All huff, no puff: Nevada’s marijuana laws are a mess, to say nothing of federal laws. Will Silver State users ever get clarity?
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Nevada has had some experience with prohibition. In 1918, two years before the federal government would ban the recreational use of alcohol with the 18th Amendment and the subsequent Volstead Act, Nevada passed its own ban on liquor, wine and beer.
But as you may have heard, prohibition of alcohol was not popular nationally — and it didn’t do well in Nevada, either.
In 1925, five years into the 13-year “noble experiment,” the Nevada state official responsible for enforcing federal dry laws was arrested and charged with covering up alcohol trafficking. Three years later, his conviction was affirmed by the U.S. Supreme Court.
That experience might serve as a warning for those who are battling, in law or practice, America’s other great experiment with prohibition: the multitude of federal and state laws banning the use, sale, possession or growing of marijuana.
Then as now, the laws were flouted, local officials and state laws conflicted with federal mandates, and the courts were choked with offenders of various kinds. In 2000, Nevada voters approved a change in the state Constitution allowing the use of marijuana for medical purposes. Thirteen years later it is possible for users to follow every state law in every detail and still end up on the wrong end of a criminal conviction.
Legislators in Carson City are trying to fix the chaotic and contradictory set of laws with two bills. One, introduced by Assemblyman Joe Hogan, D-Las Vegas, would legalize and tax recreational use and possession. Another, which has gained bipartisan support, would authorize the sale of medical marijuana through legal dispensaries.
The dispensary bill, introduced by State Sen. Tick Segerblom, D-Las Vegas, is intended to fill a gaping hole in the medical marijuana program: There is no legally specified way, besides growing up to seven plants at home, for patients to actually get medical marijuana, so distribution is a huge problem. And if a person were to grow it at home, the legal limit for possession by someone enrolled in Nevada’s medical marijuana program is an ounce. A single healthy, mature plant can produce many ounces of usable marijuana.
Segerblom’s bill would create dispensaries such as those that exist in Arizona. It is, at least in part, a response to a ruling from District Court Judge Donald Mosley, who ruled last March that the state’s medical marijuana law was unconstitutional because there was no realistic way for patients to obtain the drug.
Sen. Mark Hutchison, R-Las Vegas, said in a meeting of the Senate Judiciary Committee last week that he did not support the 2000 vote authorizing medical marijuana — but the majority of voters did, and now it’s part of state law.
“There is a constitutional right to have this and use this,” he said. “There are criminal cases being dismissed because judicial officers find the existing system inadequate.”
Proposals to change Nevada’s pot laws are gaining national attention. David Long, a former law-enforcement officer for the U.S. Labor Department, an attorney and an assistant professor at California’s Brandman University, is part of a national organization called Law Enforcement Against Prohibition. The group favors wholesale decriminalization or legalization, but also weighs in on the medical marijuana issue.
“It’s absurd that you can have medical marijuana patients, but it’s illegal for them to actually obtain the marijuana,” Long said. “That’s ridiculous.”
Segerblom’s bill also has support among those who use medical marijuana. According to him, there are 3,500 Nevadans with state-recognized identification cards that allow them to use marijuana. He said that by allowing and regulating sales through dispensaries, the number could grow tenfold.
Vicki Higgins, 50, is a Las Vegas artist who has used medicinal marijuana for about a decade to treat lack of appetite and nerve pain. “We need a safe place where people can go,” Higgins said. “We want to take it out of the criminals’ hands.”
She is secretary for Wellness Education Cannabis Advocates for Nevada, an effort that grew out of a 400-member meet-up group based in Las Vegas. Higgins passionately believes that medical marijuana alleviates or cures a multitude of conditions, from behavioral and cognitive disorders to allergies, and her own medical issues, among them fibromyalgia or body pain.
“We’re not opposed to legalization, but the focus is on the dispensaries,” Higgins said. She and a half-dozen others from Las Vegas drove to the judiciary committee hearings in Carson City to testify on Segerblom’s bill.
Advocates for regulated dispensaries have issues that must be confronted, however. In California, medical marijuana is legal — and dispensaries are common in every urban setting. It is de facto legalization. Would-be “patients” can easily acquire a prescription for marijuana for one or more of the following conditions: AIDS; anorexia; arthritis; cancer; chronic pain; glaucoma; migraines; muscle spasms; seizures; severe nausea; “any other chronic or persistent medical symptom that either substantially limits a person’s ability to conduct one or more of major life activities as defined in the Americans with Disabilities Act of 1990, or if not alleviated, may cause serious harm to the person’s safety, physical, or mental health.”
But why wait for legalized dispensaries? Las Vegas residents can easily get the phone numbers online for more than two dozen “dispensaries,” most of which appear to be delivery-only businesses. (Brick-and-mortar dispensaries and grow houses, when identified by Southern Nevada’s law-enforcement agencies, will be raided.)
And this brings us to perhaps the biggest impediment to reforming medical marijuana laws in Nevada or any other state: No matter what happens here, federal law still considers marijuana a Schedule 1 narcotic, classified as a dangerous drug with heroin and LSD.
Dispensaries in California that are legal under state law can be, and are being, raided by the U.S. Drug Enforcement Agency. Distributors can and will be sentenced to years in prison for violating federal law.
Michael Becker, a Las Vegas defense attorney, has been defending people prosecuted under drug laws in Nevada and California for two decades. He said the confusion between federal and state laws is akin to a mother telling a teen to go ahead, stay out late, while the dad says be home by 11.
The overall trend on both the federal and state levels is for drug-law liberalization, he said, but “a lot of people unfortunately are going to be harmed on the way.
“The question is, will juries convict people when they’re operating in the gray area?” he said. “Juries have been very reluctant to convict in medical marijuana cases.”
Becker said he has a half-dozen open cases affected by Judge Mosley’s decision last year; the cases remain open until the Nevada Supreme Court or Legislature bring some clarity into the legal confusion.
Becker said he believes that recreational marijuana should be legalized or decriminalized — legalization usually implies regulation and taxation. He admitted that doing so would probably affect his client base.
“I defend people on these charges because I don’t believe society should punish them,” he said.
Becker joins Higgins and other advocates in arguing that the federal laws need to be changed, but reforming the state laws will help the national changes by incrementally pushing the agenda.
The process, he suggested, is similar to what happened with the abandonment of alcohol prohibition in 1933. Before the repeal of the 18th Amendment, a number of states had moved to decriminalize alcohol. Those small changes helped shift the national debate.
Nevada joins at least 21 other states that have allowed medical marijuana or decriminalized possession and use, including two states — Washington and Colorado — that legalized the drug just last year. The irony is that even as Nevada joins the other states in changing the law, the legal confusion remains.