TABLE OF CONTENTS

1. Editorial: More Than One Kind of Pain
2. Alaska Court Rules Marijuana Possession Okay -- Judicial Day of Reckoning Coming
3. Doctors' Group Advises Physicians to Avoid Treating Pain with Opiates, Cites Persecution of Pain Doctors -- Tucson Case Illustrates Point
4. DRCNet Interview: Brazilian Antiprohibitionists Luiz Paulo Guanabara of Psicotropicus and Cecilia Szterenfeld of the Integrated Programs on Marginality
5. Medical Marijuana Bill Introduced in Argentina
6. In Memoriam: Don Topping, Drug Policy Forum of Hawaii
7. Newsbrief: Feds Appeal Ed Rosenthal Sentence
8. Newsbrief: Ruling Expected "Soon" in Santa Cruz Medical Marijuana Suit
9. Ashcroft Seeks Supreme Court Permission to Overturn Free Speech Ruling on Physician-Patient Discussion of Medical Marijuana
10. Newsbrief: Oregon Appeals Court Overturns Asset Forfeiture Reform
11. Newsbrief: Canadian Government to Distribute Medical Marijuana
12. Newsbrief: New DEA Administrator Karen Tandy Approved by Senate Judiciary Committee Following Medical Marijuana Controversy
13. Newsbrief: Former Scottish High Court Judge Says Legalize It
14. Newsbrief: British Doctors Don't Say Legalize It
15. The Reformer's Calendar

(visit the Drug War Chronicle archives)

	David Borden

1. Editorial: More Than One Kind of Pain

David Borden, Executive Director, [email protected], 7/11/03

Last week's editorial, "Not Just in Texas," about the case of Dallas physician Daniel Maynard, who is facing the wrath and power of the government because of his pain treatment practices, prompted more reaction than we usually received. We heard from other doctors who have or are now fighting prosecutorial persecution for their compassionate prescribing of opioids (narcotics) to patients needing pain relief. We heard from pain patients and advocates of pain patients, grateful and excited for the show of support for their cause.

We heard from an addiction specialist, approving of our editorial stance, but also laying out some of the challenges, mistakes and occasional abuses that happen on the other side of the pain issue -- the common lack of understanding of pain treatment within the medical profession can lead to over-prescribing as well as under- prescribing, and other errors, not criminal but nor good medical care; pain treatment for patients also suffering from past or present chemical dependency is necessary but fraught with difficulties; there are some actual "prescription-mill" doctors who for personal profit knowingly help non-pain patients obtain opioid drugs, though those are the very infrequent exception.

We also got one complaint. One reader wrote to us "Chronic drug use is self-medication for chronic pain. Drug use is not maladaptive; it is a reasonable response to pain. There is a pogrom on against people in pain. I'm waiting for the day when the anti-prohibition movement will start standing up for ALL people in pain."

I agree with some of what our reader had to say Some drug use at least is a response to emotional or other kinds of pain -- though some drug use is also done for pleasure or for other reasons. I don't agree with the reader that the anti-prohibition movement, or at least a good part of it including our organization, doesn't stand up for the rights of those driven to drug use by other types of pain besides the medical kind. And we stand up for those who use drugs for other reasons too.

Looking back at my editorial, though, there was one term I didn't like, and decided to change. I wrote last week, "Doctors can suffer loss of license or even incarceration, when the inevitable mistake of providing medicine to a dishonest patient who may be misusing or diverting medication occurs." I went back to the web site version and changed the second clause of the sentence to "real or pretend patient who may be misusing or diverting medication, or using it for non-sanctioned purposes, takes place."

The original version was not incorrect; but there are other gradations to this issue that it didn't reflect well enough. It's true that someone who goes to a doctor seeking opioids, and who misrepresents his or her condition in order to get a prescription for them, is by definition being dishonest, and some such people surely deserve that description. But there's a difference between a deception for the purpose of causing harm or for profit or other personal advantage, and a deception made out of desperation, without the desire to harm others or the perception of doing so. Indeed, some pain patients, unable because of the drug war to find doctors willing to adequately treat them, will pretend to be addicts in order to receive methadone -- an opioid used to treat heroin addiction but also for severe pain -- from methadone maintenance clinics. Are those patients being dishonest? Technically, yes. But who can blame them?

Those who, because of emotional challenges, physical conditioning or other reasons, develop addictive needs for drugs, at that point are using those drugs to relieve a type of pain that is different from the pain of other medical patients, but which they feel nevertheless feel acutely. Ending drug prohibition, or at least allowing addicts to receive their drugs of need on prescription, would end their desperation and allow them to cope with their pain in the way they've found, without exposing them to the dangers of the criminal underground, the risks of impure or too-pure drugs, the threat of arrest and incarceration, and the enormous degradation and disruption of lifestyle which the laws and the resulting high cost of street drugs imposes on many of them; and ending prohibition, or legalization, to use a different word, would break the connection that illicit drug use has to the street crime and violence that hurts us all, and to the illegal profits corrupting our institutions and economies. And it would end the pain under-treatment crisis at the same time.

