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  Pot Power Play

Posted by CN Staff on August 17, 2008 at 09:04:38 PT
By Kenji Yoshino 
Source: Los Angeles Times 

California -- Just because a majority of Californians voted to make marijuana available for medical purposes does not mean it is legal. Charles Lynch, the owner of a Morro Bay medical marijuana dispensary, learned this lesson the hard way on Aug. 5 when he was convicted of violating the federal Controlled Substances Act. His lawyers defended him in part by saying his business had the blessing of elected officials in Morro County. But the jury convicted him under federal drug laws; in October, he will be sentenced to a period of five to 85 years in prison, though he has vowed to appeal.
Federal and state laws with respect to medical marijuana have been in tension for years. Under the federal Controlled Substances Act of 1970, the distribution or possession of marijuana is a crime, with no exceptions for medical use. Under California's Compassionate Use Act of 1996, however, individuals who meet certain criteria may distribute or use marijuana for medical purposes without running afoul of state law. In 2003, the Legislature further bolstered the medical marijuana movement with a law requiring counties to provide patients with an identification card that protects them from state prosecution.This places dispensers of medical marijuana, such as Lynch, in an untenable position. From the perspective of the federal government, they are no different from common drug dealers, susceptible to Drug Enforcement Administration busts and substantial prison sentences. From the perspective of the state government, they are running legitimate businesses that pay taxes and otherwise comply with California law.The courts have yet to resolve this controversy. Under the supremacy clause of the U.S. Constitution, federal law supersedes state law when the two conflict. But it is not as obvious as it might seem that they do. Language in the federal Controlled Substances Act specifies that it only preempts state laws that create a "positive conflict" with it. A court could find that because California law does not expressly prevent the federal government from enforcing its own drug law, the two sets of laws are consistent.Indeed, on July 31, the state's 4th District Court of Appeal took a step in that direction. It held that the Controlled Substances Act does not preempt California's requirement that counties give medical marijuana users identification cards. The court expressly declined to go any further, but proponents of medical marijuana rightly viewed the ruling to be a significant win. If the decision withstands appeals, it will ensure that federal law will not completely wash out the state program.But it seems unlikely that courtrooms are where this legal dissonance will be resolved. This is especially true since 2005, when the U.S. Supreme Court heard a federal constitutional challenge to the Controlled Substances Act. In that case, Californians sought to protect the use of medical marijuana by stating that it is a purely intrastate matter, and thus beyond Congress' reach. The high court rejected that argument, ruling that, as a whole, the drug law was a proper exercise of Congress' power to regulate interstate commerce.After that decision, the legislative and executive branches of government are best equipped to make federal and state law consistent. The remaining question is which side -- federal or state -- should give way in this standoff.In this instance, the federal government should cede. Under our federal system, the states are supposed to serve as laboratories of experimentation (to paraphrase Supreme Court Justice Louis Brandeis) that permit a variety of policy approaches that suit local mores. Moreover, the areas implicated by medical marijuana -- crime and health -- have traditionally been areas of state sovereignty. This perhaps explains why -- flying in the face of the Controlled Substances Act -- 13 states have passed some form of medical marijuana law.Under the Controlled Substances Act, marijuana is grouped with heroin and mescaline in the set of drugs subject to the most stringent regulation. Congress or the U.S. attorney general has the power to reclassify marijuana so it can be dispensed by a physician. Alternatively, the U.S. Department of Justice could use its discretion and stop prosecuting medical dispensation and use in states that have legalized it. California's Legislature has supported both alternatives, and Barack Obama, the presumptive Democratic presidential nominee, has expressed support for the latter. John McCain was equivocal early in the Republican primaries, but the candidate has since said he would not end the federal raids on medical marijuana dispensaries.State medical marijuana laws should not be seen as an attempt to flout the authority of the federal government. These laws are a proper exercise of a state prerogative to which the federal government should defer.Kenji Yoshino is a professor of constitutional law at New York University School of Law.Note: Should state or federal law prevail on medical marijuana?Source: Los Angeles Times (CA)Author:   Kenji YoshinoPublished: August 17, 2008Copyright: 2008 Los Angeles TimesContact: letters latimes.comWebsite: http://www.latimes.com/CannabisNews Medical Marijuana Archiveshttp://cannabisnews.com/news/list/medical.shtml

