(renamed "Drug War Chronicle" effective issue #300, August 2003)
Issue #42, 5/15/98
"Raising Awareness of the Consequences of Drug Prohibition"
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TABLE OF CONTENTS
1. Preliminary Injunction Granted Against Six California Buyers' Clubs... Medical Marijuana to Get Its Day in Court
On May 14, US District Court Judge Charles Breyer granted the Federal Government's request for a preliminary injunction barring the distribution of marijuana by six Northern California medical marijuana providers. That injunction will go into effect sometime next week. Breyer refused, however, to grant the government's requests for summary judgment and permanent injunction, paving the way for a federal jury trial in which the defendant providers will be able to test the government's interpretation of "caregiver" under Proposition 215, which would not include the clubs, against a defense of medical necessity.
The ruling is expected to result in contempt proceedings against the clubs and their operators, who have vowed to continue their operations despite the injunction. "We will do everything in our power to stay open," said Jeff Jones, director of the Oakland Cannabis Buyers' Cooperative, which serves some 1,300 seriously ill members. "The alternative that the government is giving them is the street. That's not adequate. We have a moral imperative to keep our facility open."
Defense attorney William Panzer was happy with the effect of the ruling. "We will have our day in court" he said, indicating that the federal government's continued bad faith in dealing with patients, clubs and local governments would be put on trial.
A couple of important books on medical marijuana:
On Friday (5/15), a group of Kentucky family farmers will seek a declaratory judgment in Federal Court on the issue of whether the production of industrial hemp is in violation of federal law. The farmers, represented by attorney Michael Kennedy, base their suit, and their contention that the cultivation of hemp is beyond the scope of federal concerns, on three principal grounds:
Farmers in Canada were recently given permission to plant hemp by the government there. Hemp production is now legal in every Western democracy outside of the US.
Last month, in an appearance in Kentucky, at the University of Louisville, Drug Czar Barry McCaffrey ridiculed the notion of hemp as a viable crop, or even as a real issue. He called the argument that hemp could be an alternative to tobacco "silly," insisted that economic viability would depend upon paying laborers "very low wages" and, as to hemp cloth, the retired general stated that "it doesn't even hold a crease." "The bottom line is..." said McCaffrey, "...a thinly disguised attempt... to legalize the production of pot." Finally, in a derisive reference to one of hemp's most public and outspoken proponents, McCaffrey said that he comes to his conclusions about hemp's viability despite the wisdom of "noted agronomists like (actor) Woody Harrelson."
But McCaffrey's views on agriculture are at odds with other agronomists as well. Jeffrey Gain, former chief of the national Corn Growers' Association, recently told the Lexington Herald-Leader, "it's an incredible opportunity. There is too much emphasis on too few crops." And Andy Graves, President of the Fayette County Farm Bureau, is also a hemp supporter. "We want to force the DEA to come to grips with the fact that hemp is not marijuana."
Michael Kennedy, attorney for the plaintiffs, spoke with The Week Online: "We shouldn't be surprised that the Drug Czar comes up with these inane arguments that he can't justify either legally or factually. He is simply attempting to cover up fundamental issues. The DEA has never had the authority, under any doctrine or law, to regulate or prohibit the production of industrial hemp. This is one of the bases of our case."
Kennedy continued, "The farmers represented here are primarily small family farms whose ability to rely on tobacco has been greatly diminished. They need an alternative crop to rotate with their corn or soybeans or whatever else they're scratching out a living growing. Hemp is, without question, the best and most environmentally benign crop around.
"As to the marketability of the crop, joined in this lawsuit is the Hemp Corporation of America. They have joined because they have assured the farmers that they will buy all the hemp that they can produce. Hemp Corporation is completely committed to marketing their hemp-based products through a variety of outlets. We have never, in America, relied upon narcotics agents to determine our markets. The problem is, at this point, that the DEA is desperate to continue to justify the incredible mounts of taxpayer money that they are spending, under the guise of drug control, to pull up ditch-weed. Their budgets are dependent upon these absurd programs, and unfortunately, the American farmer is being hurt by this bureaucratic power grab."