Pain patients desire and are entitled to be recognized as not being addicts and having medical needs for which they deserve to be treated and need to be treated to live a reasonable life. At the same time, however, addicts also have pain, of a different kind; and though in many cases their addiction was a result of their own past actions, nevertheless they also have the right to pursue their own form of relief, and should be permitted to do so.

Similarly, pain treatment advocates often speak of the need for doctors and drug enforcers to work together to reduce diversion, instead of being at odds, with honest doctors threatened with incarceration by the enforcers, and it's understandable that they would say and believe that. But the reality is that supply-side anti-drug measures in total, including diversion enforcement, cooperative or otherwise, are doomed to failure, all for the same economic causes -- it is human nature that some of us use drugs, prohibition makes the drugs profitable, and the supply will therefore always find a way to fill the demand almost all of the time.

Nor is it clear that a successful anti-diversion program would end up helping addicts or other non-medical users; the pharmaceutical supply is a lot safer than the illegally-produced street supply. And it is inevitable that diversion enforcement, successful or not, must always have some dampening effect on the prescribing of those drugs, in the proper levels, to at least some of the patients who need them, even if that problem were to be minimized by more enlightened officials and practitioners.

Pain patients are not addicts; yet the solutions to both their predicaments will be found together, not separately.

2. Alaska Court Rules Marijuana Possession Okay -- Judicial Day of Reckoning Coming

An Alaska Superior Court judge in Fairbanks has dismissed a man's conviction for marijuana possession on the grounds that the Alaska state constitution's privacy provisions guarantee the right to possess marijuana for personal use. Judge Richard Savell dismissed the conviction against Scott A. Thomas on June 25. He had been charged with three counts of felony fourth-degree misconduct for growing pot plants in his home last summer, but a jury found him guilty of only one count of misdemeanor marijuana possession, and now that has been thrown out.

In a 1975 Alaska Supreme Court decision, Ravin v. State, the state's highest court ruled that it was legal for adults to possess marijuana in their own homes as long as the quantity was not sufficient to constitute "an intent to deliver." Marijuana possession by an adult at home was protected by the fundamental right to privacy enshrined in the state constitution, the justices ruled. But in 1990, marijuana opponents cheered on by then drug czar Bill Bennett won a voter initiative making possession of any amount of marijuana in any location illegal.

"A direct conflict in the law exists between the right to privacy guaranteed under the Alaska Constitution and the statutory prohibition... which criminalizes the personal use of marijuana by an adult in the privacy of the home, regardless of the quantity of the prohibited substance," read Thomas' motion to dismiss his conviction. Judge Savell agreed. But the ruling does not set precedent yet, said Fairbanks attorney William Satterberg, who has argued at least three marijuana cases, including the Thomas case, in hopes of overturning the law. "There is another case, Alaska v. David Noy, before the state appeals court," he told DRCNet. "Noy was convicted of misdemeanor possession of less than eight ounces, and although he was given a suspended imposition of sentence, they still gave us the chance to appeal. We appealed on a pro bono basis and gave our final brief to the court last year."

While the state is unlikely to appeal the Thomas decision, the ruling brings added pressure for the courts to resolve the issue. "We had one court rule against us in Noy and another rule for us in Thomas," he said. "This court will have to resolve this, and they will use the Noy case to do it."

There are two issues at play, Satterberg continued. "One issue is the right to privacy as recognized in Ravin v. State; the other issue is the medical necessity defense. Noy had arthritis and stress, and while Alaska law allows for medical marijuana, you effectively have to get it illegally because doctors are afraid the DEA will check their certificates to prescribe. Our thinking is that the court can deal with Ravin or it can deal with medical necessity, and we think they'll deal with Ravin."

An appeals court ruling in yet another earlier case leaves Satterberg optimistic about the final outcome, he told DRCNet. In that case, because the quantity of marijuana involved was more than the eight ounces that is considered the line for personal possession, the Supreme Court didn't directly address the Ravin ruling. "But in a footnote to their decision, they said that if it had been a personal possession case, they would have relied on the Ravin decision."

Even though the state Court of Appeals, not the Supreme Court, is deciding the Noy case, whatever the verdict is in Noy, it could become the law of the northland because the Supreme Court is not required to hear appeals from Court of Appeals decisions. "We will petition the Supreme Court if we lose," said Satterberg. In the meantime, he's waiting for that decision to come down. "We could get a call on Noy any day now," he said.

"The fact of the matter is we are dealing with personal rights and personal privacy," Satterberg noted. "Right now, the cops can claim they smell marijuana and get a search warrant and tear your place apart because you were smoking a joint. Who is secure in his home when this is the case?"

3. Doctors' Group Advises Physicians to Avoid Treating Pain with Opiates, Cites Persecution of Pain Doctors -- Tucson Case Illustrates Point

Prompted by an ever-mounting list of physicians charged with over-prescribing opiate painkillers and the indictment of a Tucson physician in March, a Tucson-based medical association representing some 5,000 doctors has warned its colleagues not to prescribe opiates for pain relief and to take elaborate -- and expensive -- precautions if they do. On July 1, the Association of American Physicians and Surgeons (http://www.aapsonline.org), a free market-oriented group, sent out a memorandum titled "Advice to Doctors Re: Pain Management (or What the Government Has Taught Doctors)."

