By Leland R. Berger

Oregon's Medical Marijuana Act was predicated on the quaint notion that medical cannabis patients would be able to obtain their medicine for free. The original concept was that a person suffering from a debilitating medical condition would either cultivate for himself or find a person to charitably cultivate for him. Legislative amendments in 2005 codified the ability of cardholders to freely share "usable medical marijuana" and allowed patients to reimburse growers "for the costs of supplies and utilities, and no other costs, including labor."

Following the 2010 defeat of a regulated supply system initiative, caring and compassionate Oregonians began pushing the envelope, principally by facilitating patient reimbursement of growers. The legal challenge is to do so without creating a "transfer for consideration," because while reimbursement is protected, transfers for consideration cause one to lose legal protection. Although undefined in Oregon criminal law, "for consideration" means receiving something of value and probably also means receiving more than the permissible reimbursement.

In Multnomah County, prosecutors and police know that resources are limited and that people trying to safely distribute medical cannabis do not endanger public safety. They recognize that shutting down these establishments creates crime by requiring patients who were obtaining their medical cannabis there to go instead to the underground market.

The absence of a regulated supply system itself causes public safety problems, however, including an uptick in home invasion robberies of registered medicinal gardens. Also, a relatively small amount of medical cannabis finds its way to medical and recreational out-of-state users.

The crime, however, is the failed policy of marijuana prohibition. Oregonians may have the opportunity to end this here if an initiative turned in to the secretary of state's office last week qualifies for the November ballot. But if it does not qualify or if voters reject it, the need for a regulated supply system will continue, requiring a model.

Several proposals are being discussed among medical cannabis advocates and law enforcement opponents. I write to suggest a proposal predicated on the understanding of how things currently work.

Growers achieve different yields from their medicinal gardens. Patients have different needs, sometimes occasioned by their different modalities of use. (Medicated food or candy -- "medibles" -- oil or hashish each utilize more raw marijuana than cured and manicured flowers used for smoking or vaporizing.) Generally, growers produce more usable marijuana than their patients need (denominated "excess"). Some of this excess is lawfully freely distributed among cardholders; some is distributed to registered patients; some finds its way into the underground market, both inside and outside Oregon.

I propose this: Allow single-patient gardens, either at the patient's home or at the grower's location, to continue to be unregulated and free from inspection. Require all multiple-patient gardens to be licensed, regulated and subject to inspections. Require all excess cultivated at all multiple-patient gardens to be delivered to licensed, regulated and inspected safe access points for distribution to patients. Allow growers reimbursement from patients and from safe access points for the cost of their labor.

Regulations should also state that compliance creates an exception to the criminal law. Noncompliance should be punishable by fines and fees commensurate with other regulated industries. The distribution must take into consideration the fact that at least one of every three medical cannabis patients qualifies for a reduced fee to register with the Oregon Health Authority based on indigence, and it should ensure that these patients are not left behind.

Patients deserve safe access to quality medical cannabis, and growers deserve to be paid for their labor. The public is entitled to monitored compliance with regulations. The Legislature is the place for this issue to be resolved, and the upcoming session is the time to resolve it.

Leland Berger is a lawyer who represents medical cannabis patients and their providers statewide from his home in Northeast Portland. He also handles state criminal appeals and is the chair of NORML's amicus committee.