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Comment #32 posted by museman on August 19, 2008 at 16:40:31 PT
commonsense
From my own experience on the other side of the table - as a client in a marijuanna case -3 times counting the original 'pot ticket' from the 70's -which I actually got arrested 2 times for, I thoroughly understand how your 'professional' hands are tied. I also have a good friend who has been in and out of the bar -for personal reasons- and he confided many of the sentiments you speak of.Of course in my experience with 'public defenders' I have been extremely blessed when it counted the most, and the man actually followed my wishes, and that allowed me to take advantage of an other wise dire situation facing me. The judge -who was an old school GOB redneck- had a stroke and was removed from the bench, and replaced with one of those (rarer, I believe -at least at that time- than you would have me believe) 'liberal' judges you mentioned, although he didn't agree with the legalization. The public defender allowed me to state my logic, my ethical conclusion of the unethical practices of both the governing body that declared a war on my sovereign person, and the unethical, immmoral actions of the 'law enforcement' that carried out the 'fulfilment' of that 'law.'My case, as so many others, is that I was without any doubt of intention or motive -easily proven given half a chance- causing harm to no thing, or no one in my particular pursuit of happiness while using, and growing cannabis. No Harm To Anyone or Anything. Yet here comes the friggin' Nazis, holding guns with fingers twitching on their triggers, pointed at me, and my family -twice! Perhaps in the finite twists of corporate exemption and favored exclusions that some people refer to as 'law' and in some cases 'constitutional law' may 'be on the books' and 'established by accredited authority' but brother whether you call it 'unconstitutional' or not the bottom line is it is just plain wrong, in error, and no matter how you cut and paste it it is still wrong and in error.When the majority of cops and law enforcement are a bunch of thugs with incredible psych problems as bad or worse than the few criminals they actually manage to catch - as evidenced on a daily basis throughout the world- and the 'lawmakers' are a bunch of rich pretty-boys who haven't a clue what real work and labor really is -as is apparent by the plastic smiles, thousand dollars suits, and limosines, and all the words refer to concepts that are lauded as universal, but in actuality are made to be exclusive and seperate, and the 'reperesentative government' only selectively represents that which they need to in order to get and maintain their power; it doesn't matter whether it is signed, ratified by every state, and declared final, unable to repeal -much like they've nearly accomplished with prohibition and the removal of original personal liberties intended by the bill of rights- it doesn't matter if you commission it engraved in gold and placed in stone above every door, if its wrong, it just wrong, and no amount of interpretation of law can make it right. Just the simple acknowlegement that it is an error seems to be somehow beyond the acceptable parameters of 'law' at this point.
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Comment #31 posted by Commonsense on August 19, 2008 at 12:27:48 PT
museman
Well, being an officer of the court and someone who spends an awful lot of time in courtrooms I tend to have a different take on things. You'd be surprised at how many prosecutors and even judges think marijuana ought to be legal. They don't make the laws, but they have to enforce them. That's the way it works. We defense attorneys have a duty to zealously defend our clients. Sometimes acting in our clients' best interests involves telling them what they do not want to hear. Sometimes it involves me talking people out of "chasing windmills" like Don Quixote was prone to do. The best I can do in many cases is minimize the damage my client will sustain in a case. If there is no way we are going to win at trial or on appeal, the best thing I can do for my client is work out a deal for him that is better than he'll get from the court if he takes his case to trial. This isn't taking the easy way out. It's not being cowardly. It's damage control.At the trial court level we are not making law. We are bound by the existing law. We have to work within the confines of the law. Who makes the law? It's our legislators. State legislators write state laws and federal legislators write federal laws. Some states also allow for ballot initiatives to make law. Constitutions, both state and federal, are also sources of law, and the higher courts ultimately determine how we interpret these laws, both statutes and constitutions. All laws written by legislative bodies are presumed to be constitutional, and it is a rare occasion that an appellate court will rule that a statute is unconstitutional. Drug prohibition laws have been tested on constitutional grounds and have in most every case withstood the challenges. The higher courts have spoken and we are bound by their precedents. I could argue that marijuana prohibition is unconstitutional, but the caselaw is against me and I (my client) would lose at the trial and at the appellate level. If I kept making these arguments in a every case, the reality is that I would tick off the judges and they would take it out on my clients. That's the way it works. Eventually they'd try to take it out on me. I'd get in trouble and for making arguments I know to be meritless and for filing frivolous appeals. You may believe your argument has merit, but if the higher courts have spoken on an issue and you don't have a darned good new novel argument for why they should overturn their precedent, you are making meritless, frivolous contentions in the eyes of the law. We have to have a good faith argument to make that we actually have a chance of prevailing with. If not, we are just wasting everyone's time and in the end my client is only going to be hurt by that course of action. It is unethical, a violation of Rule 3.1 of the Model Rules of Professional Conduct, for me to go there, and it's just plain not the right thing for me to do to my clients. I have to be a straight shooter with them and steer them on the right path and not do things liable to hurt them more or cost them money they should never have spent. The truth is that lawyers love being able to make constitutional arguments and change laws. If we can do that it's a real feather in our cap. Most of us would love to figure out a way to get a lot of these drug laws set aside. Most criminal defense attorneys think it's silly that marijuana is illegal. You should go sit in on a meeting of the National Association of Criminal Defense Lawyers or any of the state versions of the same organization. You'll always hear talk about how stupid these laws are, what crooked jerks narcs and prosecutors are, and so on. We'd love nothing more than to come up with a way to have the marijuana laws declared unconstitutional, and to be the one that gets the bragging rights for being the guy that finally did it would be something else. I promise you, there is no grand conspiracy on the part of defense attorneys to keep these ridiculous laws going. The laws aren't still in effect because of lack of trying on our part.Our legislators write our statutes. People elect these legislators and lobby for what they want. At the federal level especially our legislative bodies are dominated by people as old as the hills who grew up long before marijuana became popular. The old guys, those who tend to head up all the committees and set the agendas, tend to be a lot more afraid of marijuana than the younger guys who in many cases have smoked it themselves. All of these politicians, regardless of their age, worry about doing things that will alienate major voting blocks. I think a lot of them are still worried about alienating the many millions of older voters. Older voters tend to outvote younger voters by significant margins. Young people talk a good game but unfortunately in the past few decades at least have not been so good at actually making it to the voting booths. Politicians are worried about the old people, about the Bible thumpers and the soccer moms worried about their children. Even the younger legislators who deep down may very well think marijuana should be legal don't dare espouse that belief publicly and go out on a limb on marijuana issues because they don't want to alienate these important voters. Why do you think Obama backed off of what he said about how it might not be such a bad idea to decriminalize marijuana. You know my gut tells me that in his heart of hearts he thinks marijuana ought to be totally legal, but he wouldn't dare say that at this point in his career. It's too risky politically. I think people will come around eventually. Old folks who grew up before marijuana became popular will die off and lose their grip on American politics. People will become increasingly frustrated with the failure of the war against marijuana and all the money and effort that is being wasted. The political climate will change. Already over 40% of Americans when asked on surveys say they think marijuana should be legal and regulated similar to alcohol, and that percentage is growing by about a point a year or so on average. It is no longer political suicide for politicians to admit past marijuana use, and increasingly it is becoming safer for them to talk about the need to change the laws. Things are slowly but surely changing and in time I think the laws are going to change. We just need to try to elect politicians friendly to the cause, and to do what we can to educate and persuade voters and politicians who are on the fence about our marijuana laws. 
