Open Letter To Local Governments And Law Enforcement

[+kurt klaas]

As I understand it, if conflict management is to have any chance of success between two groups in disagreement, they must first agree on what the problem is. If one group attempts to define what the basic problem is without taking the time to ask if the other side agrees, the solution proposed by that party is actually doomed to failure, because the opposing party will have a just grievance that has not been addressed. In such a case, it is very difficult to get the voluntary cooperation of the aggrieved party in the proposed one-sided solution. To say it another way, if the problem is defined by only one of two contestants, then the solution they impose, if they have the power to do so, isn’t going to address the interests that the other group has. The result will be that the imposed solution really is not going to resolve much at all, because it lacks the active involvement of the opposition. The result is that no real progress is made between the two groups in conflict, despite the wishful thinking of the group that imposed the solution. In sum, to solve the wrong problem is to implement the wrong solution; and to implement the wrong solution does absolutely nothing to resolve the real problem, which will continue to fester. Cooperation between two groups in tension is maximized when they have agreed on what the problem is by truly listening to each other and formulating the problem in such a way that the interests of both parties are addressed to the best extent possible.

 

Now, two basic groups are involved in the medical marijuana controversy: local governments/law enforcement and the medical marijuana community. I don’t want to speak for local governments, but as far as I can tell, many officials are fixated on one particular formulation of the problem: the legal question of transfers. The question consequently arises, does a club that might engage in transfers on behalf of patients break the law or not? Since the problem is reduced to a legal question, if that question is addressed, then the problem can begin to be resolved, in the eyes of officials. And I think the mmj community needs to admit that the Michigan Medical Marijuana Act (MMMA) is not clear on the question of transfers through clubs. So, from a strictly legal construction of the problem, it’s not that difficult for officials to make a decision against club’s engaging in transfers.

 

However—and here again, I do not speak for the whole mmj community, but for only myself in the analysis of the problem as I see it—a strictly legal view of the problem actually misses the mark—by a very wide margin. Let me suggest what I see as the root of the problem that, if more accurate, will have a far better chance of advancing a realistic solution for all parties involved. In my view, there is a more fundamental and encompassing problem behind the legal question of transfers. In fact, the question of transfers would not even exist if it wasn’t for this more basic problem: supply. EVERYBODY IN THE MMJ COMMUNITY KNOWS THAT THE MMMA DOES NOT COMPLETELY RESOLVE THE ISSUE OF PATIENTS BEING ABLE TO GAIN SAFE ACCESS TO A STEADY, SUFFICIENTLY DIVERSE (in terms both of strains and methods of consumption) SUPPLY OF MMJ. The reasons for this we do not have to go into because they are not important to the argument I am making. The key point is, there are not many people in the mmj community that would dispute my formulation of the problem, I think. Insufficient, irregular supply is a fact, and we all know it. This explains why clubs, for instance, engage in transfers on behalf of patients and caregivers to begin with. There would be no demand for clubs to do so if every patient had consistent access to all the medicine they needed either by growing it themselves or by having caregivers grow it for them. The root problem is that the supply of mmj is often sporadic and insufficiently diverse. Transfers are not the problem, the supply of medicine is.

 

Now here comes the hard part that officials might find difficult to accept. The problem of insufficient supply will continue to exist even if a local municipality bans clubs from engaging in transfers. As long as an insufficient supply exists, transfers that are in the gray area of the law will continue to exist by one means or another. Thus, if supply is actually the more accurate description of the root problem, then that is what needs to be addressed. Transfers by clubs alleviate the supply problem.

 

I admit that my analysis of the problem is not a strictly legal one. This creates an impasse for persons trained in the law or who enforce it—mostly lawyers, police, prosecuting attorneys and judges. They have difficulty considering anything beyond the strictly legal construction of an issue. It’s their job. Thus, they generally don’t consider sociological observations in their deliberations.

 

But this structured blindness has a heavy price. For example, a key sociological observation of mine regarding law enforcement concerns a fundamental fact of human relations that such organizations routinely ignore: without communication, without dialogue, humans cannot begin to resolve their disputes. Local law enforcement organizations seem to be the only ones on the planet who think that by not interacting with local representatives of the mmj, their cause is protected or advanced. In truth, any organization that rejects open communication has a very wrong take on the world and dealing with reality. Mostly, attempts by persons in the mmj community to work with local law enforcement agencies are met with complete silence, an organizational behavior that would be condemned by any expert on human relations.

