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Feature: South Dakota Medical Marijuana Backers Take Aim at the Statehouse

In 2006, South Dakota gained the dubious distinction of being the only state to defeat an initiative that would have legalized the medicinal use of marijuana. That effort failed narrowly, garnering 48% of the popular vote. But now, South Dakota marijuana reform activists are back, and they are hoping to move a bill through the state legislature in the session beginning next month.
South Dakota badlands
According to Bob Newland, spokesman for South Dakotans for Safe Access, a proposed bill that would allow qualifying patients to cultivate, possess, and use medical marijuana has been drafted, and the hunt is on for sponsors. The legislative session begins next month, and any bill to be considered must be introduced by early February.

Newland said the group is also considering other legislation, including a bill to reschedule marijuana from Schedule I to Schedule IV and a bill that would allow an affirmative defense for medical marijuana patients.

"Everything is moving much faster than we thought it would," said Newland. "We've lined up a couple of stellar medical witnesses and may get a couple more, and I think we have a good doctor lined up, too. There has been lots of email and phone support in the couple of weeks since we announced we were moving ahead, and lots of donations, too. Now, we need to find sponsors."

Newland said he was working on that this week, holding meetings in the state capital, Pierre, on Thursday and talking to Democratic Party members in Sioux Falls, the state's largest city, today.

A change in the state's approach to medical marijuana couldn't come early enough for patients. Not only does South Dakota not recognize medical marijuana, it is a state where people actually go to jail for simple possession -- and to prison for growing even a pair of plants.

"We absolutely need a medical marijuana law, and not just for AIDS patients, but for cancer, glaucoma, you name it," said Western South Dakota rancher Tom Faltynowicz, an AIDS sufferer. "It would make a huge difference not having to worry about being busted for something that's keeping me alive. The law needs to change."

Faltynowicz speaks from personal experience. While he has being using medical marijuana with his doctor's knowledge and approval for nearly 20 years, that didn't stop him from being arrested and prosecuted for growing his own medicine. Earlier this year, Faltynowicz pleaded guilty to possession of more than two ounces but less than a pound of marijuana, a felony under South Dakota law.

Fortunately for him, and thanks to letter-writing efforts to his sentencing judge, Faltynowicz was sentenced only to probation, including drug testing, and was specifically allowed to use Marinol during his probation. (Since drug tests only detect the presence of THC, they cannot distinguish between Marinol and marijuana.)

"We need it as much as ever, not only for the people suffering within the state, but to show the rest of America that a red state like South Dakota can accept this," said medical marijuana patient Valerie Hannah, who served as a spokesperson for the 2006 initiative. "If someplace like South Dakota can pass medical marijuana legislation, that should be a huge wakeup call for the federal government to stop prosecuting patients as criminals," she said.

But it won't be easy. Republicans dominate both houses of the state legislature, where earlier bills went nowhere. The Republican attorney general, Larry Long, spearheaded law enforcement opposition to the 2006 initiative and appears ready to reprise that role in the coming months.

"Long had some complaints about the wording of the 2006 initiative," said Newland. "I am telling Long that South Dakotans for Safe Access is willing to work with the attorney general's office in drafting a law all of us can live with."

According to his spokesperson, Sara Rabern, Long remains opposed to medical marijuana. "His stance is still the same," she said Thursday. Long was traveling, and Rabern did not know whether he would be amenable to working with the bill's sponsors to address law enforcement concerns.

"It will be an uphill battle in the legislature," Hannah predicted. "We need someone with clout to carry our message in Pierre, and we need to get some real grassroots support going," Hannah said. "I fear they will throw it out again, but if we can get out of committee and make it to a floor vote, that would be real progress."

Another key constituency in medical marijuana battles is the medical profession. In several states that have had successful medical marijuana campaigns, state nursing and/or medical associations have publicly supported the therapeutic use of marijuana. That's not the case in South Dakota.

"We haven't looked at this issue for awhile," said Brittany Novotny, head of the South Dakota Nurses Association. "We do not take a formal stance for or against. If this comes up in the next session, our government relations committee will have to decide whether this is a fight we want to be part of or not."

The South Dakota State Medical Association did not return calls seeking comment.

One factor that may be working in favor of the legislation is the closeness of the 2006 vote, which demonstrated significant, if not quite majority support for medical marijuana, and the threat of another effort to go direct to the voters in 2010. "Maybe the fear of leaving this to the people will prod them into action," said Hannah. "One of the big concerns here is how this will affect illegal drug use in South Dakota, but if crafted correctly, the bill could be a boon to law enforcement. If they are willing to sit down and work with us, we could come up with a bill that could address their concerns."

