Yesterday I went on the radio for a civil debate over the marijuana measure currently proposed for the November ballot. A lot of questions were brought up during that discussion that highlight the flaws in the measure, but what I came away with more than anything is a belief that many of those supporting the medical marijuana measure do not see the unintended consequences of the proposal’s broad language. Let me give you some examples of the questions and myths that illustrate this point.
Myth #1: Won’t medical marijuana save peoples’ lives?
An intellectually honest answer is that no one knows. The American Medical Association and American College of Physicians both think there is enough scientific data to suggest marijuana be reclassified by Congress so that it can be clinically tested; however, no one can honestly say for certain just what potential health benefits we may find in marijuana, because—as the AMA in particular notes—the scientific studies simply are not sufficient at this point.
Myth #2: People need to be able to grow their own marijuana at home, because they can grow what is best for them. Some varieties of marijuana are better suited for different diseases and ailments than others.
If marijuana were rescheduled by Congress, the scientific and medical communities could vet it; if they determine it offers solid health benefits, they could find a way to extract or synthesize marijuana’s medicinal properties the same way they do with other plants; this process could certainly be done to cater to specific symptoms and illnesses. As it is, the FDA is concerned about variables that exist among raw marijuana strains—particularly where potency and side-effects are concerned.
Myth #3: Homegrown marijuana is a red herring. If you place the dispensaries strategically around the state, no one will be allowed to grow their own, because everyone will be within five miles of a dispensary.
This is mathematically impossible. The proposal limits the number of marijuana dispensaries to about 30. That means on average there will be one dispensary for every two and a half counties. Under this proposal, people who live more than five miles from a dispensary could grow their own marijuana. Is it possible to spread the dispensaries out so that every person in Arkansas is within five miles of a dispensary? No. Arkansas covers an area of 53,179 square miles. Each dispensary will cover an area of 78.5 square miles (3.142 x 52). 30 x 78.5 = a maximum coverage of 2,355 square miles—about 4% of the entire state. So at least 96% of the state of Arkansas will be more than five miles from a marijuana dispensary.
Myth #4: This proposal requires all marijuana be grown indoors.
I think this is a matter of medical marijuana proponents misunderstanding the broad nature of the definitions in the proposal. The proposal dictates marijuana be grown in “an enclosed, locked facility.” At the outset, this sounds like it could be the same as “indoors,” right? But it isn’t. Read how the act defines “enclosed, locked facility”:
“‘Enclosed, Locked Facility’ means a closet, room, greenhouse or other enclosed area equipped with locks or other security devices that permit access only by a Cardholder.”
The definition offers three examples of an “indoor” facility—a closet, a room, or a greenhouse—but then it says “or other enclosed area equipped with locks.” This is important to note. “Enclosed” is not synonymous with “indoors.” “Enclosed” simply means there is a barrier separating the marijuana from the outside world. A cattle field with a barbed wire fence around it is “enclosed;” it is not “indoors.” It does not matter if the drafters of the measure meant for marijuana to be grown indoors; all that matters is the language of the measure itself.
Legally, a 4’ chain link fence with a padlock on the gate is just as “enclosed” as a 20’ fence with razor wire at the top and electronic locking mechanisms on the gates. One might be more secure, but the measure does not say the marijuana has to be securely enclosed; just enclosed and locked.
If drafters of the proposal meant “indoors,” they should have said “indoors.”
Myth #5: The federal government won’t prosecute anyone using marijuana for medical purposes.
This claim is based on two memos issued by the federal Department of Justice. The DOJ has recommended to its U.S. Attorneys that terminally-ill patients using marijuana in accordance with state law not be prosecuted. However, in those same memos the DOJ makes it clear that federal prosecutors can and should bring charges against those supplying and transporting the marijuana—that is, the marijuana dispensaries. All of this boils down to how much discretion the DOJ wants to use in handling marijuana cases. If and when Attorney General Eric Holder is succeeded by someone else, that Attorney General could direct the U.S. Attorneys to prosecute any and every person using marijuana, regardless of their circumstances. Why? Because under federal law it is blatantly illegal to grow, possess, transport, sell, or use marijuana for any reason. Period.
Myth #6: This measure ensures people can only grow six flowering marijuana plants.
Again, this is incorrect. Reading the letter of the proposal, it says that people growing their own marijuana can possess (at any given time) six flowering plants that are more than a foot in height OR more than a foot in diameter.
The measure does not discuss male and female plants (female plants flower; male plants, as a rule, do not); it does not define “flowering plant” as being a “female cannabis plant.” Flowering plant is any plant with flowers on it; non-flowering plant is any plant that does not have flowers on it.
So under this measure, a person can have an unlimited number of foot-tall or foot-wide plants, as long as no more than six of those plants have flowers on them at any given time.
What would be the point in that? Well, marijuana starts in a vegetative phase; the female cannabis plants eventually bud and finally blossom flowers, which can be harvested. If a person were proactive, however, they could posses an untold number of vegetative marijuana plants, starting seeds at set intervals and controlling light and other factors in such a way that only a few plants mature at a time. Following this, a person could consistently have half a dozen or so plants ready for harvest at any given time, with the rest in the process of maturing; provided they harvest those plants before the next batch matures, they would be able to maintain a steady stream of marijuana without violating this aspect of the measure.
