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Marijuana Is Already Legal In Illinois
By Claire Thompson: from Saturday, 10 April 2010
And it has been for three decades. But it'll take the passage of another law to make it available to patients.
Marijuana can be used for medicinal purposes under the laws of 14 U.S. states: Alaska, California, Colorado, Hawaii, Maine, Maryland, Michigan, Montana, Nevada, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, and Washington. New Jersey's measure became law January 18.
Here's a little known fact: technically it's legal in Illinois too—and has been for 32 years.
In 1978 the Illinois legislature passed a Cannabis Control Act to try to bring common sense to the state's drug laws. Though the drug causes "physical, psychological and sociological damage," the act asserted, it nevertheless "occupies the unusual position of being widely used and pervasive" in Illinois, and so it was time to establish a "reasonable penalty system" that focused on "commercial traffickers and large-scale purveyors." Even then cannabis was being championed for its medical benefits, so in the name of "research," the act gave the Illinois Department of Human Services permission to "authorize" licensed physicians to use it to treat "glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure certified to be medically necessary."
But there were two catches. The first was that Human Services was merely allowed to give doctors this authority—not required to. The second was that it could act only "with the written approval of the Department of State Police."
In other words, two state departments had to create new policies before medical cannabis could actually be prescribed and provided. To this day neither has. According to Dan Linn, the 27-year-old director of the Illinois chapter of the National Organization for the Reform of Marijuana Laws (NORML), Human Services is "pretty much waiting for the Illinois State Police to give them rules to implement, and the police say they're waiting for the Department of Human Services."
The Compassionate Use of Medical Cannabis Pilot Program Act, which passed the Illinois senate last May by a cliff-hanging vote of 30 to 28, would bring the curtain down on this long-running Alphonse and Gaston act by writing the police out of the script. But like its predecessor, it was crafted with abundant caution. It says that with a physician's written permission, someone diagnosed with a "debilitating medical condition," and also his or her primary caregiver, can have up to six cannabis plants, only three of which can be "mature," or in the budding stage, when the levels of active chemicals are highest. The Illinois Department of Public Health would determine procedural specifics, and the law would expire three years after taking effect unless renewed by the legislature.
What put it over in the senate, Linn believes, besides growing public support, might have been last year's election of John Cullerton as senate president. He'd sponsored similar bills in previous years.
Now the bill, HB2514, has to pass the house, where it's sponsored by Skokie Democrat Lou Lang. Lang, who also sponsored the first gay-rights bill to make it out of that chamber, has supported past proposals to permit the use of medical marijuana in Illinois—all of which have failed. But he didn't sign on as a sponsor until last year, when the medical-marijuana lobby asked him to. Now, he says, "I'm locked at the hip with this bill."
Lang says he's talked about it with each of the other 117 representatives. "Ninety-two of them have looked me in the eye and said, 'This is a great bill. I hope you pass it.'" he says. "But only 52 have said they'll vote for it. They come up with all kinds of excuses. When you have elected officials who choose to vote against their own conscience for political reasons, that's a recipe for bad politics."
As the chief sponsor, Lang decides when to put the bill to a vote. He says he'll wait until he's sure he has the votes he needs, because he can't afford to fail: "Many members will vote for this but they'll only do it once. They'll go out on a limb once."
The current legislative session ends in early May. In the fall the General Assembly will convene for a veto session; its formal purpose is to consider legislation the governor might veto over the summer, and although the house could consider new business like the medical marijuana bill, a supermajority of 71 votes would be needed to pass it. "It is entirely possible that I won't take a vote until January," Lang says. A new General Assembly will be sworn in on Wednesday, January 12, and on the preceding Monday and Tuesday the old assembly will convene to wrap up unfinished business. Only a simple majority will be required to pass legislation on those two days, and Lang thinks he might be able to talk a few lame duck lawmakers into changing their positions on HB2514.
