The slippery slope of medicinal marijuana.

When California voted for Proposition 215, they were picturing terribly ill patients and modest houseplants, but, of course, it doesn't stop there. The NYT reports:

[P]atients need a prescription to acquire medicinal marijuana, but the law gave little guidance as to how people were to acquire it. That gave rise to some patients with marijuana prescriptions growing their own in limited quantities, the opening of clubs to make it available and growers going large scale to keep those outlets supplied.

In turn, that led to the kind of worries that have bubbled up in Arcata, home of Humboldt State University, where town elders say roughly one in five homes are “indoor grows,” with rooms or even entire structures converted into marijuana greenhouses.

That shift in cultivation, caused in part by record-breaking seizures by drug agents of plants grown outdoors, has been blamed for a housing shortage for Humboldt students, residential fires and the powerful — and distracting — smell of the plant in some neighborhoods during harvest....

In May, Arcata declared a moratorium on clubs to allow the city council time to address the problem. Los Angeles, which has more than 180 registered marijuana clubs, the most of any city, also declared a moratorium last year.

“There were a handful initially and then all the sudden, they started to sprout up all over,” said Dennis Zine, a member of the Los Angeles City Council. “We had marijuana facilities next to high schools and there were high school kids going over there and there was a lot of abuse taking place.”

If you make an exception in the law that bans something many people want to do — and do even when it is illegal — that exception is going to be exploited. But here, it seems, you have activity far beyond the original exception and a drastic failure of law enforcement. If the law isn't enforced, it's no wonder more and more people flow into the activity.

It's a good time to look back on Justice Scalia's concurring opinion in Gonzales v. Raich (2005), which upheld the application of the federal Controlled Substances Act to the activity the California law attempted to legalize. (Federal power, based on the Commerce Clause, depended, to put it simply, on the effect on interstate commerce.)

Drugs like marijuana are fungible commodities. ... [M]arijuana that is grown at home and possessed for personal use is never more than an instant from the interstate market–and this is so whether or not the possession is for medicinal use or lawful use under the laws of a particular State. Congress need not accept on faith that state law will be effective in maintaining a strict division between a lawful market for “medical” marijuana and the more general marijuana market. “To impose on [Congress] the necessity of resorting to means which it cannot control, which another government may furnish or withhold, would render its course precarious, the result of its measures uncertain, and create a dependence on other governments, which might disappoint its most important designs, and is incompatible with the language of the constitution.”

The Court was asked to "accept on faith" that California would enforce the line drawn by its law. Here's Justice O'Connor evincing the requested credulity (boldface added):

Both federal and state legislation–including the CSA itself, the California Compassionate Use Act, and other state medical marijuana legislation–recognize that medical and nonmedical (i.e., recreational) uses of drugs are realistically distinct and can be segregated, and regulate them differently....

There is simply no evidence that homegrown medicinal marijuana users constitute, in the aggregate, a sizable enough class to have a discernable, let alone substantial, impact on the national illicit drug market–or otherwise to threaten the CSA regime. Explicit evidence is helpful when substantial effect is not “visible to the naked eye.” And here, in part because common sense suggests that medical marijuana users may be limited in number and that California’s Compassionate Use Act and similar state legislation may well isolate activities relating to medicinal marijuana from the illicit market, the effect of those activities on interstate drug traffic is not self-evidently substantial....

The Government has not overcome empirical doubt that the number of Californians engaged in personal cultivation, possession, and use of medical marijuana, or the amount of marijuana they produce, is enough to threaten the federal regime. Nor has it shown that Compassionate Use Act marijuana users have been or are realistically likely to be responsible for the drug’s seeping into the market in a significant way.... The Court ... says that the California statute might be vulnerable to exploitation by unscrupulous physicians, that Compassionate Use Act patients may overproduce, and that the history of the narcotics trade shows the difficulty of cordoning off any drug use from the rest of the market. These arguments are plausible; if borne out in fact they could justify prosecuting Compassionate Use Act patients under the federal CSA. But, without substantiation, they add little to the CSA’s conclusory statements about diversion, essentiality, and market effect.

If confronted with the evidence described in the article, would O'Connor concede she got it wrong? Probably not. She said she was talking about medicinal users who grow their own marijuana. The growers described in the article are clearly growing for others and engaged in commercial operations.

The real problem is the lack of law enforcement. Since the Court upheld federal power, why isn't it used here? According to the NYT article:

In Arcata, a 29-year-old man, who asked that his name not to be used for fear of arrest, said that he earned about $25,000 every three months from selling marijuana grown in a back room to club owners from Southern California.

But others in Arcata are less welcoming. Kevin L. Hoover, the editor of the local newspaper, The Eye, has made a practice of confronting people he believes are growing marijuana. Their houses are easy to spot, he said — covered windows, tall fences, cars coming and going late at night. “Sometimes the whine of fans,” he said.

Since it would be so easy to arrest these people, why are they not more afraid? Where is the enforcement? The NYT writes:

Also complicating law enforcement’s job is that marijuana is still illegal in the eyes of the federal government, which has been increasingly aggressive about prosecuting club owners they feel have crossed the line into commercial drug dealing.

Why does this complicate local law enforcement? It seems to be that both state and federal law enforcement should target the same large-scale operations. The feds could go after the terribly sick patients with houseplants, but why would they, when there are all these far less sympathetic growers to prosecute?

Among those recently convicted in California include a doctor and his wife from Cool who were given five years each in March for conspiracy to sell marijuana and growing more than 100 plants; a club owner from Bakersfield who pleaded guilty in March to possession of 40 pounds of marijuana with intent to distribute; and Luke Scarmazzo, a 28-year-old club owner and aspiring rapper who faces 20 years to life in prison after a conviction last month for running a multimillion-dollar club in Modesto that the government called a criminal enterprise.

How many are being prosecuted? Much as I like colorful details in news articles, I would sacrifice the knowledge that Scarmazzo is an aspiring rapper in exchange for some some comprehensive statistics about law enforcement.