How Legal Is  Medical Marijuana?

And Who’s Buying It—the Chronically Ill or the Chronically Stoned?


Treasure State voters gave a thumbs-up to medical marijuana back in 2004, but participants in Montana's medical marijuana program still worry about gray areas in the law regarding the green.

Though 14 states now have laws on the books allowing for the use of marijuana for medical purposes, marijuana is still classified as an illegal dangerous drug under federal law. That clash between state and federal statute means that people involved with medical marijuana are still “technically” breaking federal law. But last October, the Obama Administration announced a hands-off policy regarding states and the issue of medical marijuana.

“I think it's the best thing the Obama Administration could do…leaving it at the state level,” Matt Cocharo, a Livingston medical marijuana patient who suffers from chronic pain, told the Pioneer. Cocharo is also an aspiring provider with one patient already under his wing. “Let's face it, marijuana is almost legal.”

The policy, sent to federal prosecutors in the states allowing medical marijuana use in a three-page legal memo, advised those prosecutors not to arrest people who use or provide medical marijuana in strict compliance with state law. Those guidelines state, however, that federal agents will go after people whose marijuana distribution goes beyond what is permitted under state law, and illegal operations using medical marijuana as “cover” will also be targeted by the Feds. In particular, the memo urges prosecutors to pursue marijuana cases that involve violence, illegal use of firearms, selling pot to minors, money laundering, or involvement in other crimes. The memo, written by Deputy Attorney General David Ogden, emphasizes that prosecutors have wide discretion in choosing which cases to pursue, and says it is not a good use of federal manpower to prosecute those who are without a doubt in compliance with state law.

That move by the Obama Administration was seen as welcome news by medical marijuana advocates across the nation, and medical marijuana seems to be coming out of the closet in Big Sky Country in a big way. But unresolved questions remain, and despite the Obama Administration's hands-off policy announcement, the federal law hasn't been changed.

“I heard my President say that states…make their own decisions on this issue…that's great,” Dave Kinney, a Bozeman medical marijuana provider, told the Pioneer. Kinney has been a provider for several years and is intent on expanding his venture, dubbed Herbal Alternatives, into the mainstream. “But I still live in fear doing this…almost every time the phone rings I wonder, 'Is this the call that's going to end this?'”

U.S. Attorney General Eric Holder said in March 2009 that he wanted federal law enforcement officials to pursue those who violate both federal and state law, but it has not been clear how that goal would be put into practice. And while the policy memo describes a change in priorities away from prosecuting medical marijuana cases, it does not rule out the possibility that the federal government could still prosecute someone whose activities are allowed under state law, where unresolved questions also remain, mostly on the supply side of the equation.

“I want to see those gray areas cleared up,” said Cocharo. “I'm committed at this point. I'm truly ready to do business.” Those gray areas also range from the quantity and form of marijuana a patient or provider can possess to the question of whether marijuana is truly a medicine.

The Federal Drug Enforcement Administration asserts that marijuana's classification as a Schedule I drug (as is heroin and cocaine) means that pot has no “recognized medical use and a high potential for addiction or abuse.” Even the Montana Chapter of the National Organization to Reform Marijuana Laws says that there is “no agreed-upon definition of what constitutes medical use” of marijuana. Others question why seemingly healthy people in their 20s are receiving medical marijuana cards, and whether the move to make medical marijuana available is really just a move to make marijuana legal.

As the debate on the legalization of certain illicit drugs rages on, rehab centers and drug addiction recovery facilities continue to work helping out substance abusers who want a new, drug-free life.

Both Cocharo and Kinney counter the perception that medical marijuana is simply a front for people to smoke pot legally.

“I had two people turned down by a physician last week…you have to have a doctor's endorsement to do this,” said Kinney. “Lots of people get turned down.” And not all doctors are onboard with medical marijuana use.

