E-Mail This Article to a Friend Grass in Mass Medical marijuana could become legal in the Commonwealth BY MIKE MILIARD

It would seem these are dark days for the medical-marijuana movement. In June, the Supreme Court ruled in Gonzales v. Raich that the feds can prosecute patients even in states with laws allowing prescribed use — a decision that would seem to be a definitive "no" on the subject handed down by the highest court in the land. White House drug czar John Walters even claimed the ruling "marks the end of medical marijuana as a political issue."

Not so. "The Raich decision really wasn’t a setback in legal terms, it just preserved the status quo," says Krissy Oechslin, assistant director of communication for the Marijuana Policy Project. "Federal law remains the same. The decision did not overturn state laws, and it didn’t prevent other states from passing laws. It also didn’t prevent Congress from changing federal law."

So, even in the wake of the Raich ruling, we see Rhode Island, our plucky neighbor to the south, poised to join Maine, Vermont, and eight other states in passing its own medical-marijuana law. (See "Rhode Trip," News and Features, July 8.) The state senate overrode Governor Donald Carcieri’s veto in June, and the House of Representatives is expected to gather for a series of override votes by the end of the year, and may well have the majority they’ll need.

But what about Massachusetts, ostensibly the bluest of the blue states? Where’s our medical-marijuana law? In fact, there is legislation on the books that was signed into law by then-governor William Weld in the 1990s. But the law requires that the marijuana in any state-sponsored program be supplied by the feds. Unsurprisingly, they’ve not provided any, so medical marijuana is effectively illegal in the Commonwealth.

That may be changing.

BEACON HILL OR CYPRESS HILL?

In 2004, there were five non-binding medical marijuana initiatives on ballots across Massachusetts, and all of them passed by at least two-to-one. So public opinion is there. The medical community is on board, too. "I sent out a letter asking for physicians to sign saying that they support the medical use of marijuana, and over 1000 physicians signed it," says Representative Frank Smizik (D-Brookline), who has submitted a bill before the House Committee on Public Health that would amend the current law. Still, he says, "I don’t see real movement in Massachusetts. There’s some action in other states that’s not happening here."

In part, that can be ascribed to the chilling effect the Raich case has had on legislators. Even though the decision doesn’t proscribe the passing of state laws, says Smizik, "it still makes it very difficult to pass a law in Massachusetts." Lawmakers are too willing to use it as an excuse for their own reluctance to sign on to legislation. Smizik’s bill, HB 2742, which would amend current law by allowing patients certified by the Department of Public Health to procure their own marijuana, hasn’t yet been heard before committee. "But I’m sure they’re going to be reluctant to move forward with that decision out there."

Perhaps a more basic approach, one that steers clear of the entanglements of state bureaucracy, stands a better chance of success. Another bill, SB 998, sponsored by Senator Thomas McGee (D-Lynn), would simply give a prima facie defense to patients, doctors, or caregivers who possess or prescribe marijuana. "I’m optimistic about 998," says Whitney Taylor, executive director of the Drug Policy Forum of Massachusetts, who’s lobbied for the bill. "It doesn’t cost any money, it will actually probably end up saving money. It’s not a big system. The state doesn’t have to get involved with distribution issues and regulation issues, which I think can always be a stumbling block."

Even if neither of these bills ends up signed into law, the committee restructuring implemented earlier this year on Beacon Hill may bode well for future proposals. "Our medical-marijuana bills had always gone through the criminal-justice committees; this year it’s being routed through the health committee," says Bill Downing, director of MASS CANN/NORML. "So that, for us is a big change. It means some of the [legislators] we had trouble with, who had stalled our bills, we’re bypassing."

Then, of course, there’s the issue of whether or not Governor Mitt Romney would ever sign a marijuana bill into law. Asked about the chances for his own bill, should it ever get that far, Representative Smizik just chuckles. "I think he’d probably veto it." But one never knows. A call to Romney spokesmen for comment went unreturned, but the governor has said things in the past that indicate he’s not as opposed to the issue as one might expect a Mormon, conservative Republican to be. At a White House Office of National Drug Control Policy summit in Boston in 2003, he wondered aloud why medical marijuana couldn’t be treated like any other potential pharmaceutical: "Would it not be appropriate to subject marijuana to this same [drug-testing] process?"

Funny he should ask.

A "NO-BRAINER"

Massachusetts is at the center of a fight for marijuana testing — a battle that’s arguably the most important front in the war since Gonzales v. Raich. Dr. Lyle Craker, a professor of plant and soil sciences at UMass Amherst, wants a license to grow research-grade marijuana for Food and Drug Administration (FDA)–approved studies — and, potentially, future prescription as an FDA-approved drug. (See "The Right To Grow," News and Features, August 26.) This would supplant the poor-quality stuff dispensed, stingily, by the feds from the single crop maintained by the National Institute on Drug Abuse in Mississippi. But the Drug Enforcement Administration (DEA), after three years of stonewalling, denied his application. So, with the help of the ACLU and Belmont-based Multidisciplinary Association for Psychedelic Research, Craker is suing the DEA. Hearings before an administrative-law judge took place in August, and more are scheduled for this month, but victory is far from assured.

Meanwhile, on Capitol Hill, Representative Barney Frank’s States’ Rights to Medical Marijuana Act, which would reschedule the drug so that states with medical-marijuana laws can escape federal interference, was introduced before the House and referred to the Subcommittee on Health in May. But the bill has been introduced many times before, and has always been voted down; there’s little reason to believe things will be different this time.

So it’s up to the state to make it so.

"I think if we continue our present strategy, eventually [opposition] will just become ridiculous," says Downing. "Our present strategy is to run these public-policy questions in every election cycle, in as many legislative districts as we possibly can. One by one, the legislators who represent those districts are being told by their constituents, ‘This is what we want.’ Two-to-one. So it becomes very difficult for those legislators to either not lend their support or actually oppose medical-marijuana legislative opportunities."

Whitney Taylor, for one, thinks the issue may be reaching a tipping point. "We’ve already had discussions on Beacon Hill that never would have happened in the last 10 years," she says. "There’s actually a willingness to learn. The public is there. The science is there. To me, this should be a no-brainer."