Newland said he is hard at work on endorsements from medical professionals, as well as working with some churches to garner support. While the effort faces long odds, Newland remains optimistic. "The last time we went to the legislature, we didn't have 48% of the people voting for medical marijuana two years earlier. We had always bargained from a position of weakness, but now we have a club to carry into the hearing rooms."

D.C. Pays Dearly After Letting a Medical Marijuana Patient Die in Jail

As a toddler, Jonathan Magbie was struck by a drunk driver. He survived for 23 years, paralyzed from the neck down, until one day he was arrested for using medical marijuana to treat his pain. Magbie died in jail four days later.

This week, Magbie’s family settled a wrongful death suit, bringing this unfathomable tragedy back into the spotlight:

Attorneys for his mother, Mary R. Scott, declined to provide details of the financial settlement, which she reached with the city, private contractors and the insurance company that covered doctors at the hospital. The American Civil Liberties Union, which represented Scott, called the settlement "substantial" in a news release.

Magbie's mother was furious that the judge did not give her son probation, the typical punishment for first-time offenders. Magbie, paralyzed since being hit by a drunk driver at age 4, had no criminal record. Retchin told a judicial commission that she sentenced Magbie to jail because he said he would continue to smoke marijuana to alleviate his pain. [Washington Post]

He was literally singled out for using medical marijuana and being honest about the fact that his condition required continued use. Anyone still struggling to understand the persecution of patients in the war on medical marijuana need look no further than this.

And, as Dan Bernath at MPP points out, voters in Washington, D.C. overwhelmingly passed a law back in 1998 to protect patients like Jonathan from arrest. If Congressional drug warriors hadn’t continually blocked the implementation of D.C.’s medical marijuana law, Magbie would probably never have been arrested, never died in jail, and D.C. taxpayers wouldn’t have to foot the bill for the mindblowing callousness and incompetence that took his life.

Not Arresting Marijuana Users is Too Confusing For Police

Voters in Massachusetts have overwhelmingly voted to stop small-time marijuana arrests, but the law-enforcement community doesn’t understand what that means:

BOSTON - Amid confusion among police and prosecutors, a voter-approved law to decriminalize the possession of marijuana goes into effect on Jan. 2, according to a spokeswoman for the state attorney general.

Agawam Police Chief Robert D. Campbell said there is a tremendous amount of confusion about the law.

"Somebody has to come up with a mechanism," the chief said.

Geline W. Williams, executive director of the Massachusetts District Attorneys Association, said there are some "very, very significant" problems with putting the law into effect. [The Republican]

Fortunately, an apparent super-genius named Terence J. Franklin has come up with a theory:

Amherst Town Meeting member Terence J. Franklin, who supports Question 2, said the new law should be easy to put in place.

"Why not just leave people alone?" Franklin added. "What's the big deal? That will solve all the worries."

Now that’s what I’m talking about. Maybe we should let this guy write the ballot language from now on.

Seriously though, it’s understandable that police are entering into some new territory here. Still, there’s no question what the voters have in mind. Most people don’t think possessing marijuana should get you arrested and charged with a crime. There may be some details to iron out, but it’s really pretty silly to act like this is gonna turn the criminal justice system upside down. To even argue that is basically to admit that marijuana enforcement rules your world.

Opponents of Question 2 campaigned tirelessly to convince voters that marijuana enforcement was a low priority and that penalties were lenient. If there was even a shred of truth to any of that, then implementing decrim should be simple.

Medical Marijuana Debate: MPP vs. ONDCP

This evening, Georgetown Law School’s chapter of SSDP hosted a debate on medical marijuana between MPP’s Assistant Communications Director Dan Bernath and ONDCP’s Chief Counsel Ed Jurith. Since the drug czar’s minions seldom subject themselves to public scrutiny, and only do so in D.C., it was my duty to document the dialogue.    

Bernath began with a reference to the recent discovery of a 2,700-year-old marijuana stash in the tomb of a Chinese shaman, establishing the extensive history of the medical use of marijuana. He described the dimensions of the current medical marijuana debate, including the support of the medical community, the benefits for a growing population of users, and the evolution of public opinion in support of protecting patients through ballot initiatives and state legislatures.

Jurith framed his argument from a legal perspective, providing a chronology of caselaw upholding federal authority to enforce marijuana and other drug laws. He emphasized the FDA approval process, insisting that reformers seek to bypass the traditional pathways through which medicines are deemed safe and effective. He focused heavily on dismissing the notion of a "fundamental right" to use medical marijuana, although Bernath hadn’t presented his position in those terms.