Aside from them, where could the remaining votes he needs come from? Linn believes some Republicans from collar counties can be persuaded.
"Yeah, that's true," says Lang, "and a few suburban Cook legislators too. Some of the downstaters are hopeless, but we're working on it."
If the act doesn't pass before January 12, it's history. Lang and his allies in the house and senate would have to start all over again.
Senator Linda Holmes, from Plainfield, understands where lawmakers' political fears come from. The first time the senate voted on the bill, in 2008, she was up for reelection, and cast a noncommittal "present" vote. A Democrat in a traditionally conservative district, she didn't want to take a chance. "The mailer coming out would be 'so-and-so supports drugs,"' she explains. "Unfortunately spin is spin, and that's what happens."
Holmes has multiple sclerosis—a disease whose symptoms marijuana is said to sometimes profoundly alleviate. After her 2008 vote, Julie Falco paid her a visit.
Falco, whom the Reader profiled in 2005, has lived with MS for 22 years and used marijuana as a medication for six. Diagnosed soon after graduating from Illinois State University, Falco says she had tried everything from acupuncture to hydrotherapy to relieve her symptoms and slow the progression of the disease. Doctors prescribed Xanaflex, a muscle relaxant, but it made her groggy and loopy. She feared becoming addicted to her Valium. The Betaseron she injected to calm the spasticity in her limbs brought on migraines. She had a cane, and then two canes, and then a walker, and then a wheelchair. By 2004, with her prescription medications giving her more side effects than relief, Falco felt ready to take her own life. Then she tried marijuana.
Holmes told Falco about her success with Betaseron injections—but medications that work for one patient don't always work for another. "I told her, if that's helping you, that's awesome. I'm so happy for you," Falco says. "That didn't work for me. This works for me."
These days Falco uses only marijuana, adding it to baked goods because smoking it can aggravate her headaches. She eats three pot brownies, each about a cubic inch in size, every day. Now and then she'll pop a Tylenol with codeine, but she prefers not to, as it can make her constipated. Cannabis calms her leg spasticity, alleviates her insomnia, eases her pain, and reduces her sense of anxiety in crowds. When we meet, she doesn't seem sick—or, for that matter, high on anything but life. "I've got a love for life again, a love for getting up in the day," she says. "I'll take my chances with a cookie or a brownie as opposed to a needle and a migraine."
Falco says people who find out she uses medical marijuana often ask her if she's high all the time. "Well, what does that mean to you?" she says. "My high is pain relief." Once, she tells me, she and some friends smoked pot at a party for fun. Everyone else got stoned and silly, and one of Falco's friends turned to her and said, "Julie, you're not high." It was true, she says: for her it was just another dose of medicine.
Linda Holmes voted yes on the bill last May when it passed the senate; by then she'd even become one of its senate sponsors. She says constituents' reaction has been far more positive than negative.
This doesn't surprise Lang, who says his colleagues' concerns about electoral repercussions are largely unfounded. "They're not going to vote against you because you said to granny down the street, 'We're going to eliminate your pain,'" he says. He says he's gotten more than a thousand phone calls, faxes, and e-mails from voters all over the state about the bill, and that only one has been in opposition.
NORML's Dan Linn too believes there's more public support for legalization than politicians think. "Most people do support the idea of treating people humanely and giving them medicine when they need it," he says. "The biggest obstacle is convincing [lawmakers]. . . . If more people started standing up and talking to their politicians about it, they might be more able to support it."
A poll conducted in February 2009 and paid for by the prolegalization Marijuana Policy Project (MPP) showed 68 percent of Illinois voters approved of allowing seriously ill patients access to medical marijuana. A Washington Post-ABC News poll conducted nationally in January found 81 percent supported legalizing medical marijuana. "Some of those people have to be living in Illinois, right?" says Linn.
