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June 15th, 2005 Nick Budnick | News Stories
 

IN WEED WE TRUST

Despite the Supreme Court's ruling, Barbara Elfstrom-and Oregon-are not going back.

     
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In her family's small Gresham apartment crammed with antiques, 52-year-old Barbara Elfstrom pours coffee while the soap opera Guiding Light plays on a large TV.

Her hands shake so much that serving the brew is a daunting task, sending droplets flying over the rim of the cup. The instability stems from her various ailments, but it might as well be her mood: She is angry and scared.

Last week, the U.S. Supreme Court ruled that federal cops do not have to respect states' laws: Rather, they can arrest this mother, her grower, and all others involved in the state's medical-marijuana program-which was approved by 55 percent of voting Oregonians in 1998.

Elfstrom is not a leader or an activist. She has never been quoted in any newspaper, and you won't find her name in any search on Google. But Elfstrom, who has been smoking pot for more than 30 years and has had a medical-marijuana card for two years to combat what she says are bipolar mood swings, chronic pain and fibromyalgia, says, "I'm not going down quietly." If they take away her medical pot, she is "ready to go underground."

Then she dips into an antique, hermetically sealed jelly jar in which she keeps a strain of fragrantly fruity weed called Blueberry Northern Lights. She lights up a reddish glass pipe: "It's called 'The Carburetor,'" she says affectionately. "It was a birthday present."

Conversations with Elfstrom, law-enforcement officials, judges and physicians, along with an analysis of existing data, suggest that the pot genie is out of the bottle. Medical marijuana has helped to legitimize pot culture in Oregon. Even the Supreme Court's recent ruling will have little effect. With all the other pressing problems out there, society seems to be passing pot prohibition by.

As Multnomah County Circuit Judge Doug Beckman puts it, "I think there's a broader social acceptance for users of marijuana. And gradually there's increasing public pressure, I think, to decriminalize marijuana."

As government programs go, medical marijuana in Oregon has been a striking success. Initially, it was thought that only a few hundred people would request cards. As of last week, more than 10,500 Oregonians have licenses that allow them to possess and smoke pot.

"I am number 500, and it was expected we wouldn't go past that number," says Madeline Martinez, president of the Oregon chapter of the National Organization for the Reform of Marijuana Laws. "It was never even a thought that it would be this successful."

There are those, of course, who say the huge participation rate is a sign that the entire program is a scam. It does appear to be fairly easy to secure a card. The accepted list of medical conditions one needs to obtain a card includes everything from cancer (as of Jan. 1, 2005, listed by 253 applicants), glaucoma (215), to nausea (2,194), persistent muscle spasms (3,054) and severe pain (9,111). (Many patients list more than one malady.) The number of Oregon doctors who have granted licenses now totals more than 1,700, a vast increase from the early days, when one semi-retired osteopath, Phillip Leveque, signed applications for nearly 4,000 cards. (The state suspended his license in 2004, noting that he often did not examine patients or keep medical records.)

Oregon law does not require doctors to write a prescription. Rather, they fill out a form that states that the patient suffers from one of the conditions that qualifies them for the program, and that marijuana might help. Once approved, possessors of a card are allowed to grow a limited amount of pot themselves, or name a provider, who then is granted a card, too.

Some states have programs similar to Oregon's, while others are stricter. In Vermont, the list of qualifying medical conditions is much tighter. And in Nevada, applicants must pass a background check to ensure they do not have a criminal conviction for dealing drugs.

"Given what states can do in this atmosphere of federal hostility, I think Oregon has done a pretty good job," says Bruce Mirken, spokesman for the Washington, D.C.-based Marijuana Policy Project.

The issue settled by the U.S. Supreme Court last week was whether the federal government could preempt states that had voted to allow medical marijuana. A majority of justices ruled that thanks to its constitutional authority over interstate commerce, the federal government had the right to bust those who were participating in medical pot programs. Interestingly, this ruling came from the liberal side of the bench, including John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer.

