Medical Cannabis and the Law

An ongoing argument about the differences between ‘wet’ and ‘dry’ marijuana is absorbing Michigan courts and politicians. But the debate turns more on politics than science, and is likely to become irrelevant if voters approve full legalization next November, writes a commentator on drug policy.

Justice is perceived as unbiased, fair and wise. The law doesn’t have to be any of those things—it doesn’t even have to make sense—and neither do the courts or its judges.

Take medical marijuana. On July 19, the Michigan Court of Appeals ruled that while it is legal for someone with a medical marijuana card to possess a certain number of marijuana plants, and that it is legal for someone with a medical marijuana card to possess a certain amount of harvested, dried, and usable marijuana, it is not legal for someone with a medical marijuana card to possess marijuana that has been harvested but is not dried.

Strictly speaking, the Appeals Court ruling in People v. Vanessa Mansour means the weight of the freshly harvested marijuana—referred to as “wet” marijuana, although that term also has been used for marijuana laced with PCP or “angel dust”—can be taken into account in determining if the grower has exceeded the legal limit of marijuana.

In Michigan, a medical marijuana caregiver is permitted 12 plants or 15 ounces/425 grams of “usable” marijuana per patient licensed patient. According to the Michigan Medical Marihuana Act (MMMA), “Usable marihuana means the dried”—not drying—“leaves, flowers, plant resin, or extract of the marihuana plant,” and the Court agreed in People v. Manuel.

In Mansour, the Michigan justices relied on an earlier 2015 court ruling, People v. Carruthers. It was decided before the MMMA was amended in 2016, and before Manuel, but the lower court chose to give Carruthers precedence because it said it was “more comprehensive.”

The Michigan Court of Appeal also claimed:

  • The two rulings were not in conflict,
  • If they were, “Carruthers controls”.
  • “Even if Carruthers were not controlling, we agree with and adopt its rationale.”

That sounds like the judges personally prefer the more restrictive Carruthers interpretation. Michigan’s state court candidates are elected, politically selected, and arguably partisan. Regardless of the will of the people, if they don’t like a citizen initiative, they (like the Legislature) can find or contrive some reason to overturn it or disregard it.

Carruthers turned on whether marijuana brownies consisted of marijuana in a “usable” form. True, you cannot smoke it once it’s been baked into brownies, but you can still get high by eating them. Under such circumstances, it might make sense to consider both “usable” and “unusable” quantities of marijuana. In Manuel, it involved only drying marijuana.

According to one of Mansour’s attorneys, the Michigan Supreme Court has already thrown one case back to the MCA because it was in violation of Manuel. The same fate may be in store for Mansour.

Other reasons not to count wet marijuana include that:

  • It is not usable in this form.
  • The dried weight will be less than the wet weight (only 20-25 percent).
  • Marijuana plants can produce more than the allowable amount of marijuana—up to a pound per plant every three months—so some must be harvested and frozen in a semi “wet” condition for future use.

Why the amount of marijuana matters is the severity of the sentence. Mansour clearly exceeded the 20-plant mark which has the lightest penalty—up to four years in prison and/or a $20,000 fine. If only the plants are counted, her fewer than 200 plants could mean seven years and/or $500,000.

But if you add the drying cannabis, she could face greater penalties of 15 years and $10 million.

Montana is going through a similar dispute. Wayne Steven Penning was transporting drying leaves harvested from his four plants in sealed containers in his car. Only one ounce of “usable” marijuana is permitted to medical marijuana patients in Montana.

Montana’s medical marijuana law defines “usable marijuana” as “the dried leaves and flowers of marijuana and any mixture or preparation of marijuana.” Wet leaves don’t seem to meet any of those criteria.

Also, an article in the Billings Gazette states, “A mature female marijuana plant can produce up to 16 ounces of marijuana per yield, according to Penning’s petition to the Montana Supreme Court.” That means that “at the point of harvest, medical marijuana patients will possess more than one ounce of marijuana plant.”

Penning tried to get the Montana Supreme Court to rule on the issue of usability, but as courts like to do, they punted, declining to rule while the district court has the case, and saying that the issue of “usable” marijuana is a “question of fact, not a question of law.”

Meanwhile, the district court judge says it is a matter for the jury, which seems to make it a question of opinion.

In this instance, the law should be fact-based, but leaving it to a jury with its own predispositions towards marijuana is problematic. Jury nullification has been part of the U.S. jury system before we were a nation—since at least Crown v. John Peter Zenger in 1735. Juries don’t necessarily follow the facts.

Currently, marijuana is considered a dangerous controlled substance—as bad as (heroin) or worse than (fentanyl) the drugs causing the opioid epidemic. That designation is not based on its addictiveness. At worst, it is less addictive than tobacco, with little or no withdrawal.

Fewer substance abuse treatment centers—faith-based 12 step programs, or evidence-based non 12 step rehab centers—specialize in marijuana dependence than do alcoholism. The risk of cancer is less than tobacco, too, and no one has ever died of a marijuana overdose. The animus towards cannabis is based on prejudice and maybe politics.

One small sign that Michigan legislators and judges don’t want to deal with marijuana is in how they spell it: marihuana with an “h”. Marihuana is an older spelling, dating back to the U.S. Marihuana Act of 1937. Marijuana with a “j” has been the preferred spelling for decades, but a state website says “An act of the Michigan Legislature would be required in order to change the spelling of marihuana in the Michigan statutes, such as the Public Health Code or the newer marihuana laws.”

A more important sign is that while the Michigan medical marijuana initiative was passed by the voters in 2008, full implementation has been delayed for a decade as the legislature and the governor’s office have dragged their feet. Earlier this year the legislature got testy, declaring that all the medical marijuana dispensaries that have opened in lieu of their final regulations must close down until licenses are finally issued.

This reluctance of legislators to do their job may have backfired. Marijuana again will be on the ballot in Michigan this November, but this time it is for full legalization, recreational as well as medical, and it is supported by 61 percent of voters, with only 5 percent undecided.

Stephen Bitsoli

Stephen Bitsoli

In addition to the people who want recreational marijuana, some may support legalization because the state so passive-aggressively delayed medical marijuana, the voters may not trust the legislators or judges.

If the state doesn’t want to deal with it, the people may leave them no choice.

There’s a well-known legal maxim that justice delayed is justice denied. Politicians and judges would do well to remember that.

Stephen Bitsoli, a Michigan-based freelancer, writes about addiction, politics and related matters for several blogs. He welcomes readers’ comments.