The most powerful force against the bill is the state's law enforcement lobby, Linn says. Groups like the Illinois Sheriffs' Association and the Illinois Association of Chiefs of Police have a lot of pull in Springfield, and they argue that the law would be too hard to enforce and too easy to abuse. Their influence swayed state senator Pam Althoff, a McHenry County Republican who voted against the bill last May.
"All of my law enforcement agencies object to the program," Althoff says. "They have grave concerns about . . . the difficulty in discriminating between those that are legal and those that are illegal. They are not prepared to handle this kind of legislation at this time."
In February 2009 Althoff polled her 225,000 constituents on medical marijuana. Of the 6 percent who responded, 80 percent supported legalization, but Althoff says the response rate was too small for the results to change her vote.
State senator John Millner, a Republican from Bloomingdale, also voted no. A former president of the Illinois Association of Chiefs of Police, he worked in law enforcement for more than 30 years. He said he understands the need for medical marijuana—his wife has cancer—but he thinks the bill, for all its precautions, makes it too easy for aspiring pot dealers to pass themselves off as caregivers and get permission to legally grow marijuana.
"I struggle with looking at this [bill]," Millner said. "If there's anything that would make my spouse feel better, I'd look at that. I've talked to people who are sick and say it would help them and I can believe that. . . . But based upon my past experience, my knowledge of the law, I think this will do more harm than good."
Falco doesn't expect the law enforcement lobby to change its mind. "They're just doing what they've been trained to do," she says. "The law that's in place is against medical cannabis patients. . . . To switch that paradigm, for law enforcement, that's a huge thing."
It's especially huge, says former Cook County prosecutor James Gierach, a proponent of the bill that passed the senate, because legalizing marijuana would compromise a significant revenue stream for law enforcement. Gierach, who sits on the national board of Law Enforcement Against Prohibition (LEAP), says money and other assets seized in drug raids go to local law enforcement (or are divvied up with the feds when they play a role). "Law enforcement people have typically been in favor of the war on drugs because it pays their paycheck. They're riding the drug war gravy train."
LEAP is made up of former soldiers in the drug war—police officers, prosecuting attorneys, DEA agents—who have deserted the cause. They speak out against the war on drugs, write newspaper articles, appear on TV, and testify before state legislatures debating drug policy. Asked about the concern that a medical marijuana law would be tough to enforce, Gierach replies, in effect: what cannabis law isn't? "Marijuana prohibition in all forms is unenforceable," he says. "All the raids in the world and all the prisons in the world are not going to make dandelions or marijuana go away."
Opponents of medical marijuana legalization like to point to California to illustrate how such a law can go wrong. California's notorious for the ease with which citizens can obtain a "green card," a doctor-issued pass to buy pot at one of the many dispensaries that have cropped up since 1996, when the state instituted the first such program.
"There's a lot of attention on California," Linn says. "For people who dramatically need this more than others, they're having a hard time getting it, because so many bozos in California are using it for headaches and hangnails."
The Illinois bill's sponsors have worked to distance it from the California model; it was amended in the senate to reduce the number of plants allowed, more narrowly define a "debilitating condition," tighten controls over patients and caregivers, and put penalties in place for misuse and abuse of the program.
Linn thinks the bill Lang's now trying to pass is much too restrictive—and Lang's not that happy with it either. For instance, instead of a three-year pilot program, Lang would prefer a permanent change in the law. But Linn said in an e-mail that he "would much rather have a crappy medical cannabis program than no medical cannabis program."
"It is what it is," says Lang. "The idea is to make it a very controlled bill. People are scared out of their wits that we're going to have a whole new culture of high people all over the state of Illinois. But the other states [where medical cannabis is legal] never reported problems—except in California, which was a bureaucratic problem, not a marijuana problem."