“My own family physician didn't want to be involved in my application process,” said Cocharo, who suffers from chronic pain due in large part to the 33 broken bones he suffered over the years as a hard-rock miner. “There's still a stigma attached to marijuana use, no doubt. I don't think that stigma will be gone for another generation at least. I had to find another doctor…but there are doctors out there.” He said an increase in medical marijuana patients in Montana over the last few years has a lot to do with the fact that more doctors are now willing to prescribe pot to their patients.

“The increase in [medical marijuana] patients is sharply related to the increased availability of a physician,” agreed Kinney, who strongly touts marijuana's effectiveness as a medicine. Ocular pressure reduction for glaucoma, appetite improvement for wasting syndrome, reduction in spasms in multiple sclerosis patients, reduction of epileptic seizures, and chronic pain relief are among the now-accepted medical benefits of marijuana. 

“It's fascinating…once you see how marijuana eases people's suffering, it's a different deal,” said Kinney.  “For instance, I have a 75-pound multiple sclerosis patient and marijuana helps keep him alive by both relieving his pain and restoring his appetite. Different strains seem to work for different people in different ways, and I keep track of that…I'm doing what the medical profession should be doing.”
Cocharo and Kinney also said that patients, caregivers, and law enforcement alike need clearer guidelines regarding the type and quantity of marijuana product that can be legally possessed at any given time.

“What do I do with any surplus I grow?” asked Cocharo, a sentiment echoed by Kinney. Both men said that they cannot predict the yield of a plant or the needs of a particular patient. Current Montana guidelines mandate that a “qualifying patient and that patient's caregiver may not possess more than six marijuana plants and one ounce of useable marijuana each…'useable marijuana' means the dried leaves and flowers of marijuana and any mixture or preparation of marijuana.” In contrast, Washington and Oregon medical marijuana patients can possess up to 24 ounces of prepared pot.

“Are we supposed to burn any surplus…throw it away?” said Kinney. “What if I take on new patients?”

Proposals which may help clear up some of those gray areas specifically regarding Montana's medical marijuana program are expected to surface when Montana's legislature meets in about a year for the regular 2011 Legislative Session. Attempts to both curtail and expand laws regarding medical marijuana in Big Sky Country died last session, however, including a move to increase the legal amount of marijuana patients and providers may possess.

“I certainly expect there to be a lot of legislative debate this next year about the medical marijuana law, and I expect to make some proposals myself for improving the law,” Tom Daubert, president of Patients and Families United, who helped craft the 2004 Medical Marijuana Act, told the Missoulian in mid-January. “Some of my proposals address the same concerns that law enforcement have. When you get down to it, there is more common ground between law enforcement and patients than you might imagine.”

“I think we'll see some regulation of the medical marijuana program, along with clearer guidelines…open, up front, and honest,” said Cocharo. “I think that will benefit everyone from law enforcement to your sickest patient.”

“We have to have a voice in Helena,” said Kinney. “And profit shouldn't be the motiva-tor…caring for patients should. It makes me feel good to help people, and I've seen some real miracles.” 

Editor's note: Temporary moratoriums have been placed on the operation of medical marijuana distributors in Great Falls and Whitefish, Montana, while city officials consider the implications of such businesses in communities and neighborhoods. Billings considered a similar moratorium, but voted to table it after an attorney threatened to sue if the law was passed, though state law allows urgency ordinances to impose such moratoriums on lawful activities for up to six months.

At issue for these cities and towns is the proximity of medical marijuana dispensaries to mainstream businesses and schools, and whether they should be relegated to medical facilities. Also at issue is the concern that much of the medical marijuana movement has less to do with medicine and more to do with smoking marijuana recreationally but legally. In the preparation of this report, a medical marijuana seller who wished to remain anonymous told this editor that the vast majority of those applying for medical marijuana cards were motivated by their desire to get high rather than medical purposes. What's more, it is this editor's understanding that while certain medical conditions are relieved by chemicals contained in marijuana, notably the loss of appetite associated with cancer, and are of benefit to the seriously ill, many who are not ill have been able to procure medical marijuana cards with the help of a certain limited number of doctors doing a brisk and profitable business thanks to the Obama administrations’s recommended hands off policy pertaining to the enforcement of federal law.    







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