(Last week we reported that a Vermont state auditor's report had found that more than 99% of "marijuana" eradicated with federal eradication funds was non-psychoactive, wild hemp rather than cultivated marijuana. See http://www.drcnet.org/rapid/1998/5-8.html#ditchweed.)
(Drug Czar McCaffrey, a retired four-star general, would do well to review his military history. During World War II, the federal government encouraged farmers to grow hemp, which was seen as important to the war effort. If your browser has video capability, you can see "Hemp for Victory", a USDA film created to convince farmers to grow hemp again, after the government had wiped the industry out a few years before. Check it out on the Oregon Cannabis Tax Act's web site at http://www.crrh.org/hemp4victory.html.)
(The University of Kentucky Press reprinted "A History of the Hemp Industry in Kentucky" last year, a scholarly history by James F. Hopkins, originally published in 1951. You can buy it from amazon.com by following our link from http://www.drcnet.org/rapid/1998/5-15.html#hempbook -- DRCNet will earn 15 percent of your purchase!)
The Santa Clara County Medical Cannabis Center closed down on Friday after San Jose police searched their medical records and seized a $29,000 bank account. Authorities have charged the center's director, Peter Baez, with six felony counts for allegedly selling marijuana without a valid doctor's recommendation in nearly seventy cases.
Peter Baez's cousin, folk singer Joan Baez, and several patients, held a press conference to mourn the loss of the club. The San Francisco Chronicle reported that the famous folk singer claimed that the demise of the club could be attributed to an attempt by local law enforcement to "impress a certain narrow segment of society."
Santa Clara County Deputy District Attorney, Denise Raabe told the San Francisco Chronicle that Baez's prosecution "isn't some governmental crackdown. Peter Baez didn't follow the rules. He violated the law."
Mike Alcalay, Medical Director for the Oakland Cannabis Buyer's Club, reviewed all the suspected cases and told The Week Online that they fall within state law. The law states that patients must have a written or oral recommendation. According to Alcalay, in many of the cases the authorities are singling out, there were written recommendations. In the remaining cases an oral recommendation is verifiable through phone records. "They are basing these charges on phone calls where the police intimidated and harassed doctors over the phone causing many to fear prosecution and therefore deny that they recommended marijuana."
Legally, the center may remain open, but with its bank account seized, the operators will be unable to pay growers or rent. Baez will appear for a preliminary hearing on the charges on June 16.
The center serves 270 clients who will no longer have a safe and easily accessible way to obtain their medicine. Some patients said they will travel to San Francisco to get their medicine legally, but for others like cancer patient Ramon Mayo that is not feasible. "I guess I have to become a criminal and get from the best place I can -- the nearest dealer," said Mayo to the San Jose Mercury News.
In Portland, Oregon last week, multiple sclerosis patient Craig Helm was sentenced to two years probation and two $100 fines after a jury found him guilty of marijuana manufacture and possession. He was arrested at his home in Hilsboro, Oregon in 1996, after a police raid that netted eight marijuana plants.
Mr. Helm, 48, is a former truck driver whose MS has confined him to a wheelchair in recent years. He began using marijuana, he says, when his prescription for the painkiller Baclofen failed to calm the wrenching muscle spasms in his legs, and his doctors told him they wanted to surgically implant a pump that would feed the drug directly into his spinal canal.
Helm's attorney, Leland Berger, told The Week Online that Helm had rejected a pre-trial offer of bench probation in part because he hoped that the case might be dismissed on the basis of a "choice of evils" medical necessity (between marijuana and the surgically-implanted pump) defense. To that end, and with the help of the Medical Marijuana Defense Fund, Berger was able to fly Virginia neurologist Dr. Denis J. Petro to Portland to provide expert testimony on the efficacy of marijuana in the treatment of Helm's symptoms.