As KINK-FM news director Sheila Hamilton quipped at a City Club event last week, alluding also to federal opposition to Oregon's physician-assisted suicide law, "Now we can't kill ourselves or get stoned while we're terminally ill. That's like, so bogus."

The judges who voted in the minority on medical pot included some of the court's most conservative members-Clarence Thomas and William Rehnquist. They took a traditionally conservative states'-rights point of view-that the federal government had no right to be mucking around in the decisions made by individual states. In his dissent, Thomas translated the majority's opinion: "By holding that Congress may regulate activity that is neither interstate nor commerce under the Interstate Commerce Clause, the Court abandons any attempt to enforce the Constitution's limits on federal power."

Even the judges who ruled in the majority were sympathetic to the cause of medicinal marijuana, opining that existing federal law was anachronistic and that "despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes." In fact, the Court encouraged Congress to step in and change federal law in a way that would be friendlier to medical marijuana. Good timing: A House vote was scheduled as early as this Tuesday, June 14, on a congressional bill that would block federal enforcement actions against qualified patients in states with medical pot laws.

Regardless, the Court's ruling allowing federal enforcement is unlikely to have much practical effect.

After the ruling came out last week, state law-enforcement officials said it merely echoed what they'd believed all along. But they are sworn to uphold state law, so while the medical pot program temporarily suspended issuing new cards, it is likely to resume soon. Ken Magee, who is the Oregon spokesperson for the federal Drug Enforcement Administration, essentially told WW that bona fide medical-marijuana patients don't need to panic. Magee says his agency has not requested the list of cardholders. As for whether it will in the future, he declined to say but did not make it sound likely.

"We do not target sick and dying patients," he said. "We do advocate research for marijuana to determine if it does have medicinal value."

This rather mellow-sounding position may simply be due to his superiors' realization that pot-medical and otherwise-appears to be here to stay.

Peruse the magazine section of the Jantzen Beach Barnes & Noble and you will find both High Times and Cannabis Culture magazines for sale. The Fossil store in Lloyd Center sells a T-shirt reading "Oh-so-hi-o." Vans sneakers sell a line with a pot leaf on the sole of one of them. Go into a conservative-minded truck stop outside St. Helens and you will find marijuana-leaf logos accompanying the usual right-wing bumper stickers and fantastical female silhouettes.

Some of the ways marijuana turns up would have been unthinkable several years ago. Turn on your TV and on That '70s Show you will see one of its staple gags-the teenage kids lighting up and saying really, really deep things-in just about every episode. During a tour of the Oregon Council for Hispanic Advancement's alternative high school last year in downtown Portland, the kids were unloading crates of hot sauce made by Cheech Marin of Cheech and Chong fame-the same man who is now a spokesman for Target.

The issue of medical marijuana has gone so mainstream that the Pho's in Portland restaurant on Northeast 82nd Avenue, soon to be renamed the One World Restaurant and Tea House, is building a special room where customers who show their medical marijuana cards can go to light up. It is unclear how the business's plans will be affected by the recent Supreme Court ruling, if at all. A woman who answered the phone Monday confirmed that the plans are still underway.

While it's difficult to prove, it does seem as though the acceptance of pot in Oregon remains greater than elsewhere in the country. Oregon is the only state in the country where a state chapter of NORML hosts an annual Medical Cannabis Awards contest and trade show, where the latest in technology for extraction of THC (the main active chemical in marijuana) is displayed and the best buds rated (event organizers normally set up a discreet room nearby where patients can light up).

Oregon also is one of the largest marijuana-growing states in the nation. In February of this year, the federal Department of Justice placed Oregon among the top six states in outdoor cultivation-giving a special nod to Jackson, Josephine, Klamath and Umatilla counties. That does not include the flood of high-quality B.C. bud pouring in from Canada.

Of course, the fact that a lot of pot is grown here does not automatically mean a lot of pot is smoked here. But other data suggests that is true. Oregonians might be surprised to know that, according to a federal survey done in 2002-2003, almost 9 percent of all Oregonians aged 12 or over had smoked pot in the past month, as compared with a 6.2 percent average nationwide. Put another way, Oregonians were 43 percent more likely to have smoked weed in the last month than the average American.

