Navigating Washington State's Medical Marijuana Maze

Legal users of medical marijuana in Washington still have to break the law—hazy as it is.
Karen West  |   February 2011   |  FROM THE PRINT EDITION
Medical marijuana

Whether people smoke it, bake it into a cookie or spread green butter on their toast in the morning, medical marijuana use—and the controversy surrounding it—is growing in Washington state. Cancer patients are using it to alleviate nausea caused by chemotherapy. AIDS patients smoke it to help regain their dwindling appetites. And grandparents who once warned their children of the dangers of pot are now relying on them to supply it for relief from debilitating ailments.

Still, more than a decade after Washington voters overwhelmingly approved the use of marijuana for medical purposes, a haze of confusion, fear and frustration hangs over qualified patients. Despite efforts to legalize pot altogether, as well as legislation aimed at protecting legitimate users and growers and licensing dispensaries for the drug, Washington’s law remains murky, causing consternation among medical patients, legitimate growers, law enforcement, physicians and lawmakers.

The disconnect lies in the contradictions between state and federal law, and in the conflicting ways law enforcement agencies and pot users interpret them. Under federal law, marijuana use of any kind is illegal, meaning that anyone who manufactures, distributes, dispenses or possesses marijuana for any purpose can still be prosecuted. Washington state law allows qualified patients and “designated providers” to possess no more than a 60-day supply—defined by the state Department of Health as up to 24 ounces of pot and 15 plants.  Technically, marijuana dispensaries aren’t supposed to exist in Washington state, but they are permitted under the “designated provider” category so long as they “assist only one patient at a time.” The law also provides a defense in state and local courts to criminal charges relating to growing, possessing or administering pot. Enforcement is left to local, state and federal police. But loopholes still exist: Patients and growers can grow and consume much more if they can prove they need more than the 60-day supply.

“It’s a mess,” says Alison Holcomb, drug policy director of the American Civil Liberties Union in Seattle. “The confusion flows not so much from the federal prohibition but more from the fact that voters intended for qualifying patients to be able to use marijuana for medical purposes without fear of arrest, but the law only delivered an affirmative defense.”

Raids on dispensaries and pot growers by law enforcement officers have increased in the past year, as have complaints from qualifed growers who say they are being unduly harassed. Violence is also on the rise. An Orting, Washington, medical marijuana patient died last March after being beaten by robbers who were after his marijuana crop. A few days later, Seattle pot-using patient and activist Steve Sarich traded gunfire with would-be robbers. Protestors rallied at a Tacoma City Hall meeting in October in response to a proposed shutdown of eight medical marijuana dispensaries. (Mayor Marilyn Strickland put the plan on hold until after this year’s legislative session, in which lawmakers will debate marijuana reform.) In November, Seattle Mayor Mike McGinn asked police and prosecutors in King County to join him in a review of marijuana enforcement policies. His action was in response to a raid on a Seattle medical marijuana patient’s home. Acting on an anonymous tip, police suspected the man was growing pot illegally. It turned out he was in compliance with the medical marijuana law.

“When it comes to marijuana, we are in a time of transition,” McGinn said in a statement. “Public opinion has been shifting toward legalization.”

Jane, a 54-year-old Seattle woman with an inoperable brain tumor who requested that her real name not be used, says, “It’s very powerful and therapeutic for me. I’ve gone from having up to a dozen seizures a day to seven to 10 days without any seizures.” She started using medical marijuana last year—in vaporized form—and says it alleviates her chemotherapy-related nausea, enhances her moods and takes away her debilitating arthritis pain. A middle-class professional who tried marijuana a few times in her teens, Jane says she uses only “a pinch” before bedtime—“just enough to get the medicinal effect....I don’t want the high.”

During a recent visit to a Seattle dispensary, Jane offered a $35 “donation” for an eighth of an ounce, the typical amount medical marijuana patients get at one time. “We thought we would walk in and meet with someone with a white coat and a clipboard,” her husband says of their first dispensary experience. Instead, they encountered the typical scene: an apartment or small office set up with a cash register and a counter of marijuana products, including cookies, chocolates, tinctures and oils. Without such dispensaries, patients like Jane would have to get their marijuana on the black market.

 Despite wildly differing views on pot use, almost everyone agrees Washington’s medical marijuana law is outdated and full of ambiguities. Unlike in California, where anyone with a medical marijuana card can legally buy the drug from large-scale dispensaries, in Washington, residents who obtain a doctor’s approval to use it still don’t have a way to buy it without breaking the law. And many are either too sick or don’t have the means to grow their own.

“Our law puts qualifying patients and designated providers in an impossible position,” says state Sen. Jeanne Kohl-Welles, (D-Seattle), who introduced legislation this year to clarify the law and make it easier for medical marijuana users to access the plant. “We need to make cannabis accessible and have a method for patients to obtain an adequate, safe, consistent and secure supply of it. Patients should not have to fear arrest, home searches or property seizures by law enforcement officers. Providers who help patients access medical marijuana should not have to risk prosecution and robbery.”

Under Washington’s Medical Use of Marijuana Act, which was approved with 59 percent of the vote in 1998, a patient or provider can comply with the law and still be subject to arrest, prosecution or seizure of medical marijuana, Kohl-Welles says. “Often, a patient or provider must endure the stress, cost and embarrassment of a trial, and the patient must disclose private medical information before being acquitted by a jury,” she says.