Deputy District Attorney Greg Olson called the studies Dr. Petro cited "junk science" and sought to have his testimony stricken from court records, but Circuit Judge Gregory Milnes decided to allow it.
Also encouraging was the testimony of Helm's own neurologist, Dr. Michelle Mass. "She told the court that she would have prescribed Marinol for Craig had he asked for it in the past, and that she would do so in the future," Berger said. "She also said that she would prescribe marijuana if it were legal."
Though the defense tactic was ultimately unsuccessful in Helm's case, Berger said the trial elicited strong local support for the medical rights issue. "The very experience of having twelve people (the jury) sit there watching Craig and listening to testimony over three days will have positive ripple effects throughout the community," he said.
To read more about Craig Helm's case, including Leland Berger's posted updates and the response he received from a jury member after the trial, visit the Portland NORML web site at http://www.pdxnorml.org/news98_index_0430.html.
Last week, for the fourth time in three months, police in New York City broke down the wrong door. The New York Times last week reported that on the morning of May 1, police acting on a confidential tip burst through the door of the Shorter family in Crown Heights, Brooklyn and tossed a stun grenade into the front hall. At home were Mr. Basil Shorter, a retired baker, his wife Cecilia, and their two teenage daughters Isis, 14, and Phebi, 18. "I thought America was invaded, that some force, a foreign force, came to kill us," Mr. Shorter said at a press conference last week. "My family was helpless. I was helpless."
Mrs. Shorter told the Times that she was terrified the police would shoot Phebi, who is mentally retarded and was bathing when the raid began. Police pulled Phebi from the shower and handcuffed her. She was given a robe to cover herself with, but Mrs. Shorter said that police ignored her warning that her daughter was menstruating, and gave her a sanitary pad only after she was obviously bleeding. Meanwhile, the entire family was herded into the hallway as neighbors passed by. "I was so embarrassed," Mr. Shorter recalled tearfully.
No drugs were found in the apartment, though investigators told the Times that drug dealers sometimes operate out of other people's homes "without their knowledge." Organized Crime Control Bureau Chief Martin O'Boyle said he believes the information the police had on the Shorter's apartment was good. A raid of another apartment in the building named by the confidential informant, according to police, turned up a gun and "a small amount of drugs."
The Shorters have hired an attorney, Harvey Weitz, who will pursue a $200 million dollar case against the city. The Week Online asked Mr. Weitz for his comment on the Shorter case and others like it. "It's appalling what we in this country have come to condone in the name of law and order," he said. "No-knock warrants allow the police to break into an innocent family's home, like the Shorters', at any hour of the day or night, on nothing more than the word of an informant, and essentially set a bomb off in the living room, and round everyone up." Mr. Weitz's firm has taken on the Shorter's case in the hopes of bringing public attention to the dramatic curtailment of civil rights in recent years. "People have to recognize that these raids are the equivalent of the excesses of fascist countries, being played out in America every day. It's time to say, 'let's take a moment to reexamine where we're going.'"
As municipalities all over California struggle to find appropriate ways to implement proposition 215, officials in San Mateo County, which includes part of San Francisco, think they might have found a way to bypass the legal complications of the buyer's clubs and provide marijuana directly to those who need it most. Last week, county supervisors voted three to one to develop a research study into the medicinal uses of marijuana. If it goes forward, the project would run for three years and include as many as 2,000 patients who suffer from a variety of ailments thought to benefit from marijuana. And if it is successful, county supervisors hope the results could lend support to 215 and even lead to a change in federal laws.
