Felons who want medical marijuana put Washington state in awkward position

Jan 12 2011 - 12:50pm

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Alan Berner/Seattle Times/MCT
Kathy Perkins of Seattle, Washington, uses medical marijuana legally in her home state but is under state supervision after being arrested for posession in Arizona which does not have a medical marijuana law.
Alan Berner/Seattle Times/MCT
Kathy Perkins of Seattle, Washington, uses medical marijuana legally and sells marijuana-laced products such as cookies and oils, to dispensaries.
Alan Berner/Seattle Times/MCT
Kathy Perkins of Seattle, Washington, uses medical marijuana legally in her home state but is under state supervision after being arrested for posession in Arizona which does not have a medical marijuana law.
Alan Berner/Seattle Times/MCT
Kathy Perkins of Seattle, Washington, uses medical marijuana legally and sells marijuana-laced products such as cookies and oils, to dispensaries.

SEATTLE -- Several times a week for the past two years, felons on supervision have asked the Washington state Department of Corrections for special permission to use medical marijuana.

Some of the requests, which are signed by doctors, are vague, listing just "chronic pain" as the reason for the drug. But others describe agony: anorexia from AIDS or chronic vomiting from chemotherapy.

As regular as rain, the state's Department of Corrections (DOC) has turned down nearly all of them. Out of 320 requests, seven people have gotten permission -- a select group that includes a forger wasting away from AIDS and a white-haired grandmother named Kathy Parkins with fibromyalgia.

Squeezed by conflicting duties of policing felons while not meddling with their medical treatment, the agency has been swept into the complex and ongoing debate about the state's voter-approved medical marijuana law.

The pressure on the DOC to permit felons to use medical marijuana is likely to intensify as the medical pot industry flourishes and polls show public opinion increasingly favoring legalization. New patients are being authorized by the day, and dozens of new marijuana dispensaries are eager to serve them.

The state is even getting in on the action, announcing last month an attempt to tax medical marijuana retail sales. Advocates for medical pot estimate at least 100,000 patients statewide are approved for its use and about 5,000 people make their living off medicinal pot.

The lifeblood of the industry are the doctors' notes recommending medical pot for specific patients. Possession of marijuana is still illegal, but a note provides a valid defense if a patient is criminally charged.

A small but frustrated group of advocates, attorneys, physicians and patients says DOC is ignoring the state medical marijuana law by substituting its judgment for that of doctors who recommend the drug. The policy, they say, is ripe for a legal challenge, although none has been filed.

DOC takes a jaundiced view toward many of those notes recommending medical marijuana. A vast majority of recommendations for DOC offenders come from just three or four clinics that are pot-friendly "authorization mills," according to the agency.

"Frankly, most mainstream clinicians tend to gravitate toward traditional and conventional treatments, rather than marijuana," said Dr. Steve Hammond, DOC's chief doctor.

Doug Hiatt, a Seattle attorney who represents medical marijuana patients, said DOC "is playing doctor, and they're doing a bad job of it. They're messing around with sick people's medications. It's sickening."

For a decade after passage of the 1998 initiative, medical marijuana was a side issue at DOC.

The law prohibits medicinal pot in prisons. Those on post-prison supervision found corrections officers sometimes ignored positive drug tests if the offender had a doctor's recommendation.

In 2008, the law was changed to expand the type of medical professionals who can recommend marijuana, and to clarify how much pot a patient can possess. That prompted a boom in clinics that authorize medical marijuana -- and in requests from DOC offenders to use it.

That has put DOC field officers in a bind: Do they uphold no-drug provisions in criminal sentences and prioritize a duty to help offenders stay clean? Or do they show mercy to sick offenders with doctors' recommendations and follow the medical marijuana law?

There's one more concern: The oft-sued agency fears it could be liable if an offender on supervision hurt someone while high on DOC-approved pot.

Scott Blonien, a DOC assistant secretary, laid out the quandary in an e-mail to other DOC managers in 2008. What if an offender with advanced AIDS who had a doctor's note for medical marijuana tested positive for pot in a drug test?

"This person's possession and use is not against state law. Should DOC still violate this offender for action that our state Legislature recognized was necessary, for 'humanitarian reasons?' " according to the e-mail, which was obtained by the advocacy group Cannabis Defense Coalition. "Do we really want to die on this hill?"

After internal debate, DOC took a firm law-and-order line. Since July 2008, 320 offenders have requested waivers, which are reviewed by Hammond but subject to appeal within DOC. Waivers are not needed for prescriptions for Marinol, a synthetic form of THC -- the active ingredient in marijuana -- approved by the Food and Drug Administration to treat nausea and appetite loss.

Hammond has approved just one request; six others were OK'd on appeal.

Blonien said the policy is the right balance between compassion and accountability, especially because most of the requests for waivers come from offenders with drug histories.

