by Ben Horner
Lame duck session is the period of time directly after elections that lasts until that legislative cycle ends and a new one begins. As reposted widely in mainstream media, the biggest concern regarding cannabis is the plummeting prices due to overproduction of pot in the licensed market and the so-called illegal one. This encourages the question: “I thought we freed the weed?”
The Michigan Medical Marihuana Act (MMMA), as defined by the people’s enacted law of 2008, allows a caregiver to grow for up to five patients. A caregiver can also be a patient, which allows a caregiver to grow up to 72 plants. Over the years, the MMMA has been amended several times, often to make non-substantive changes. A recent example is HB 5512, which only changes bits of language in the law that comports with legislative legalese and changes nothing substantive about the law. It is politically difficult to amend an initiative such as the MMMA because to do so requires a three-quarter majority vote of both house legislatures in Michigan. However, some amendments have been made to the MMMA; some miniscule and some with significant impacts. Here we examine two examples that are noteworthy.
HB 4851 of 2011 was approved December 14, 2012, in lame duck session
Also known as the Cavanagh bills, this package of bills was an attempt by the legislature to “clean up” what some conservatives believed was a poorly crafted MMMA. Four tie-barred bills focused on doing things like requiring that patients travel with their cannabis in a secured location such as a locked box in the trunk of a vehicle. The greatest modification was an amendment to the MMMA that changed the definition of a caregiver that made it a requirement of a caregiver to not have been convicted of any felonies for ten years.
The second major rewrite was due to concerns of people being approved to use medical marijuana who were not legitimate patients, but were milled through the program by incompetent or unscrupulous physicians. Thus, language was added to the MMMA requiring a bona fide patient–doctor relationship to be established before a physician could rightly approve a patient for medical marijuana. Activist groups exchanged this for their granted request for a board to review new qualifying conditions for approval to the medical marijuana program.
HB 4210 of 2015 was approved September 14, 2016
Medical marijuana dispensaries and compassion clubs sprouted up across the state shortly after the vote to legalize medical marijuana. Some were private clubs, while others were storefronts. All were supplied entirely by medical marijuana caregivers. Rep. Mike Callton was the main sponsor, and after years of negotiations, and many fundraisers, passed the Medical Marihuana Facilities Licensing Act and the Marihuana Tracking Act. Tie-barred was an amendment to MMMA that created new definitions of marijuana-infused products made by patients and caregivers, and restricted how those products should be distributed: that is, only via “provisioning centers.”
Butane extractions, used to make shatter and wax, was also banned in this package, due to significant concerns from several home explosions caused by making “dabs.” This did little to stop the practice, however. Enforcement has its challenges.
Case Law and Prosecutorial Discretions
Even more impactful on caregivers has been how enforcement varies widely by different county prosecutors. The first major precedent of medical marijuana case law came in 2013 from an appeals court decision pertaining to patient-to-patient transfer of medical marijuana. The McQueen decision created a narrow interpretation of the MMMA, which disallowed the exchange of medical marijuana except when directly assisting a patient with their medical use of marijuana. This case law closed many dispensaries and compassion clubs around the state.
The “four prongs of a Section 8 defense” was next, forcing patients and caregivers to prove four separate and rather subjective things regarding the validity of being a “real” medical marijuana patient in order to use a medical marijuana defense in court. Failure to convince a judge of these four points prevented juries from being told of a defendant’s status as a medical marijuana patient or caregiver licensed by the state. This gave prosecutors and judges large degrees of latitude to convict patients and caregivers. In some counties, such as Genesee and Washtenaw, the prosecutors largely refused to charge medical marijuana patients and caregivers. In most other counties, “bad apples” were made examples of, particularly in places like Oakland County. The term “Green Zones” was used to describe where caregivers, dispensaries, and compassion clubs were tolerated by local law enforcement, becoming safe havens for people to acquire their medicine.
Considerations
For the last two years, since cannabis has become legal and more widely available in Michigan for all adults over the age of twenty-one, the number of medical marijuana patients and caregivers registered with the state has decreased. For almost ten years, caregivers supplied dispensaries with their products. Now the commercial growers produce more cannabis than the medical and recreational pot markets require. Thousands of pounds are destroyed yearly and the prices are still falling, panicking investors in the new cannabis industry.
So far, enforcement against “illegal” caregivers and other home cultivation operations has been minimal, but the cannabis industry is lobbying to reduce the number of patients that a caregiver can grow for and asking the state to start going after caregivers that are growing for more than personal use and use by their patients.
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