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Prosecution: Kentucky Supreme Court Rules Pregnant Women Cannot Be Criminalized for Drug Use

Women who take illegal drugs while pregnant cannot be charged with child endangerment crimes for doing so, the Kentucky Supreme Court ruled last Friday. The court held that such prosecutions are unlawful under the state's Maternal Health Act of 1992, which expressly forbids charging women with a crime if they drink or do drugs during pregnancy.

The case is Cochran v. Kentucky, in which Casey County prosecutors charged Ina Cochran with first-degree wanton endangerment after she gave birth to a child who tested positive for cocaine in 2005. Cochran's attorney moved to have the charges dismissed, and a Casey Circuit Court judge agreed, but prosecutors appealed to the state Court of Appeals, which held that the charges could be allowed.

The state Supreme Court overturned the Court of Appeals ruling, arguing that the appeals court had erred both because its decision was intolerably vague and because the Kentucky legislature had expressly held that pregnant women were not to be prosecuted for drug use. "It is the legislature, not the judiciary, that has the power to designate what is a crime," the opinion said.

In passing the Maternal Health Act of 1992, the legislature explicitly stated that "punitive actions taken against pregnant alcohol or substance abusers would create additional problems, including discouraging these individuals from seeking the essential prenatal care."

The high court cited a similar earlier case it had decided, and that quotation is worth repeating:

"The mother was a drug addict. But, for that matter, she could have been a pregnant alcoholic, causing fetal alcohol syndrome; or she could have been addicted to self abuse by smoking, or by abusing prescription painkillers, or over-the-counter medicine; or for that matter she could have been addicted to downhill skiing or some other sport creating serious risk of prenatal injury, risk which the mother wantonly disregarded as a matter of self-indulgence. What if a pregnant woman drives over the speed limit, or as a matter of vanity doesn't wear the prescription lenses she knows she needs to see the dangers of the road?

"The defense asks where do we draw the line on self-abuse by a pregnant woman that wantonly exposes to risk her unborn baby? The Commonwealth replies that the General Assembly probably intended to draw the line at conduct that qualifies as criminal, and then leave it to the prosecutor to decide when such conduct should be prosecuted as child abuse in addition to the crime actually committed.

"However, it is inflicting intentional or wanton injury upon the child that makes the conduct criminal under the child abuse statutes, not the criminality of the conduct per se. The Commonwealth's approach would exclude alcohol abuse, however devastating to the baby in the womb, unless the Commonwealth could prove an act of drunk driving; but it is the mother's alcoholism, not the act of driving that causes the fetal alcohol syndrome. The 'case-by-case' approach suggested by the Commonwealth is so arbitrary that, if the criminal child abuse statutes are construed to support it, the statutes transgress reasonably identifiable limits; they lack fair notice and violate constitutional due process limits against statutory vagueness."

Somebody ought to tell them in South Carolina, where the courts have upheld the prosecution and imprisonment of pregnant women who used drugs.

