Why can’t we get medicinal marijuana to the patients who need it?

Going to pot

Why can’t we get medicinal marijuana to the patients who need it?

Ragnar Carlson
Feb 18, 2009

Image: Illustration by Manny Pangilinan

Medical marijuana / George Cohn is the kind of guy our medical marijuana laws were designed for. The legally blind part-time teacher suffers from atrophy of the optic nerve, and has been on at least partial disability “for a long time.” Cohn’s optic atrophy, for which there is no known treatment, causes him intense pain. He says he wakes up and smokes “a lot” of marijuana just to steady himself for the day. It took Cohn the better part of two years to find a doctor comfortable enough with medical marijuana to write him a prescription, but he now carries a “blue card” — shorthand for the license that allows Hawai‘i patients, after doctor approval—to possess marijuana for personal medicinal use.
Nearly a decade after Hawai‘i became the first state to approve marijuana for medical use, George Cohn and hundreds, perhaps thousands, of patients like him still have no access to the medicine their doctors have prescribed. These people, many of them elderly, most suffering from intense pain, are caught in a Kafkaesque web.

Hawai‘i law allows patients to possess marijuana, but does not create a way for them to obtain it. Unless a patient or an approved caregiver can successfully grow their own—no easy task, especially when you consider that there is no clearly legal path to obtain the seeds with which to begin—they are out of options.

“I’m legally blind, I can’t grow the plants. I can’t even get the seeds! And I haven’t been able to find someone to grow them for me,” says Cohn. “I could turn to the black market, but I can’t afford that.” Besides, Cohn says, the law is the law. “I’m not interested in breaking the law. We’re supposed to follow the law, isn’t that the point?”

Jeanne Ohta, executive director of the Drug Policy Forum of Hawai‘i, says she hears from patients like Cohn all the time. “We get various different questions, but they all go in the same direction. ‘I live in a condo, or on a military base. What can I do? I go to the VA hospital, the doctors won’t recommend medical marijuana for me. I got my card, where do I go?’ They don’t know where to get marijuana [and] they really don’t want to go to the criminal market. What people don’t realize is, these are law abiding citizens who want to stay that way. They want to obey the law.”

Today, the law doesn’t lead Hawai‘i’s thousands of medical marijuana patients anywhere but in circles. And all too often, these people do turn to the black market. Brian Murphy, a Maui doctor whose non-profit Patients Without Time organization helped provide medicine to more than 1,000 people over the past four years before being shut down by police last year, describes the circumstances his former patients now face. “Listening to my voicemail is heartbreaking,” Murphy says. “A disabled woman calls me because she gave some guy money in park three hours ago and she’s crying into the phone, asking how long she should wait. Another guy calls because he’s been knocked out of his wheelchair and had his money stolen. People wanting to know where to go, how to get the seeds we were using to grow their plants, it goes on and on.”

The law as it is, and as it might be

Hawai‘i’s once-pioneering medical marijuana law is broken. Policymakers, doctors and patients agree that it fails miserably to achieve its sole purpose—to create a mechanism that allows people with physician-approved medical needs for the drug to obtain it. The Hawai‘i State Legislature is currently considering a bill that would create just such a mechanism, yet HB1191’s prospects for passage are unclear, and Gov. Linda Lingle, citing fealty to Federal law, has promised to veto any legislation that would make medical marijuana more accessible to patients.

“It is legal now in Hawai‘i,” says Maui Rep. Joe Bertram, whose office is the source of most of the medical marijuana energy at the Capitol. “We need to make it more available and affordable. We passed a law in 2000,” says Bertram, noting that legislators soon realized the system wasn’t working and commissioned a report from the Legislative Reference Bureau in 2004. “Since then, there has been no effort to implement any of the recommendations of that report,” Bertram says. “We are interested in creating a logical, rational way to get this medicine to patients.”

