Federal Government

Drug War Chronicle has this week focused on the results of ballot measures and individual candidacies of relevance to drug policy reform. We will next week publish an in-depth analysis of the potential impact that the change of control of Congress from the Republicans to the Democrats could have on our issue, but in the meanwhile a few brief comments:

First, while DRCNet is a commitedly non-partisan organization that has had both good and bad -- mostly bad -- to say about both major parties' stances on drug policy, at the present moment in time our cause or at least some politically current corners of it, has more friends on the Democratic side of the aisle. Some of them are expected to take the chairmanships of key committees:

• Rep. John Conyers (D-MI) is the next likely chairman of the House Judiciary Committee. He replaces James Sensenbrenner (R-WI), one of the most extreme drug warriors in Congress. Click here to read about Conyers' appearance at our Perry Fund event in Washington last year.)
• Rep. Bobby Scott (D-VA), a committed criminal justice reform, is headed toward chairmanship of the subcommittee of Judiciary that deals with crime legislation.
• George Miller (D-CA) is the likely chair of the House Education and the Workforce Committee, and Ted Kennedy (D-MA) of the Senate committee dealing with education, two of our best supporters in the effort to repeal the Higher Education Act drug provision -- we've gotten it part of the way already, it now may be a real possibility to get rid of it entirely.
• Pat Leahy (D-VT) is in line to chair the Senate Judiciary Committee, another of the best members of Congress on criminal justice issues. The current chairman, Arlen Specter (R-PA), is pretty decent on drug policy, better I would say than a lot of Democrats. But Leahy will probably do more for us, and Specter will still be there as the ranking minority member.

This is not to say that the Democratic Party is a reliable ally for us by any means. After all, the terrible mandatory minimums we are living with today were enacted 20 years ago by a Democratically-controlled Congress, on the initiative of Democratic leaders. Only a few months ago Democratic Senator Charles Schumer sponsored millions of dollars of funding for opium eradication in Afghanistan, in our opinion a big mistake and unjust to the farmers who have no other effective way of feeding their families.

Nevertheless, in our opinion we now have a much better fighting chance -- not yet for legalization, perhaps, but for much positive progress -- and less of a chance of seeing really bad bills go through. Sentencing reform, needle exchange, scaling back Plan Colombia funding, even medical marijuana -- could they happen? The answer is now a definite maybe.

The more our forces grow, the more of you, our readers, take action, the more clout the cause will have with both Democrats and Republicans. We are at a juncture of historic possibilities in the issue, and we hope we can count on your support and participation in the months and years to come.

John Conyers at DRCNet's Perry Fund reception, March 2005

In an unexpectedly strong showing, an initiative that would have allowed seriously ill patients to use marijuana garnered nearly half the votes in the socially conservative Upper Midwest state of South Dakota. But it couldn't quite get over the top, losing by a margin of 48% to 52%. South Dakota thus earns the distinction of being the only state where voters have rejected medical marijuana at the ballot box.

Backers of the effort, while disappointed, are undeterred, and have already announced they will try again in 2008 or 2010. But the state will remain a tough nut to crack.

A stark illustration of the political atmosphere in the state when it comes to marijuana was the fact that South Dakotans for Medical Marijuana, the initiative organizers, could only come up with two patients willing to go public about their marijuana use. But perhaps that should be no surprise in a state where "ingestion" of marijuana is a criminal offense for which people are routinely sentenced to jail time and a public acknowledgment of one's marijuana use could became the basis for a search warrant demanding a urine sample, which would then be used to file ingestion charges.

The measure won majority support in Minnehaha County (52%), where nearly a quarter of the state's voters reside, the college town environs of Brookings County (52%) and Clay County (62%), Gateway Computers' home Union County (51%), the Black Hills' Lawrence County (52%), and a handful of other sparsely populated West River counties. But in most of the state's East River farm country counties, voters rejected the measure, sometimes narrowly, but occasionally by large margins, and even Pennington County, the home of Rapid City, the state's second largest city, voted narrowly against it (51%).

While initiative supporters ran a relatively low-profile campaign -- the state's ballot was full of hot button issues, including an abortion ban and a constitutional amendment banning gay marriage -- opponents led by Republican South Dakota Attorney General Larry Long rallied local law enforcement in opposition to the measure. Long also called in the big guns from Washington, DC, bringing White House Office on National Drug Control Policy Deputy Director Scott Burns to the state for a series of widely publicized press conferences denouncing the measure as a "con" and a "sham."

