In 1998, nearly 60 percent of Washington state voters approved the Medical Use of Marijuana Act (Initiative 692), making it legal for sick people to grow and use marijuana to treat their symptoms, for their caregivers to provide it to them, and for their physicians to recommend its use. At the heart of the initiative was "humanitarian compassion" for people facing terminal and chronic illnesses. Voters said, in essence, "let's not make ill people into criminals."
Eight years since the law's passage, however, patients facing debilitating illnesses and their caregivers are still being charged and convicted for possessing, growing and using marijuana. Why are medical marijuana patients still being prosecuted? The answer lies in the difficult task of translating the good intentions of the voters into written law. With a few changes, Washington can honor those intentions and protect the rights of sick people to access the medicine they need.
The Medical Use of Marijuana Act allows patients to use medical marijuana with a doctor's permission. But the language of the law does not provide clear guidance as to how doctors, patients or caregivers should document that permission or for law enforcement to verify it.
Under federal law, doctors cannot write a "prescription" for medical marijuana. So, under our state's law, the permission instead must be something that clearly states the doctor's finding that the patient suffers from a debilitating illness and that medical marijuana will likely alleviate the symptoms of that illness. What is needed is a standardized form for a doctor's permission that would help patients, caregivers and law enforcement more easily determine who is a qualified medical marijuana patient or caregiver.
Further, the Act allows patients or their caregivers to possess or grow a 60-day supply of marijuana for medical use but did not create a system for distributing medical marijuana to patients. This places sick people, some of whom have never used marijuana before in their lives, in a position of having to find marijuana on the street or through friends or relatives.
Imagine a person receiving a cancer diagnosis from her doctor and learning that she will need to begin chemotherapy the following week. Her doctor may recommend the use of medical marijuana to alleviate the nausea and pain of the cancer and the treatment. She is in shock over the diagnosis, but she does not need a "caregiver" to provide housing or health needs - she is able to continue living in her home and getting herself to her appointments.
What she needs is a trustworthy person who can provide her with medical marijuana immediately. She cannot wait for months while she learns how to grow the marijuana. The best source would be someone who is already providing medical marijuana to other patients. But the way the law is currently written, the patient can only obtain marijuana from someone who provides for her housing or health needs, and that "caregiver" can only provide marijuana to one patient.
The definition of "caregiver" needs to be changed to reflect the realities of the care that patients need. People with the skill and experience to grow medical-grade marijuana should be permitted to grow it for several patients at a time so that sick people can safely obtain it as soon as they need it.
An additional obstacle to smooth operation of the law is that patients, caregivers and law enforcement officers have no consistent guidelines for determining how much medical marijuana can be possessed. The law permits patients to grow and possess a 60-day supply. However, like other medicines, the amount of marijuana used by patients varies greatly depending on the type of illness, the method of administration (smoking, eating or vaporizing) and the size and condition of the patient. Medical marijuana patients and their caregivers need flexibility to ensure that they are able to possess enough marijuana to treat the illness; law enforcement needs some certainty in how to determine what constitutes a 60-day supply.
Finally, medical marijuana patients and their caregivers face great challenges in the courts. The law permits a medical marijuana patient or his caregiver to present an affirmative defense to the charge of unlawful possession or manufacture of marijuana. In recent years, many judges have interpreted this defense narrowly and denied medical marijuana patients and caregivers the opportunity to argue their case in front of a jury.
In many cases, this guarantees a felony conviction since these cases usually involve the confiscation of medical marijuana in significant quantities. Even if people go on to win on appeal, the end result is that very ill persons are denied their medicine and put through stress and possible worsening of their conditions while trying to defend against criminal accusations.
Washington's medical marijuana law is an important tool for sick people, and we need to work to fix the problems. Many people who would otherwise be in jail for using or seeking medicine have been able to avoid arrest, prosecution and conviction. The ACLU of Washington is working in the Legislature for revisions that would do the following:
- Clarify the definition of primary caregiver. The law needs to acknowledge that the people who provide medical marijuana for a patient are caregivers, even if they do not provide other forms of medical or maintenance care. Also, the law must increase the number of patients who may be assisted by a caregiver.
- Define how a physician should recommend medical marijuana for a patient and how to document the recommendation. A standard format for the required information will make it less likely that police or prosecutors will challenge the written authorization from a doctor.
- Clarify the right of defendants to invoke the medical marijuana laws in their defense. If a person files a notice of intent to rely on such a defense and has facially valid documentation, he or she should be allowed by the courts to present evidence in trial.
Jennifer Shaw is the legislative director of ACLU of Washington.