As the discussion proceeded, I was struck by Jurith’s continued preference for defending the legality rather than the efficacy of the federal war on marijuana. He just wouldn’t go there. In Q&A, I pointed out that the Raich ruling certainly doesn’t mandate a campaign against medical marijuana providers and that DEA demonstrates their discretion every day by declining to prosecute the majority of dispensary operators. Will he defend the raids in a practical sense? What determines who gets raided and who doesn’t? He responded with the notorious Scott Imler quote about medical marijuana profiteers, but never really answered the question.

So basically, the head lawyer at the drug czar’s office came forward to assure us that what they’re doing is technically legal, while failing in large part to actually help us understand why they do it. In turn, Bernath easily and convincingly depicted how ONDCP’s role in the medical marijuana debate consists entirely of opposing/interfering with state level reforms and blocking the exact research they claim is necessary.

I’d like to think that Jurith’s one dimensional presentation is indicative of the shrinking box from which his office draws its talking points on medical marijuana. Is the growing body of medical research and the solidification of popular support beginning to suck wind from the pipeholes of the proud protagonists in the war on pot? Jurith never compared marijuana to hard drugs, never employed the formerly obligatory "Trojan-horse-to-legalization" line, and generally declined to completely lie his face off when cornered. Maybe he’s just nicer than, say, this guy. But it’s also true that ONDCP as we know it is about to be dismantled and it may be that nobody over there currently gives a crap if the mild-mannered Ed Jurith is kind enough to put himself on the spot for the educational benefit of some law students.

Either way, by ONDCP standards, this was a fairly defanged defense of the war on medical marijuana. Jurith is absolutely correct that the federal government maintains considerable authority over the enforcement of our drug laws and it will be fascinating to see what happens when that power changes hands.

MPP and ONDCP Debate Medical Marijuana

The Georgetown chapter of Students for Sensible Drug Policy is hosting a debate between MPP assistant director of communications Dan Bernath and White House Office of National Drug Control Policy chief counsel Ed Jurith. The topic of the debate will be medical marijuana. Attendance is free and open to the public. Attendees must bring a valid photo ID. After the debate, there will be a question and answer session with the audience. In 1998, 69% of Washington, D.C. voters supported an initiative to allow sick and dying patients to use medical marijuana. However, Congress has prevented the law from being implemented, so seriously ill District residents are still subject to arrest and prosecution for using medical marijuana. If you live in the District, please take a moment now to urge your councilmembers to pass a resolution calling on Congress to respect the will of D.C. voters and allow the medical marijuana law to take effect.
Wed, 12/03/2008 - 6:30pm
600 New Jersey Ave NW
Washington, DC 20001
United States

State Medical Cannabis Laws are Final! Return of Legal Cannabis Not Pre-empted by Federal Law

Dear ASA Supporter,

The U.S. Supreme Court refused to review a landmark decision yesterday in which California state courts found that its medical cannabis law is not preempted by federal law. The Supreme Court’s decision in Garden Grove v. Superior Court means that federal law does not prevent state and local governments from implementing medical cannabis laws adopted by voters or state legislatures. In short: federal law does not override state law on medical cannabis!

Yesterday’s decision follows three years of strategic legal work by Americans for Safe Access (ASA) in a California case involving the return of wrongfully confiscated medicine. ASA needs your help to keep doing important work like this. Please take a moment to make a special contribution to ASA today.

The Court’s decision has broad implications for medical cannabis patients in the 13 states where medical cannabis is legal, and signals a sea change in the impasse between state and federal laws. Better adherence to state medical cannabis laws by local police will result in fewer needless arrests and other problems for patients, allowing for better implementation of medical cannabis laws in all states that have adopted them.

Medical cannabis advocates should be encouraged by opportunities for change in federal policy with a new Presidential Administration and shift in Congress. But until now, federal pre-emption has haunted patients whose state laws allow for medical cannabis use. This decision further clears the way for state implementation and adds new urgency to ASA’s work in the nation’s capitol, where we have been working full-time to change federal policy since 2006.

ASA is working in the courts and in the halls of Congress to protect and expand patients’ rights – and we are making a difference. We have won important victories in court, made significant inroads in Congress, and helped reframe the national debate about medical cannabis. But we need your help to carry on. Please make a contribution to support ASA today.

