Feature: In the Wake of Raich -- Officials in Three Medical Marijuana States Overreact 6/10/05

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While the Supreme Court's Monday ruling in the Raich case did not invalidate any state medical marijuana laws -- they were not addressed by the court -- officials in at least three medical marijuana states reacted as if it had. In Oregon, the administrator of the state's medical marijuana program called an immediate moratorium on the issuing of new patient registry cards pending an opinion from the state attorney general. In Alaska, Attorney General David Marquez warned that he was considering suspending the program there. And in Hawaii, the US Attorney there said the ruling meant that medical marijuana was dead -- and that he might try to prosecute doctors who recommend it.

Hawaii's US Attorney
Ed Kubo was trebly
wrong this week about
the law.
Activists and drug reformers are keeping a close eye on the situation, but expressed optimism that early "confusion" will soon be resolved. "We don't want to jump the gun," said Kris Hermes, director of legal affairs for Americans for Safe Access (ASA). "It is probably to be expected that there will be knee-jerk reactions to this decision, and the states just need to get the facts straight. We hope and expect that they will eventually understand that nothing has changed regarding state medical marijuana laws."

"This is troubling," said Paul Armentano, senior policy analyst for the National Organization for the Reform of Marijuana Laws. "The law is not on the side of these people trying to shut down programs, and with all the drug reform movements in the country and all the attorneys in those states, there will be enough pressure exerted so that these programs stay in place. If not, look for lawsuits."

The panic reaction began almost immediately after the ruling was announced Monday morning. That same day, Dr. Grant Higginson, head of the Oregon Medical Marijuana Program, announced he had halted issuance of medical marijuana cards pending an opinion from Oregon Attorney General Hardy Myers. "We need to proceed cautiously until we understand the ramifications of this ruling," said Higginson. "We have contacted the state attorney general to ask for a formal legal opinion on how the court's ruling affects Oregon's program."

Matters were not helped when a politician considered an ally by most of the Oregon medical marijuana movement went off the reservation after the decision. "My view is that medical marijuana is dead in Oregon," said Rep. Robert Ackerman (D-Eugene), the chairman of a House judiciary subcommittee. "The program is pretty much over, except maybe to conform our law to the Supreme Court decision."

The state's well-organized and highly vocal medical marijuana community is fighting back. Activists have peppered Higginson, Attorney General Myers, and their state representatives with demands that the program be reinstated. The community is giving Myers until today to act. "If the Department of Human Services does not resume issuing OMMP cards by this Friday, Oregon NORML, in coordination with Americans for Safe Access, Mothers Against Misuse and Abuse, Voter Power, the Mercy Center, EMPOWER, THC Foundation, and Oregon Green Free, will conduct a protest rally on Monday," said Madeline Martinez, head of Oregon NORML.

The Oregon action also caught the eye of the Marijuana Policy Project. "Oregon has done more harm to patients today than the DEA ever could," said MPP executive director Rob Kampia. "By depriving patients of the only protection they have under state law, Oregon is saying that not only federal agents, but also state and local police, can raid, arrest and prosecute seriously ill medical marijuana patients. This is grossly unjust, and we look forward to suing the Oregon government in court."

As of Thursday, Attorney General Myers still had not issued an opinion, according to reports from Oregon activists. But it looks like he has plenty to think about, with protests and lawsuits looming on the horizon.

In Alaska, where state government officials are vehemently opposed to marijuana, Attorney General David Marquez warned that he may consider suspending new patient registrations there. "Alaska's medicinal use law is very similar to the law in California," he said Monday. "Today's decision did not strike down the California law, but rather affirmed the authority of the federal government to regulate marijuana. The question we must analyze is whether and how the state medicinal use laws can continue to operate in light of this ruling."