Some members of the law enforcement community in those other states beg to differ. Richard Beghtol, president of the Washington State Narcotics Investigators Association, wrote in an e-mail that "medical marijuana has been a legal dilemma for the criminal justice system" and that Washington narcotics investigators have seen "widespread abuses" of the state's law since it took effect in 1998. Most of these abuses, according to Beghtol, come in the form of profit-seeking growers trying to exploit the law to legitimize their operations—for example, complaining of headaches in order to get a doctor's permission to grow marijuana, and then selling it. Washington's law resembles Illinois' proposed one in that it provides only for private cannabis growing, not dispensaries, though Washington lets patients and their primary caregivers have up to 15 cannabis plants.
Josh Marquis, a district attorney in Oregon, says most prosecutors support his state's medical marijuana law—which, like Illinois' would, requires a note from the doctor—but agree it's been abused. A handful of patients suffer from conditions such as glaucoma, AIDS, nausea from chemotherapy, or MS, "all of them very legitimate," he says. But "back pain? Depression? Lethargy by a 22-year-old snowboarder? That's ridiculous."
The federal government classifies marijuana as a Schedule I controlled substance, a category that also includes heroin, ecstasy, and other drugs with "high potential for abuse" and "no currently accepted medical use." Cocaine, methadone, and amphetamines fall on the slightly less restrictive Schedule II list; cold medicines used in the manufacture of crystal meth don't appear until Schedule V.
Last November the American Medical Association urged Washington to review its classification of cannabis. Removing it from Schedule I would allow government research to be done on it—an important step because opponents of legalization often complain that the drug hasn't been subjected to clinical trials. Josh Marquis would like to see cannabis reclassified for another reason: Doctors who believe in cannabis can write notes for patients, he explains, but because cannabis is a Schedule I drug they cannot prescribe it. Take it off Schedule I and doctors could prescribe it as they prescribe other controlled substances. But doctors can write those prescriptions only if the Drug Enforcement Administration has issued them a DEA number. No doctor with the authority to prescribe controlled substances wants the DEA to take away his or her number—which is why Marquis believes that the same doctors who casually write notes for cannabis would be far more circumspect about writing prescriptions.
Advocates of Lang's bill say legislators are so worried about what law enforcement thinks that they lose track of what anyone else thinks. Illinois' medical marijuana act is a health bill, they point out—not a crime bill. The Illinois Nurses Association has endorsed it. The American Academy of Physicians—the second-largest physicians group in the country—wrote in a 2008 position paper that it supports funding for research on the medicinal value of marijuana, and "strongly urges protection from criminal or civil penalties for patients who use medical marijuana as permitted under state laws."
Senator Millner says his wife, Debbie, a schoolteacher, worries that legalized marijuana would corrupt children. Lang dismisses this: "We can't let our youth see people buying a product that's helping their lives!" he cries in mock horror. "We can let them go to the drugstore and buy products that could kill them. . . . In our medicine cabinets are seriously addictive drugs. Nobody in the history of the world has died of an overdose of marijuana, but every day people die from overdoses of Vicodin and codeine and OxyContin."
This is a familiar argument for allowing medical cannabis and it helped win Linda Holmes's vote. "We need to have controls in place like we do with any drug for it not to be abused," she says. "But prescription drugs are abused all the time. This is not a drug that incapacitates people. It gives them quality of life, the energy to walk their kids to school in the morning, to be able to get up off the couch."
When Julie Falco discovered the relief marijuana gave her, she contacted Illinois NORML about joining the political movement to legalize it. But she was wary of speaking openly about her use of the drug—until she read about Jonathan Magbie.
Magbie, who lives in Washington, D.C., was paralyzed from the neck down in a drunk-driving accident at the age of four. In 2004, at 27, he was convicted of marijuana possession. He told the judge he used pot to feel better and to treat some of the symptoms of quadriplegia, including the limb spasticity that often plagues MS patients. He was sentenced lightly, to ten days in jail. But a miscommunication between hospital, court, and jail officials left him without the ventilator he needed to breathe at night. Four days into his sentence, Magbie died.
