Medical marijuana 2.0

By DAVID SCHARFENBERG  |  January 11, 2012

But other states with functioning medical marijuana programs, like Maine and New Mexico, went untouched. And jurisdictions with still-developing programs, like Vermont and Washington DC, built their permitting regimes with no signs of trouble.

For Claire Richards, Chafee's top lawyer and a central figure in setting administration policy, the scattershot crackdown suggests local US Attorneys "are endowed with quite a bit of discretion" — providing little guidance on how, say, Rhode Island US Attorney Peter Neronha might proceed.

In that environment, she argues, the state has to take seriously Neronha's threats to crack down on the three dispensaries if they open as originally conceived.

Advocates here and across the country draw a different lesson from the raids: the sweeps have occurred in states with weak medical marijuana regulations and significant abuse of the system, they argue. Rhode Island, like Maine and New Mexico, is tightly regulated and has little to fear, they say.

But with the Chafee Administration unmoved by that line of reasoning, the question has become one of size: what will the governor accept? What, can advocates convince him, is the maximum number of plants the dispensaries can grow and still escape federal attention?

Chafee kicked around the size question at his meeting with Paiva Weed and Perry January 9. But it is, ultimately, an unknowable. The feds aren't about to spell out just how much lawbreaking they'll tolerate. "It's a little bit like you're in a room with a blindfold on and you're creeping around and trying to find the walls," says Richards, the administration's lawyer.

Advocates, though, have come up with a working number.

In the fall, marijuana advocacy group California NORML published what it claims is a leaked memo from California's US Attorneys suggesting that prosecutors should target cultivators or dispensaries possessing 1000 or more plants.

The rationale: the 1000-plus figure puts defendants in line for a 10-year mandatory minimum sentence under federal guidelines.

The cases, the memo opined, should also include "additional factors that reflect a clear federal interest in prosecution," such as ties to an international drug cartel, profits being used to fund other criminal activities, or links to a doctor issuing bogus medical marijuana recommendations.

Rhode Island advocates have latched onto the 1000-plant figure — though there is no definitive reason to believe it would guide Neronha's behavior here — suggesting that new legislation could cap dispensaries at, say, 999 plants.

That figure would probably not meet patient need. So there has been talk of approving an additional network of small cultivators who would be allowed to sell marijuana to dispensaries alone. The idea is to spread out the grow among many people, in the hope that there wouldn't be any attractive targets for federal prosecution.

One variation on the plan would rule out the need for a new class of cultivators, relying instead on an existing network of small-time "caregivers" allowed, under state law, to grow pot for up to five medical marijuana patients.

These caregivers may not possess more than five ounces of usable marijuana at any point, but they often do. The proposal would allow them to sell any excess weed to the dispensaries.

A side benefit: tamping down the temptation to sell the extra marijuana on the black market.


THE VIABILITY QUESTION

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