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Comment #30 posted by FoM on August 19, 2008 at 12:22:29 PT
One More Thing
I do not know what is the right way to say we are as a country. So instead of calling us a Democracy maybe I should cover both bases and say a Democratic Republic. That sounds better. That's all. 
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Comment #29 posted by FoM on August 19, 2008 at 09:59:37 PT
museman
I like this thread. We can disagree but be civil. That's what I call a Democracy. It's like Neil says it's all one song.
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Comment #28 posted by museman on August 19, 2008 at 09:43:08 PT
commonsense
I recognize that the courts are all sewn up in the emporers new clothes, and that getting them to admit error is like getting Satan to repent. Which is why I give them no credibility other than their guns.You may be right in your conclusion that we can't change the laws through the courts -up to a point- but I submit that challenging their assumed 'right' to treat herbalists as criminals, and rabid dogs as 'good public servants' is just as important as people-based initiatives. Challenging their 'interpretation' of law, with living truth is another facet of the whole picture.The trend that I often see here from some folks is to point at one aspect of liberty and the expression of it, as the whole of it, and to put down other, more organic actions and response, because they 'aren't on the same page' as that particular way to do it, whatever it is.Before anything becomes 'common' law, it must be 'believed and adhered to' by a significant number of the governed body. We all know that educating the people about the facts, as opposed to the BS prohibition propaganda about cannabis, is a huge priority.In my perspective, from 'my page' it is all about consciousness. I believe that the changes in consciousness throughout history, are the very real foundation of any substantial social/political/economic change. Thereore ignorance is my greatest 'enemy.' There is such ignorance that blindly supports the ways and means of this society as if they were handed down from God or something, without ever looking at the non-mechanical, non-statistical, non-mathematical, organic, living, human aspects -common sense- that we live, share, and in all ways but government and economics have established as 'facts of life.'The errors in the system are far beyond fixing. Ultimately we will have to evolve the system to catch up with the consciousness that has already left it in the dust of obsoletism.To accept the fact that the system is powerful, and more likely to run you over than stop and give you a ride is one thing,...you learn to jump aside, duck, and cover, but you still got to go down the road you're on...but to defend it and teach young minds that 'there is nothing you can do about it' by attacking ideologies that just might have solutions -just because they don't fit into the proscribed parameters fo the status quo, isn't going to get us where we are trying to go with freedom and liberty.Humanity is the abject example of the word 'diverse' and as long as there are seperate, secular, and elite divisions of factions, ruling, controlling, and manipulating the mainstream views of reality through such things as a false authority like the judicial system, then the imbalance, suffering, pollution, and destruction of life will continue until God and Nature finally pull the plug. Until the 'authority' recognizes that it is not an 'office' or a 'job description' or a particular degree in whatever that provides authority, but the situation itself, the juggernaught of destruction will continue. I realize that many do not understand this, but that is just a lag in consciousness, and at some point it will begin to dawn on the many, just like it has dawned on the few.Thank you by the way, for not responding with emotional, argumentative BS. I really appreciate that.We may not agree on everything, and I will take whatever changes we can get, but my eyes are on the far goal of consciousness, and will do my infinitesimal part, even if I'm not ushered into any 'halls of fame.'
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Comment #27 posted by FoM on August 19, 2008 at 09:26:01 PT
OT: One More Comment
I have been thinking about who will be picked for VP and if it's Biden that would be fine with me. He said Yes to stopping the raids so that is a good thing in my opinion. 
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Comment #26 posted by FoM on August 19, 2008 at 09:02:52 PT
OT: About Obama and The Internet
Barack Obama Wins Web 2.0 Racehttp://blogs.computerworld.com/president
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Comment #25 posted by FoM on August 19, 2008 at 08:53:40 PT
CommonSense
You're very welcome.
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Comment #24 posted by Commonsense on August 19, 2008 at 08:51:32 PT
Fom
Thank you for all you do with cannabisnews.com .
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Comment #23 posted by FoM on August 19, 2008 at 08:50:17 PT
CommonSense
I always enjoy talking to you. I love common sense thinking. Thank you.
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Comment #22 posted by FoM on August 19, 2008 at 08:47:47 PT
CommonSense
I didn't like or vote for Clinton. How he answered the marijuana question made me believe he was sneaky and would play whatever card he had to play to stay in the middle. Hillary was a Republican so I thought she would lean more towards conservative moral ideas. When Obama said that was the point I saw honesty. Politically it could have shut him down before he even began but it didn't. The Internet was tiny when Clinton was running but Obama is really up to date on the Net. We've moved to the brighter side of life I think and hope.I just found this article and I thought others might want to read it.Libertarian Support for Barack Obamahttp://www.thecarpetbaggerreport.com/archives/16324.html
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Comment #21 posted by Commonsense on August 19, 2008 at 08:37:47 PT
Fom
No doubt Obama is the better candidate on marijuana issues. McCain is stuck in another time when it comes to marijuana. Then again, I thought Clinton would be a lot better but we ended up seeing a massive escalation of the drug war during his reign. Our chances are a lot better with Obama, but he may not turn out to be as marijuana friendly as you might think he would be. These are tiny little side issues for someone like the president to deal with, not something a president is likely to take a major principled stand on if he feels like it might cost him some support. Would he order the DEA to stand down and leave medical marijuana providers alone in states where it is allowed? Maybe. Would he keep that going throughout his term in office if he started taking political flack for it? I don't know about that. 
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Comment #20 posted by FoM on August 19, 2008 at 07:47:34 PT
CommonSense
I also believe that since Obama was basically raised in Hawaii he should understand the culture of Cannabis. 
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Comment #19 posted by FoM on August 19, 2008 at 07:33:48 PT
CommonSense
I think Senator Obama really does think things through better then any politician I have seen. He is a Common Sense type person I believe. He is younger and that is something I remember you commenting about before. If the Dems get a majority in November I still have hope for change. If McCain wins then what we have now is what we will get. 
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Comment #18 posted by Commonsense on August 19, 2008 at 07:24:45 PT
Fom
I think we need to push at both the state and the federal level. We have more luck getting things passed in a more progressive state than we could with the feds. It's hard to get the feds to act. They have to keep everyone happy. If the Bible Belt is strongly against something, then West Coast states aren't likely to get it if they are waiting for the feds to act. Also, the feds can't do as much as you would think. If by some miracle Barney Frank could get his decriminalization bill passed (he doesn't even think there is any chance it will go through), it would not apply to the states. Our state laws would remain in effect, and more than 99% of all simple possession arrests are made by state or local law enforcement, not the feds.  What we might see in the near future is the feds backing off of medical marijuana providers in states where medical marijuana is allowed. Obama has said he'd stop the prosecutions. If he's not just talking smack like George Bush did, things might change if he is elected. McCain would keep things as they are, or at least that's what he says. It's hard to believe politicians during election time because mostly they just say what they think people want to hear, or at least what they think will alienate the least number of their support base. 
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Comment #17 posted by FoM on August 19, 2008 at 06:33:00 PT
CommonSense
