(renamed "Drug War Chronicle" effective issue #300, August 2003)
Issue #92, 5/28/99
"Raising Awareness of the Consequences of Drug Prohibition"
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Operating out of a playbook that is fast becoming their strategy of choice, federal prosecutors have once again run an end-around, disregarding the will of California's voters and elected officials by charging and prosecuting B.E. Smith, a medical marijuana user and activist, in federal court. Smith, who was growing marijuana with the explicit knowledge of the local sheriff's office, was not allowed to present any evidence of the medicinal nature of his use, and now faces up to 10 years in federal prison for "manufacturing" marijuana.
Smith, who did two tours of duty in Vietnam, uses marijuana to combat the effects of Post Traumatic Stress Disorder, a condition that had previously driven him to alcohol abuse. Since beginning to use marijuana, Smith has ceased using alcohol entirely.
Smith is one of a growing list of medical marijuana activists targeted by the federal government since medicinal use was legalized (under state law) by California voters in 1996. Steve Kubby, former Libertarian candidate for governor, Peter McWilliams, a best selling author, Todd McCormick and the proprietors of various buyers' clubs throughout the state are all facing federal charges as well.
Barred by District Court Judge Garland E. Burrell Jr. from presenting any evidence regarding his medical condition or his use of marijuana to treat himself, Mr. Smith's defense was limited entirely to character witnesses. One of these was actor/activist Woody Harrelson. Harrelson drew the ire of Judge Burrell when he mentioned Smith's medicinal use on the stand, in response to a question as to whether he was surprised to see Mr. Smith standing trial. Prosecutors' objection to the question was sustained, but Harrelson responded anyway, saying, "Certainly, for a medical marijuana case, I consider it odd."
In response to Harrelson's remark, the judge warned him to obey the rulings from the bench. Harrelson replied, "I'm just wondering why you're keeping the truth from the jury." At that point, Judge Garland immediately sent the jury from the courtroom, after which he lectured Harrelson on a judge's legal right to control the proceedings. "I didn't think you had much respect for the law" retorted Harrelson.
At that point, Judge Garland refused to allow further direct testimony by Harrelson, and excused him from the stand. "How do you sleep at night?," Harrelson asked the judge, as he stepped down.
Todd McCormick, who is also facing federal charges, and for whom Harrelson has posted $500,000 bond, told The Week Online that Smith's case fits a pattern of strong-arm tactics by the federal government in dealing with medical marijuana activists in California.
"B.E. Smith had permission from his local sheriff's office to grow marijuana. He wasn't being covert. The federal government, having lost and lost badly at the polls, has decided to put its boot on the throats of medical marijuana activists. How can a judge rule that Smith's reasons for growing the marijuana are irrelevant for a jury to hear?"
McCormick continued, "The federal government is engaged in a campaign of intimidation, not only of activists but of every Californian who uses marijuana medicinally, their doctors and caregivers. They have systematically and blatantly ignored the will of California voters. And where is Bill Lockyer, our new Attorney General? When he was elected, he made it clear that he intended to protect California's sick and dying against the tyranny of the federal government, but as soon as the feds threatened to arrest him, he tiptoed away from the issue with his tail between his legs. In so doing, he essentially gave the feds the green light to step up their prosecutions. So much for integrity."
Nathan Barankin, spokesman for Attorney General Lockyer, told The Week Online that their office is attempting to resolve the conflict with federal authorities in a way that will be most effective.
"If the Attorney General of a state is going to take on the federal government in an area where there is a conflict between state and federal law, he's going to lose every time, hands down," he said. "What we have in California, frankly, is a poorly-written initiative that gives no direction to how the law is supposed to work, and a lot of people running around making it up as they go along. As long as the federal government is set on enforcing federal law, there's nothing that anyone can do about it."
"John Lockyer, as the Attorney General of California," he continued, "took an oath to uphold the law. He has been in contact with the Attorney General (Reno) and the Drug Czar, and they are aware of the problem that we're facing here. The response that the Attorney General has received from those offices would have to be characterized as very positive. We believe that a strategy of taking on the feds at every turn on this issue would be extremely counterproductive and could set the process back by years."
Smith's attorneys plan to appeal his conviction.
Thomas Prizzuto, a methadone patient, was serving the second day of a 90-day sentence when he was allegedly beaten to death by guards at the Nassau County (NY) jail after asking repeatedly for methadone. Four corrections officers have been charged in the attack. All have pleaded not guilty.