Medical Treatment or Conspiracy? The Physician's Dilemma in Treating

Medical Treatment or Conspiracy? The Physician's Dilemma in Treating Celebrities Description From 6:30 p.m. to 8:30 p.m. at the Association of the Bar of the City of New York, 42 West 44th Street (between 5th and 6th Aves.). This symposium will cover the criminal and civil liability and ethical dilemmas facing doctors when treating the affluent, influential or famous patient. With a case loosely based upon recent celebrity deaths due to overdose, a panel of medical & legal experts will engage in a town hall type discussion about how and why doctors find themselves in trouble with the law, and what their best defense might be. Moderator: MARGARET MAYO, Gaffin & Mayo, P.C. Speakers: ANNE PRUNTY, Assistant District Attorney, New York County; ROY NEMERSON, Deputy Counsel, New York State Office of Professional Medical Conduct; MICHAEL KELTON, Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP; ALFREDO MENDEZ, Abrams, Fensterman, Fensterman, Eisman, Greenberg, Formato & Einiger, LLP; WILLIAM HUNTER, M.D., Attending Psychiatrist, Woodhull Medical Center of New York City Health and Hospitals Corporation; Russell K. Portenoy, M.D., Chairman, Department of Pain Medicine and Palliative Care, Beth Israel Medical Center, New York; Kenneth Prager, M.D., Professor of Clinical Medicine, Columbia College of Physicians and Surgeons, Director, Clinical Ethics, Chairman, Medical Ethics Committee, New York Presbyterian Hospital, Columbia University Medical Center Sponsored by: Committee on Drugs & the Law, Susan J. Guercio, Chair; Committee on Bioethical Issues, Beverly J. Jones, Chair Please register online here: https://www.nycbar.org/EventsCalendar/register/?event=1398&price=1081
Date: 
Wed, 05/26/2010 - 7:30pm - 9:30pm
Location: 
42 West 44th Street
New York, NY
United States

Prohibition: Drug War is a Failure, Associated Press Reports

In a major, broad-ranging report released Thursday, the Associated Press declared that "After 40 Years, $1 Trillion, US War on Drugs Has Failed to Meet Any of Its Goals." The report notes that after four decades of prohibitionist drug enforcement, "Drug use is rampant and violence is even more brutal and widespread."

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The AP even got drug czar Gil Kerlikowske to agree. "In the grand scheme, it has not been successful," Kerlikowske said. "Forty years later, the concern about drugs and drug problems is, if anything, magnified, intensified."

The AP pointedly notes that despite official acknowledgments that the policy has been a flop, the Obama administration's federal drug budget continues to increase spending on law enforcement and interdiction and that the budget's broad contours are essentially identical to those of the Bush administration.

Here, according to the AP, is where some of that trillion dollars worth of policy disaster went:

  • $20 billion to fight the drug gangs in their home countries. In Colombia, for example, the United States spent more than $6 billion, while coca cultivation increased and trafficking moved to Mexico -- and the violence along with it.
  • $33 billion in marketing "Just Say No"-style messages to America's youth and other prevention programs. High school students report the same rates of illegal drug use as they did in 1970, and the Centers for Disease Control and Prevention says drug overdoses have "risen steadily" since the early 1970s to more than 20,000 last year.
  • $49 billion for law enforcement along America's borders to cut off the flow of illegal drugs. This year, 25 million Americans will snort, swallow, inject and smoke illicit drugs, about 10 million more than in 1970, with the bulk of those drugs imported from Mexico.
  • $121 billion to arrest more than 37 million nonviolent drug offenders, about 10 million of them for possession of marijuana. Studies show that jail time tends to increase drug abuse.
  • $450 billion to lock those people up in federal prisons alone. Last year, half of all federal prisoners in the US were serving sentences for drug offenses. [Editor's Note: This $450 billion dollar figure for federal drug war prisoners appears erroneous on the high side. According to Department of Justice budget figures, funding for the Bureau of Prisons, as well as courthouse security programs, was set at $9 billion for the coming fiscal year.]

The AP notes that, even adjusted for inflation, the federal drug war budget is 31 times what Richard Nixon asked for in his first federal drug budget.

Harvard University economist Jeffrey Miron told the AP that spending money for more police and soldiers only leads to more homicides. "Current policy is not having an effect of reducing drug use," Miron said, "but it's costing the public a fortune."

"President Obama's newly released drug war budget is essentially the same as Bush's, with roughly twice as much money going to the criminal justice system as to treatment and prevention," said Bill Piper, director of national affairs for the nonprofit Drug Policy Alliance. "This despite Obama's statements on the campaign trail that drug use should be treated as a health issue, not a criminal justice issue."

"For the first time ever, the nation has before it an administration that views the drug issue first and foremost through the lens of the public health mandate," said economist and drug policy expert John Carnevale, who served three administrations and four drug czars. "Yet... it appears that this historic policy stride has some problems with its supporting budget."