 

The analysis of the problem I have presented is far more encompassing and reality driven than a strictly legal one. It is a construction of the problem I suggest officials include in their deliberations, because by doing so, a significant chunk of reality is given the proper recognition and attention it deserves, increasing the probability that the real problem will correctly identified and addressed and everyone’s concerns taken into consideration.

 

Continuing in this vein, I want to suggest that officials, including law enforcement, should not fail to ask themselves the difficult question, Will banning transfers through clubs actually result in the eradication of similar activities that are currently taking place throughout the mmj community, particularly in clubs?

 

To answer this question, I hold up the historic example of Prohibition. The ten-year policy in the 1930’s of banning the production and sale of all alcohol (during a time when medicinal marijuana-derived products were available in every pharmacy throughout the country) was finally repealed—after it became unmistakably clear that the policy simply did not align itself with reality. The widespread demand for alcohol was simply impossible to eradicate. Furthermore, Prohibition itself created huge secondary law enforcement and social problems. John McKay, Seattle’s former U.S. attorney, has boldly come out and stated what many, who are not in law enforcement, have been arguing for a long, long time: current drug policy regarding marijuana has shamefully failed, and officials need to get realistic about it. Marijuana prohibition has failed to eradicate the widespread demand for it and has, instead, created huge secondary law enforcement and justice system problems. Therefore, Mr. McKay advocates reforming current laws (The Seattle Times, September 3, 2010, p. 3).

 

We in the mmj community should take no pride whatsoever in pointing out the unpleasant fact that banning transfers through clubs will have very little effect on curbing the actual demand for the supplemental medical marijuana services clubs provide. Often law enforcement officials argue that as mmj becomes more available, abuse and crime increase too. Do not forget, on the other hand, what persons who make such arguments never ever state: the very fact that mj is needlessly and futilely criminalized to the extent that it is itself creates far more crime than anything done to expand the availability of mmj. Please do not misunderstand the point. The mmj community has no overriding goal or interest whatsoever in pursuing the decriminalization of recreational mj use (This is a separate issue the mmj community ought not be involved in, which if it was, would create vast amounts of additional problems for its cause). I only wish to point out that banning transfers by clubs will utterly fail to depress the demand in the mmj community for the supplemental medicinal services they provide. In truth, I think city officials and everyone in the mmj community should dislike this argument. Nonetheless, it is reality. And ignoring this piece of reality by reducing the problem to a strictly legal point of view is doomed to failure. Instead, officials should enlarge their approach to reality by asking the difficult question, Isn’t it far better to allow for transfers through clubs that are well-regulated and out in the open where they can be monitored than stick one’s head in the proverbial sand by declaring transfers to be “abuse of the law that opens the door to additional drug enforcement problems?”

 

Make no mistake, officials have legitimate interests when it comes to transfers. Therefore, the mmj community should do all it can to work with officials by agreeing to regulations that create meaningful oversight to protect the interests of the broader public. In turn, officials should do all in their power to work with the mmj community. AND MAKE NO MISTAKE ABOUT IT, LOCAL OFFICIALS HAVE THE POWER TO REGULATE CLUBS THAT ENGAGE IN TRANSFERS, IF THEY SO CHOOSE. Furthermore, law enforcement in each county has some powers of discretion that can exercised regarding the activity of transfers. As officials and the mmj community work together, transfers that occur in the mmj community can be properly channeled, regulated and monitored. Rejecting this analysis of the problem will fuel the opposite result.

 

Someone may object that permitting the establishment of cooperatives or clubs that engage in transfers is a radical departure from the status quo. We beg to differ. It represents a middle-of-the road approach. When viewing the full spectrum of developments throughout the country, cooperatives are mainstream ventures compared to the establishment of numerous rouge for-profit dispensaries in some states, notably California and Colorado. Clubs and cooperatives are by definition not-for-profit, which puts limits on any temptation to expand their operations ever more. Again, banning transfers through such organization will accomplish the very opposite of closing gaps in the law that open the door to abuse.