Methadone patients who are abruptly cut off from the medication suffer serious withdrawal symptoms, including vomiting, cramps, sweating and diarrhea. Prizzuto apparently refused to stop calling out to guards for methadone, which led to his beating. Left in his cell over the weekend, Prizzuto suffered a seizure and died of a ruptured spleen.
Guards Ivano Bavaro, Edward Velazquez and Patrick Regnier were charged with the beating, while a fourth guard, Joseph Bergen, was charged as an accessory after the fact for allegedly falsifying a prison record to indicate that Prizzuto's injuries were sustained in a fall in the shower room. Another prisoner, however, who was in the cell next to Prizzuto's, will testify that he heard him being beaten on the date in question.
Ernest Peace, attorney for Regnier, told The Week Online that there is little evidence that the guards beat Mr. Prizzuto.
"The guy was taken to two different doctors between January 8th and January 11th when he died. Neither doctor found anything wrong, and he was sent back to his cell. Prizzuto himself claimed he fell. Maybe he was beaten up by another inmate. My client spent four years in the Navy, he's been a guard for six, and he's never had a complaint against him."
But Peter Neufeld, who, along with Barry Scheck and Johnny Cochran is representing the Prizzuto family in their civil suit, disputes Mr. Peace's assertions.
"This investigation has lasted four months, and involved forty federal agents. You don't just get an indictment of prison guards without evidence. It is our understanding that two other guards have come forward and are cooperating. As to what doctors saw Mr. Prizzuto, our information is that the only time he was taken to a hospital was after he went into seizures. He died in the hospital two days later (January 13th).
"We are hoping to force the Justice Department to undertake an investigation into the long history of abuse of inmates and the practice of refusing to provide adequate medical care at the Nassau County Jail."
Joycelyn Woods, director of the National Alliance of Methadone Advocates, told The Week Online that while there are still very few methadone maintenance programs currently operating in a US jail (there is one at Rikers Island in New York and one at the Suffolk County Jail), many correctional systems will at least detoxify inmates (give them diminishing doses of the drug for a short period of time), rather than force them into severe withdrawal.
"It's inhumane, to say the least. People who are using methadone are, by definition, in recovery. They get their methadone from licensed programs, there's nothing illicit about it. But it happens all the time (denying methadone to people at the Nassau County Jail), and the only reason that this case has gotten attention is that they beat him to death and because his wife, who's a methadone patient herself, was brave enough to seek justice."
"Many of the people who are in jails in this country are simply awaiting trial, and haven't been accused of anything. Is it moral to deny these people a medication that they're taking under a doctor's supervision, leaving them in pain?"
Donna Schoen, patient advocate for the Long Island Jewish Medical Center's methadone program, who wrote an article in 1995 detailing problems at the Nassau County Jail, told The Week Online that the problems are endemic.
"In 1995 I heard about a methadone patient, who also had AIDS, who was left suffering for over a week, twisting on the floor, having seizures, vomiting. It wasn't until pressure was brought by a state agency that he was medicated. Once I started asking around, people came out of the woodwork telling their stories. In June of 1998, I sent a letter to Thomas Gulotta (Nassau County Commissioner), including the article and a list of other people I had heard from. I told Mr. Gulotta that until there was a methadone program in place in the county jail, these problems were not going to go away. He wrote me back and told me that he had sent my letter on to Joseph Jablonsky (Nassau County Sheriff), and that I would be hearing from him. Well, it took him nine months, and the death of this poor kid, before I heard back."
Schoen said that she is hoping that Prizzuto's death will not have been in vain.
"People go in to the county jail and get sick. They're chained to beds for days on end, or beaten, or left to suffer. What's needed is a program to provide methadone and a doctor there that understands the medical problems of the people who are there. Until that happens, more people will suffer and die there."
(The National Alliance of Methadone Advocates is online at http://www.methadone.org.)
On May 20th, exactly one month after the Colorado school shootings, the Senate passed S. 254, the "Violent and Juvenile Offender Act." Approved by a vote of 73 to 25, the massive bill not only seeks to increase penalties for violent and juvenile offenders, but also promises to expand suspicionless searches, drug testing, and the use of surveillance technologies in America's schools.