Even if you don't trust statistics, anecdotally, cops say there's more weed out there than ever. And entrepreneurs serving marijuana users, legal and otherwise, say business has been booming.

At Up in Smoke in North Portland, a shop that sells tobacco and other apparatus, employee Larry McMurphy says he has seen tremendous growth over the past five years. His customers are very diverse and wear anything from "three-piece suits to patches."

Mark Herer, owner of a Southeast Hawthorne Boulevard smoking-paraphernalia shop called Third Eye (and son of Jack Herer, author of the pro-legalization bible The Emperor Wears No Clothes), displays hundreds of water pipes on shelves and in cases, and says his sales have gone up five-fold in the past five years. In the span of a half-hour interview, he makes at least eight sales. And it's not just him: "Smoke shops are popping up everywhere," he says.

Pollster Tim Hibbitts says that not only does medical marijuana enjoy wide support among Oregonians, he suspects that the younger crowd is more open to complete legalization than in the past. Times have changed, he says: "I doubt if you would have gotten passage of a medical-marijuana initiative 20 years ago."

But perhaps the most striking sign of weed's acceptance is that people who years ago were unwilling to talk about marijuana laws now do so without much prodding.

There may be no one tougher on crime in Oregon than Steve Doell, the hardcore conservative leader of Crime Victims United and the prime mover behind Measure 11, the state's minimum-sentencing law. He says he smoked pot in college and recalls, "As far as I was concerned, it was a great sleeping pill. It put me out." And though he's anti-drugs now, "I think it's probably a waste of time to use law enforcement to chase down people who have small amounts of marijuana for personal use," he says. "You certainly don't hear about many potheads going out and doing violent crime." As for federal laws on pot, he says, if the horror stories he hears about federal mandatory minimums on marijuana are true, "there's something wrong there."

Others feel even the penalties for illegal growers may be too stiff. "We make very serious life changes for people, and I'm not sure it's the right thing," says Multnomah County Circuit Judge Nely Johnson.

Currently, if you are busted with an ounce or less of marijuana in Portland, you face only a misdemeanor violation-a $500 ticket. Only for quantities above that do you face a potential felony, but the quantities must be very large to get any jail time. And you can get your first felony erased by signing up for drug treatment through Multnomah's drug court, called STOP.

Judge Beckman, former head of the STOP court, believes weed should be further decriminalized. He says society's acceptance of marijuana use-medical or otherwise-keeps growing, and the criminal-justice system has not kept pace-especially in federal courts, which he calls "draconian."

"My feeling is that the criminal-justice system is not really solving the problem," he says, adding that the focus should be on treatment, not incarcerations.

Beckman's and Johnson's concerns may be legitimate, but the fact is that the criminal-justice system in Portland has substantially already decriminalized pot, simply by choosing to prosecute it less.

While there seems to be more pot and more pot smokers-legal and illegal-than ever, the "war on pot," once a major source of controversy in Portland (see "Knock, Knock, You're Busted," WW, March 10, 1999), has virtually ceased. According to the Portland Police Bureau, the number of arrests for marijuana has dropped by 45 percent in the past five years. The number of pot plants seized annually by Portland drug cops-which hit its peak at more than 17,000 a decade ago-is now down to just a tenth of that, at 1,725.

A big reason for this shift in priorities is the state's medical-marijuana law, police say. In Portland at least, the laws on the books regarding marijuana in Oregon appear to be joining the many other laws already gathering dust. As Multnomah County Circuit Judge Ed Jones puts it, "We're not doing much about hunting in cemeteries either-but we've got a law about it."

Perhaps the person the most keenly aware of marijuana enforcement in Portland is the county's head drug prosecutor, Mark McDonnell, a soft-spoken senior deputy district attorney who says he is no anti-pot zealot. "I smoked pot when I was a kid, I know what it's all about," he says. "And let's face it, it doesn't do you a whole lot of good to sit around and smoke pot all the time, which is what a lot of these people are doing."

