Taking on the man

At the end of its term, the Task Force on Medical Marijuana reaches an impasse over how boldly Maine should confront federal law

By Sam Smith

Brian Clark leans back in his living room chair and takes a drag off the glass pipe he keeps on the coffee table. Earlier in the afternoon he'd started vomiting again, a side effect of his HIV medication. The marijuana he's growing in a converted room in his apartment and loading into the pipe calms his stomach. The referendum Maine voters passed last year allowing patients suffering from certain illnesses to legally grow and smoke marijuana was meant for people like Clark. His apparent exasperation with the new law seems at odds with that fact.

"It was a Pollyanna, feel-good bill," he says. "It was diluted so it would pass."

The bill's per-patient limit of six plants, with only three producing at any given time, is completely inadequate, Clark says. "In the real world, someone would need to be harvesting 30 or 40 plants in rotation to have a stable supply."

And what about the patients who are too sick to even tend a crop, he wonders.

It's concerns like these that led Clark and others on the Task Force on Medical Marijuana, convened by the attorney general to develop recommendations for implementing Maine's new law, to support the formation of a central distribution center, where patients who don't care to or simply can't grow their own can purchase

marijuana. At the task force meeting on September 13 -- the sixth meeting of the summer; the last meeting is this week -- a majority of the task force members voted in favor of the proposal despite concerns from the attorney general's office about conflicts with federal law. The difference of opinion on this issue illustrates the ongoing split among policy makers over how overtly Maine should defy the federal government in implementing the state's medical marijuana law.

At the last task force meeting, State Sen. Anne Rand (D-Portland) and Rep. Michael Quint (D-Portland) laid out the proposal, whereby, under a pilot program, a single nonprofit center would be created to cultivate and distribute medical marijuana to patients who qualify under the Maine Medical Marijuana Act of 1998 (which last year's referendum put into law). The center would be overseen and managed by a community board, which would include, among others, law enforcement personnel, patients, education professionals, and clergy.

The proposal, put forth as a concept draft called "An Act to Create a Pilot Project to Fully Implement the Maine Medical Marijuana Act of 1998," addresses a number of concerns patient advocates have about distribution of medical marijuana.

"For someone going through chemotherapy," says Rand, "they might find out they have cancer and start treatment immediately. How would they have the time or effort to grow their own? They'd need it right away."

The idea of a distribution center also addresses concerns Rand and others have with another proposal submitted at the September 13 meeting. The second proposal, put forth by Assistant Attorney General James Cameron, co-chair of the task force, suggests creating a voluntary patient registry and a patient-to-patient distribution system, whereby a qualified patient could raise 12 marijuana plants, rather than six, and give half of the crop to another qualified patient. To do this, Cameron suggests, a list of patients growing excess plants would be made available to qualified patients who are not growing any. This was seen as a breach of privacy by some on the task force, a breach that would be avoided with a distribution center.

As Robin Lambert, a qualified patient, member of the task force, and distribution-center supporter, put it: "[Cameron] had an idea that, `Hey you, you'd like to have some marijuana? Here's a list of gay people with AIDS in the state who are growing some.' Well, what if Paul Volle [head of Maine's Christian Coalition] came down with cancer? I wouldn't want him to have my name."

Summing up the feelings of the pro-distribution center side of the task force, Quint commented at the last meeting, "I can't see putting the burden on the patient. Shouldn't they be able to focus on what's important, getting better, instead of how they're going to get seeds and grow their own plants?"

Assistant Attorney General Cameron makes no bones about it, he isn't in favor of a distribution center and he is in favor of a patient-to-patient networking system because of the federal government. He didn't support the referendum to begin with because of its obvious conflict with federal law banning the use of marijuana, and he doesn't support a distribution center for the same reason.

"We have to look at the precedent being set in California," he says. "This very issue has been the source of court action in the Oakland Cannabis Buyers' Cooperative case, where the US government got a civil injunction against the co-op.

"Now, you can ignore that if you want and say, `Well we don't care.' But the writing is on the wall: the federal government has given every indication that it will move on these co-ops and the court has shown they will back it up."

The first ruling in the case against the Oakland Cannabis Buyers' Cooperative came down in 1998, when a district court judge barred the co-op from "engaging in the manufacture or distribution of marijuana." Last year, on appeal, the ruling was overturned on the grounds that "medical necessity" trumped federal law. Last month, at the request of the US Justice Department, the US Supreme Court issued an emergency order blocking the appeal. According to Cameron and others, this is a sign that the high court will formally take up the issue, most likely this fall, and will in all likelihood again side with federal authorities.

Regardless of all this, a majority of Maine's medical marijuana task force voted in favor of a distribution center at the September 13 meeting.

"I was really surprised by that vote," says Rep. Edward Povich (D-Ellsworth), co-chair of the task force, and distribution center opponent. "I took an oath of office to honor the state and federal constitution, and I think we're pushing the envelope when we talk about setting up marijuana co-ops . . . Look what's happening in California; those co-ops are no different than a crackhouse."

Drafters of the distribution center proposal have used California's co-ops as a model, but they've also made changes that they feel will either keep them off the federal government's radar or give them a defensible case if they end up in court. As in California, Maine proponents suggest a multi-layered security system where patients would have to go through a number of identity checks before being provided marijuana. (In a little-publicized incident at a California co-op in San Francisco, an FBI agent attempting to enter with false identification was turned away after his name did not show up in a database of qualified patients.) Then veering from the West Coast model, in Maine there would be only one distribution point in the state, as opposed to California's more than 35, serving an estimated 400 patients, as opposed to the tens of thousands in California. In addition, as proponents say, the antagonistic relationship between law enforcement and the co-ops in California would be avoided here through the community oversight board. They are quick to point out as well that task force member Mark Westrum, Sagadahoc County sheriff and president of the Maine Sheriff's Association, voted in favor of the distribution center proposal (although Cumberland County sheriff, task force member, and outspoken medical marijuana proponent Mark Dion voted against it).

Elizabeth Beane, task force member and director of Mainers For Medical Rights, the group behind last year's referendum, is in favor of a distribution center, but doesn't expect it to avoid federal scrutiny. "I think we should expect the federal government to take action; we shouldn't be naïve. But we also shouldn't be afraid of that. We should be smart in setting this up, so when we do go to court we have the best defense possible. If we have a defensible system, we could be at the forefront of bringing about change on this issue."

The vote on the distribution center, along with the vote on Cameron's proposal (which a majority of the task force also endorsed) and a vote on establishing a research program in the state to study the medical uses of marijuana (an overwhelming majority supported this proposal as well), will be presented in a report to the Legislature's Joint Standing Committees on Health and Human Services and Criminal Justice. But the split among task force members over the decision to create a distribution center has spilled over into the report process. Assistant Attorney General Cameron says more than one report may ultimately be issued to the legislature reflecting the difference of opinion within the group.

As Cameron says, though, "The results of the task force could really be summed up in one sentence: no consensus was reached."

Sam Smith can be reached at ssmith@phx.com.