Thank you,

Steph Sherer
Executive Director
Americans for Safe Access


P.S. Read more about the Supreme Court decision at

Washington, DC
United States

Watch MPP debate ONDCP in D.C. Wednesday evening

Dear friends:

The Georgetown chapter of Students for Sensible Drug Policy is hosting a debate between MPP assistant director of communications Dan Bernath and White House Office of National Drug Control Policy chief counsel Ed Jurith at 6:30 p.m. on Wednesday, December 3. The debate will take place at The Georgetown University Law Center in McDonough Hall. The topic of the debate will be medical marijuana.

Attendance is free and open to the public. Attendees must bring a valid photo ID. After the debate, there will be a question and answer session with the audience.

WHAT: Medical marijuana debate between MPP assistant director of communications Dan Bernath and ONDCP chief counsel Ed Jurith
WHEN: 6:30 pm on December 3, 2008
WHERE: The Georgetown University Law Center in McDonough Hall (600 New Jersey Ave NW), room 203

In 1998, 69% of Washington, D.C., voters supported an initiative to allow sick and dying patients to use medical marijuana. However, Congress has prevented the law from being implemented, so seriously ill District residents are still subject to arrest and prosecution for using medical marijuana. If you live in the District, please take a moment now to urge your councilmembers to pass a resolution calling on Congress to respect the will of D.C. voters and allow the medical marijuana law to take effect.

Thank you for supporting MPP. I hope you will be able to attend the debate on Wednesday evening.


Zane Hurst
Legislative Analyst
Marijuana Policy Project

Washington, DC
United States

Press Release: U.S. Supreme Court -- State Medical Marijuana Laws Not Preempted by Federal Law

PRESS RELEASE Americans for Safe Access For Immediate Release: December 1, 2008 U.S. Supreme Court: State Medical Marijuana Laws Not Preempted by Federal Law / Medical marijuana case appealed by the City of Garden Grove was denied review today Washington, DC -- The U.S. Supreme Court refused to review a landmark decision today in which California state courts found that its medical marijuana law was not preempted by federal law. The state appellate court decision from November 28, 2007, ruled that "it is not the job of the local police to enforce the federal drug laws." The case, involving Felix Kha, a medical marijuana patient from Garden Grove, was the result of a wrongful seizure of medical marijuana by local police in June 2005. Medical marijuana advocates hailed today's decision as a huge victory in clarifying law enforcement's obligation to uphold state law. Advocates assert that better adherence to state medical marijuana laws by local police will result in fewer needless arrests and seizures. In turn, this will allow for better implementation of medical marijuana laws not only in California, but in all states that have adopted such laws. "It's now settled that state law enforcement officers cannot arrest medical marijuana patients or seize their medicine simply because they prefer the contrary federal law," said Joe Elford, Chief Counsel with Americans for Safe Access (ASA), the medical marijuana advocacy organization that represented the defendant Felix Kha in a case that the City of Garden Grove appealed to the U.S. Supreme Court. "Perhaps, in the future local government will think twice about expending significant time and resources to defy a law that is overwhelmingly supported by the people of our state." California medical marijuana patient Felix Kha was pulled over by the Garden Grove Police Department and cited for possession of marijuana, despite Kha showing the officers proper documentation. The charge against Kha was subsequently dismissed, with the Superior Court of Orange County issuing an order to return Kha's wrongfully seized 8 grams of medical marijuana. The police, backed by the City of Garden Grove, refused to return Kha's medicine and the city appealed. Before the 41-page decision was issued a year ago by California's Fourth District Court of Appeal, the California Attorney General filed a "friend of the court" brief on behalf of Kha's right to possess his medicine. The California Supreme Court then denied review in March. "The source of local law enforcement's resistance to upholding state law is an outdated, harmful federal policy with regard to medical marijuana," said ASA spokesperson Kris Hermes. "This should send a message to the federal government that it's time to establish a compassionate policy more consistent with the 13 states that have adopted medical marijuana laws." Further information: Today's U.S. Supreme Court Order denying review: Decision by the California Fourth Appellate District Court: Felix Kha's return of property case: # # # With over 30,000 active members in more than 40 states, Americans for Safe Access (ASA) is the largest national member-based organization of patients, medical professionals, scientists and concerned citizens promoting safe and legal access to cannabis for therapeutic use and research. ASA works to overcome political and legal barriers by creating policies that improve access to medical cannabis for patients and researchers through legislation, education, litigation, grassroots actions, advocacy and services for patients and the caregivers.
United States

Swiss Voters Approve Heroin Prescriptions, But Reject Marijuana Decriminalization

I don’t know quite what to make of this news from Switzerland:

GENEVA (AP) — The world’s most comprehensive legalized heroin program became permanent on Sunday with overwhelming approval from Swiss voters, who separately rejected the legalization of marijuana.