The biggest hurdle facing the proposed study now is approval from the FDA, DEA and other regulatory agencies, who control access to the US' only legal source of marijuana. For the past twenty years, the government has approved access only for those clinical studies which seek to show the harmful effects of marijuana. Researchers who want to study the potential benefits of the drug have been rejected outright or stalled in red tape for years. Nevertheless, proponents of the San Mateo project hope their chances will be improved by the conclusions of an expert panel convened by the National Institutes of Health last February, which acknowledged the need for further clinical research on medical marijuana.
A recently released government report indicates that a record number of wiretaps (1,186) were approved by state and federal judges in 1997. The average number of conversations intercepted by each tap was 2,081, meaning that over two million separate conversations were surreptitiously overheard. 73 percent of the taps were approved as part of narcotics-related investigations. These figures represent only those cases where neither of the parties to a conversation was aware or approved of the tap.
New York topped the list of states in which wiretaps had been approved with 304. New Jersey was second with 102.
"The Clinton Administration's law enforcement bureaucracy has sought wiretap authorizations at historically unprecedented levels," Eric Sterling, President of the Criminal Justice Policy Foundation tells The Week Online. "Some of this is the product of the unprecedented growth of federal law enforcement in recent years. One rationale for such growth is wiretapping itself, as it is a very labor- intensive practice. But like nearly every law enforcement tool that has been extended in scope and utility over the past twenty years, there hasn't been a very significant positive payoff."
David Hanson was arrested May 9, 1993 for a first-time, low- level marijuana offense for which he spent 17 months in federal prison. Additionally, the state of Minnesota seized $40,000 from the bank account belonging to him and his wife, Rose, and the federal government seized their home.
Rose and David Hanson are the Minnesota coordinators for the organization Forfeiture Endangers American Rights (FEAR). They have been fighting to keep their house, but their appeals were denied by the 8th Circuit Court. The government has agreed to accept $30,000 from the Hansons as a settlement. The Hansons are retirees living on social security, so to pay the $30,000, they applied for a reverse mortgage, under which the lender will pay the government, in exchange for ownership of the home, and the Hansons will be able to live there for the rest of their lives.
The Hanson's reverse mortgage was approved, but in the meantime, interest rates increased by 1.1 percent, causing a $2,200 shortfall in the proceeds. The government attorney has adamantly refused to settle for less than $30,000.
The Hansons have not asked for help, but fellow anti- forfeiture activists have issued an appeal for funds to help them make up the shortfall and keep their home. If interest rates drop again and the funds are not needed, they have promised to return all checks uncashed. We at DRCNet know the Hansons and feel confident that the appeal is legitimate. To help the Hansons, please mail checks to:
David and Rose HansonWe have just posted the first document in our asset forfeiture Topics in Depth section -- An Epidemic of Abuses of Federal Civil Asset Forfeiture Laws, by Rachel King, the new crime lobbyist at the ACLU's DC National Office. Check it out at http://www.drcnet.org/forfeiture/epidemic.html. A few important, relevant books are listed at the end of the article -- follow the links to buy them from amazon.com, and DRCNet will earn a percentage of your purchase! Also, please visit FEAR's current legislative alert at http://www.fear.org/980417a.html and take action!
The British medical journal The Lancet reports (VOL. 351; No. 9098; Pg. 267) that an AIDS patient with a persistent case of hiccups gained relief by smoking marijuana. At least five different medically-indicated remedies were administered over the 10 day episode, with none offering more than very brief relief. Smoked marijuana reportedly ended the hiccups immediately. Persistent hiccups are a rare but documented symptom in patients with AIDS.
The Lancet's report concludes: "Because intractable hiccups is an uncommon condition, it is unlikely that the use of marijuana will ever be tested in a controlled clinical trial, and blinding would be difficult. Despite federal policy which forbids the use of marijuana therapeutically, this report should be considered for hiccups refractory to other measures."
