congress has voted on the issue, Feinstein cast her ballot against the will of the people of California.

Now she is strong-arming through the Senate a bill that even further limits the Compassionate Use Act. Along with Orin Hatch (R-UT) (the War on Drugs makes strange bedfellows, doesn't it?), she has introduced the Methamphetamine Anti-Proliferation Act of 1999 (S.1428). Under the guise of countering the "methamphetamine epidemic," Feinstein takes direct aim at California's medical marijuana users and those who strive to help us.

If a doctor, for example, tells a patient how to cultivate ("manufacture" in Drug-War speak) medical marijuana, the doctor is guilty of a federal felony punishable by ten years in prison, a hefty fine, and the assets forfeiture of everything he or she may possess. This in spite (and spite is the right word) of the fact that cultivation is specifically permitted under 215.

But the new Feinstein law doesn't stop there. Increasingly, medical patients are using electronic vaporizers. These devices allow the inhalation of medical marijuana's vaporized therapeutic chemicals without the potential health hazards associated with breathing in smoke. The Feinstein law would make it a federal crime to even give the "telephone number or electronic or mail address" of companies that sell these harm-reducing medical devices.

Perhaps Senator Feinstein should be reminded that Proposition 215 was passed by 56.4 percent of the voters and that she was elected into office by a mere 44.8 percent-not even a majority.

The 9th Circuit recently ruled that the federal government had overstepped its authority by unilaterally denying medical marijuana to California's sick. Yes, the government has an interest in enforcing its drug laws, the court pointed out, but we sick have an interest in protecting our health as well. These two factors must be "balanced," said the court.

There are words to describe the fact that the federal government is telling itself it has gone too far in denying the rights of California medical patients, while those who are elected to defend California's interests against federal encroachment are either shirking such responsibilities or are enthusiastically working to place Californians under even further federal control. These words include ironic, pathetic, astonishing, predictable, despicable, and impeachable.

Choose your favorites.

No sooner had I finished this piece than I opened the paper and, lo, there was an editorial agreeing with me--for the most part.

The Los Angeles Times Editorial


September 16, 1999

Three years ago, when California voters approved Proposition 215,

which legalized the medical use of marijuana, then Gov. Pete Wilson

struggled to reconcile the contradiction between the measure and

federal drug laws that forbade marijuana use. Gov. Gray Davis has

tried to avoid the quagmire by pointing out that federal laws trump

state laws and that it would be illegal for his administration to

sanction any use of the drug.

On Monday, however, three federal appeals court judges deprived Davis

of that evasive bit of reasoning. The court essentially ruled that the

handful of cannabis clubs that distribute medical marijuana in the

state can do so as long as they can prove that the drug is needed to

protect sick people from serious harm. The decision does not change

federal drug rules, which classify marijuana as a "Schedule 1 drug,"

meaning a substance without medicinal value.

The decision should prompt state Atty. Gen. Bill Lockyer to comply

with the spirit of Proposition 215 by issuing guidelines to help local

law enforcement officials monitor whether cannabis centers are

distributing medical marijuana responsibly.

Lockyer's guidelines should be based not on the measure itself, for

while its backers say it restricts marijuana to patients with "serious

illnesses," it in fact allows doctors to prescribe it for minor

ailments like nausea. The attorney general should follow the appeals

court ruling, which supports mainstream medical opinion that marijuana

is demonstrably superior to other drugs only for those suffering from

particularly severe illnesses like AIDS and cancer.

Some legislators argue that any sort of state guidelines on

Proposition 215 would encourage recreational as well as responsible

use of marijuana. In fact the opposite is true. Cannabis clubs are

already implementing the measure, and local law enforcement officials,

without guidelines from the state, cannot ensure they are acting


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