"If you're thinking about getting into pain management using opioids, DON'T," said the AAPS memo. "Forget what you learned in medical school -- drug agents now set medical standards. Until wrongs are righted and procedural changes are made, physicians have little choice other than to be unusually suspicious of new patients, to require unnecessary and expensive tests, to waste time on excessive documentation, or to turn away suffering patients, even if they think the patients may not find anyone else to treat them.

If you are already prescribing opioids," the memo continued:

Beware of new patients. If you accept a new patient, do background checks, demand old records before writing the first Rx, obtain urine screens and get them to sign opioid contracts. It is safer to turn them down, explain why, and give them an action item (call their congressman, for example).

Do thorough physicals, even if unnecessary and not helpful.

Make voluminous notes.

Exercise zero tolerance for patient slip-ups (such as losing a prescription).

Beware of any patients with a history of drug abuse. Even if now clean and in genuine pain, they might be induced by government zealots to testify against you to save themselves from imprisonment on drug charges.

Refer patients early and often to addictionologists, orthopedists, pain specialists, psychologists, regardless of expense or your opinion of helpfulness.

Keep a low profile and beware of saying anything that might offend an official of law enforcement, the licensure board, or the state medical society.

Never forget that you could be held to a standard of strict liability for any patient misbehavior or for any bad outcomes such as death, no matter the cause and without regard to the culpability of the patient or his associates. Remember, your medical decisions will be reviewed by drug agents who will decide if your actions were medically reasonable.

Consider phasing out this part of your practice, giving patients plenty of time to find another doctor.

That's the prospect confronting Tucson pain management specialist Dr. Jeri Hassman (http://www.drhassman.com), who faces a 66-count indictment charging her with prescribing opioid painkillers to six patients without a legitimate medical reason. Those drugs included morphine, methadone, Vicodin and Oxycontin. She is also charged with defrauding TRICARE, a managed health-care group serving US military retirees and their families, and is facing DEA administrative hearings and a state medical board investigation, according to her lawyer, former US Attorney for Arizona Bates Butler. According to the DEA and federal prosecutors, Dr. Hassman's patients included a number of suspected "doctor shoppers," or people who go to multiple doctors seeking to obtain large amounts of controlled substances.

"Why in the sam hell didn't they go to her if they thought some of her patients were doctor-shopping?" fumed Butler. "They didn't inform her of a potential problem, they just sent in an undercover agent claiming he was in pain."

There is a common practice across the country that seems designed more to cripple doctors than to achieve justice, Butler said. "What happens is the DEA suspends the doctor's license to prescribe, then the doctor appeals and the case is set for an administrative hearing. Now the doctor has to reveal to the DEA the specific defense to the charges, which effectively wipes out your Fifth Amendment privilege," he explained. "After the DEA gets a look at your defense, but before the actual administrative hearing, here comes a criminal indictment. Now, the doctor's lawyer is going to tell him to put the administrative appeal on hold because there are more serious matters to deal with. So what we have is the DEA forcing doctors to spend time and money to defend themselves at these administrative hearings, while the DEA uses that process to build a criminal indictment. And, of course, there are also state medical board hearings, so it's a triple whammy, and it's an abuse of civil proceedings by the DEA."

At a press conference June 26 in Tucson, Dr. Hassman told reporters she had spent $100,000 on her defense so far and feared the bill could reach half a million dollars. While Dr. Hassman's practice remains open, her employees have had to take pay cuts, she said. And while Dr. Hassman conceded that there are people who "doctor shop" to seek drugs, she said the DEA should work with doctors to identify them instead of targeting doctors. And, she said, DEA efforts to thwart abuses should not get in the way of legitimate medical needs. "You cannot ignore there are millions of people who suffer severe and chronic pain," she said.

Dr. Hassman feels alone, Butler said, but her case is not unique. According to the AAPS, there have been at least 32 similar prosecutions of pain management specialists in recent years. Nor is Dr. Hassman alone professionally. At least four Tucson-area pain specialists are prepared to testify that Hassman was engaged in legitimate medical practices, including local pain treatment expert Dr. Jennifer Schneider and the immediate past president of the Arizona Medical Association, Dr. Richard Dale.

And while the Arizona Medical Association was reluctant to comment directly on Dr. Hassman's case, the group's executive director, Chic Older, told DRCNet the issue of legitimate pain treatment was becoming increasingly important. "We are watching to see what will happen," Older said. "Our medical association is on record saying we feel physicians ought to be able to act in the best interests of their patients. We don't think physicians should have to worry about losing their license for treating a dying patient in intractable pain. Sometimes there are cases whose outcome really sets a marker, and this could be one of them," he said.

Regardless of the outcome in this particular case, said Older, prosecutions like this one can deter physicians from properly treating pain. "This is part of the criminalization of medicine," he said, "and that has a chilling, chilling effect on physicians' willingness to prescribe necessary medications. The whole notion of the enforcement and judicial arms of government overseeing physicians and looking for criminal intent is becoming a very significant issue in this country," Older said.

