A farmer pots a cannabis plant. Photo: Eric Limon/Shutterstock

Marijuana Legalization Is Leaving Home Growers Without a Pot to Grow In

Is there any reason marijuana aficionados shouldn’t have the same rights as home brewers?

|
Aug 11 2016, 4:00pm

A farmer pots a cannabis plant. Photo: Eric Limon/Shutterstock

Marisa Kiser has put up with a lot since her son Ezra was born four years ago. There were the seizures that began three days after birth and escalated until his Ezra's body was ravaged by 500 attacks a day. There were the various pharmaceuticals her doctors prescribed to help with his pediatric epilepsy but instead might have triggered nearly fatal grand mal seizures and left Ezra brain damaged, unable to hold up his head and legally blind. There was the decision in July 2013 to leave behind the world Marisa, a lifelong Southern Baptist, knew in South Carolina and move to Colorado Springs, Colorado, to try a long-shot solution: cannabis oil that seemed to be sparking miraculous recoveries in kids just like Ezra.

There was the morning in February 2014, after the oils had left Ezra nearly seizure free for months, when the two-year-old woke up screaming and didn't stop for seven months. Uncontrollable muscle spasms bent his spine backwards at a sickening angle and snapped both his femurs like kindling. There were the sky-high daily doses of phenobarbital, morphine, and other narcotics that didn't help. There were the doctors who told Marisa that they'd reached a point where if her son stopped breathing, they weren't going to resuscitate him.

There was the moment last year when, after Marisa had found that 750 milligrams of high-THC oil a day stopped the spasms and pain but the $2,000 in marijuana she needed to buy each month to cover that far exceeded what she was paid as Ezra's stay-out-home certified nursing assistant, that she decided to grow her own medicine. There are the 30 to 40 hours a week she now spends in her locked basement grow room, tending to the 72 finicky marijuana plants Ezra's doctor determined he's allowed to have because of his severe condition and carefully extracting the results into just enough pure cannabis oil to meet her son's needs. Marisa has put up with all of this because Ezra is coming back to her. He can see again, he is regaining some control of his body, he can tell her "yes" by looking at her face.

"He is in there," said Marisa, sitting in her Colorado Springs ranch house and gazing at Ezra, strapped into a pediatric wheelchair next to her and following the sound of her voice with his big, dark eyes.

The DEA's announcement that it will be expanding marijuana research access is one more example of how, bit by bit, cannabis prohibition is coming to an end, but one population that isn't seeing the benefits of such shifts are those who grow their own.

But when she heard this spring that Colorado Springs City Council had made growing more than 12 cannabis plants in your house a criminal offense–that was too much. Never mind that even DEA Head Chuck Rosenberg just conceded marijuana is not a serious hazard, telling NPR that his agency's decision today not to reschedule marijuana "isn't based on danger," but instead on whether the FDA has determined it's safe and effective medicine. According to Colorado Springs officials, the risk of Marisa growing the same substances she can now buy legally all over town was enough that she could go to jail and lose not just Ezra, but her other two children, over it.

"I have already given up everything to move here, to do everything legally to treat my son, and now my family is at risk," she said.

*

Stories like Marisa's are becoming increasingly common. While the DEA's announcement today that it will be expanding marijuana research access is one more example of how, bit by bit, cannabis prohibition is coming to an end, one population that isn't seeing the benefits of such shifts are those who grow their own.

All in all, 26 states plus Washington, DC, have enacted laws that allow for medical marijuana use, but only 15 states permit home cultivation, and such homegrowing allowances are becoming increasingly rare. Since 2011, only one of the 11 medical marijuana laws passed grant people the right to cultivate their own medicine. Washington State, among the first places to legalize adult-use marijuana, doesn't allow people to grow recreational cannabis and recently limited medical grows in the state, too. The number of recreational marijuana laws limiting home grows could soon expand: Nevada, one of the five states set to vote on legalized marijuana this November, would only permit home grows in residences located more than 25 miles from a marijuana shop. Even in a marijuana-friendly place like Colorado, more and more cities and counties are restricting people's ability to grow their own cannabis.

"Home growers are definitely getting increasingly squeezed by new marijuana laws," said Jeff Bess, an associate law clerk at the Seattle-based Canna Law Group and research assistant at the University of Washington's Cannabis Law and Policy Project. So while the nation's marijuana movement sprouted from covert closet grows and clandestine backyard plots, now that movement threatens to uproot the trailblazing home growers who started it all.