Secondly, look at the height and diameter restrictions. There are no limits on the number of flowering plants under a foot tall a person may possess. Did you know there are dwarf varieties of marijuana that remain under twelve inches? Under this measure, a patient could possess an unlimited number of flowering dwarf plants. With enough dwarf plants, a person could theoretically harvest much more marijuana than half a dozen foot-tall flowering plants could produce.
Myth #7: Marijuana is too expensive and too difficult to grow; therefore not many people will grow it.
We have no idea how much dispensaries are going to charge for marijuana plants, seedlings, and seeds under this measure, so no one knows how cheap or expensive it will actually be for the average home grower to start their own marijuana farm.
If it were true, however, that marijuana cultivation is cost-prohibitive; that most people will live close to a dispensary; and that people are severely limited in the number of plants they can possess at one time, then why legalize homegrown marijuana? If it really is not going to be utilized by many people—if any at all—then why bother? This argument simply does not make sense.
Myth #8: Doesn’t the measure limit people to 2.5 ounces of marijuana every 15 days?
No. The measure says a person can obtain 2.5 ounces of marijuana from a dispensary every 15 days—which is enough to roll about 200 marijuana joints a month—and it says they can possess no more than 2.5 ounces of marijuana at a time. However, there is no limit on how often a person can harvest their homegrown marijuana. They could harvest 2.5 ounces of marijuana every day from their marijuana garden, if they want to; the law does not limit them at all, in that regard.
Myth #9: The Secretary of State and Attorney General have approved this measure, so why do you still say it is flawed?
First, the Secretary of State simply certified that marijuana proponents gathered enough signatures to place the measure on the ballot. He has not ruled on the legal sufficiency of the measure itself.
Second, the Attorney General simply agreed that proponents of the measure met minimum requirements for being able to circulate petitions to place the measure on the ballot.
Neither the Attorney General nor the Secretary of State have specifically ruled on whether or not the popular name and ballot title are misleading to the voters. The Arkansas Constitution empowers the Arkansas Supreme Court with the ability to remove a measure from the ballot if the Court believes voters will be misled.
Myth #10: Medical marijuana has worked in other states.
The City of Los Angeles, California, passed an ordinance outlawing marijuana dispensaries within its limits. Why? Because it believed the dispensaries were contributing to crime, and many alleged the dispensaries themselves were just brick-and-mortar drug dealers.
Colorado has wrestled with the issue of allowing marijuana to be advertised.
Officials in Arizona are currently asking federal courts to weigh in on whether or not the state’s medical marijuana law is constitutional.
The State of Washington has had problems with marijuana dispensaries located in or near school zones.
A number of people associated with marijuana dispensaries throughout the nation have been arrested, prosecuted, or otherwise dealt with by federal authorities.
And none of this has sufficiently answered the question as to whether or not marijuana’s health benefits outweigh any hazards it may pose. If that question had been answered, the American Medical Association would not be calling for rescheduling marijuana under federal law so they can conduct adequate preclinical and clinical tests.
Myth #11: This act strictly regulates the growth, distribution, and use of marijuana.
No, it doesn’t. The act spills a lot of ink over growing marijuana; however, it does not “restrict” marijuana in the sense most people might expect.
It gives users a virtual carte blanche to grow marijuana at home, with a few hollow restrictions that amount to very little. It creates an affirmative defense for anyone found in possession of marijuana—basically, if they can prove that they should qualify to use marijuana under Arkansas law, Arkansas authorities can do nothing to stop them. It ensures those people will be able to find a way to do so by including in the list of qualifying medical conditions broad, subjective symptoms, like “severe nausea” and “muscle spasms.” It allows any doctor in the nation, under Full Faith and Credit, to authorize a person to use marijuana. It does not require marijuana follow the same prescription process as other drugs. It allows people from other states to come here to purchase and use marijuana.
I could go on, but does any of this sound like it “strictly regulates” marijuana to you? Those who favor “medical” marijuana are advocating the breaking of federal law. If they are so ready and willing to break federal law, what leads anyone to believe they will strictly abide by this law, if it is passed?
Conclusion
I believe the people that sat opposite me at yesterday’s debate have a notion in their own mind as to what this proposal does, but I think there are a number of unintended consequences they do not see in the measure. For instance, they wrongly assume that “enclosed, locked facility” means an indoor facility. I promise you if this measure passes, someone will interpret that phrase differently; they will grow marijuana in a fenced pasture or a backyard flower garden, and they will get away with it because the law is not specific enough to say “indoor.” The same is true for the other inadequacies I have listed.
This proposal blatantly violates federal law. That fact cannot be disputed. This is not something federal law is ambiguous or silent about. Congress spelled out in black and white that marijuana is 100% illegal. This proposal violates that law, and it brings a number of unintended consequences with it.
If marijuana has medicinal properties, this conversation should be taking place in Congress, not in Arkansas. It really is as simple as that.
Frank Black