Of the record $15.5 billion Obama is requesting for the drug war for 2011, about two thirds of it is destined for law enforcement, eradication, and interdiction. About one-third will go for prevention and treatment.

The AP did manage to find one person to stick up for the drug war: former Bush administration drug czar John Walters, who insisted society would be worse if today if not for the drug war. "To say that all the things that have been done in the war on drugs haven't made any difference is ridiculous," Walters said. "It destroys everything we've done. It's saying all the people involved in law enforcement, treatment and prevention have been wasting their time. It's saying all these people's work is misguided."

Uh, yeah, John, that's what it's saying.

Pain Medicine: Kansas Doctor and Wife Go on Trial in "Pill Mill" Case

A Kansas doctor and his wife who operated a pain management clinic in Haysville until their arrest by DEA agents in December 2007 went on trial in federal court in Wichita this week. Federal prosecutors charge that Dr. Stephen Schneider and his wife and nurse, Linda, ran a "pill mill" that illegally distributed pain-relieving drugs to addicted patients, but the Schneiders and their supporters say he is a compassionate doctor who provided high dose prescriptions to patients suffering from chronic pain because that's what they needed.

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PRN billboard defending the Schneiders
The Schneiders are charged under a multi-count indictment with conspiracy to illegally distribute drugs, money laundering, and health care fraud. Prosecutors say 68 of their patients died of drug overdoses and hold them responsible for 21 of those deaths. The Schneiders' attorneys say they were not responsible for any patient deaths.

The Schneiders and their supporters, including the Pain Relief Network, a national pain advocacy group, argue that they ran afoul of an overzealous federal prosecutor, Assistant US Attorney Tanya Treadway, who is improperly prosecuting them for their prescribing decisions. This prosecution, they say, is part of a broader attack on doctors who prescribe high levels of opioid pain medications by the DEA and federal prosecutors.

Treadway has also gone after the Pain Relief Network, first unsuccessfully seeking a gag order to block the group's leader, Siobhan Reynolds, from criticizing the prosecution, and then using an obstruction of justice investigation to demand that Reynolds turn over all documents related to the group's effort in the case. Reynolds initially refused, but relented after a contempt citation and accrued fines of $36,500.

In opening arguments this week in what is expected to be a two-month trial, Assistant US Attorney Treadway portrayed the Schneiders as greedy criminals. "This is a case about money, not medicine," she told jurors. Treadway said prescriptions were dispensed when Schneider was not president (but did not mention that physician assistants employed by the clinic could legally prescribe the drugs). "This caused abuse, overdoses, and deaths," she claimed.

Treadway even used the clinic's architectural style against the Schneiders, comparing its appearance to that of a Mexican restaurant. "And like a Mexican restaurant, people lined up at the door, waiting to get in," the prosecutor said.

But Stephen Schneider's attorney, Lawrence Williamson, likened the government's case the Dan Brown novel, "The Da Vinci Code," calling it "historical fiction." Williamson argued that the Schneiders were taking in Medicaid patients no one else would and billing the government more than any other doctor in the state. "He was costing them too much money," so the government decided to shut him down, the attorney argued.

While Treadway hammered on the 68 deaths among Schneider patients, Williamson pointed out that the practice had cared for more than 10,000 patients and was not aware of the extent of overdoses until federal prosecutors filed criminal charges against them.

Kevin Byers, representing Linda Schneider, who managed the clinic, said the couple were not guilty of the conspiracy charges. "The only thing they conspired in was a marriage," he said. "They ran a business together. That's the only conspiracy."

Stay tuned for more updates on the trial as it progresses.