Hawai‘i law respects the rights of patients to obtain and use the medicine, up to three ounces per patient at a time. Each approved patient, of which there were 4,200 last year, is entitled to grow his or her own plants, but as many patients are disabled, elderly or both, or simply not professional horticulturalists, the vast majority are dependent on others (known as “primary caregivers” under the law) to grow it for them (and thus expose themselves to federal prosecution). Further complicating matters, there is no clearly legal way for either patients or caregivers to acquire the marijuana seeds in the first place, as their sale remains generally prohibited under both state and federal drug laws.
Ultimately, Ohta and others say, Hawai‘i has a production and distribution problem. “How are patients supposed to get their medicine,” Ohta asks. “Particularly people who live in condos, on military bases, people who live where their plants would have to be visible. We don’t have an effective distribution system. That’s the number one problem.”
Bertram’s bill seeks to remedy that problem. The bill establishes a production of the plants by certified small farms catering to no more than 14 patients each. It also creates a tax-stamp system designed to allow caregivers to facilitate access of patients to the medicine. “We think this is a massive improvement,” Bertram says. “Our bill closely mirrors what New Mexico has done.” That state’s system, enacted last year, has won praise from medical marijuana advocates for creating an effective system of production and distribution and from law enforcement officials for tightly controlling who is allowed access to the marijuana.

Perhaps nothing illustrates the unworkability of the current system quite like the experience of Patients Without Time’s Murphy. “We’ve worked with over 1,200 patients during the past four years,” he says. “The majority of our patients are senior citizens, to say the least. These are people, many of them, who come in saying ‘I start my chemotherapy this week.’” Palliative care for the pain associated with late-stage cancer is one of the main medical applications of marijuana. “They are looking at what they feel to be a death sentence,” Murphy says. “I am grateful for the opportunity to help, but at the same time, I’ve been to 17 funerals over the past four years.”

By last November, Patients Without Time was growing plants to serve more than 400 people. That’s when Murphy’s relationship with Maui Police, never smooth to begin with, took a turn for the worse. After Murphy says he was robbed at gunpoint and had money and marijuana taken from his home, police began an investigation that ultimately led to Murphy and several of his associates being arrested and charged with conspiracy and commercial promotion of marijuana. Murphy insists the charges amount to retribution. “We were transparent about what we were doing for years. We took out ads. We put up signs. I don’t think they needed some fancy investigation.” Murphy says that the police raid was motivated by litigation he filed against the department, a claim Maui cops have dismissed as “absurd.”

While Murphy awaits an August hearing and considers the possibility of jail time for his growing operation, the obvious victims in all of this are the hundreds of patients struggling to find access to the medicine they need. Many expose themselves to what one observer calls the “hand to hand combat of the black market,” and many more, unable to grow their own or find a primary caregiver willing to do it for them, simply go without.

That may be just what law enforcement officials are looking for—no Hawai‘i law enforcement agency has come out in support of any proposals to improve the accessibility of medical marijuana. The Drug Policy Forum’s Ohta says the police’s thinking, and often that of the general public, about medical marijuana are impeded by deeply held beliefs about the drug that bear little relationship to its use as a palliative medicine.
“There are a lot of myths involved. Law enforcement does not understand that these patients have tried everything,” Ohta says. “Believe me, it would be a lot easier to take a pill. Many patients with severe pain simply can’t do that.”

Ohta says the belief that traditional pain-relief medicines should suffice for cancer and other terminal patients is misguided. “Some of them are unable to take opiates, because of the side-effects. They are able to relieve their pain with a few puffs of marijuana, with no side-effects at all, [and] the number of pills they need to take is reduced.”
Murphy concurs. He says that perhaps his salient accomplishment at Patients Without Time was a dramatic reducing in the amount of opiates his patients needed to consume in order to alleviate their pain. “Helping to decrease the amount of narcotics these patients are taking is huge, because overmedicating [patients with severe pain using opiates] is a huge problem. Our group was able to decrease intake of 20mg OxyContin pills by over 800 doses a month.”

If all of this justification of medical marijuana seems strange, given that Hawai‘i already has a medical marijuana law, Ohta agrees. “It’s the same conversation over and over and over again.”
A new conversation

But there are some signs that may be about to shift. Bertram’s bill is advancing in the Legislature despite Lingle’s recent insistence that it has no chance of becoming law, signaling, at least, a greater willingness among lawmakers to address the medical marijuana issue more openly.