Also attending Dr. Hassman's press conference were about a dozen of her former patients, who passionately defended her. One of them, Don Hayden, 48, told reporters he had been bedridden with chronic pain for years before finding Dr. Hassman. "She prescribed the proper pain medication to make me a functioning member of this society," Hayden said. Other patients said they were having trouble getting the medications they need since Dr. Hassman's certificate to prescribe was suspended by the DEA.

"The DEA says the justification for these arrests of doctors is the public health," Bates said, "but Dr. Hassman had over 200 patients who were receiving controlled substances for pain relief. What about the public health when 200 patients can't go to their doctor? What makes this even more frustrating is that of those patients of Dr. Hassman who have managed to find another doctor, 97% of those we can find are now on the same or higher doses of controlled substances."

"This is a serious problem," said AAPS' Dr. Orient. "We have physicians being prosecuted like drug kingpins. We need real legal reforms so that a doctor who gets taken in by an undercover agent or a talented actor does not face life in prison. We need a nationwide educational program about the difficulty patients are already having getting pain medications. It's only going to get worse," she said. "Doctors need to be seen as allies in the war against drug diversion, not the enemy. Doctors are not cops, they don't have lie detectors. If law enforcement was seriously interested in stopping drug diversion, it would work with doctors, not target them."

"They've already lost the war on drugs," said Bates, who spent a career prosecuting drug cases as US Attorney. "Now they want to turn it into a war on doctors. There's a certain amount of ego gratification in this for prosecutors," he said. "It's much more exciting to take down a doctor, a lawyer, or some other professional than just to prosecute another kid caught coming across the border with a backpack full of dope."

4. DRCNet Interview: Brazilian Antiprohibitionists Luiz Paulo Guanabara of Psicotropicus and Cecilia Szterenfeld of the Integrated Programs on Marginality

Luiz Paulo Guanabara is the founder of Psicotropicus, the first openly antiprohibitionist organization in Brazil. He has attended this year's international drug reform conferences in Mérida, Mexico, and Cartagena, Colombia, and is playing a key role in organizing a groundbreaking Brazilian conference on drug users' rights set for in September.

Cecilia Szterenfeld is executive-director of the Integrated Programs on Marginality ("Programa Integrado de Marginalidade" in Portuguese, PIM), a set of HIV prevention and human rights projects aimed at sex workers, transvestites and young people involved in prostitution, the families of prison inmates, the gay and lesbian community, and drug users.

DRCNet spoke by phone with Guanabara and Szterenfeld at their shared offices in downtown Rio de Janeiro on Wednesday.

5. Medical Marijuana Bill Introduced in Argentina

Deputy Irma Fidela Parentella has introduced the first bill in the Argentine legislature that seeks to open the door to the medical use of marijuana in that South American nation. The bill introduced last week would allow cancer and HIV/AIDS patients to use the herb in clinical research trials.

	Irma Parentella

"There are studies that demonstrate the efficacy of the use of this drug to alleviate pain in the sick," Parentella told the Argentine daily Pagina 12. The primary pressure for the bill came from "the opinion of hospital palliative care specialists who support the raising of the restrictions that exist today in order to be able to experiment and investigate" with marijuana, Parentella added.

But the Argentine Harm Reduction Association ("Asociación de Reducción de Daños de la Argentina" in Spanish) also deserves some credit for the movement on medical marijuana. The introduction of the bill is an echo of the "important debates recently encouraged in the media by the Argentine Harm Reduction Association and its marijuana marches in the framework of the Million Marijuana Marches 'Cures Not Wars' campaign in recent years," wrote ARDA director Dr. Silvia Inchaurraga in a communiqué announcing the legislation. The last Million Marijuana March organized by ARDA on May 4, which demanded the decriminalization of drug use in Argentina and the medical use of marijuana, drew 12,000 people to a "Festival Against Intolerance," Inchaurraga added. Specific demands included "for the defense of scientific investigation of the therapeutic uses of marijuana" and "help for those patients who require its therapeutic use," she wrote.

"We want a medicine based on evidence, not myths and the demonization of drugs, and marijuana in particular," Inchaurraga told DRCNet. "ARDA is the only group in Argentina that makes advocating for medical marijuana a key project," she said.

That presents some political difficulties, Inchaurraga said. "Even for some progressive deputies, decriminalization is not a good word, and an openly antiprohibitionist organization like ARDA may not present the best face for a medical marijuana bill. But we are the only group that is making that demand. There are always political risks when mixing different issues. We always defend human rights and access to medical care, but we have to emphasize that we are not promoting medical marijuana because we want to decriminalize drugs. We do want to decriminalize drugs and drug users, but that is a different issue."

The bill will face certain opposition, said Parentella. "The response I anticipate to possible questions is 'what need is there that someone suffer when the possibility of easing his pain exists,'" she told Pagina 12. There will be "bigoted questions," she added. "One of the questions I anticipate will be that possibility that the drug will generate addiction in its users, an argument that is refuted by comparing the rate of addiction for marijuana, which is less than that for tobacco and equal to that of legal pharmaceuticals," she said.

ARDA is working with Parentella on educating legislators and the public on the issue, said Inchaurraga. The group is organizing a symposium on medical uses of marijuana at the National University of Rosario, Argentina's second largest city, which will include an appearance by Dr. Aquiles Roncoroni, a leading academic authority at the National Academy of Medicine. Roncoroni recently appeared with ARDA on the Argentine TV program "Key Hour" to promote medical marijuana, Inchaurraga added.

