No need for stricter law on marijuana caregivers
Editor's note: Big Island resident Richard Velasco, 49, a certified caregiver and grower of medical marijuana, faces federal charges for allegedly growing 222 marijuana plants. The current charges stem from a September 2005 case.
U.S. ATTORNEY Ed Kubo might be a nice guy, but his ignorance of and well-known opposition to Hawaii's medical marijuana law is appalling, and his call for an amendment to the law to require a background check for those granted a caregiver certificate under Hawaii's medical marijuana law (Star-Bulletin, Jan. 27) is a bit hysterical.
There is nothing -- repeat, nothing -- in Hawaii's medical marijuana law that affords protection to a caregiver growing more than 200 marijuana plants. Instead, the law errs seriously on the other side, providing that a caregiver can assist only one patient and sharply limiting the amount of marijuana that the caregiver and his or her patient, together, can possess. Indeed, the only role of a caregiver under the law is to grow or possess the limited amount of marijuana allowed and to provide it to the qualified patient. That's it!
And, as Kubo well knows, federal law provides no protection whatsoever to the caregiver, whether or not he complies with the limited requirements of Hawaii's medical marijuana law.
As your article correctly noted, Hawaii law says: "Every primary caregiver shall be responsible for the care of only one qualifying patient at any given time. ... The medical use of marijuana by a qualifying patient shall be permitted only if ... (t)he amount of marijuana does not exceed an adequate supply. An 'adequate supply' shall not exceed three mature marijuana plants, four immature marijuana plants, and one ounce of usable marijuana per each mature plant."
There is no need for a background check of medical marijuana caregivers simply because they receive no protection whatsoever under state law if they exceed the adequate supply limit or if they otherwise violate the law. The law says that the primary caregiver may assert the medical use of marijuana as an affirmative defense to any prosecution involving marijuana only if the primary caregiver strictly complied with the requirements of this law, including the limits described above on what is an "adequate supply." Being a caregiver under the law gave Richard Velasco no privileges to do anything but furnish a limited amount of marijuana to a single qualified patient, and provided him no protection against prosecution for exceeding those limits. Indeed, he was evidently successfully prosecuted under state law and is now being prosecuted again under federal law.
So where is the so-called "loophole?"
Rather than adding new punitive and unnecessary provisions to our existing law, as Kubo recommends, we should take full cognizance of current science that marijuana can be effective in treating pain and other debilitating conditions and move the administration of our medical marijuana program out of the Narcotics Enforcement Division of the Department of Public Safety -- which intimidates physicians and patients and inhibits them from participating in the program -- to the Department of Health, where it belongs. This is what House Bill 300 and Senate Bill 905, bills currently before our Legislature, will do. They also are designed to provide absolute protection from successful prosecution under both federal and state law to physicians who do no more than provide the certification required by our medical marijuana law.
I urge readers to call their legislators and ask them to support HB 300 and SB 905 to make more available to our fellow citizens who suffer terrible, debilitating conditions the beneficial effects of marijuana when used for medical purposes.
Richard S. Miller is a professor emeritus and former dean at the William S. Richardson School of Law, University of Hawaii. This column reflects his personal opinion.