Perhaps more important is the changing tone in Washington, D.C., where marijuana’s status as a “schedule 1” narcotic has long made everyone from state legislators to family physicians reluctant to view the drug as a medicinal option. Schedule 1 drugs include cocaine, LSD, heroin and other drugs the federal government views as without medicinal value. They cannot be prescribed by pharmacies, which are federally regulated, and the Drug Enforcement Agency continues to prosecute marijuana users and providers even when liscensed by and in accordance with state laws.

Rep. Barney Frank (D-Mass), a powerful player in Congressional circles, has introduced HR5842, which would move marijuana to schedule 2, alongside other drugs considered potentially very dangerous but approved for prescription by physicians under certain circumstances.

Also promising is President Barack Obama’s stated reluctance to continue federal raids on state-approved medical marijuana patients and producers. In a 2007 town hall meeting in New Hampshire, Obama said, “I would not have the Justice Department prosecuting and raiding medical marijuana users. It’s not a good use of our resources.” It’s one in a series of comments during the presidential campaign that indicate Obama considers prosecution of medical marijuana users a “waste of resources.” In March of last year, after his campaign had become a phenomenon and his every word more closely scrutinized, Obama seemed to go even further, casting the issue as one of states’ rights. “‘I’m not going to be using Justice Department resources to try to circumvent state laws on this issue,” he told the Southern Oregon Mail Tribune.

It’s too soon to know for certain how those campaign promises will stand up to the reality of governing. Seattle Police Chief Gil Kerlikowske, Obama’s choice for Director of the Office of National Drug Control Policy—the “Drug Czar”— draws mixed reviews from local observers. Murphy notes that Kerlikowske has been moderate on medical marijuana. Pamela Lichty, president of the Drug Policy Forum, notes that Kerlikowske is yet another drug czar with a law enforcement background as opposed to a public health professional.
Back here at home, Gov. Lingle, whose opposition to increased accessibility of medical marijuana has long been couched in an odd fealty to federal law at the expense of her own state’s statues, shows no sign of changing her tune now that the signals coming from Washington have changed. She recently chastised media coverage of the issue and reiterated her opposition to improving access to medical marijuana.

Meanwhile, patients like George Cohn are suffering. He does not know where his next supply will come from, and struggles to keep his hours as a substitute teacher, which he says is next to impossible without marijuana’s palliative effect. “I’ve been trying to follow the law,” he says, “and it’s hurting me.”

Farmecology

Things have been tough on Hawai‘i’s family and small farmers for a long time, and the deepening recession isn’t making things any easier. These small operations, sometimes no bigger than a few acres, are in many ways the lifeblood of Hawai‘i agriculture, their social and cultural meaning transcending the volume of food they actually produce by maintaining modern Hawai‘i’s connection to the ‘āina, and to a way of life that sustained these islands for generations. But margins are small in the food business, and while forward-thinking local restauranters and markets—not to mention an emerging consumer consciousness of the importance of eating local—make a difference, many small farms, particularly on the neighbor islands, are struggling.

Brian Murphy, the Maui doctor whose Patients Without Time organization has served more than 1,000 medical marijuana patients over the past four years, has an idea he thinks might represent a path to wellness for both the people he aims to help and these struggling farmers.

Murphy’s idea, known as the Model Family Farm plan, proposes a secure growing and distribution system for medical marijuana, one that might be viable under this year’s proposed HB1191, which is now making its way through the Legislature.

Inspired by the Tobacco Allotment Act of 1937, which kept tens of thousands of family farmers in business by mandating that America’s tobacco needs be met by small farms, Murphy’s plan would require that farms develop five-year organic farming plans based on at least two crops, one of which would be medical marijuana. The farmers would then produce medical marijuana in a greenhouse on behalf of licensed patients, lease the space to the patients and charge a small fee for service, thus obviating the need for any formal “sale” of the medicine. The proceeds from this part of the business would, in theory, subsidize the other organic crop or crops.

“I hate having to invoke the word ‘tobacco,’” Murphy says, ”but this was something that worked extremely well in the 1930s to keep family farms healthy.