Silvia Inchaurraga

The concepts of harm reduction have played a role in preparing Argentine society for the notion of medical marijuana, Inchaurraga said. "Not only does harm reduction imply an acceptance that some people will continue using drugs, it also allows us to address issues around the use of marijuana, whether recreationally or medically, such as marijuana in food form, the use of vaporizers and water pipes to reduce pulmonary damage, and avoidance of things like sharing pipes, driving while impaired, and not mixing it with alcohol," she said. "One result is that people can come out from the shadows and speak openly about the benefits and costs of marijuana use."

And while ARDA recognizes that getting the current bill passed will be a battle, it is already gunning for more. "If we can speak out, if the patients can speak out, if the people can come out from the shadows as they do for the Million Marijuana Marches, if we can mobilize to say that we do not want our people arrested for marijuana use, whether therapeutic or otherwise, then things will begin to change," said Inchaurraga. "We have this bill that seeks to legalize research on marijuana's efficacy for AIDS and cancer patients, but we will try to include Multiple Sclerosis patients, too. Then maybe we can actually begin the first study that has been proposed by the Drug Abuse and AIDS Advanced Studies Program at the National University of Rosario and the Santa Fe AIDS Program," she said.

"And then we will move on to the decriminalization of marijuana. We are working hard through the Argentine Decriminalization Campaign and we are working with some legislators and hope to have a bill presented soon."

The climate in changing in Argentina, said Inchaurraga, in part because of the opening created by ARDA, but also because of encouraging signs from the Argentine government of newly-installed President Néstor Kirchner. "I am optimistic because of the opening of debate around this issue in the last two years, but also with the nomination of Dr. Raul Eugenio Zaffaroni to head the Argentine Supreme Court. Zaffaroni is an antiprohibitionist who wrote the prologue to the recent ARDA book, "Drugs -- Between Harm and the Failures of Prohibition: New Perspectives on the Decriminalization/Legalization Debate."

It's always nice to have a friend on the Supreme Court.

6. In Memoriam: Don Topping, Drug Policy Forum of Hawaii

Donald M. Topping, a founder of the Drug Policy Forum of Hawaii and strong advocate for medical marijuana, died June 29 at his home in Manoa, Hawaii. The 73-year-old retired University of Hawaii sociologist and linguistics professor died of colon cancer after a 15-year battle.

As cofounder of DPFHI, Topping became a prominent figure in Hawaii and national drug policy circles, helping to lead the fight that led to the state becoming the first to legalize medical marijuana through the legislative process. That bill was signed into law by then Gov. Ben Cayetano in December 2000. He also made frequent appearances in newspaper stories and letters to the editor pages on various drug reform topics in the Hawaii press. Topping's was a voice of sanity as the state teetered on the edge of ice (smokeable methamphetime) hysteria.

Topping was an accomplished academic, working for 35 years as a linguist, sociologist, and administrator at the University of Hawaii, where he researched Micronesian languages and cultures. He wrote and edited the Chamorro-English Dictionary and served as director for the Pacific and Asian Linguistics Institute and the Social Science Research Institute at the university.

It was as his academic career wound down -- he retired in 1997 -- when his interest in drug reform most flourished. "His last work was his favorite," his wife Priscilla told the Honolulu Observer. "He really liked educating people about the dangers of drugs and telling them the truth. "He's the kind of man who believed in the rights of the common person," she said. He believed "everyone deserved to live in peace and dignity, and no one should be left behind."

Though his primary affiliation in drug policy reform was the Drug Policy Forum of Hawaii, Topping also was a prominent figure in the national movement, among other things serving on DRCNet's Board of Advisors. DRCNet executive director David Borden recounted that Don was one of DRCNet's first members, joining in 1994 and remaining a steadfast supporter right through 2003. Borden also recalled another side of Don Topping, that of the jazz saxophonist; the two of them performed jazz standards for conference-goers in the talent show during the 2000 Drug Policy Foundation conference, Borden said.

Topping's drug reform passion and his medical situation ultimately intersected. In the autumn 1998 issue of the Bulletin of the Multidisciplinary Association for Psychedelic Studies (http://www.maps.org/news-letters/v08n3/08322top.html), he published a personal account of his experience with the visionary plant Ayahuasca, and his use of it to battle the cancer that was overtaking him. Though it's impossible to prove whether it was Ayahuasca that helped Don beat back cancer, he did beat the odds over and over again, surviving and thriving for several more years, without the surgery or chemo his doctor believed were necessary for him to have even a slim chance of lasting.

Don's ashes were scattered off his favorite surfing spot at Diamond Head. Contributions in his name may be made to the Drug Policy Forum of Hawaii (http://www.dpfhi.org), checks payable to Drug Policy Forum of Hawai'i, P.O. Box 61233, Honolulu, HI 96839.

