SANTA FE—Bernie Ellis has an unusual history for a proponent of medical marijuana. In the early '90s, he came to New Mexico to set up a substance-abuse program for the Centers for Disease Control. "I'm still an advocate for reducing the health effects for substance abuse," he says. "Part of the reason I can have a foot in both worlds is that I think it's criminal that we've criminalized marijuana.”
Ellis has been a consumer, producer and provider of medical marijuana for decades. He uses it to combat the symptoms of degenerative joint disease and fibromyalgia. Six years ago, he says, he refused to sell pot to a drug dealer, so the dealer tipped off the drug task force. His Tennessee farm was raided. "So both my résumé and my rap sheet make me an expert in this field," he says.
Before the raid, he came back to the state in 2001 to testify to the Legislature on why it should close drive-through alcohol windows. That's when he started talking to Gov. Gary Johnson about medical marijuana. "I made the licensed producer argument at that point," he says.
Years later, he’s back in the state to talk to a panel of Department of Health officials on Monday, Sept. 8, about dispensing medical cannabis. "You really have laid out regulations that will allow you to be first in line if you ever decide to do this right," he says. He traveled 1,200 miles from Santa Fe, Tenn., to Santa Fe, N.M., to attend the hearing along with about 80 people from around New Mexico—patients, growers, farmers, lawyers and business owners.
Both my résumé and my rap sheet make me an expert in this field.
Bernie Ellis, medical cannabis proponent
"Your program is not what it was intended to be," Ellis says. "You're not a model program now, but you will be a model program if these production and distribution regulations can be developed."
The hearing is the third held since the passage of the Compassionate Use Act in 2007. The law calls for the Department of Health to build regulations that would govern the production and distribution system for medical marijuana in the state. But it doesn’t outline how. "The law itself did not specifically say, This is exactly how you're going to do it," says Julie Roberts of Drug Policy Alliance New Mexico.
"How?" is the real sticking point. Thirteen states permit the use of medical marijuana, but New Mexico was the only state with the goal of setting up secure growing facilities. In August 2007, Attorney General Gary King said state workers could face federal prosecution if they were involved in the production or distribution of medical marijuana.
The Department of Health needed to set up the production and distribution system by October of 2007, so it's really been a long time waiting for these regulations to be finalized.
Julie Roberts of Drug Policy Alliance New Mexico
Though cannabis was legalized for certain medical uses in New Mexico, it is still not legal under federal law, and neither patients nor growers are protected from federal repercussions. The Health Department said it wouldn't subject its employees to such legal hazards and the state wouldn't be involved in growth or distribution. In the meantime, patients are allowed to possess four mature plants, 12 seedlings and 6 ounces of marijuana.
"The Department of Health needed to set up the production and distribution system by October of 2007," Roberts says, "so it's really been a long time waiting for these regulations to be finalized."
Eve Elting says time pressures bear down on patients who are dealt a diagnosis like cancer. Elting is a cancer survivor, a doctor and a member of the state’s Medical Marijuana Advisory Committee. "I did not use cannabis ever during my treatment," she says. "If you're given that diagnosis, you have about 30 days to get your act together and pull your care together. You can apply for a card, you get the card, then what do you do? I can't grow my own plant in 30 days."
As many of you know, procuring it illegally on the street, you take your chances.
Robert Pack, qualified medical marijuana patient
Since the law went into effect, 182 patients have been given the go-ahead by the state to use medical marijuana, though Ellis estimates there are about 46,000 in the state who meet the case definition. He got that number, he says, by calling medical offices in the state and asking for estimates.
Patients spoke at the hearing of the benefits of introducing a state-regulated medical cannabis growing system. Essie DeBonet, an AIDS patient, said she could not have survived without marijuana. "I have no idea what it's like not to be nauseous," she says. She wants to find out what strain of cannabis would be effective for her symptoms, she says, and have access to it regularly.
Robert Pack hails from Eddy County, where another medical marijuana user with a state prescription had his plants seized by the sheriff's department under orders from federal agents. Pack has been a qualified patient since 2005 in California and says when he moved back to New Mexico, the first thing he noticed was a decline in quality of marijuana he could buy. "I'm very concerned with the quality and consistency of the product that we're all going to use," he said. "As many of you know, procuring it illegally on the street, you take your chances."
The Department of Health is proposing that growers establish a nonprofit that would be able to raise 95 pot plants at a time. But Heather Rowley, president of Organic Agriculture Advocacy, says that's a problem. "Is the federal government going to grant a nonprofit status to someone wanting to grow marijuana? I don't think so."
Another section of the department's proposal requires that medical marijuana patients allow the department to inspect their home without notice. "If you put the monitoring in as it is, the patients just might as well take their front door off," says Diane Wood, director of the ACLU of New Mexico's Northern Regional Office.
John McCall is a lawyer and one of the people who crafted a draft of 2007’s medical marijuana legislation. New Mexico is on the forefront, he says, of showing the country how a responsible medical marijuana program can be developed. McCall says private attorneys and the attorney general should move forward with "friendly litigation" against the federal government and the DEA. "Because it's really going to take the state suing the feds to bring this to the level it needs."