Now three years old, Michigan's medical marijuana law is still getting sorted out
Published: November 2, 2011
According to those involved in drafting what is officially known as Michigan's Medical Marihuana Act, the limits were put in place in order to keep grow operations small enough to avoid attracting the interest of the federal Drug Enforcement Administration.
That is an important point because of this crucial factor: Even though medical marijuana laws have been passed in 16 states and the District of Columbia, pot remains illegal under federal law. In fact, it is still classified as a Schedule 1 controlled substance along with drugs such as heroin. Ironically, one of the distinguishing features of a Schedule 1 drug is that it is considered by the U.S. government to have no accepted medical use.
For its part, the Obama administration has done a good job of making an uncertain situation even more unsettled by sending decidedly mixed signals.
As Zink points out, following eight years of open hostility from the George W. Bush administration, people "got high on hope" when the more liberal Obama moved into the White House.
And, in the beginning, that hope proved to be justified.
In an October 2009 memo, David Ogden, then the deputy attorney general, told U.S. attorneys around the country that, "as a general matter" they "should not focus federal resources" on "individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana."
But, as the Los Angeles Times reported this October, "... the Obama administration has been steadily ratcheting up enforcement efforts. Also last month, a federal firearms official sent a letter to gun dealers warning them against selling to medical marijuana users. The last bank in Colorado willing to handle money from dispensaries closed those accounts last week, concerned about federal prosecution. And the Internal Revenue Service has begun to order some dispensaries to pay millions of dollars in back taxes and penalties, ruling that they can't deduct expenses because their business is illegal."
"It is disingenuous of the Obama Administration to say it is not attacking patients while obstructing the implementation of local and state medical marijuana laws," Steph Sherer, executive director of Americans for Safe Access, told reporters earlier this year. "The president is using intimidation tactics to stop elected officials from serving their constituents, thereby pushing patients into the illicit market."
As a result, it can't be said that any use of marijuana in Michigan — even by certified patients — is strictly legal. Instead, the state's law is designed to protect qualified patients and caregivers from arrest and prosecution by state and local authorities.
At least that is what the advocates who drafted it intended.
But, as the Agros and others have discovered, police, prosecutors and now the courts — by interpreting the law in the narrowest of ways — have made any involvement with medical marijuana a potentially precarious venture.
That's especially true for those who set up dispensaries such as Clinical Relief, which was located in Ferndale until narcotics officers from the Oakland County Sheriff's Department raided it last year.
Nick and Tony Agro — the sons of Sal and Barb — were two of the people running the clinic, which was modeled on similar operations that Nick co-owned in Colorado.
Although the Michigan law approved by voters didn't explicitly allow for dispensaries, it didn't say they were prohibited either.
It is easy to see why an entrepreneur like Nick Agro would think a place such as Clinical Relief would be legal. After all, it was Schuette himself, while still an appellate court judge campaigning against the measure, who declared, "There is not a single paragraph, sentence or word within Proposal 1 that prohibits pot shops from opening in Michigan. ..."
From the patient point of view, that's a good thing.
For one thing, as Zink of ASA says, there are not nearly enough certified caregivers to grow the medicine needed for the nearly 119,000 patients currently approved by the state.
Complicating matters is the fact that patients who don't own their own homes are at the mercy of landlords. (Zink herself says she had to mount a fight to stay in an apartment owned by a landlord who objected to her simply "medicating.")
Obtaining the material to get started can be difficult. One acknowledged shortcoming of the law is that it contains no specific provisions saying that anyone can legally sell the seeds or clones needed for a patient to begin growing. Also, the equipment is costly — and that expense can be an impediment for patients who are too sick to work and living on disability payments. It can also take four months or more to go from seed to the point where a plant becomes medicine.
There are other factors as well, such as crop failures. Add it all together, advocates say, and it only makes sense that patients have a stable, independent source that can provide them with medicine when they are in need.
"People need to have access to their medicine," says Zink. A viable network of dispensaries appears to be the only way to guarantee that access.
> Email Curt Guyette