Washington is among 15 states that have laws legalizing some form of medical marijuana. In 1996, California became the first state to make it legal to sell marijuana to people who had doctors’ prescriptions. The other states that allow some use of marijuana for medical purposes are Alaska, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island and Vermont.

Pot proponents in Washington are hoping 2011 will be the year that marijuana—not just for medical use—is decriminalized once and for all. Signature-gathering drives, which failed to qualify an initiative for the ballot last year, are under way for another initiative to legalize pot. In addition, Washington state Rep. Mary Lou Dickerson (D-Seattle) introduced a bill in January that would regulate, tax and legalize “cannabis” in the state of Washington, thus generating hundreds of millions of dollars for health care, drug and alcohol rehabilitation programs. “I think the people of Washington are ready for this,” she says.

A cash-strapped state government is clearly ready. In December, the Washington State Department of Revenue began an effort to collect sales tax from medical marijuana dispensaries, and declared that  dispensaries also must pay the state’s busines and occupation tax.

In the meantime, medical marijuana patients cling to the vague protections provided under Washington’s law. It covers patients with terminal or debilitating medical conditions, such as cancer, HIV/AIDS, multiple sclerosis, Crohn’s disease and other chronic illnesses, and their designated providers. The patients must be diagnosed and receive a signed, dated and written authorization on “tamper-resistant paper” from a health care professional. Physicians can authorize the use of medical marijuana, but they cannot prescribe it. In June 2010, the law was expanded to allow other health care professionals, including nurse practitioners and naturopaths, to legally recommend its use.

Ben Livingston, a cofounder of the Seattle-based Cannabis Defense Coalition, says co-ops and dispensaries that have been around for years are a necessary component in providing patients with a safe, secure source of medical marijuana. Dozens of dispensary operators, such as Richard Pharr, who runs Olympian Canna in Port Angeles, say they operating in compliance with the law. “Selling drugs is not legal, but providing a service for medical patients is,” says Pharr.

Livingston says there currently is no state registry, no list of providers and no safe or regulated program in Washington. The only legally protected way of producing marijuana in the state is to cultivate your own plants, but there is no legal source for seeds or seedlings. This makes it “unclear just how patients are supposed to begin a garden,” says a 2008 medical marijuana report by the Washington State Department of Health.

The lack of a legal source of pot also puts the burden on law enforcement agencies to distinguish between legitimate patients/providers and drug dealers. The result has been a cat-and-mouse game between the law and black market marijuana growers. Law enforcement officers lament that they are caught between a rock and a hard place when it comes to monitoring medical marijuana use throughout the state. Making matters worse, police, pot growers and patients in each county have different interpretations of the law. “What medical cannabis patients need most is freedom from fear,” says Livingston. “Fear does not help fight cancer. Fear does not help AIDS patients keep food down. Fear makes us sicker. Patients fear police violence, and patients fear criminal violence.”

“It’s a challenging time for law enforcement,” says Washington State Patrol Sgt. James Mjor, head of the West Sound Narcotics Enforcement Team, known as WestNET. He says most people comply with the law, but there are many cases in which growers abuse it, setting themselves and the public up for violence. “It’s extremely frustrating,” Mjor says. “The recipe for disaster is there. A lot of grows we encounter are not secure and in a majority of cases, as seen by our marijuana tip line, they are common knowledge and susceptible to property crimes.”

That’s what happened last spring to Sarich, who runs CannaCare, a Seattle organization that provides patients with pot plants, information and legal advice. He was involved in a shooting during an attempted robbery of his Kirkland-area home, where police later confiscated cash and dozens of pot plants. Both Sarich and the suspect suffered gunshot wounds. Sarich’s were minor. He has since relocated to North Bend, where he now operates an 8.5-acre pot farm. Sarich, who uses cannabis to relieve back pain from a degenerative disc disorder, says police often end up harassing the medical marijuana patients instead of going after the people who rob them.

Livingston, with the Cannabis Defense Coalition, agrees, saying the multijurisdictional drug task forces that operate statewide are notorious for harassing legitimate medical marijuana users. Of WestNET, he says: “They are personally motivated, paying their wages with whatever property they can take from so-called drug criminals, which they believe includes law-abiding medical cannabis patients.” He says the law regarding medical marijuana is a county-by-county issue in which “some county sheriffs and prosecutors respect the law, and some do not.”

Regardless, the federal government and some counties statewide have made marijuana-related prosecutions a low priority. King County Prosecutor Dan Satterberg has been lauded by medical marijuana advocates for declining to prosecute collectives or co-ops, and in a 2008 memo, he advised law enforcement agencies to “look with a very lenient eye toward those medically ill people who have reasonably tried but failed to have their medical marijuana paperwork in order.”
Some pot growers admit there are plenty of people who abuse the system by profiting off mass quantities of low-grade weed that could be laced with harmful pesticides. “I could grow a million dollars worth of pot in three months if I wanted to,” says Pharr. “But I want to set a standard for Washington state” by producing more time-consuming organic oils from marijuana plants.

Like many medical marijuana users, Pharr uses pot to keep from getting hooked on prescription narcotics. He smokes up to 28 joints a day and eats THC-oil-based cookies and other food products to relieve muscle spasms, migraine headaches and chronic pain resulting from a construction-industry accident. “I’d rather smoke weed all day,” he says, “than pop pills all day.”

Until Washington’s laws regarding medical marijuana change, that’s easier said than done.

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