Eight homegrown plants. Photo: maciej/Shutterstock

The main reason cited for limited home cultivation is that it is a concession to law enforcement officials concerned about criminal elements developing black-market grow operations under the guise of legit home grows.

"You have a lot of outsiders coming into Colorado and using the [home grow] loophole to run major grow operations and shipping the marijuana out," said Tom Gorman, director of the Rocky Mountain High Intensity Drug Trafficking Area Program. "We can say, based on what people have reported to us, that we have seen in 2015 and 2016 a significant increase in these grow operations."

While law enforcement doesn't yet have the crime data to back up such claims, their concerns are enough to convince the lawmakers who are increasingly responsible for passing medical marijuana laws, as opposed to older medical cannabis laws, which were all passed through voter initiatives.

"One of the reasons we don't see home cultivation in more recent medical marijuana programs is because they have been enacted legislatively rather by voter initiative, and lawmakers are generally reluctant about or hostile to the idea of home cultivation," said Paul Armentano, deputy director of the National Organization for the Reform of Marijuana Laws. The trend goes back to 2010, when New Jersey legislators passed the first medical marijuana law that outlawed home grows. Since then, not a single medical marijuana bill passed legislatively has allowed for home cultivation.

But some people believe there's another reason home growers are getting pushed out of the legalization movement: It benefits the marijuana dispensaries. "I think it is one of those areas where there is overlap of interests between the marijuana industry and law enforcement," said Sam Kamin, marijuana law professor at the University of Denver. "If [as a dispensary] you are paying all this money to follow the law, you need to make sure you are not competing against people who aren't."

"If everyone knows how easy it is to grow marijuana, the industry will suffer."

The plight of home growers, in fact, has become a rallying point for anti-cannabis advocates concerned about the rise of "Big Marijuana." "The marijuana industry knows it is an Achilles' heel for them. If everyone knows how easy it is to grow marijuana, the industry will suffer. It's why you have the ban in Nevada's legalization initiative," said Kevin Sabet, founder of the major anti-legalization group Smart Approaches to Marijuana. "I will take small-scale home grows, like three plants for non-medical or medical use, over this 'Walmart of Weed' mentality that seems to be sweeping the legalization states any day."

Joe Brezny, spokesman for Nevada's legalization campaign, disagrees. According to him, the only reason his state's adult-use marijuana measure includes the 25-mile "halo" restriction on home grows, which is similar to home cultivation limits built into medical marijuana rules in Nevada and neighboring Arizona, is because of political pressure from law enforcement. He's very much supportive of home cultivation–and says for financial reasons, the marijuana industry is, too. "Dispensaries generally make more money off homegrow people than they do with their regular patients," he said. "That is another market. We would gladly serve that."

The history of home brewing laws supports Brezny's insistence that big business isn't out to stop the DIY movement. While Prohibition ended in 1933, it took 80 years for all 50 states to permit home brewing. But according to Gary Glass, Director of the American Homebrewers Association, the delay wasn't because Anheuser-Busch was actively lobbying to keep home brewers from cutting into their profits. "We may have had some opposition from state-based anti-alcohol organizations, but in all the legislation I have worked on in various states, I have never encountered opposition from within the brewing industry," said Glass.

Stacked wall of bud jars. Photo: OpenRangeStock/Shutterstock

The fact that home brewing and other alcohol regulations evolved over time–and the fact that at least one mainstream brand, Miracle-Gro, is already actively investing in the homegrow industry–has convinced many marijuana advocates to swallow home cultivation restrictions for now, believing that as cannabis reforms proliferate and the drug's stigma fades, they will be able to revise marijuana laws to allow for more home grows.

"People have to take a big-picture view of this. Marijuana laws are surely going to continue to evolve," said Armentano at NORML. "Nobody said the first regulatory policies we are going to put in place post-marijuana prohibition are the only policies we are ever going to have and we are never going to be able to amend them."

But in the meantime, there's a cost–specifically for those who have to purchase large quantities of medical marijuana from dispensaries because they have no other option. Tina DeSilvio, for example, appreciates that the medical marijuana system in her home state of New Jersey allows her to obtain cannabis flower she can make into oils to help treat her 16-year-old daughter's epilepsy, but that marijuana doesn't come cheap. For a while, she was paying $536 an ounce at a dispensary, more than twice the going rate at Colorado shops.