This week, a group of more than 100 Kentucky farmers filed suit in Federal Court seeking the right to grow industrial hemp without having the federal government swoop in and seize their property. Also this week, in California, the San Mateo Health Department voted to present a proposal for medical marijuana research which would simultaneously make them the legitimate supplier for 2,000 patients, thus obviating much of the need for the embattled buyers' club. These two groups, farmers on the one hand and a county health department on the other, would seem about as upstanding and mainstream as anyone who has run up against the excesses of the federal drug war. But be that as it may, a look at recent history informs us that it would be foolish to expect the government, and more specifically Drug Czar Barry McCaffrey, to be supportive of either of these common-sense efforts.
Industrial hemp was a staple crop in Kentucky until early this century when federal agencies decided -- without legal basis, it is being argued -- to forbid its cultivation. Recently, around the globe, hemp has been re-introduced as a cash crop. Farmers in Canada, for instance, just won approval to plant the stuff, which, in addition to being widely useful, requires neither harmful pesticides nor much in the way of fertilizer to prosper. A burgeoning American hemp products industry, until now forced to rely upon costly imported materials, eagerly awaits a domestic crop.
"Nonsense," says the Drug Czar. The movement to legalize industrial hemp is nothing but a "smokescreen" for the legalization of marijuana. McCaffrey likes to use words like "nonsense," as they fit in well with his preferred style of argument... dismissing his adversaries as know- nothing and their positions as too absurd to merit serious consideration. On at least two occasions, McCaffrey has publicly ridiculed the assertions of one hemp advocate and actor as the opinions of "noted agronomists such as Woody Harrelson." But the truth is that the legalization of industrial hemp cultivation is supported by respected bodies across North America -- including the government of Canada, which legalized it earlier this year -- as well as by the farmers themselves.
But McCaffrey's derisive dismissal of those with whom he disagrees is not an isolated incident, it has surfaced before, and in each case McCaffrey has used the tactic to cover for the fact that he was either woefully misinformed, or else simply lying.
In the aftermath of the passage of Proposition 215 in California for instance, McCaffrey told the San Francisco Chronicle on August 16, 1996, "There is not a shred of scientific evidence that shows that smoked marijuana is useful or needed. This is not science. This is not medicine. This is a cruel hoax." Then, on December 30 1996, McCaffrey was asked by CNN's Carl Rochelle, "is there any evidence... that marijuana is useful in a medical situation?" McCaffrey's response: "No, none at all. There are hundreds of studies that indicate that it isn't." The reaction of reformers and researchers to this misstatement of fact was so swift and convincing that on January 2, ONDCP's Chief Counsel Pat Seitz, appearing on the CNN show "Burden of Proof," tried to retract the Drug Czar's mistaken statements, insisting, "He has not said there is no research. He has not said there is no research."
Further, McCaffrey has ridiculed the entire idea of medicinal marijuana, calling it "Cheech and Chong medicine," as well as saying "it's preposterous to think that any qualified doctor would tell a patient to inhale the fumes from burning leaves." This despite supportive positions for medical marijuana research and/or access by such organizations as the American Public Health Association, the California Medical Association and the British Medical Association, as well as editorials in favor of medical marijuana access by the editors of the Journal of the American Medical Association, the Lancet Medical Journal and the New England Journal of Medicine.
As a former four star general, perhaps McCaffrey is not used to having his positions questioned. And as an ardent drug warrior, perhaps he has been told that the only real opposition to the prosecution of the drug war comes from the radical fringe. This would account for both his willingness to speak disingenuously on the issues and his mocking tone when addressing or referring to his ideological opposition.
But McCaffrey is no longer a general, he is a highly placed official in a democratically elected administration. And as such, his positions are, and should be, open to legitimate and vigorous examination and criticism. And the drug war, as public policy, is no longer above reproach. It is, in fact, being called into question by an ever-expanding number of mainstream Americans. On both counts, the Drug Czar seems woefully out of touch with reality. And if he doesn't come around soon, his tactics of derision and obfuscation are going to cost him what little credibility he has left.
Adam J. Smith
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