The drug testing and locker-search provisions contained in the bill are the brainchild of Sen. Spencer Abraham (R-MI), one of Congress' top cheerleaders for the war on drugs. His "School Violence Prevention Act" (Sec. 1611) opens up funds under the Safe and Drug Free Schools grant program to be used for "testing a student for illegal drug use or inspecting a student's locker for guns, explosives, other weapons, or illegal drugs...." Sen. Abraham was courteous enough to require the searches and drug testing to be consistent with the Fourth Amendment to the Constitution, and also mentions parental consent, but does not require it.
Additionally, S. 254 includes a provision (Sec. 1656) to establish in New Mexico the School Security Technology Center at the Sandia National Laboratories, in partnership with the National Law Enforcement and Corrections Technology Center. The center would be a joint venture between the Justice Department, Department of Education and the Department of Energy, with the Attorney General in charge of administration. Although initially proposed in S. 638 by Sen. Bingaman (D-NM), appropriations for the center were incorporated into the Violent and Juvenile Offender Act.
If the center is kept in the legislation, America's schools promise to be on the cutting edge of surveillance and drug detection technology. According to the May 6th issue of the Drug Detection Report, Sandia Laboratories has developed instruments known as "surface acoustic wave devices or integrated acoustic chemical sensors" that can detect illicit drugs on the skin. The sensor system can reportedly detect trace levels of airborne drugs as well. The center, proposed to receive $11.4 million over three years, will also promote onsite testing of students' hair, according to the Report.
S. 254 would appropriate $30 million over the next three years for grants to local schools for security assessments and technical assistance for "the development of a comprehensive school security plan from the School Security Technology Center."
A House version of S. 254 has not been introduced yet, but stay tuned to the Week Online for news on any movement of the bill.
The text and status of all federal legislation can be found online at http://thomas.loc.gov/.
For years, Democratic lawmakers in New York State have sought the repeal of the notorious Rockefeller Drug Laws, some of the harshest mandatory minimum laws in the US. Recently, bipartisan support for reform has grown, culminating this month in a proposal by Republican Governor George Pataki calling for modest reductions in the laws. But late last week, the New York Times reported that the Democratic leadership in the Assembly would not consider any proposals to scale back the Rockefeller Drug Laws in the current session. Citing concerns about appearing soft on crime, an aide to Assembly Speaker Sheldon Silver said there were "no plans by the Assembly leadership to address the governor's proposal."
Reform advocates were shocked at the news. "Most of the people I've spoken to have people who are incarcerated, and their hearts just sank when they heard the news," said Terri Derikart, director of the New York chapter of Families Against Mandatory Minimums. "They felt like they had been betrayed by their elected officials."
Assemblyman Silver's office did not return repeated phone calls requesting comment on the story, but an article in the Albany Times Union today suggests that the Speaker may have softened his stance somewhat after fellow Democrats expressed their dismay. On Thursday (5/27) the Times Union reported that Silver told a closed-door Democratic conference that he opposed only Governor Pataki's plan, though he did not say what other proposals, if any, he does support.
While reform advocates consider the governor's plan a positive step toward reforming the laws -- Pataki is the first governor to formally propose a change in the laws since they were enacted under Governeor Nelson D. Rockefeller in 1973 -- most have criticized it as not going far enough. Currently, even non-violent, first-time offenders charged with selling two or more ounces or possessing four or more ounces of a drug face fifteen years to life in prison. Pataki's plan would reduce the minimum sentence by just five years, subject to approval by an appeals judge, and in return for this concession the governor wants to severely limit parole for all offenders.
Randy Credico of the William Moses Kunstler Fund, which organizes protests and vigils in support of Rockefeller Drug Law repeal, said Pataki's proposal was an acknowledgment of the strength of the reform movement. "He's hoping to snuff out a popular uprising," he told The Week Online. "He's trying to cramp the growing grassroots movement, what you'd call a ground war, which is what is really required to change these laws." That movement rejects Pataki's proposal, which, Credico said, "would take New York from being the state with the worst drug laws to being the state with the worst drug laws."
Nevertheless, there is a growing consensus that something must be done. Adding to the momentum for repeal are a number of reports documenting the effects of the laws on the state's overburdened prison system and their disparate impact on Black and Latino New Yorkers. Among the facts:
Numbers like these have prompted calls for reform from diverse quarters, including New York's Chief Judge, Judith Kaye, who earlier this year proposed a plan similar to Pataki's. This spring, Democratic Assemblyman Jeffrion Aubry introduced a more radical bill that would repeal the Rockefeller Drug Laws by returning discretion to sentencing judges, and increase funding for drug treatment programs. The bill also includes a clause that would allow current inmates to have their sentences reduced.
