Middle ground on marijuana

Our view: Legislation would send an important policy message

March 28, 2011

Legislation that would allow those caught with small amounts of marijuana to avoid punishment altogether if they can convince a judge that they used the drug out of medical necessity would still leave state law on the matter an inconsistent jumble. But given the reasonable concerns state Health Secretary Joshua Sharfstein raised about Maryland's ability to enact a more comprehensive bill sponsored this year by Del. Dan Morhaim and others, the legislation, which passed the state Senate, represents a reasonable middle step and deserves to be enacted by the House of Delegates.

Since 2003, Maryland has allowed those caught with small amounts of marijuana to argue medical necessity as a mitigating factor, and if a judge is convinced, they are subject to a $100 fine — less than a lot of traffic tickets. But that still leaves a criminal conviction on the patient's record. For that reason, it appears the defense has been used rarely — perhaps as few as three times.

The existing law suggests that Maryland considers marijuana to have potential medical benefits, but it doesn't actually decriminalize therapeutic marijuana use, provides no standards for when the drug might appropriately be used, and leaves open the question of how the patients are supposed to get the drug in the first place. Senate Bill 308 makes progress in resolving the first two problems with the current law and would provide momentum for an eventual resolution of the third.

The bill, sponsored by Sens. David Brinkley, a Frederick County Republican, and Jamie Raskin, a Montgomery County Democrat, both of whom have been treated for cancer, directs judges to enter a verdict of not guilty if the defendant is able to "establish by clear and convincing evidence that [he or she] is suffering from an illness or ailment, or symptoms created by the treatment of an illness or ailment, for which the defendant is likely to receive therapeutic or palliative relief from marijuana." Delegate Morhaim is supporting the key elements of the Senate bill and urging his colleagues to adopt them.

The legislation doesn't spell out what illnesses or symptoms marijuana could be used to combat, but it does require the patient to at least provide medical records, a doctor's note and/or testimony from a doctor as to the potential benefits of marijuana. Absent a well-documented body of peer-reviewed medical research on the drug's benefits for various conditions, it's reasonable for the moment to leave the matter up to the judge's discretion.

That still leaves the problem that medical marijuana users would still have to buy the drug on the black market and would still risk arrest in the process. Even if they are eventually cleared, that is far from ideal. It also forces them to buy drugs of uncertain potency and purity and exposes them to all the risks that engaging in an illegal transaction entails.

Delegate Morhaim's original legislation would have solved that problem by creating a system of licensed marijuana growers and pharmacies. Ultimately, something like his proposal may strike the ideal balance between the state's current law and the kind of free-for-all that developed from California's legalization of medical marijuana. But the approach is complicated and requires state agencies to establish standards and regulations for which they have no expertise.

In that light, Dr. Sharfstein's request for time to work with lawmakers to develop a small pilot program is reasonable; moreover, that will also allow Maryland to monitor the experience of New Jersey, whose program for licensing non-profit growers and dispensing marijuana through a regulated system is set to go on line this summer. It was a model for Delegate Morhaim's legislation, and it could answer questions such as how marijuana farms might be secured, how standards for the drug can be established and how the state can make sure patients have a real need for the drug.

Some medical marijuana advocates in Maryland were disappointed that Dr. Sharfstein put the brakes on the broader legislation this year, worrying that his effort to study the health effects of therapeutic marijuana use will get bogged down by the federal government, delaying or effectively killing the prospects that Maryland will ever join the 15 other states that already allow such use of the drug. Indeed, although Dr. Sharfstein didn't object to medical marijuana altogether, his testimony on the bill hardly showed him to be enthusiastic about it.

That's why the Brinkley-Raskin bill is important. Even if it fails to address some real flaws in Maryland's handling of medical marijuana and may impact on a small number of cases in the court system, it sends an unequivocal signal that as a policy matter, the state legislature believes that therapeutic use of the drug should not be illegal. That makes Maryland's development of a full-fledged medical marijuana program not a question of whether but of when.

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