I guess because I am older that I look back at how we changed the laws in the 70s in my state and other states. I wish we would have kept going that way and maybe we would be further then we are. California is a progressive state but I do believe we have been hurt by how it has gone down out there. Most people I have talked to around here don't get how making lots of money and compassionate use are connected. I just don't have the words to explain what I don't really understand. I am a woman and women don't look at things like men do sometimes.
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Comment #16 posted by Commonsense on August 19, 2008 at 06:19:09 PT
Fom
There are states that won't have medical marijuana anytime soon because there is just not strong enough support for it. If most Americans wanted to legalize marijuana there are states I'm sure states where the majority of the people would still like to keep it illegal. I say let the states do what they want. That's the way it was intended to work from the beginning. The states were supposed to police their own, and the people free to move to states where the laws worked best for them. We're supposed to have fifty little experiements in democracy. Think about it. If it wasn't for "states rights," California or no other states would have medical marijuana now. The federal laws would be the only laws. Would that make our laws more backward or more forward thinking? 
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Comment #15 posted by FoM on August 19, 2008 at 05:58:12 PT
Just a Comment
I've had a difficult time for a long time now trying to understand why we are here instead of on further down the road after all these years. It seems people want to push states rights and I personally want to see something happen on the federal level. We have states that would stay very backward and state's rights just won't help them. I am happy that Barney Frank has introduced a Bill that is Federal if I understand correctly.
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Comment #14 posted by Commonsense on August 19, 2008 at 05:35:22 PT
museman
Unless you have a new constitutional argument to make in court, there is no point in making one. Our courts recognize something called "stare decisis," which means they will stand by things decided. They must follow precident. Making the same old arguments that higher courts have already rejected will get you nowhere, and there aren't exactly a lot of new constitutional arguments to be made. It is not the fault of criminal defense attorneys that marijuana remains illegal. The politicians and most in society want it to remain illegal. All we can do is work to change the law. There is nothing defeatest about recognizing that this isn't a battle that will be won in the courts. We have to change the law, either through ballot initiatives or by convincing our respective legislative bodies to legalize it.
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Comment #13 posted by museman on August 18, 2008 at 20:44:36 PT
commonsense
I understand your opinion; That point of view has the entire rotten system of "BS" to back it (and the capitulators, compromisers, and status quo backers) up, make one afraid, and justify the willingness to accept their unconstitutional power. Yes unconstitutional. The fact that too few have made the constitutional challenges is the reason why 'the courts' have not upheld such things as our right to be secure in our homes and persons, to not be subjected to unreasonable search and siezure without probable cause -certainly a debate under way for some time now-, and many other constitutional established fundaments such as states rights.To call it 'malarkey' is defeatist, a bit of a concession to prevailing prohibition attitudes, and plattitudes as well as apparently uninformed.A gun is real. A cop aiming it at you is real. The threat is real, but there is nothing right about it, and in the Spirit and Intent of the original framers of the constitution, its effect, reason, justification, and existence -as it is- is unconstitutional.Just because a bunch of status quo kiss-asses who went to law school to learn the code of misinterpreting law for the benefit of the rich, happen to sit on most of the available benches of adjudication in this country does not make them right either.The entire system of things is illusory and in error, and i will never be convinced that there is anything within it worth redeeming, believing in, or supporting in any way.You may contend with the semantics of opinion, like some few others like to do with me, and yet you can neither 'prove me wrong' any more than I can prove my conjectures, observations and opinions to anyone who does not want to know, or see another way other than the concrete jungle.Having courage to face, and challenge the false aspects of the system does not mean one goes out and deliberately gets themselves busted, nor does it mean that they sacrifice the health and safety of their family members (a tactic often used by the amerikan gestapo to get one to 'cop a plea') for the sake of a political idea. However there is more here than just a political idea. I realize that many folks against prohibition, and certainly all prohibitinists, only see it on certain shallow levels. People who have never been busted for example, definitely have a different perspective than those who have, and they can't possibly know what the experience is like by reading about it, or watching a video about it.Bottom line is; I was brought up to believe that this country was a country with a government, 'of the people, by the people, and for the people,' In 1970 I swore an oath to protect us and the constitution from the very pretenders who now occupy positions of power, from the magistrate, to the president. I cannot do that by giving them power and authority which is false, corrupt, and destructive. The oath was never withdrawn from me, so I consider my patriotic duty to challenge, harry, thwart, and undermine the obvious enemy who occupies the land and country which is America, illegally, immorally, unethically, and (kangaroo courts aside) unconstitutionally, in any way that I can.They can pound their 'legaleze' into all the shapes and imaginary lines of control and containment, call it by any name, twist the orignal commonsense language and meaning of the constitution to fit their agenda all they want, but I am free now. I will be free until the day I die, whether they take justifiable twists of fundamental law into unethical practice on me or not. Nothing anyone can say or do is ever going to convince me of the validity of this government, until the people at large, the common man, are in the public house, and not exclusive club members only.Just my unrequited, and unpaid opinion.
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Comment #12 posted by gloovins on August 18, 2008 at 19:52:06 PT
Prop 215 shouldnt have even been 
even necessary if common sense reigned.see, you come to cannabis today with all that you know about it, age of course is a factor so i listen to the people that truly know about it. they usually always partake in some way shape or form or have at one point in their life. a point is then it shouldnt even be illegal. it should be legal and those who want to change the exsisting system should maybe educate themselves and others about jury nullification, LEAP and how the only reason prohibition is still in effect is because in the status quo there is too much money (fm possibly BS rehab centers to crooked cops & informants & the prison system & testing, etc) see, i don't want the feds to have "that hammer" of an old unneeded law, dig? i want less laws and more liberty, in my lifetime. one plant pic will get your house searched? wtf? i promise you the great men of the true common sense era of this country (Jefferson, Washington, Franklin, Button Gwinnett) would not be able to get their head around it. a plant man, i cant get my head around people who cant see that simply cannabis is a nontoxic herb that is only stigmatized because of the euphoric effect. those who cannot handle it who have stigmatized it unfairly, well, they are usually alcoholics or drinkers and if not, they all at least agree that prohibition of booze should not be brought back surly but this immediately kills ones argument about truly caring for humanity and people (all prohibs claim to do this) because they always favor continuing the status quo - keeping killer alcohol legal & regulated whilst keeping a friendly plant illegal & going against God's true law -- common sense....Love Love Love - dont just accept the fact that someone "knew the rules" so ill & bad should come to them via the system set up (that you & I pay for) that's wasted bad energy imo. i look at it like yet another opportunity to educate people about an unfair system. the "law" banning it is absurd, how can anyone usurp the Creator's plant? can you imagine having to pass a law to get asprin legal? It's more dangerous & kills more people than the plant. see, i see it as more common sense. the system will never be perfect, so i manipulate it as much as i see possible in any particular part of the day i see fit. c-news is my sanctuary for knowledge = )museman, u have a way with words and tell it well, btw. damn good guitarist too! love this forum still so much daily & FoM glad to hear you are well and your summer has been good...stay smiling all...frowners beware...;)
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Comment #11 posted by Commonsense on August 18, 2008 at 15:07:30 PT