7. Newsbrief: Feds Appeal Ed Rosenthal Sentence

Federal prosecutors who won a conviction against "ganja guru" and medical marijuana provider Ed Rosenthal, but lost the battle to send him to prison, were back in court July 3 seeking to appeal his slap-on-the-wrist one-day sentence plus probation. US attorneys filed a motion with the US 9th Circuit Court of Appeals seeking to review the sentence handed down by US District Court Judge Charles Breyer.

Ed Rosenthal (photo courtesy Green Aid)

Marijuana manufacture, the crime for which Rosenthal was convicted, normally carries a five-year mandatory minimum sentence. Prosecutors had asked for 6 ½ years, but Breyer concluded that "the unique, extraordinary circumstances of this case" merited the dramatic downward departure in the sentence.

In a case that threw the harsh glare of the national and international media spotlight on the Bush administration's aggressive attack on medical marijuana, Rosenthal was arrested in February 2002 as he oversaw the production of medical marijuana in Oakland. Rosenthal was acting in accordance with California state law and had been deputized by the city of Oakland to grow medical marijuana. He was convicted in federal court in San Francisco after Judge Breyer refused to allow Rosenthal to use state law as a defense or even mention medical marijuana, but that successful outcome for prosecutors turned into a phyrric victory when jurors later publicly denounced their own verdict upon hearing the rest of the story.

The prosecutors' appeal was "not surprising," Rosenthal told the San Francisco Examiner. "They are wasting more taxpayers' money trying to put me in prison for this," said Rosenthal. "It would be absurd, if it were not so serious. They should be happy with what they got," he said. "Right now, I'm a felon, and by the time I'm done with this, not only will I be exonerated, the courts will find that these laws should be thrown out."

8. Newsbrief: Ruling Expected "Soon" in Santa Cruz Medical Marijuana Suit

A lawsuit filed by the county of Santa Cruz, CA, a medical marijuana co-op, and seven patients seeking to restrain the federal government from further raiding the Wo/Men's Alliance for Medical Marijuana (http://www.wamm.org) will be decided "soon," a US District Court judge said Monday. Judge Jeremy Fogel also expressed sympathy for the plight of medical marijuana patients and told the court he was looking for a "hook" on which to hang a temporary restraining order barring the US Department of Justice from new raids.

WAMM was raided on September 5 in a case that garnered national and international media attention when the city of Santa Cruz allowed medical marijuana distribution to take place on the steps of city hall. WAMM and its operators, Mike and Valerie Corral, subsequently sought in federal court to have their seized crop returned, but that effort failed. Then WAMM and seven patients, including terminally patients, filed suit seeking a temporary injunction to stop further raids. This time, the city and county of Santa Cruz both joined the lawsuit.

WAMM and the other plaintiffs argued that DEA enforcement of marijuana laws against the co-op violates the fundamental rights of patients by depriving them of medicine that works. They also argued that because no marijuana was sold and all was produced and consumed locally, there was no federal jurisdiction. And they told the court this case was unique because of the participation of local government entities.

At Monday's hearing on that suit, Judge Fogel said he had been affected by testimony from patients. "One cannot read the declarations before the court without being moved by them," he said. But he added that federal law does not allow a medical necessity defense. "Frankly, I'm looking for a hook that's very different from the one I've looked at and been forced to reject," said Fogel, referring to the injunction seeking the return of WAMM's 160 plants that he denied. "I would need something new and different other than someone saying: 'Judge you got it wrong last time.'"

Judge Fogel gave no firm date for a ruling. WAMM and the Corrals want it soon; they need to plant by mid-July, they told the San Jose Mercury-News, or it will be too late. Department of Justice senior counsel Mark Quinlivan wasn't feeling rushed, though; there were "summer vacations" and "other issues" that had to be dealt with, he said. Not until September, he suggested.

9. Ashcroft Seeks Supreme Court Permission to Overturn Free Speech Ruling on Physician-Patient Discussion of Medical Marijuana

courtesy Drug Policy Alliance, http://www.drugpolicy.org

On Monday, July 7, the Solicitor General of the United States filed papers in the US Supreme Court requesting that the Court overturn the 9th Circuit's unanimous decision in Conant v. Walters, which supports a doctor's right to openly recommend or approve marijuana as treatment for their patients. By taking this action, the Solicitor General seeks to allow the federal government to investigate any physician who mentions the word "marijuana" to patients and to sanction those who approve it for patient use.

"The 9th Circuit's opinion debunks the Justice Department's claims that marijuana has no medical usefulness -- citing a large body of medical research to the contrary," said Daniel N. Abrahamson, Director of Legal Affairs at the Drug Policy Alliance.

10. Newsbrief: Oregon Appeals Court Overturns Asset Forfeiture Reform

Oregon voters approved an asset forfeiture reform initiative in November 2000, but now a legal challenge from law enforcement has led the Oregon Court of Appeals to throw it out in a 2-1 split decision. In a Monday ruling, the court held that the initiative that led to the state's reformed current asset forfeiture law was unconstitutional because it changed too many provisions of the state constitution.

Under Oregon's previous asset forfeiture law, passed in a wave of drug war passion in 1989, police needed only a "reasonable suspicion" that the goods seized were related to illegal drug activity. Under the new law, police cannot dispose of seized goods unless and until they obtain a conviction. As important, 75% of proceeds from seized goods now go to drug treatment programs, not the law enforcement agency that made the seizure.