"I was thinking I had it bad," says Falco. But after reading Magbie's story, she said to herself, "'Shit, I can still dress myself. I can use the bathroom.' He couldn't even do that much, and you're going to deny him something that helps him get through his day? That was my tipping point."
Falco decided the value of going public outweighed the risks. She embraced her new attitude by declaring whenever she got the chance: "I am Julie Falco, and I use medical cannabis." Back then, few other medical users were in the public eye, and Falco began to fill that void by appearing on TV shows, talking to reporters, and trekking to Springfield to lobby for legislation. Now that other patients have started to speak out, too, she says she no longer feels like the poster child for medical marijuana.
Linn's work brings him into contact with many people for whom the drug provides medical relief from serious conditions. But he doesn't believe that you have to be gravely ill or injured to experience the plant's healing properties.
"What do people consider self-medication?" he says. "California's concept is that any type of cannabis use is medical use. . . . I kind of adhere to that myself. When we were younger, we were trying to escape the trauma of going through high school, and [smoking pot] was our medicine."
Wait, didn't he just blame "bozos in California" who take cannabis "for headaches and hangnails" for the suffering of people with serious illnesses in Illinois? Linn conceded the point, but added that his "personal view" is not his "professional view."
"That patients in Illinois are denied help," he says, "because California has an open view of what is a medical use and what isn't is tough to swallow."
Personal viewpoints like Linn's, though, concerns skeptics like senators Millner and Althoff, who worry that a medical cannabis program, if passed, will lay the groundwork for legal recreational pot use. Millner suspects that's what the bill's proponents hope for, anyway. "Maybe we should just be more transparent about it," he says, suggesting that when it comes to marijuana legalization, all or nothing makes the most sense.
Many advocates admit as much. "Medical marijuana is a crack in the wall of ignorance," says Madeline Martinez, director of Oregon NORML and herself a patient.
In fact, as Illinois lawmakers struggle over their carefully restrictive bill, proposals to fully legalize marijuana are gathering steam in other states. California's Regulate, Control, and Tax Cannabis Act got enough signatures to be placed on the ballot this November—and a poll last year showed 56 percent of voters in the state favored the proposal. A bill to legalize adult marijuana use and possession in the state of Washington died in committee in January, but its backers are optimistic that they can revive it.
If taxing and regulating marijuana for adult use would eliminate the dilemma of law enforcement for medical cannabis patients, it could also dispel concerns, like Debbie Millner's, about children's exposure to the drug. "They can get it in high school," says Madeline Martinez. "We want to tax and regulate it so they have to get it from behind a counter. We need to try to capture the revenue that's being lost to criminal organizations."
The message Gierach stresses is that marijuana prohibition feeds a cycle of crime and violence, the way Prohibition in the 1920s fueled the rise of gangsters like Al Capone. "Law enforcement is out there working for the drug cartels to make sure that the only place people can buy their marijuana is from an illicit source," he says. "The irony is that the good guys are . . . putting themselves on the same side of the line of scrimmage as Pablo Escobar." In 1989 Forbes listed the Colombian drug lord as the seventh-richest man in the world.
Even in Oregon, whose medical marijuana program has been called the gold standard, patients face hurdles in getting their medicine, says Martinez. "The state of Oregon just gives you your card and they say good luck," she says. "Not even a handbook was given to help patients through the maze of issues that they need to deal with."
The biggest of those is having to grow one's own pot in the absence of dispensaries. It's a daunting task that sends many patients right back to the black market. "Trying to grow it yourself is really hard, like trying to grow all your own vegetables," Martinez says. "Medicine's no good if you can't access it."
I asked Julie Falco where she gets hers.
Her answer was swift and dispassionate. "That I will not disclose," she said. "I've got great supporters. They're just people who want to help. I am blessed now—because of the work I'm doing, I'm getting helped out. Not everybody gets that, and that's what crushes me."