Feature: The Clock is Ticking on Canadian "Prince of Pot" Marc Emery's Extradition

Canadian "Prince of Pot" Marc Emery's battle to avoid being extradited to the US to serve a five-year federal prison sentence for selling pot seeds over the Internet continues as the clock ticks down toward May 10 -- the date by which Canadian Justice Minister Rob Nicholson is to decide whether to okay his extradition or not. Emery and his supporters are fighting to the bitter end, and they're picking up some significant support along the way.

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Marc and Jodie Emery (courtesy Cannabis Culture)
Last month, members of all three major English speaking political parties, including the ruling Conservatives, handed in 12,000 signatures on petitions to parliament demanding he not be extradited and addressed the House of Commons on the issue. Shortly thereafter, the French speaking Bloc Quebecois announced it, too, was joining the cause of keeping Emery in Canada.

Emery was Canada's best known marijuana legalization advocate and a leading funder of marijuana reform groups there and in other countries when he was arrested in Vancouver on a US warrant for marijuana seed-selling after being indicted by a federal grand jury in Seattle. He faced up to life in prison under the US charges.

Emery, his supporters, and other marijuana reformers have argued that he was arrested for political reasons -- for his support of the legalization cause -- and the gleeful words of then DEA administrator Karen Tandy provided valuable ammunition for the claim. Emery's arrest was "a significant blow not only to the marijuana trafficking trade in the US and Canada, but also to the marijuana legalization movement," Tandy said in a statement the day of the bust.

"His marijuana trade and propagandist marijuana magazine have generated nearly $5 million a year in profits that bolstered his trafficking efforts, but those have gone up in smoke today. Hundreds of thousands of dollars of Emery's illicit profits are known to have been channeled to marijuana legalization groups active in the United States and Canada. Drug legalization lobbyists now have one less pot of money to rely on," Tandy gloated.

For four years, he and his employees and fellow indictees, Michelle Rainey and Greg Williams, negotiated with federal prosecutors, before Rainey and Williams struck plea deals that allowed them to simply remain in Canada. Then, last September, Emery himself agreed to a plea bargain that would see him serve five years in US prison.

Emery was detained in Canada on September 28 and was jailed until mid-November before he was released pending the justice minister's decision on whether to approve his removal to the United States. Since then, the campaign to block his extradition has gone all out. Even in prison, Emery did podcasts -- "potcasts," the magazine calls them -- and since his release, he has been as media-friendly as ever. He has used his Cannabis Culture magazine as a bully pulpit and established a No Extradition! web site to further the cause.

The high point of the campaign so far came on March 12 when three members of parliament, Conservative MP Scott Reid, New Democratic MP Libby Davies, and Liberal MP Ujjal Dosanjh stood before parliament in Ottawa to deliver the petitions. All three told the Commons that extraditing Emery for what is considered a non-serious offense in Canada was unfair.

MP Reid, a Conservative leader in the House, reminded the Commons that the Extradition Act specifies that the justice minister "shall refuse to surrender a person when that surrender could involve unjust or undue or oppressive actions by the country to which he is being extradited."

Reid pointed out that Health Canada used to refer medical marijuana patients to Emery's seed bank. He also noted that Canadian courts had found that $200 fines were appropriate for seed sellers, while Emery faced up to life for the same offense in the US.

"It appears to me that we have assisted a foreign government arresting a man for doing something that we wouldn't arrest him for doing in Canada," said MP Dosanjh. "As a former premier and a former attorney-general, I sense a certain degree of unfairness in the process. Countries don't usually extradite people to countries where they could face inordinate penalties."

"Many dedicated individuals have collected approximately 12,000 petitions reflecting a strong belief that Mr. Emery or any Canadian should not face harsh punishment in the US for selling cannabis seeds on the Internet when it is not worthy of prosecution in Canada," said MP Davies. "The petitioners call on Parliament to make it clear to the Minister of Justice that such an extradition should be opposed. I am very pleased to present this; I think it is a very strong reflection of Canadians' views on this matter and we hope that the Parliament of Canada will act on this, and certainly the Minister of Justice will take this into account."