 charmed quark; museman 
If it were up to me marijuana would be legal for all purposes and sold at licensed facilities and then we wouldn't have to worry about medical marijuana. If by chance a doctor did recommend someone use marijuana they could just pop on down to the pot store and buy some. I can see how these current shops do serve a purpose, but that does not change the fact that they are illegal under federal law and because they are big operations flaunting the law publicly they are extremely likely to come to the attention of federal agents who could and may very well bust them. That's just the reality of the situation. If you run one of these facilities you are likely to go to prison. If you don't want to go to prison, don't sell pot. Don't do things likely to get you sent to prison. That's just common sense. Growing and distributing marijuana under Prop 215 may not be illegal under state law in California, but it is illegal under federal law. State law enforcement aren't likely to bother you. It's the feds that you have to worry about, so the best practice would be not to do things that make you come under their radar. If you are growing it in your closet for personal medical use or as a caregiver for someone else, you aren't likely to come under the attention of the feds. They're generally looking for the big guys, especially those who are clearly abusing the system because they've gotten some black eyes prosecuting people the general public could get behind and support. Museman, you said something I need to address. You were talking about how they are violating our constitutional rights and how we "can't win this war with compromise and capitulation." You said that, "the thousands of pot bustees who 'copped pleas' (before making their stand) have fueled the justification of the continued false authority of the justice system, and have justified the creation of 'rehab centers' that in turn supply the BS propagandists with their 'statistics' and 'numbers.' (as one example)" I'm sorry, but that's a load of malarkey. First off, you can say that marijuana prohibition is unconstitutional all you want, but that doesn't make it so. The courts say it's perfectly constitutional, so that's the law of the land. That's what we are stuck with. The courts say it is a constitutional exercise of a state’s police power to ban marijuana. The courts say that the federal government can ban marijuana use in a state because it somehow has some connection with interstate commerce. While I personally think a state can ban pot use and possession within it's borders, I do not believe the Constitution authorizes the federal government to ban marijuana use in the various states, but the highest courts in the land see things differently so that's what we are stuck with. Should we not fight? Sure we should fight, but getting yourself sent to prison isn't fighting, it's just stupid. Should everyone who is ever charged with a marijuana crime take their case to trial? Hell no. If you are clearly guilty and you have a fairly reasonable offer under the circumstances all you are going to do is get yourself into more trouble taking your case to trial. You can jump up and down and scream about how unfair it all is and how you think it's unconstitutional, but it won't do you a lick of good. You might think you are standing on principle but in reality all you are doing is digging a deeper hole for yourself. Is it fighting the good fight to open up some big for profit medical marijuana dispensary? Call me jaded but it seems to me people do that to make money, not because they are saints. Would it be an unprincipled thing to do to just keep it small and grow a little and stay below the DEA's radar? No, it would be the sensible thing to do. Honestly I think the big greedy guys do more harm than good. The more shady they are the better propaganda they make for the feds and those who are anti medical marijuana. It does not help the cause when these people sell to anyone, when doctors write recommendations for hangnails, when people get busted with dozens of pounds of weed and hundreds of plants and have the gall to argue it was for their own personal use. These people are not helping the cause at all. 