 

Unfortunately, the subject of mmj often ends up turning primarily into a discussion about its potential for abuse and law enforcement issues, an emphasis that wrongly skews the debate. Medical marijuana is first of all and should always remain primarily a question regarding the physical health and well being of humans, a question of human dignity and rights. It is not first a law enforcement issue but a medical rights issue. It is not first a debate about the scientific evidence—which has for the most part been settled. It is not first a democrat issue, a liberal or conservative issue. It is first of all a medical rights and human dignity issue that transcends political persuasions. Every person has the right to access the best health care available (leaving aside the question of how to pay for it), to SAFE ENVIRONMENTS for the purchase and use of medicine and protection from discrimination by those who disapprove of particular medical treatments. Even persons dying horribly from some diseases are aided by mj. Although our discussion of medical rights is very short, these rights are actually at the base of all health care ethics, which extends to mmj. Clubs and cooperatives supplement SAFE ACCESS to the medicine patients need for their health well being and human dignity. No one can mount a successful moral argument against such a human right (with thanks to Michael Komorn for these insights).

 

I believe local governments can create regulations that result in monitoring of cooperatives and clubs in such a way that the broader public’s interests are addressed while at the same time advancing the cause of human compassion for those who are aided by mmj Now here may be something hard for the mmj community to accept. This means not allowing patients to medicate at such places for the following reasons: driving any motor vehicle while under the immediate intoxicating effects of marijuana is illegal; and causing an accident while under the influence could result in criminal prosecution; furthermore, club leaders could also be held legally liable for such an accident, if they permitted the consumption of marijuana at a club sponsored medicating event; in addition, though marijuana intoxication impairs driving performance very little, unlike alcohol, to which it is often unfairly compared, a club’s reputation could suffer damage in the eyes of the local community, if it allowed medicating followed by driving. There has to be give and take. This is a give.

 

In the absence of state action modifying the MMMA of 2008, municipalities are forced to address its shortcomings. Extending the concept of well-regulated clubs that provide safe access to mmj, where patients and caregivers are free from persecution for engaging in transfers, is needful, reasonable and justifiable, when based on a reading of the law’s intent. True, there’s disagreement about what that intent is exactly, and high courts have yet to decide this question. A narrow reading of the law strictly limits caregivers to supplying medicine only for their own state-registered patients, up to five. We disagree with this reductionistic view. The overall intent of the MMMA is to create a source of mmj for patients by allowing certain places to function as safe havens for doing so. How exactly this is accomplished is a derivative issue, not the overriding one. The idea of extending transfers to clubs and cooperatives clearly aligns with this intent of the MMMA, with its spirit.

 

Regarding the proper approach to the interpretation of the MMMA, we note the following comments by Attorney General Mike Cox in response to a question from the Michigan Department of Community Health asking for clarification about the statute. He stated, after conducting an inquiry into ballot initiatives, “The Michigan Court of Appeals has explained that ballot initiatives should be ‘liberally construed to effectuate their purposes’” [Welch Foods v Attorney General, 213 Mich. App. 459, 461; 540 NW2d 693 (1995)]. “To the extent that the initiative contains any ambiguity, it must be construed in light of the purpose of the initiative.” Id. at 462. Again, in our view, the overriding purpose of the MMMA is to create safe havens where patients and caregivers are protected from arrest and prosecution so that persons who are helped by mmj can get the medicine they need.

 

In summary, clubs that engage in transfers offer crucial, supplementary services to mmj patients and caregivers, which clearly accords with human medical rights, the intent of the law and to some extent, even with the letter of the law, because a consensus is building among officials, law enforcement and the mmj community that the act clearly protects patient-to-patient transfers. As discussed, all that a cooperative does is facilitate transfers on behalf of patients and caregivers. Cooperatives facilitate the intent of the MMMA. What’s so wrong with that? In our opinion, far far less than the good they will serve, both for the mmj and broader community.

 

In conclusion, the core problem is that the patient/caregiver system does not resolve all issues of supply, resulting in a flaw in the MMMA. This flaw creates a demand for access to supplemental mmj resources that cannot be eliminated, unfortunately, by local ordinances that ban transfers. Attempting to do so actually increases the possibility for abuse, the very opposite of the desired effect. Thus, enacting regulations that monitor transfers by clubs that openly engage in them is the best solution for everyone. This is a solution the mmj can support, or ought to be able to support. And it is a solution that local governments and law enforcement, exercising their powers of discretion, ought to be able to support, until state government gets its act together and explicitly approves protection for clubs and cooperatives to engage in transfers, which at least one state did after it passed an unsatisfactory mmj law.

 

In my opinion, such an approach is the most rational one available.

 

Kurt Klaas

 

Director, the HollandCCC