"New Jersey prices are astronomical," she said. "It would be much cheaper to grow it."

She's right, said Jonathan Ofir, CEO of Leaf, a tech startup producing automatic cannabis home grow systems. According to Ofir, after spending on average $2,000 on setup costs, most folks can grow their own marijuana for about $30 an ounce. "You also have the confidence knowing what went into the medicine and that no harmful chemicals or pesticides were used," he added.

In some states that have long allowed medical marijuana patients to grow their own medicine to save money and guarantee product quality, it's becoming increasingly difficult to do so. New medical marijuana rules that went into effect last month in Washington State, for example, dropped maximum patient plant counts from 15 to four, unless patients registered their grows in a state database. But considering that database recently suffered a major data leak, it's understandable that many patients aren't eager to register.

"We are not out in the woods doing guerilla grows. These are mom and pops growing 20 or less plants in their backyard."

That includes Michael Scott, a medical marijuana patient who's trying to keep within the new four-plant limit to produce the 6 grams of cannabis oil he uses a month to treat chronic pain. But so far, his backyard crop isn't doing well.

"There are some strains that are starting to wilt, with leaves falling off," he said. "I might have to cut them down before they flower."

But in the meantime, he can't start new plants without going over the state limit, and since it usually take three to four months to grow marijuana from scratch, that means he'll likely be without affordable access to medicine for quite some time.

New home grow restrictions aren't just limiting folks' ability to create their own medical or recreational marijuana; it's also impacting people's livelihoods. Like many California counties that have rushed to enact marijuana prohibitions before the deadline for such laws imposed by state's new medical marijuana rules, Siskiyou County in the northernmost part of the state recently banned all outdoor grows. For "ACDC," a local who prefers to go by the name of one of his signature strains, that means the 20 marijuana plants he grows under the state's hitherto laissez faire medical cannabis rules–some of which he sells on the black market and some of which he provides to sick kids as medicine–are now 100 percent illegal. Now he's at risk of losing his only source of income.

"This keeps me off the welfare rolls," he said. "And at the end of the day, it makes me feel really good that something I can grow in my backyard can help a child not have seizures or put a smile on somebody's face. That's not such a bad thing."

He's not the only one who could be impacted by the new ban; grey-market marijuana farms are a dominant industry in struggling northern California communities. "This is how the locals are surviving," said ACDC. "We are not out in the woods doing guerilla grows. These are mom and pops growing 20 or less plants in their backyard."

But home cultivation bans could also have repercussions far beyond home growers, patients and backwoods farmers. Such impacts could end up shaping the entire marijuana industry–and not in a good way. As Glass at the American Homebrewers Association points out, in the decades after Prohibition ended, the beer industry consolidated into just 50 breweries nationwide, all of which were producing light American lager. It wasn't until Jimmy Carter signed a 1978 bill legalizing homebrewing at the federal level that beer varieties began to proliferate, thanks in large part to home brewers developing their skills and launching craft breweries.

"There could potentially be a direct correlation between what happened with home brewing and craft brewing," said Glass. "If commercial cultivation is allowed but home cultivation is not, there could be a homogenization of what's available to consumers."

In other words, we could end up with nothing but the Bud and Coors of marijuana.

*

Back in Colorado Springs, Marisa doesn't care much about how home grow bans will shape the cannabis industry. All she cares about his protecting her son. It's why she and Rebecca Lockwood, another local parent who grows marijuana to treat her son, are suing not just Colorado Springs and city officials over the new home cultivation rules, but also the state of Colorado for imposing medical marijuana grow limits statewide. The two have launched a crowdfunding campaign to help pay their legal fees.

Marisa understands law enforcement concerns about illegal grows, but insists her situation is different. "All my neighbors know," she said. "And I am not a criminal. I have never been in trouble in my whole life. It just frustrates me so much that all I am trying to do is take care of my son."

She's distracted as Ezra shifts uncomfortably in his wheelchair and begins to moan. Retrieving a syringe of pure homegrown ACDC oil from another room, Marisa injected some of its contents into his mouth, then unstrapped him and placed his inert body in her lap as she sat in a rocking chair. Soon Ezra was quiet and content as she rocked him back and forth.

"I can't let anybody come and take Ezra and not give him the medicine that he needs," she said, before looking down at her son. "I am not going to let anyone take you, bud."