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Comment #10 posted by charmed quark on August 18, 2008 at 14:05:46 PT

cooperatives vs. "for profits"
I think it is widely accepted that non-profit cooperatives WERE OKed by prop. 215 and the later rulings. These are patient/caretaker run and operated support systems. Yet the Feds busted the Wo/man cooperative, although they didn't charge anybody. So I'm not sure about the "you play you pay" sentiment.The for profits probably aren't what 215 meant. They use the quasi-fiction that they are caretakers for all their customers and so can grow and recoup "expenses" from the patients.I've talked to a number of medical users in California about this. I think I have a handle on the for profits.Even though I think these things are gray-market enterprises, they actually serve a purpose. They ensure an adequate supply of cannabis for people who really need it, generally in very convenient locations. I've heard of a number of small cooperatives that ran out due to crop failures or too many new members, such as cancer patients, who can't wait for an entire grow cycle. Also, it can be hard to get a self-sustaining cooperative going in less densely populated areas, which forces patients to travel long distances to get to one.These for profits don't have that problem as they are able to marshal the forces of the underground growers, ensuring a continuous supply even to small towns.And the prices are on par with black market marijuana. But the patients can buy clean cannabis of many varieties in a clean and safe environment.So, while of questionable legality, I think they serve a definite purpose.