There are also several proposals from a range of advocacy groups that have not yet been introduced in the Assembly, many more conservative than Aubry's, but still substantial enough to mitigate the worst excesses of the Rockefeller laws. The issue seems "hot," which is why the claim from Speaker Silver's office that the Democratic leadership is worried about looking too soft on crime sounded odd to many.
"In New York, I don't see how anybody needs any political cover beyond the Governor stepping forward and saying something has to be done, the chief judge of the state saying something has to be done," said John Dunne, a former Republican state senator who, along with the bipartisan Campaign For Effective Criminal Justice, wants the law changed to double the amount of drugs required to constitute each level of crime. "There are plenty of people to share the blame as well as the glory for any change that might be made."
The public seems to share that opinion. In a Zogby International poll conducted at the end of April, 63% of New Yorkers surveyed said they would not consider a politician who voted for reducing mandatory drug sentences "soft on crime." And nearly 30% of the respondents said that they favored giving judges more discretion to decide on sentencing in individual cases. An overwhelming majority (73.8%) said they favor treatment over jail for minor drug offenders.
If more cover were needed, Silver may be relieved to hear that even the conservative think tank The Manhattan Institute also favors Rockefeller reform, and is expected to publish a report to that effect in early June, penned by the notoriously prison-friendly John DiIulio.
Given all this, there is still a good deal of hope among reform advocates that there will be movement on the laws this year. Robert Gangi, director of the New York Correctional Association, a prison watchdog group, told The Week Online, "It's clear from the polls and from our political sense, based on newspaper stories and editorial board comments, that we've won the public debate." Gangi said his group will move ahead with plans for a lobbying day in Albany next month.
Terri Derikart said that FAMM and the other activists she works with will not take no for an answer. "They are already contacting their legislators," she said. "They want meaningful drug law reform to be passed this session. They don't agree that it's going to be shelved. They want to keep everything to keep moving. So rather than accepting it, they're raising their voices across the state to say, 'this is wrong, we need these laws reformed now, not just for our family members, but for those who are about to be incarcerated.'"
Learn more about the Rockefeller Drug Laws and the movement to reform them at these web sites:
(from the NORML Foundation, http://www.norml.org)
May 25, 1999, Washington, DC: Department of Health and Human Services officials announced new regulations Friday that may allow researchers access to medical marijuana for non-federally funded research. The policy change, scheduled to take effect on December 1, 1999, adopts recommendations of a 1997 National Institutes of Health (NIH) panel that urged officials to supply medical marijuana for non-NIH funded research.
"This is a step in the right direction," NORML Executive Director R. Keith Stroup, Esq. said. "But it is also further evidence that the wheels of change grind exceedingly slowly for medical marijuana reform." Health officials said that the new policy will facilitate medical marijuana clinical trials. "The goal of this program must be to determine whether cannabinoid components of marijuana administered through an alternative delivery system can meet the standards enumerated under the federal Food, Drug, and Cosmetic Act for commercial marketing of a medical product," the guidelines state.
Present NIH policy allows only those funded by the agency to use marijuana for research purposes. Under the new guidelines, non-NIH funded researchers must still submit their protocol to institutional peer review, secure a DEA registration to conduct marijuana research, reimburse the National Institute on Drug Abuse (NIDA) for the cost of the marijuana, and gain NIH approval for their study. Researchers who wish to conduct human trials must also proceed through the FDA process for filing an Investigational New Drug (IND) application. Stroup cautioned that the new policy offers little hope for individual patients wishing to gain legal access to the government's supply of medical marijuana. "Despite recommendations from the Institute of Medicine to allow single patient medical marijuana trials, the NIH guidelines rebuff any efforts to allow individual patients access to the drug," he said. The regulations stipulate that "single-patient requests for marijuana... would not... be supported under this program."
In March, the IOM advised the government to treat medical marijuana patients with chronic conditions as "n-of-1 clinical trials, in which patients are fully informed of their status as experimental subjects... and in which their condition is closely monitored a documented under medical supervision." "Federal officials are selectively implementing those recommendations from the IOM and NIH that pose little threat to medical marijuana prohibition, while ignoring any findings that challenge current federal policy," Stroup concluded.
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