"It is a very difficult position the department is in," he said. "The public expects us to help these folks return to the community, and to protect the public. It is just incongruent for us to allow some to use marijuana when it led to the criminality in the first place."

Dr. Scott Havsy, a Tacoma physician, protested when DOC denied his patient's use of marijuana to treat "intractable pain" from multiple herniated discs, a diagnosis clearly included under the state law.

"The Department of Corrections takes the statute and modifies it themselves," said Havsy. "That is just wrong. They're not following the law."

To get around the DOC, some offenders have quietly asked their sentencing judge to change the terms of supervision to allow medicinal marijuana.

As the offenders' requests have flowed in, Hammond and other DOC staff took note of a handful of doctors who signed one recommendation after another.

Among the most prolific is Dr. Mohammad H. Said, a licensed physician in Ephrata. He said he has signed 20 notes for DOC patients, a small part of his estimated 8,000 authorizations since mid-2008.

Said estimates that he has worked for 10 different clinics that specialize in authorizing medical marijuana, spending 15 minutes or so with each patient. Patients pay about $150 for a recommendation.

Said, who was disciplined by the Department of Health in 2008 for overprescribing narcotics, said he doesn't use pot himself. But he said it has proven benefits, including providing more "domestic tranquility" than alcohol.

"Ninety percent of my patients have been taking marijuana on their own for a long time. They just come in to me to make it legal," said Said, who ran for U.S. Senate in 2010 and governor in 2008.The state Medical Quality Assurance Commission has investigated five complaints regarding medical professionals' marijuana recommendations, with one currently open, which the agency wouldn't discuss. It has not yet sought to discipline a clinician over medical pot, said Larry Berg, a staff attorney for the commission.

"We know if these cases go to (disciplinary) action, they will be under large scrutiny," said Berg.

As one of seven people that DOC has approved for medical marijuana, Kathy Parkins must comply with just one special condition: Don't drive while high.

She's fine with that. Parkins, a white-haired, 54-year-old grandmother, has been legally using marijuana for a decade to treat symptoms of fibromyalgia, which causes chronic joint and muscle pain.

During a 2008 road trip in Arizona, a drug-sniffing dog at a Border Patrol checkpoint went nuts on her car. Officers found a quarter-ounce of pot, as well as cannabis-laced vinaigrette, peanut-butter cups, bubble bath, blackberry cookies, body lotion and vanilla cake. Parkins had wrongly been told that Arizona allows medical marijuana.

She pleaded guilty to possession in April 2008 -- her first criminal conviction -- and was sentenced to 36 months of probation. She got her case transferred back to Washington but was in trouble within weeks: She failed a DOC urine test for pot, and officers conducting a home visit found an authorized medical marijuana growing operation belonging to another tenant in a house she rented.

Parkins was jailed for a week, and a DOC officer tried to get her sent back to Arizona based on an inaccurate assertion that she had no family ties in Washington. DOC backed off as friends and advocates pressed her case to the governor.

She got a DOC waiver in 2009 and hasn't been drug-tested for marijuana since. To be safe, she now carries notes from three doctors.

She runs a business from her West Seattle house, supplying cannabis-laced baked goods and oils to four dispensaries.

Most medical-marijuana patients are truly sick, so DOC would risk little with a more liberal dose of mercy, she said. "These are not the normal criminal," said Parkins. "They're mostly housebound."

But DOC is sticking with its policy, said Anmarie Aylward, DOC's community corrections director. "Until we hear more from taxpayers, I think we're on the right road," she said.

FACTS

Washington's medical marijuana law

Qualifying: A patient must suffer from a "terminal or debilitating medical condition," such as cancer, HIV, multiple sclerosis, intractable pain or other illness defined by the state Medical Quality Assurance Commission. Depression and anxiety do not qualify.

Recommending: A clinician can recommend -- but not prescribe -- marijuana to a patient who has a qualifying condition. Six types of clinicians, including naturopaths and physician assistants, can make recommendations, which must be printed on tamper-resistant paper.

Possession: Marijuana possession remains illegal, but a clinician's recommendation provides an "affirmative defense" in court, meaning a patient can still be arrested but can use the recommendation form as a defense. Most prosecutors won't charge patients with valid recommendations and a 60-day supply or less.

Supply: A qualifying patient can have a 60-day supply, defined as 24 ounces and 15 plants, but patients may exceed those limits with a proven medical need.

Dispensaries: State law prohibits dispensaries, but it allows patients to get marijuana from a "designated provider." In the absence of clarity in the law, dispensaries have opened to act as providers.

Federal law: Marijuana is illegal under federal law, but the U.S. Justice Department has said it will not target users in compliance with state medical marijuana laws.

(c) 2011, The Seattle Times.

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