TWIN FALLS — If Kelsey Osborne could write Idaho's laws, she would allow medical marijuana.
“I think a lot of people get benefits from cannabis use, whether it’s from seizures, or cerebral palsy, or anything like that," she said last week.
Osborne was speaking outside a Twin Falls courtroom, where she had just left an initial appearance on a misdemeanor charge of injury to a child for giving her 3-year-old daughter, Madyson, a smoothie with marijuana butter. Osborne says the butter helped treat the seizures and hallucinations Madyson was suffering after going off the antipsychotic medication Risperidone.
Osborne has pleaded not guilty and is scheduled to go to trial in February. Her lawyer, Thomas Curl, said they plan to argue Osborne's conduct wasn't injury to a child because her daughter was not hurt. Marijuana use might be an offense against the state, Curl said, but that doesn't make what Osborne did child injury.
"I don't believe there's any way possible I could have injured my daughter by doing anything I did," Osborne said. "If anything, I helped her."
Her case has drawn wider attention to marijuana laws in Idaho, a state which is holding the line on cannabis's illegality and bucking the liberalization or even legalization trend followed by many states, including some of its neighbors.
"Kelsey's story definitely shows the failure of prohibition in Idaho," said Serra Frank of Boise, who founded Moms for Marijuana International after she started to use marijuana more than a decade ago to treat chronic pain caused by a bladder condition.
Frank was in Twin Falls last week with about a dozen other people to support Osborne at her court appearance; they held a small protest outside after court. Frank is facing charges herself in Boise for trying to smoke a joint on the Capitol steps on Jan. 1; she plans to do the same thing Jan. 1, 2017.
Given the Legislature's and governor's stances against it, there's not much reason to think recreational marijuana will be legal in Idaho anytime soon. However, the Legislature did pass a bill in 2015 to give people a way to possess cannabidiol oil, which doesn't contain enough THC to cause a high and which some people take to treat seizures. Gov. C.L. "Butch" Otter vetoed it.
In 2017, though, Idaho could again see legislation to allow CBD oil, as well as possibly allowing other nonpsychoactive formulations such as lotions containing marijuana. Wayne Hoffman, head of the Idaho Freedom Foundation, a conservative group that usually focuses on issues that involve reducing the size and scope of government, said last week he has heard from several lawmakers interested in introducing a bill; he wouldn't yet say whom.
“They’re concerned that the state of Idaho … considers their (constituents') ailment and the treatment of their ailment as a crime against society,” Hoffman said. “These are legislators that are very concerned about the well-being of their constituents, and they want to do something about it.”
The IFF recently released a film, “Hope Vetoed,” about a young man in Salmon who started to use CBD oil to treat his seizures after other medications failed, and Hoffman wrote a column urging lawmakers to rethink the state’s marijuana laws. The IFF's advocacy drew the attention of the marijuana magainze High Times.
Hoffman hopes the experiences of other states that have legalized CBD oil will help persuade lawmakers here.
“You don’t see problems occurring in the states where CBD oil use is legal,” Hoffman said. “We can use that to further bolster our contention that this is a policy that generally helps people.”
Marijuana has been illegal in the U.S. for a long time, although in recent years many states have been relaxing these laws. A growing number allow medicinal or recreational marijuana use, or both. Nevada on Jan. 1 will become the third state bordering Idaho to allow recreational marijuana, due to a ballot measure passed in November. Idaho is now one of seven states that doesn't allow any use of cannabis in any form — Utah and Wyoming, which forbid marijuana otherwise, do allow CBD oil.
Lawmakers here have taken the opposite stand. In 2013, they passed a resolution affirming their "opposition to efforts to legalize marijuana for any purpose in the State of Idaho," with the Republicans overwhelmingly in favor and the Democrats split.
House Speaker Scott Bedke, R-Oakley, said he doesn't have any reason to believe legislators' overall views have changed on the issue since then.
"I think it's going to be a long time before the Legislature in Idaho approves recreational marijuana," he said.
Bedke said he is against legalizing recreational marijuana use, although he would keep an open mind about medicinal marijuana if it is prescribed by a doctor.
"But self-prescription, I think, is folly," he said.
Frank said she focuses her efforts on changing public opinions, not influencing lawmakers.
"We've given up on the legislators," she said.
The cannabidiol bill the Legislature passed in 2015 wouldn't have legalized the oil outright but would have made it an affirmative defense against a criminal charge that you had the oil to treat your or your child's severe seizures. Otter vetoed it and instead signed an executive order to let up to 25 children take CBD oil as part of a study. In his veto message, Otter said he sympathized with the families of children with seizure disorders who had advocated for the legislation, but he said the claims it would help were "more speculative than scientific." He cited opposition from law enforcement and from his own Office of Drug Policy and Department of Health and Welfare.
The legislation "ignores ongoing scientific testing on alternative treatments," Otter wrote. "It asks us to trust but not to verify. It asks us to legalize the limited use of cannabidiol oil, contrary to federal law. And it asks us to look past the potential for misuse and abuse with criminal intent."
Otter's views on marijuana have evolved over the years — he expressed support for allowing recreational marijuana when he ran for governor in 1978 and for allowing medical use in 2006, as Reason magazine wrote in a recent article.
"In the decade since he was last quoted (in Reason), he has seen the problems other states have experienced since legalizing marijuana," Otter spokesman Jon Hanian told the libertarian magazine in an email. "He has heard stories from some of his colleagues in the Western Governors Association about how legalization, in their states, is not the panacea they first thought it would be."