Law enforcement groups, who gained substantial financial benefits from the old law, opposed the initiative from the beginning and howled in pain at its passage, but the Lincoln Interagency Narcotics Team (LINT) didn't just whine -- it went to court. LINT lost its suit in Marion County Circuit Court, but appealed to the Court of Appeals, where the case was argued in January. In a narrow, some might even say crabbed, reading of Oregon statutes and case law, Judges Landau and Brewer ruled that although the initiative was directed at a single change -- "constitutional limitation on forfeiture of property" -- it actually made multiple changes in the state constitution, which is forbidden under state law.

Judge Armstrong dissented, arguing that while "I agree with the majority that Measure 3 made several substantive changes to the constitution, I disagree with its conclusion that at least two of the changes had to be adopted separately because they were not related closely enough to be adopted in a single amendment. I conclude that they were closely related and, consequently, that they did not have to be voted on separately. I also conclude that the measure complied with the single-subject requirement in [the Oregon constitution]."

No word yet on when or whether the state will appeal to the state Supreme Court.

11. Newsbrief: Canadian Government to Distribute Medical Marijuana

Scrambling to keep its tattered marijuana laws from collapsing entirely, the Canadian government announced Wednesday that it would begin distributing marijuana to registered patients. The move came on the last day of a six-month grace period granted by an Ontario judge who ruled Canada's marijuana laws unconstitutional because they did not provide a mechanism for medical marijuana users to legally obtain their medicine. Health Canada announced Wednesday that it will sell ounces of contract-grown marijuana to registered patients for $112 once a month, and packets of 30 seeds to registered growers for $15 once a year. According to ministry spokeswoman Cindy Cripps-Prawak, the weed grown in an abandoned mine in Flin Flon, Manitoba, has a THC content of 10%.

Health Canada will make its marijuana available to physicians who will then distribute it to the 582 patients registered with the ministry so far. That could happen as early as next week, Cripps-Prawak said. New patients can begin applying for the drug immediately, she added. "Let's make the assumption that the application is complete; the marijuana can be delivered within a week." The drug will not be prescribed through a pharmacy because it has not been federally approved.

Ottawa acted to comply with the Ontario court decision in which the court invalidated a law that makes "seriously ill, vulnerable people deal with the criminal underworld to get medicine." The Canadian government plans to appeal that decision and has suggested it could cancel the medical marijuana program if it should win on appeal.

12. Newsbrief: New DEA Administrator Karen Tandy Approved by Senate Judiciary Committee Following Medical Marijuana Controversy

Two weeks ago DRCNet reported that Bush administration nominee for DEA chief administrator Karen P. Tandy appeared to be headed for an easy confirmation by the US Senate Judiciary Committee (http://www.drcnet.org/wol/293.shtml#tandyhearing), but that medical marijuana advocates were seeking to persuade Senators to question her on the use of federal resources to raid medical marijuana operations that have been sanctioned by states.

Yesterday (7/10), the committee confirmed Tandy's appointment, but not without controversy or dissent. According to DRCNet associate director David Guard, who attended the hearing, Sen. Dianne Feinstein (D-CA) -- not a traditional friend of medical marijuana -- nevertheless raised the issue -- to which Sen. Jeff Sessions (R-AL) responded by saying there's no scientific evidence supporting medical marijuana -- which Sen. Richard Durbin (D-IL) immediately countered by introducing the federally-financed 1999 Institute of Medicine report, which described such evidence, into the record. Sessions then fell back to saying only that there are more effective medications. Sen. Patrick Leahy (D-VT) made the point of allowing states more latitude to set policies (such as permitting medical marijuana) on the issue. Durbin then went on to actually vote against the nomination.

Visit http://www.dontconfirm.org for further information.

13. Newsbrief: Former Scottish High Court Judge Says Legalize It

Lord William David Prosser, who retired as a Scottish High Court Judge last October, called Saturday for the legalization of cannabis, saying it should be supplied like alcohol and tobacco. The current laws against cannabis possession are "unenforceable," he said in an interview with the Scotsman on Sunday.

"I have long believed that the law [on cannabis] in its present form should be changed," said Lord Prosser. "It should be legal to possess the drug, and there should be a system of controlled supply similar to that which exists for tobacco and alcohol. You obviously cannot have a free-for-all for supply -- that has to be controlled, just as alcohol and tobacco are controlled. The current law is clearly not working. It should be scrapped and we should start again. If a law seems to be unenforceable then one would have to think very carefully about how to solve the problem in other ways. It cannot be a sound law if it does not achieve what it was meant to achieve."

Lord Prosser was responding to an inquiry about the case of Biz Ivol, a 56-year-old British woman who suffers from Multiple Sclerosis and who was being prosecuted for distributing cannabis-laced chocolates to fellow MS sufferers. Prosecutors dropped that case last week, but Ivol still attempted to kill herself in protest of the persecution of medical marijuana patients. The attempt was unsuccessful, and Ivol is recovering.

Lord Prosser becomes the most senior Scottish legal figure to call for cannabis legalization. By Scottish convention, sitting judges do not comment on whether laws should be changed, but Prosser has been free to speak since his retirement.

