Cloned cannabis plants at Canna Care

Munching on a herbal brownie at El Camino Wellness Center, AAMC state director Ryan Landers explained how tricky and self-conflicting medicinal cannabis laws are.

"In Sacramento County, publicly smoking medicinal cannabis is considered ten 10 times worse than just smoking weed," he said.

Landers has been a medicinal cannabis activist for over 15 years and has worked extensively in drafting legislation and law enforcement plans for the new dimension of legal medicine. He works with patients and patients' rights groups, lobbies and national advocacy groups. If weed was legal expertise, he'd be "the guy on the corner."

Regarding the legal gap between smoking weed or medicinal cannabis, he says, "If they get caught, I tell my patients to just say they were doing it for the hell of it."

Medicinal cannabis laws are confoundingly thorny, unlike the plant in question. A long list of can-do and can't-do legislation adds up to conflict between levels of government and continuing confusion over raids, trials and incarcerations nationwide. It takes real education to sort these loopholes out, so what follows is a primer on the different and often conflicting ways that federal, state, county and city laws regard medicinal cannabis.

Sacramento city's legal haze

Sacramento city government doesn't really have anything to say on the case of medicinal cannabis. The 45-day moratorium is the first time that the existence of cannabis dispensaries has ever been addressed by the city, and progress toward developing zoning code, tax plans and other regulations is going to take a while. At present, the city refers to a copy of the county's policy on medicinal cannabis.

Other California cities have adopted new ordinances pertaining to dispensaries. In Berkeley, dispensaries can't open in certain zoning areas or within 300 feet of a school. In Santa Barbara, dispensaries must apply for a city permit to operate, then pay a continuous fee to stay legit. In Davis, city government banned dispensaries entirely. Last month, Oakland became the first city in the country to introduce a specific tax on medicinal cannabis, levying an $18 tax for every $1,000 of gross sales.

Sacramento County's duplicative statutes

Sacramento County has a few provisions for medicinal cannabis but leaves most of the lawmaking to the state. The Board of Supervisors decided to comply with California's medicinal cannabis plan in December 2008 and instituted a program to provide THC patients with the state's Medical Marijuana ID card.

County code contains one ordinance in addition to state law: an increase in penalty for publicly smoking medicinal cannabis. This was a provision included with the adoption of state law. Smoking cannabis for non-medical purposes ( ie. "getting high") only nets you a possession charge and a $100 fine, but medicinal cannabis is punished much more harshly. If you're smoking your legal medicinal joint strolling through the city, you can get busted for a $1,000 fine and risk six months in jail. This is the discrepancy Landers highlighted earlier.

Literature display at Northstar Healing Collective

California state law: wellspring of legality

State law is the source for all real medicinal cannabis provisions in California. As addressed in previous articles in The Sacramento Press, legalization was brought about by two separate laws: Proposition 215 and State Bill 420.

Prop 215 was added to voter ballots in the 1996 general election and was passed by a 55.6 percent majority. The ballot measure added language to the California Health and Safety Code under the title of the Compassionate Use Act. Language states that criminal law no longer applies to "seriously ill Californians" and their "primary caregivers" for the possession and cultivation of cannabis for medicinal purposes, and that no physician would be subject to punishment for its recommendation.

The CUA also lists ailments that are considered treatable with cannabis such as "cancer, anorexia, AIDS, [and] chronic pain," but the list is by no means binding or complete. It is key to note that medicinal cannabis is not a prescription for a specific illness, but it is a recommendation that can be applied to individuals on a case-by-case basis and does not require a specific condition to even be mentioned, according to Americans for Safe Access.

State Bill 420 is a separate law that did not amend Prop 215. Altering 215 was deemed to be unconstitutional, as doing so would override the intentions of voters. Instead, 420 recognized medicinal cannabis in the state legislature and introduced new provisions for dispensaries and patient ID cards. This was intended to better allow the enforcement of patient protections and allow all qualified patients to have the cannabis option open.

In the language of the bill, patients and caregivers who "collectively or cooperatively" cultivate cannabis for medical purposes cannot be punished on those grounds alone. This also allows dispensaries to exist, but only as not-for-profit enterprises. This is distinct from non-profit in an important way: Non-profit is a federal listing. Dispensaries, of course, aren't interested in asking the Feds for permission.

Medicinal cannabis dispensaries are almost exclusively a California phenomenon. Several other states have a handful of cooperatives, but the vast majority are here in the golden state. This means that federal policy toward dispensaries and federal court cases deal entirely with California.

Under 420, qualified patients can also apply for a medicinal cannabis ID card under the Medical Marijuana Plan. (On the law books, the unscientific term "marijuana" is always used.) By presenting documentation and paying a fee for the Department of Health Services program, patients can receive an ID card that confirms their eligibility for one year. This program is primarily for convenience, but it has its remaining issues.

"Often times, just an ID card isn't enough," Landers said. "Police are the only ones to usually check ID. I carry my card, my application and my doctor's recommendation to stay safe. I don't even reduce them; I leave them as full-size papers."