His unit is struggling with dangerous drugs like meth and heroin, as well as a staffing shortage due to budget cuts. That, combined with the medical-marijuana program, is making marijuana laws "impossible to enforce," he says. When officers "investigate it, charge it, go all the way to trial and the guy claims he has an affirmative [medical-marijuana] defense...the case falls apart," says McDonnell. "We can't afford that."

As a result, "cops are essentially throwing up their hands," he says. "I don't even hardly pay attention to it anymore. [Marijuana enforcement has] become a nuisance.... Judges don't care. Generally speaking, juries don't care."

Does the dramatic drop in arrests mean there's less pot out there? "Hell, no," says McDonnell. The arrests now are driven by neighbor complaints or if the person violates what McDonnell calls "'the pig rule'-it's obvious that they are being a pig about it."

Portland Police Sgt. Brian Schmautz, who spent years as the bureau's top pot cop, has kept an eye on how the drug has gradually gained acceptance in popular culture. Speaking for himself, not his employer, Schmautz says medical-marijuana proponents have successfully changed the terms of the debate: "I think anytime you say that something has medicinal value or that people are helped by it, there's less stigma attached to it." And in the political climate in Portland, if you question the medicinal value of pot, he says, "you're not a caring person."

Schmautz is avowedly anti-drug, saying he has seen marijuana abuse and addiction ruin lives. But even some of the contradictions he sees in the program seem almost to endorse a stronger one. "I don't quite understand how if someone says this is great medicine, then why not tax it and distribute it like any other medicine?," he says. "You're allowing people to self-medicate as much as they want to, as often as they want to. I think we allow people to be less than what they could be because of this political morass."

Morass it may be, but a newly legitimized one: Earlier this year, the state Department of Human Services realized that it could raid the fund created by medical pot fees to help cover budget holes elsewhere. Providing perhaps the biggest sign yet that marijuana has gone mainstream, last month the state House of Representatives voted 49-10 to take $900,000 of the available $1.1 million in pot license money for the general fund. Bureaucrats are already talking about raising the $55-per-card annual fee. Could pot be the next lottery?

Elfstrom, for her part, says she started smoking pot at age 17, after her first suicide attempt, and before she was diagnosed as bipolar. Once she was diagnosed, she kept using it, since pharmaceuticals were not an option. Marijuana "made me happy," she says. "I can't take lithium; I have a terrible reaction to it." Elfstrom says the weed has cut her reliance on the morphine and Percocet she gets through Kaiser Permanente for her chronic pain. She cut back from 75 milligrams of morphine to 25 milligrams per day, and she now consumes only 150 Percocet pills per month, down from 280. She can see the increase in pot's public acceptance even in her own family, where her mother was very critical of her smoking.

"But when it became legal, she had no problem with me smoking it," says Elfstrom. "She doesn't like me to smoke it in the house, but she does let me smoke it at her house-I go out in the garage. And that's a big deal for a 73-year-old woman who was dead set against it."

News intern Robert Hamrick contributed reporting for this article.


According to the National Organization for the Reform of Marijuana Laws, marijuana was Oregon's fourth-biggest cash crop in 1997, below hazelnuts, hay and wheat, and above potatoes and pears.

The other states with medical-marijuana laws are Alaska, Arizona, California, Colorado, Hawaii, Maine, Montana, Nevada, Washington and Vermont.

A recent federal Department of Justice study says the organized-crime groups who are increasingly trafficking in pot are "primarily interested in profits. It is unlikely that they will invest the care required to mass-produce top quality marijuana."

A group of 500 economists, including prominent conservative Milton Friedman, issued a report two weeks ago essentially calling for the legalization of marijuana, saying it would save Americans $10 billion to $14 billion each year.

According to a 2004 DOJ report, a 1997 seizure by the Oregon State Police in Multnomah County accounts for the highest concentration of THC ever found in a sample analyzed by the federal government: 33.12 percent. The average THC level of pot in 2000 was 5 to 13 percent, according to the feds.

"The majority of marijuana available in Portland is cultivated in home-grow operations," says a 2005 report by the DEA.

 
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