14. Newsbrief: British Doctors Don't Say Legalize It

The British Medical Association, the largest physicians' organization in the United Kingdom, rejected a motion calling for the legalization of cannabis and other recreational drugs at its annual conference in Torquay on July 1. The motion was introduced on behalf of Cornwall physicians by retired surgeon Dr. Connie Brizzard, who told the BBC she hoped it would spark more debate on the topic.

"The government has a responsibility to the public to reduce crime," she told BBC News Online. "Prohibition does not work. Just look at the experience of the United States when they tried to ban alcohol. What arose out of that was Al Capone and armed gangs, and that is what is happening now in this country. This is also about the nanny state," she said. "Consenting adults should be allowed to do what they like. We want the BMA to debate this; we want the public to debate this."

The BMA did debate, and the good doctors were not persuaded, but that is nothing new. The BMA advised against the legalization of cannabis when it testified before Home Affairs Select Committee last year. That committee and Home Minister David Blunkett eventually called for rescheduling of cannabis from a class B to class C drug -- a move that has now been put off until year's end at the earliest.

According to the BBC, doctors voted on the motion after hearing a report from Professor Robin Murray of the Institute of Psychiatry, who told them that cannabis use increases the risk of schizophrenia.

15. The Reformer's Calendar

(Please submit listings of events concerning drug policy and related topics to [email protected].)

July 23, "Drug Policy Reform 2003: The State of the Movement," forum with Ethan Nadelmann. At the San Francisco Medical Society, 1409 Sutter St., call (415) 921-4987.

July 24, "Can We Really Afford a (Failed) War on Drugs?", forum with Ethan Nadelmann. At the Commonwealth Club of San Francisco, 595 Market St., visit http://actioncenter.drugpolicy.org/ctt.asp?u=3456&l=1908 for info.

August 11-16, Seattle, WA, "Northwestern Exposure," speaking tour by Jack Cole of Law Enforcement Against Prohibition. Contact Mike Smithson at (315) 243-5844 or [email protected] for details of individual engagements.

August 16-17, 10:00am-8:00pm, Seattle, WA, "12th Annual Seattle Hempfest." At Myrtle Edwards Park, call (206) 781-5734 or visit http://www.hempfest.org for further information.

August 20-23, Pine Ridge Reservation, SD, 2003 Hemp Industry Association Convention. Registration $200, $150 for additional family members, includes meals, tipi camping and activities. Visit http://www.thehia.org/PDF/2003HIAConvention.pdf for further information or contact (707) 874-3648 or [email protected].

September 4-5, Missoula, MT, "2nd Annual Montana Drug Policy Summit." At the University of Montana campus, contact John Masterson at [email protected] for further information.

September 18, Tallahassee, FL, "Innovations in European Drug Policy," the Richard L. Rachin Conference. Sponsored by the Florida State University School of Criminology and Criminal Justice, in conjunction with the Journal of Drug Issues, at the Center for Professional Development, contact (850) 644-7569 or [email protected] to register or (850) 644-7368 or [email protected] for further information.

September 20-27, Phoenix, AZ, "Phoenix Rising: LEAP in Arizona," speaking tour by Jack Cole of Law Enforcement Against Prohibition. Contact Mike Smithson at (315) 243-5844 or [email protected] for details of individual engagements.

September 22-23, Rio de Janeiro, Brazil, "First National Seminar on Drug Users' Rights." Sponsored by ABORDA, visit http://direitodeuso.dk3.com for further information.

October 5-17, Deming, Silver City, Truth or Consequences and Las Cruces, NM, "Continuing Drug Policy Reform in New Mexico," speaking tour by Jack Cole and Peter Christ of Law Enforcement Against Prohibition. Contact Mike Smithson at (315) 243-5844 or [email protected] for details of individual engagements.

October 22, 7:00pm, Syracuse, NY, "Against All Odds: Cops Fighting the War on Drugs," forum with Jack Cole of Law Enforcement Against Prohibition. Sponsored by Reconsider: Forum on Drug Policy and Syracuse University Students for Sensible Drug Policy. At Syracuse University, for further information contact Gerrit Cain at [email protected] or Mike Smithson at (315) 243-5844 or [email protected].

November 5-8, East Rutherford, NJ, biennial conference of Drug Policy Alliance. At the Sheraton Meadowlands Hotel and Conference Center, 2 Meadowlands Plaza, visit http://www.drugpolicy.org for further information.

November 7-9, Paris, "Fourth Hemp and Eco-Technologies Exhibition." At the Cité de Sciences et de L'Industrie, call +33(0) 1 48 58 31 37, e-mail [email protected] or visit http://www.festival-du-chanvre.com for further information.

January 28-February 7, 2004, Hannibal, Columbia, Jefferson City, St. Louis and Kansas City, MO, "Special Delivery for John Ashcroft," speaking tour by Jack Cole of Law Enforcement Against Prohibition and Roger Hudlin. Contact Mike Smithson at (315) 243-5844 or [email protected] for details of individual engagements.

April 20-24, Melbourne, Australia, "15th International Conference on the Reduction of Drug Related Harm." Visit http://www.ihra.net for further information.

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