Medical Marijuana: Hawaii Federal Prosecutor Backs Off 6/17/05

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Hawaii US Attorney Ed Kubo ignited a firestorm of protest last week with his comments in the wake of the Supreme Court's Raich decision, which held that the federal government could indeed prosecute medical marijuana patients and providers even in states where voters have approved it. According to Kubo last week, the ruling meant that Hawaii's medical marijuana law was "dead" because doctors who must recommend the drug could now be prosecuted for doing so.

Ed Kubo backs off
Kubo's remarks harkened back to the Clinton administration's effort to intimidate doctors in California after voters there passed the Compassionate Use Act in 1996. Then drug czar Barry McCaffery threatened doctors with arrest if they recommended marijuana to their patients, but that effort died when the 9th US Circuit Court of Appeals ruled that the First Amendment protected doctors who made such recommendations.

After a week's worth of stinging criticism from the likes of the ACLU of Hawaii, which threatened to file a lawsuit, Kubo has backed down. Late last week, Kubo announced that he will not seek a list of doctors who certify marijuana for their patients, nor will he attempt to prosecute doctors merely because they recommend marijuana.

"I don't think physicians have anything to fear about prosecution solely for a certification," Kubo said. But the die-hard prosecutor warned that doctors could still face prosecution if they recommended marijuana for a condition that is not "debilitating" as required under state law, if they tell a patient to score from a street dealer, or if they provide samples to patients.

Hawaii's medical marijuana program currently counts more than 2,600 certified patients. More than a hundred Hawaii doctors have certified patients for the program. Last week, patients and doctors alike expressed grave concern about Kubo's remarks, with some doctors saying they would not certify patients if they risked prison.

The ACLU of Hawaii welcomed Kubo's clarification. "The US Attorney has reversed his inaccurate and intimidating threats and clarified the facts for the benefit of doctors and patients in Hawaii," said Lois Perrin, Legal Director of the ACLU of Hawaii. "Doctors have a right to continue to recommend medical marijuana, and that right is extremely clear under both federal and Hawaii law. In the future we urge the US Attorney be more careful before commenting on a matter that has grave public health implications and impacts thousands of patients and their families."

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Issue #391 -- 6/17/05

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