Drug czar John Walters himself weighed in on the state initiative with a press release the Friday before the election. "This proposal is a scam being pushed on the citizens of South Dakota by people who want to legalize drugs," Walters warned. "Marijuana is a much more harmful drug than many Americans realize. There are more teens now in treatment for marijuana dependence than for all other illegal drugs combined. It is unfortunate that people who have been trying to legalize this drug for many years are exploiting the suffering of genuinely sick people to further their political ends."

The intervention by South Dakota law enforcement and federal drug warriors was key in preventing the measure from passing, said initiative spokesperson and medical marijuana patient Valerie Hannah, a Gulf War veteran who uses the drug to ease the symptoms of neurological disorders she suffers as a result of her service. "Attorney General Long bringing in the drug czar's people really hurt us," she told Drug War Chronicle. "They said things like having a caregiver just meant somebody to get high with, which is just not the case."

For the national marijuana reform movement, the South Dakota loss -- its first at the polls -- was a tough blow, but movement leaders vowed to try again. "We knew from the early polling that this would be an uphill fight, particularly on a ballot filled with hot-button issues, and with the White House and the whole state establishment, including the attorney general, against us," said Rob Kampia, executive director of the Marijuana Policy Project (MPP), which provided support for the South Dakota effort. "The fact that we came this close against such powerful opposition is remarkable. Working with the local activists who started this effort, we plan to try again with another medical marijuana initiative in South Dakota in November 2008 or 2010," he announced.

"Every day, science continues to prove the medical value of marijuana," Kampia continued. "In just the last two months we've seen evidence of remarkable benefit against hepatitis C and even potential against Alzheimer's disease. It's tragic that brave patients like Val Hannah, who spoke out for the initiative, will continue to face arrest and jail for simply trying to preserve their health, but in the long run, science and common sense will triumph over ignorance and fear."

"South Dakota's result, while disheartening, does nothing to change the fact that according to national polls, nearly eight out of ten Americans support the physician-approved use of medicinal cannabis," said Paul Armentano, senior policy analyst for the National Organization for the Reform of Marijuana Laws (NORML).

Sick people like Hannah remain at risk of arrest and imprisonment for using marijuana to relieve their symptoms, but she refused to be saddened by the outcome. "I'm proud of what we did. We came very close, and this means people here are waking up. The South Dakotans who supported us made a wise choice. Next time, we will be working to get the education and knowledge out to the public more efficiently so they can make a more informed decision," she said. "We can pass this in South Dakota, perhaps through another ballot initiative in 2008. I remain hopeful," she added.

The US Justice Department had not prosecuted a California medical marijuana patient since 2003, but that changed Wednesday as the federal trial of Merced County medical marijuana patient and provider Dustin Costa got under way in Fresno. Costa, a leading medical marijuana activist, was originally arrested on state charges, but Merced County prosecutors handed his case over to the feds when it became apparent that California's Compassionate Use Act would make it impossible to convict him under California law.

The last federal medical marijuana patient and provider trial in California was the Ed Rosenthal debacle. In that case, Rosenthal was convicted on federal marijuana manufacture charges after the jury was not allowed to hear testimony relating to medical marijuana. Rosenthal was convicted, but when jurors learned the rest of the story, many of them publicly denounced the trial and the verdict, and the federal judge trying the case sentenced him to only one day in jail.

In Costa's case, the 60-year-old retired Marine who headed the Merced Patients Group, a nonprofit cultivation collective, was originally arrested by Merced County sheriff's deputies when they raided a greenhouse he was using to cultivate marijuana for patients in March 2004. But local prosecutors turned the case over to the feds, and Costa was re-arrested on federal charges in August 2005. Since then, he has been imprisoned at the Fresno County Jail. If convicted on the charges, he faces a mandatory minimum 20-year federal prison sentence.

Costa now faces federal charges of cultivation, possession with intent to distribute, and possession of a firearm. As in the Rosenthal case, Costa will not be allowed to even mention medical marijuana or its legality under state law during the trial.

"Dustin Costa is a victim of the federal government's refusal to respect medical science," said Steph Sherer, executive director of Americans for Safe Access, a national medical marijuana advocacy group. "He and all the others being denied a medical defense at trial are the new targets in our government's war on patients."

Costa may be the first medical marijuana patient to be tried by the feds since the Rosenthal trial, but he probably will not be the last. According to figures compiled by Americans for Safe Access, at least 91 other California patients and providers have been arrested on federal marijuana charges and are awaiting trial.