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Comment #9 posted by FoM on August 18, 2008 at 12:28:33 PT

NPR: Exactly How Legal Is Medical Marijuana?
By Madeleine BrandListen Now [8 min 57 sec] http://www.npr.org/templates/story/story.php?storyId=93697469 
 Day to Day, August 18, 2008 · In Los Angeles, billboards displaying gigantic pot leaves are fairly common roadside attractions. There are an estimated 200 medical marijuana facilities operating in Southern California. With a doctor's "recommendation," a patient can walk into any one of these and buy pot — legally. But, California's medical marijuana law conflicts with federal law, which says the cultivation and sale of the drug is illegal. California already makes over $100 million a year from taxes paid by medical marijuana facilities. Marijuana advocates claim legalizing and taxing medical marijuana could provide hundreds of millions of dollars more for the U.S. government. We take a journey through the dreams and realities of the industry as part of Day to Day's California Dreaming series. Comment here: http://www.npr.org/blogs/daydreaming/2008/08/the_land_of_weed.htmlLegal AffairsAre Medical Marijuana Riches Just a Pipe Dream?By Heather Murphy 
  
 
 
 In some parts of Hollywood, it seems there are more marijuana dispensaries per square mile than Starbucks. With the price of your average blunt far surpassing a Frappucino – and no federal tax on weed income — one could see how the seed of a get-rich-quick scheme could plant itself in a passer-by's head. Oaksterdam University, the United States' only marijuana trade school, is the place where these pipe dreams are cultivated — and imploded. Univeristy President Richard Lee often begins classes by warning, "People who think they can make a quick buck and get out of paying taxes, they go to jail." At Oaksterdam, students learn how to cultivate, sell and use medical marijuana the "safe way." Because these activities are legal under California state law but illegal under federal law, the safe way essentially means learning to swim through a big gray swamp. Not Your 'Average Stoner' Located in downtown Oakland, Calif., in the heart of the medical marijuana district, Oaksterdam's main campus is really just a massive classroom with a small "grow lab" attached. The university also runs Blue Sky Coffee Shop, one of four marijuana dispensaries in the city; another coffee shop where one can legally smoke, but not buy, weed; a "gift shop"; and a sort of marijuana DMV, where one can get an official medical marijuana ID card. There's also a smaller satellite campus in Los Angeles. Since the university was founded a little over a year ago, the weekend workshops ($250) as well as the semester class ($400) have all sold out, according to Ilia Gvozdenovic, Oaksterdam's chancellor. Lately, to meet demand, the school has been adding more advanced cannabis business and dispensary-management classes, he says. At the end, students take a test and get a certificate. "It shows that one is more interested in and serious about medical marijuana than your average stoner," Gvozdenovic says. That can be helpful for getting jobs in the industry. Indeed, on a recent Saturday, the freshman class doesn't fit the half-baked slacker image painted by some initial reports about the school. The 60 or so students range in age from 20s to 70s. There's a handful of wild-haired, slow-talking hippie types, but overall the crowd defies generalization. During a break, an elegant 50-something blonde swaps growing tips with a tattooed Fabio look-alike. A trendy Asian college student chats about legal minutiae with a punk chick wearing alien earrings. Many of the professors wear suits. While no one denies they are looking forward to the cooking class, it doesn't seem to be the focus. "You have to know this stuff," says 21-year-old Andrew Macdonald of Sacramento, between sips of green juice. "I simply wanted to educate myself." In March, his friend and medical marijuana doctor, Marion Mollie Fry was sentenced to five years in federal prison for conspiring to grow and distribute marijuana. The case was unusual, because, with just 100 plants, Fry's operation was relatively small compared to others that the feds have targeted. "They set her up," Macdonald insists.Indeed, local law enforcement officials had told Fry it was OK to grow a small garden, a fact that was inadmissible in federal court, along with other references to the state-defined concept of "medical marijuana." Think Like A Lawyer, Act Like A Drug Dealer Throughout the day, a variety of marijuana experts take the stage, breaking down the history, legal hurdles and growing techniques, while offering both inspiring and cautionary tales. Ultimately, the lesson seems to be that to successfully navigate the medical marijuana world, one must think like a lawyer while taking the precautions of a drug dealer. "You control the facts that could end up in court," criminal defense lawyer Omar Figueroa tells the class. Facts that wouldn't be problematic for a doctor who prescribes a federally recognized medication such as Prozac, for example, could be problematic for "medical marijuana." Call the cops in Berkeley or Humboldt to report stolen medical marijuana and they may help you get it back, explains Figueroa. Call the cops in a more conservative county, and a police officer may take out a search warrant on your home. Though state law generally protects medical marijuana in the home and in the dispensary, it doesn't really account for transportation. Some cultivators choose to transport marijuana via bus or bicycle for this reason. Oaksterdam recently started a bike cab service around Oakland. Figueroa offers some basic guidelines: **Don't hire a felon to work in your dispensary, because the feds may pressure him or her to become a snitch. **Though an armed guard may be a tempting way to ward off robberies, a firearm turns marijuana sales into a more serious crime under federal law. **Keep marijuana far out of reach of children. Valerie of Santa Cruz, who did not want to give her last name because her family is still dealing with legal issues, backs Figueroa up on this one during the break. When she got pregnant, she let her recommendation expire. Her son was arrested for an unrelated reason. The cops found a photo of a marijuana plant on his phone, got a search warrant for her home, found her medical marijuana stash, charged her with contributing to the delinquency of a minor and threatened to take away all of her kids. "I didn't even get to smoke it," she says.Thanks to a good lawyer, the charge was eventually dropped. Undeterred, she's got a fresh recommendation and plans to grow her own medical marijuana plants.Riches Or Legalization?After lunch, it's time for the legendary Dennis Peron. Introduced as "the father of the medical marijuana movement," Peron once ran for California governor on a "mandatory marijuana platform" — as a Republican — and co-authored Prop 215, known as the Compassionate Use Act of 1996. Before the term "medical marijuana" even existed in the 1990s, Peron was running a huge medical marijuana club for AIDS and cancer patients. He's been to jail on marijuana charges dozens of times. Each time left him more passionate about his work, he says."In one year year, I had $51 million running through my hands. I never touched it," he says. Like many in the medical marijuana community, his dream has little to do with money. "Marijuana will be legal in my lifetime. ... I feel hopeful that Obama will reschedule marijuana," he says, referring to the fact that marijuana is currently a Schedule I drug under federal law, the most tightly restricted category. Indeed, Democratic presidential candidate Barack Obama has said that he favors decriminalizing, though not legalizing, marijuana. The details of his plan are hazy, but Peron insists that reclassifying medical marijuana to a lower "schedule," along the lines of Codeine and Tylenol, is going to happen in the next year. (His fellow professors are far less convinced.)Ironically, most growers don't want to see marijuana rescheduled, Peron confesses after class. Prices would plummet, meaning that as the dream of truly legal weed would become reality, the promise of marijuana riches would go up in smoke.Copyright: 2008 NPR 

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Comment #8 posted by Commonsense on August 18, 2008 at 11:03:24 PT

herbdoc215
I don't think that these dispensaries were contemplated when Californians voted fro prop 215. This is something people came up with later. It's just human nature. If there is a profit to be made, people will make it. Now it's become a really big business a lot of people abuse that the anti-marijuana crowd can point to as evidence that medical marijuana is nothing but a sham. I don't have empathy? I don't have an enourmous amount of empathy for people who take a calculated risk and things don't turn out well for them. That's the way the cookie crumbles. People who want to get into the medical marijuana business in a big way and make a killing selling overpriced marijuana are taking a calculated risk. They know they could be busted and sent to prison. They choose to take that risk anyway. If they get busted I'm supposed to get all upset and cry about how unfair it is? It's a shame for them and those that love them. It infuriates me that the feds jump in and try to control purely intrastate commerce. But I cannot feel a lot of sympathy for those the feds arrest because they knew going into it what the risks were and they chose to take the risks anyway, mostly I think because they saw dollar signs, a way to make lots of money fast. They play, they pay. So be it.