The heroin program, started in 1994, is offered in 23 centers across Switzerland. It has helped eliminate scenes of large groups of drug users shooting up openly in parks and is credited with reducing crime and improving the health and daily lives of addicts.

Of the 2.26 million Swiss who voted in the national referendum, 68 percent approved making the heroin program permanent. But 63 percent voted against the marijuana proposal, which was based on a separate citizens’ initiative to decriminalize consuming marijuana and growing the plant for personal use. [NY Times]

Pete Guither has some good analysis explaining how concerns about Amsterdam-type drug tourism helped to torpedo the proposal. It’s a harsh reality that any nation that considers tolerating recreational marijuana sales must inevitably come to terms with a potential influx of pot smoking tourists. They’re easy enough to deal with, but the idea just makes some people uncomfortable.

A policy that prohibits sales to foreigners might mitigate these concerns, but I can’t get over the absurdity of restricting marijuana sales while permitting tourists to get drunk off their asses anywhere they please. The problem in Amsterdam isn’t that marijuana laws are too loose, it’s the fact that marijuana laws everywhere else are completely unreasonable. So-called "marijuana tourism" is just another symptom of marijuana prohibition in the U.S. and beyond. Can you even imagine what Amsterdam would be like if it were the only place you could legally purchase alcohol?

Medical Marijuana: California Supreme Court Tightens Definition of "Caregiver," Ruling Will Push Patients Toward Co-ops and Dispensaries

In a narrow interpretation of the state's Compassionate Use Act, the California Supreme Court ruled Monday that people who supply medical marijuana to an approved patient can be prosecuted as drug traffickers if they don't meet the court's standards for caregivers. That standard must involve more than merely supplying medical marijuana to a qualifying patient, the court held.
California medical marijuana bags (courtesy Daniel Argo via Wikimedia)
Prior to Monday's ruling, marijuana growers who had been designated as caregivers by multiple patients had been able to win protection from prosecution under the Compassionate Use Act. Now, patients who relied on such growers to provide their medicine will have to turn to dispensaries that are organized as co-ops or collectives in accordance with California law.

The ruling came in the case of California v. Mentch. Roger Mentch was arrested in 2003 after a bank teller smelled marijuana on repeated cash deposits he made and police subsequently searched his home, where they found nearly 200 pot plants growing. Mentch told investigators he was the "primary caregiver" for five qualified patients, but at trial, the judge refused to let the jury consider whether he was a caregiver, and Mentch was convicted and sentenced to probation. An appeals court in San Jose overturned his conviction, saying jurors should have been allowed to decide whether he was indeed the patients' caregiver, but now the state's high court has disagreed.

"We hold that a defendant whose caregiving consisted principally of supplying marijuana and instructing on its use, and who otherwise only sporadically took some patients to medical appointments, cannot qualify as a primary caregiver under the Act and was not entitled to an instruction on the primary caregiver affirmative defense," wrote Justice Werdegar for the court. "We further conclude that nothing in the Legislature's subsequent 2003 Medical Marijuana Program (Health & Saf. Code, §11362.7 et seq.) alters this conclusion or offers any additional defense on this record."

The language of Proposition 215 defines a primary caregiver as "the individual designated by the [patient]... who has consistently assumed responsibility for the housing, health, or safety of that person." With this ruling, the state Supreme Court has defined that definition to "imply a caretaking relationship directed at the core survival needs of a seriously ill patient, not just one single pharmaceutical need."

Thus, for someone to be able to assert a caregiver defense to a marijuana cultivation or distribution charge, he "must prove at a minimum that he or she (1) consistently provided caregiving, (2) independent of any assistance in taking medical marijuana, (3) at or before the time he or she assumed responsibility for assisting with medical marijuana."

"Ideally, it won't have a tremendous effect," Joseph Elford, attorney for the medical marijuana advocacy group Americans for Safe Access told the San Francisco Chronicle. "Patients will now increasingly get their medication through collectives and cooperatives."

The 2003 law establishing the dispensary system "provides an alternative outlet for patients," agreed Deputy Attorney General Michele Swanson, the state's lawyer.

But Mentch attorney Lawrence Gibbs told the Chronicle the court's decision "made it much, much more difficult" for qualified patients to get their medical marijuana. While the ruling may not have a significant impact on access to medical marijuana in areas where dispensaries are plentiful, large swathes of the state have no dispensaries. In those areas, patients will have to grow for themselves, have a spouse, domestic partner, or family member who can meet the court's definition grow it for them, travel long distances to areas where there are dispensaries, or resort to the black market.

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