Medical Marijuana in D.C.: What’s Next?
It's looking increasingly certain that Congress will leave the District's spending bill free of social-policy riders for the first time in many, many years. The House passed the bill yesterday, and the Senate is expected to follow suit next week. Once President Barack Obama signs the legislation, the District will be free to spend local funds on, among other things, implementing a medical-marijuana law.
In 1998, District voters cast ballots on a medical marijuana ballot question. After a series of court battles and run-ins with Congress, the votes were finally counted a year later; nearly 70 percent of voters supported the measure. But Congress has kept the District from implementing the law through budget riders ever since.
Now the question that must be answered is: Will the 1998 vote now be honored by our elected officials?
There's a lot of different ways to answer that question. First, there's the simple yes. The D.C. Council could dust off the text as passed in 1998, and send it on to Congress for 30 legislative days of review, after which it would become law.
That's what Wayne Turner, one of the original sponsors of the marijuana initiative, hopes will happen: "What we would like...would be for the results on Initiative 59, which passed all those years ago, to be sent to the Hill and become law." It's been 11 years since the measure was written, but Turner says that the text passed by the voters has "capacity" to deal with American med-marijuana innovations.
That text establishes a right "to obtain and use marijuana for medical purposes when a licensed physician has found the use of marijuana to be medically necessary" and recommends it to treat AIDS, cancer, glaucoma, or other diseases. The law allows District residents to establish "not-for-profit corporations for the purpose of cultivating, purchasing, and distributing" medical marijuana and also protects doctors from being "punished, or denied any right, privilege or registration" for prescribing cannabis to patients. Furthermore, the city health department is directed to make a plan 'to provide for the safe and affordable distribution of marijuana to all patients enrolled in Medicaid or a Ryan White CARE Act funded program' who need and want to use medical marijuana. And the council has to "deliver a copy of this act to the President and the Congress to express the sense of the people of the District of Columbia that the Federal government must develop a system to distribute marijuana to patients who need it for medical purposes."
Within that framework, Turner says, there's plenty of room to shape a medical marijuana regime that works for the District. "We want to look at over jurisdictions are doing in terms of best practices," he says. "New Mexico has a model; California has various models...Colorado has model. We want to implement a law that best fits what we have here."
That also means, Turner says, "we want to have our ducks in a row and involve our community, our elected officials, public health officials, law enforcement officials." And also to strategize how to avoid further congressional meddling.
In an interview on Wednesday evening, Del. Eleanor Holmes Norton encouraged local officials and activists to keep the issue away from Congress as much as possible. "I wouldn't submit a thing," she told LL, and suggests that city authorities to implement medical marijuana through rulemaking. "If this is like regulating any other [medicines], then they could proceed to regulation."
That possibility didn't compute for LL. Sure, the medical licensing and permitting of cultivation and dispensary organizations could be done administratively, but marijuana is illegal by criminal statute, and only a legislative fix could change that—a fix that would have to go to Congress.
Still, Norton said she sees a case for keeping the issue away from Congress: "You could argue that the referendum needed to be transmitted to Congress; I would say that it did not, particularly at this stage where the Congress has spoken....The Congress speaks when it says, 'We overturned that [rider].' That means you can do it."
It's questionable whether various lawyers will agree with that opinion, but in any case sources consulted by LL were sanguine about the prospect of congressional interference if a marijuana bill were sent to Congress. Most agreed that the biggest threat is ongoing possibility that future members of Congress will reimpose the riders at some point; few think an immediate disapproval resolution is a real possibility—including Norton.
Norton, however, raises another point—one that should be particularly sobering to Turner & Co. Just as the city could give a simple thumbs-up to Initiative 59, it could also give a simple no.
"D.C. has to decide whether they want to do it," she says. "D.C. doesn't have to do it simply because it was a referendum. Who knows, the U.S. Attorney or some such or the police could [say] you do have problems with large buys of marijuana. Don't assume that the council will simply want to do it. In fact, I think it would raise some issues for many in the District."
Back in July, the general counsel to the D.C. Council, Brian Flowers, said there was "a very real possibility" that Initiative 59 would simply be sent to Congress when the rider died. But, for the time being, the council's keeping mum. "It's too early to say what the next steps are," says spokesperson Doxie McCoy. Her boss, Council Chair Vincent Gray, "needs to consult with the members as well as with the general counsel to see what the next moves would be, what is necessary, and what would be the best way to handle the referendum," she says.
Same goes for Mayor Adrian M. Fenty's administration; Attorney General Peter Nickles said Wednesday that he plans to "carefully" review the issue. "No one has thought about this in 10 years," he wrote in an e-mail. His boss has said little on the issue; in 2000, Fenty as a council candidate vowed in a Gay and Lesbian Activists Alliance questionnaire to oppose a council bill upping the penalties for marijuana possession and distribution, based on the implications for medical pot users.
LL will also note that no ballot measure is outside the reach of legislators—meaning that the council could fiddle around with the text and pass a bill that comports more closely to contemporary conceptions (and political realities) of what medical marijuana should be in the District. That could mean hearings, votes, amendments, the whole shebang.
If things don't move immediately, Turner says he's willing to wait. "The process itself takes time. It's taken 11 years already," he says. "We want to do this right."