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Comment #7 posted by museman on August 18, 2008 at 10:55:01 PT

no one is safe
It doesn't matter whether you are 'greedy' or not, but which bankers you bribe. If you grow 1 plant, and the bankers (or their favorite friends) want your land, or they just don't like the color of your car, they will use the pot-cops against you.It's like commonsense said, hide, cower, be afraid, don't dare be up front with your liberties and convictions, or they will come down on you like rabid dogs.Those of us who have had that happen to us, however, tend to get pissed off about it, knowing as we do that the whole thing is stupid beyond belief, and in particular that it is a direct and blatant violation of our fundamental constitutional rights.While the fearful are hiding, playing the monkees who 'see-no-evil, hear-no-evil, speak-no-evil' the real warriors in this real war-on-people-and-nature, are standing in the path of BS at every opportuntiy. You see, those of us who have stood against tyranny know that the truth is our only real defense, and that the only way it works is to USE IT.Can't win this war with compromise and capitulation. The thousands of pot bustees who 'copped pleas' (before making their stand) have fueled the justification of the continued false authority of the justice system, and have justified the creation of 'rehab centers' that in turn supply the BS propagandists with their 'statistics' and 'numbers.' (as one example)Greed is surely a vice that deserves nothing but a swift end, but to compare a greedy pot grower to the greedy bankers, lawyers, poiticians, and coporate CEOs, is like comparing the sting of a bee to the bite of a cobra. The fact that is the vipers who cause people to be afraid to do natural things like use herbs, and grow their own anything, seems to be always avoided. The fact that it is this nation of consumers who empower this monster seems to always be glossed over, and ignored- with the capitulating, hiding, compromising, ass-kissing mentality of (in my observation) cowards, seems to be real difficult for people to see or look at, kind of like staring into a real bright light..like; THE TRUTH.There is no sanctuary, except the one you carry in your heart, and if you truly have that, there is nothing in this world to hide from, or 'be afraid' of. And when people stop being afraid of the bully, the bully diminishes.Try and see.
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Comment #6 posted by FoM on August 18, 2008 at 09:55:45 PT

What I Hope For
My focus is to see the laws changed so that the price drops to virtually nothing so that people will be able to afford to buy it. 
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Comment #5 posted by herbdoc215 on August 18, 2008 at 09:44:08 PT

commonsense, I guess you got your meds, eh?
I get so tired of people who are supposed to be 'for' medical cannabis up to the point where 'they' are covered...with zero empathy or compassion for those outside the fold. Hell who needs the feds when we got our own side dishing aspersions. It's all about access and the demand is so great that most are doing the best they can...it's not perfect but the clubs in Cali are the only place were it's actually working...without Cali style clubs, the other 11 states laws are just exceptions for white folks and those with money. I know hundreds of patients here in Washington whom would give their eyeteeth to be able to have access to consistent cannabis supple 1/2 as good as in Cali...without dispensaries 
it's all academic....
besides... THC pills cost $15-20 EACH and my dose alone costs over $300 a DAY, now thats profiteering and a crime that I never see anybody from the peanut gallery complain about!
peace, steve
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Comment #4 posted by FoM on August 18, 2008 at 07:18:59 PT

Commonsense 
Thank you. I haven't understood this whole issue and how it is being dealt with for years now. 
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Comment #3 posted by Commonsense on August 18, 2008 at 07:00:45 PT

If you play you pay
I hate to say this, but if you play you pay. These people who set up these big for profit pot stores know good and well that what they are doing is against federal law. A lot of them are making a fortune though, and that's why they do it. When they get arrested and sent to prison I think it's a shame because I think marijuana ought to be legal. But the fact is that it is not legal, and the feds have made it clear already that they are not going to respect California's medical marijuana laws. So if you want to fool around and have your own big medical marijuana dispensary, do so at your own peril. Don't be surprised if the feds come haul you off and take you to prison. If you want to grow pot for sick people, do it quietly and on a really small scale and no one will ever bother you. Set up a big shop and you're just inviting trouble. Get greedy and you're liable to go to prison.  
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Comment #2 posted by FoM on August 17, 2008 at 17:07:10 PT

gloovins
I have given up on trying to understand Prop 215 anymore. I thought I knew what it meant back in the late 90s but now I just don't get it.
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Comment #1 posted by gloovins on August 17, 2008 at 16:40:11 PT

The LA Times...
I think I've seen it all folks and what the LA Times will do to justify their existence today.
Here they bring in an NYU Law Professor to explain to us folks the little conflict of federal and state law. 
They are so bucking the mainstream these days, uh? Why, I'm so glad they brought this professor in to the fray...
Same conflict of law, different year.
With each article they attempt to write on medical cannabis, The LA Times becomes stupider and stupider on the subject, talking either out of their ass or down to their readers on a subject they know very little about....
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