SB 420 was passed by state legislature in 2003, but had a long history before it hit the law books. It was originally introduced in 2001 as SB 187 and passed both the Assembly and the Senate, but was placed in the suspense file — basically bill purgatory — and not sent to the governor. While in progress, the bill underwent significant rewriting until its language was identical to the later SB 420. The bill's authors and advocates decided to wait until the time was right for the governor to sign it (and the hemp-culture favorite number "420" was available.) Then-governor Gray Davis was lukewarm on the issue in 2001, but after his recall and replacement with Schwarzenegger he was more amenable to the idea. The 420 legislation was one of the last bills Davis signed on his way out the door.

Federal agents raid a San Francisco dispensary.

Federal law: The war on a plant

United States federal government lists cannabis as a Schedule 1 substance under the Controlled Substances Act. This means that cannabis is illegal and given the highest priority for control by the Drug Enforcement Agency under the Department of Justice. The CSA was drafted by the Nixon administration and passed by Congress in 1970 as part of an expansive drug enforcement package, the Comprehensive Drug Abuse Prevention and Control Act.

Since 1970, federal lawmakers have held that cannabis fits three criteria for control: that it has "a high potential for abuse," has "no currently accepted medical use in treatment" and "a lack of accepted safety for use [...] under medical supervision." These three points are extremely controversial, as a quarter of the states in the union have opened the door to medical usage and reform advocates can draw on a growing body of scientific evidence against potential for abuse and in favor of potential for medical benefits.

Almost all cannabis arrests are made at the state or local level, but the federal ban is by no means purely symbolic. The War on Drugs still makes battlefields out of legitimate businesses, as federal agents raid medicinal cannabis dispensaries and supersede state law. According to a report by the Marijuana Policy Project, over 190 dispensaries in California have been raided since 1996. Raids can consist of seizure of property and medicine, often the physical destruction of security equipment and computers, and some have resulted in incarcerations of medicinal cannabis patients, according to the MPP. Not all raided patients end up getting tried.

"A lot of patients aren't ever put on trial," Landers said. "They're held without Fifth Amendment rights and can't be charged with a crime."

When patients find themselves on trial in federal courts, they have few resources at their disposal. In the 1998 case U.S. v. Oakland Cannabis Buyers’ Cooperative, the Supreme Court ruled unanimously that state legality was not a workable defense, overruling a previous federal court decision. A 2005 Ninth Circuit case,U.S.Gonzales v. Raich, ruled against another legal defense: "medical necessity" could no longer stand up in court. These decisions greatly constrict the defense options that patients have; state law and medical recommendations don't protect them from conviction.

"You can't make the case for the medicinal benefits of marijuana in court, but federal prosecutors can talk smack about medicinal cannabis all they want," Landers said. "They can use the same arsenal that you're denied."

Federal courts did agree to one protection regarding medicinal cannabis: the rights of doctors to recommend it. In the 2000 district court decision of Conant v. McCaffrey, doctors became protected from federal punishment for discussing or recommending THC to their patients. This was regarded as a First Amendment right and thus ensured.

"Doctors that prescribe medical cannabis are true patriots," said Brian Davies, co-owner of the local Canna Care dispensary. "They study hard for eight years and then risk their careers and reputations to prescribe people the medicine they need."

Different presidential administrations have different approaches to enforcement when it comes to medicinal cannabis. Under Clinton, civil measures were preferred over raids, and cases were generally sorted out in court. In the Bush years, the War on Drugs was in full swagger and raids became more commonplace. Now, under the Obama administration, the medicinal cannabis policies of the DEA remain in flux.

Obama promised before and after his election that federal raids of state-legal dispensaries and patients would stop, but the DEA's trademark door-busting has yet to cease.

"I'm not going to be using Justice Department resources to try to circumvent state laws on this issue," he told the Oregon Mail Tribune in March, and continued that the "basic concept of using medical marijuana for the same purposes and with the same controls as other drugs prescribed by doctors, I think that's entirely appropriate."

Yet, at least six dispensaries in California have been raided since Obama took office.

A DEA spokesperson clarified this seeming contradiction: "Obama didn't say that DEA raids would stop . He said that those abiding by state law would be given the lowest enforcement priority." He also alleged that medicinal cannabis activists have unrealistic expectations. "It doesn't mean 'no more DEA raids forever,' that's just what the legalizers want to hear."

The DEA source said that they "don't get to choose the laws they enforce," but acknowledged that "there is a selection process as to which dispensaries get raided." According to the source, the choice is based on complaints or reports of "harm to the community."

Only the most careless dispensaries get raided, according to Landers, so for the most part clubs are only partly worried about federal agents breaking up the show.

"It's always a concern, but we're a legitimate business and we're staying open," said Clyde Baker, owner of Hugs Alternative Care.

The jumble of legal cannabis statutes, and lack thereof, resembles an M.C. Escher sketch. Numerous perspectives all seem to be true at once, but in the end, it's just lines on paper.

Photos by Cheya Cary / Frederic Larsen of Corbis

Editor's Note: The Sacramento Press editorial staff edited this article after it was published due to a formatting error.