"There has been some discussion among public officials about possibly suspending the registry," said MPP communications director Bruce Mirken, "but we have already put both Oregon and Alaska on notice that we will sue them if they suspend these programs."
In Hawaii, the attack on the state's medical marijuana law came from US Attorney Ed Kubo, who, in a uniquely perverse statement, threatened to prosecute doctors who recommended marijuana for their patients under federal drug conspiracy laws. "The US Supreme Court decision this morning is the death knell to the medical marijuana issue," Kubo said Monday. "I would advise all physicians and anyone who is involved in distributing or helping in the distribution of any illegal narcotic to be very, very leery," he said. "I believe medical marijuana is dead in Hawaii. It's finished. It's gone forever. Congress has decided, according to the court, to make marijuana illegal for all purposes except FDA testing and federal law will preempt state law under those circumstances," Kubo added. (Oddly, Kubo also claimed the Raich ruling would allow him to shut down needle exchange programs in the state.)

"The statement by the US Attorney for Hawaii that medical marijuana is now illegal and that he might now prosecute doctors is a complete misreading of the law and the opinion," said ASA's Hermes. "In the Conant case, the Supreme Court upheld doctors' ability to recommend medical marijuana as protected under the First Amendment. The US Attorney in Hawaii just has it flat wrong."

US Attorney Kubo's comments were "bizarre" and "shockingly misinformed," said MPP's Mirken. "In Raich, the Supreme Court said you can go after the patients, but in Conant, they said you couldn't go after the doctors, so this guy says 'let's go after the doctors.' You have to wonder where he got his law degree. We are very interested in making sure this guy doesn't do anything illegal, and we will be keeping a close eye on the situation," said Mirken. "Kubo seems to be publicly announcing an intention to break the law."

"The US Attorney got it wrong," said Lois Perrin, Legal Director of the ACLU of Hawaii. "Doctors have a clear right to continue to recommend medical marijuana, and that right is protected by the United States Constitution." The ACLU of Hawaii has issued a deadline of next Wednesday for Kubo to retract his statement," Perrin added. "If we have to, we will go to federal court next week to reaffirm doctors' rights."

In the meantime, however, Kubo's comments are already having a noxious impact. Optometrist Joyce Cassen, one of the 116 Hawaii doctors who have issued medical marijuana recommendations, told the Honolulu Advertiser Tuesday, she wouldn't be issuing any more. "If it could become something I could be prosecuted for, I certainly would want to stay away from that," she said.

The situation wasn't helped by a federal Public Defender who should know better. "I don't think I could be counseling anyone to continue their marijuana use, especially if it's a federal crime," said Public Defender Peter Wolff. "I think the Hawaii program is essentially dead, unless doctors are willing to take a huge risk to their ability to practice medicine, and why would they do that?" he told the Advertiser.

Other medical marijuana states have reacted more reasonably. Attorneys general in California, Colorado, Montana, and Nevada have publicly clarified that the Raich decision does not invalidate their state laws. But as seen from the examples of Alaska, Hawaii, and Oregon, the Raich verdict has activists and reformers putting out fires caused by misunderstanding of the verdict at best, and sometimes willful misinterpretation.

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Issue #390 -- 6/10/05

Drug War Chronicle, recent top items


recent blog posts "In the Trenches" activist feed


Editorial: Learn to See Hope | Feature: Raich Case Ruling -- Feds Can Enforce Marijuana Laws Against Patients, but State Laws Remain in Effect | DRCNet Interview: Supreme Court Plaintiff Angel McLary Raich | Feature: In the Wake of Raich -- Officials in Three Medical Marijuana States Overreact | Feature: Raich Ramifications -- The Good, the Bad, and the Ugly | Medical Marijuana: One Day After Raich, Rhode Island Senate Passes Medical Marijuana Bill | Weekly: This Week's Corrupt Cops Stories | Marijuana: Retailers Say Legalize It in Online Poll | Europe: Dutch Medical Marijuana Program Ailing in Face of Widespread Availability for All | Canada: Vancouver Tells Ottawa to Legalize It | Asia: Indonesian Protestors Call for Corby's Execution While Australians Call for Bali Boycott | Asia: In Major Shift, China to Promote Needle Exchange | Media Scan: Pain Man, Connecticut Cocaine Sentencing, Uncontrolled Substances | Weekly: This Week in History | Weekly: The Reformer's Calendar

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