"My prospects are getting better," said an ever optimistic Emery. "There have been more than 50,000 communications -- phone calls, letters, emails -- to the justice minister, and we have members of all four major political parties, including the governing party, presenting petitions urging the minister not to extradite. We also have the last three mayors of Vancouver agreeing to sign a statement urging the government not to extradite."

Support is palpable in his adopted hometown, Emery said. "I can't go 50 feet in this city without people stopping me on the street," he said from his downtown Vancouver building. "I have lots of support in this province and throughout the country. I enjoy a lot of positive affirmation. For me, this has been excellent -- I've been giving interviews all over the world, and the movie 'Prince of Pot' is being translated into Mongolian! The national TV network there has permission to do two documentaries on pot, and I'm in both of them."

Now, all eyes turn toward Justice Minister Nicholson. A month from now, he will decide whether to extradite Emery or not -- or he may punt. The minister has the option of applying for an extension on his decision.

There is precedent for the minister to seek an extension, said attorney Kirk Tousaw, who has worked on Emery's case. "Renee Boje was committed for extradition, and the decision sat on the desk of three different justice ministers for five years," he pointed out. "Renee was a US citizen who committed offenses in America, so she seemed like a much more reasonable prospect for extradition than Marc, who has never gone to America or committed any crimes there."

In the meantime, the campaign to keep Emery in Canada continues to gather support and argue the position that his was a politically motivated prosecution. "If the minister believes the prosecution to be politically motivated, he is prohibited from extraditing," said attorney Kirk Tousaw, who has worked on Emery's case. "I don't know if he will take that position. The minister may need a lot of time to consider his options."

The calculations may be as much political as legal, Tousaw said. "This is a minority Conservative government that is attempting to pass unpopular mandatory minimum sentences for drug crimes, and there will be an election sometime this year or early next year," he argued. "I think that extraditing Marc Emery will be politically costly to the Conservative Party. I'm not sure they can afford to do it if they want to form a majority government."

"The government does want to extradite me," said Emery, "but the public pressure not to do it is substantial. There is nothing to be gaining by extraditing me, and it will piss off a couple of million voters in the next election."

A month from now, we will know whether the Conservative government is willing to sacrifice the gadfly Emery on the altar of the drug war, or whether it is too concerned about the potential backlash to either reject extradition or postpone the decision.

UPDATE: Philadelphia DA on Philly's "Decrim"

Earlier today, I blogged about Philadelphia embracing a sort of decriminalization of minor marijuana possession based on an article that appeared today in the Philadelphia Inquirer. It appears that article not only caught my attention, but also that of a lot of Philadelphians, who have been calling up the DA's office all day. This afternoon, District Attorney Seth Williams issued the following statement of clarification:
Based upon inquiries to this office it appears that some confusion exists regarding potential changes in charging policy when it comes to minimal amounts of marijuana. "We are not decriminalizing marijuana--any effort like that would be one for the legislature to undertake. The penalty available for these minimal amount offenses remains exactly the same. What we are doing is properly dealing with cases involving minimal amounts of marijuana in the most efficient and cost effective process possible. Those arrested for these offenses will still be restrained, identified and processed by police in police custody. They will still have to answer to the charges, but they will be doing so in a speedier and more efficient process. We want to use valuable court resources in the best way possible and we believe that means giving minor drug offenders the option of getting into diversionary programs, get drug education or enter drug treatment centers. Again we are NOT decriminalizing marijuana, and the penalty for these offenses remains the same."
It looks like DA Williams is trying to have it both ways. The Inquirer story--which Williams doesn't contradict in his statement--says that small-time pot offenders will be sent to a special "quality of life" court and fined. While Williams is correct that it would be that state legislature that woud decriminalize marijuana possession, It is a sort of de facto partial decriminalization, with people arrested, but not processed in the criminal courts or jailed upon conviction. I'll try to have this cleared up by the time we publish the Chronicle story about it on Friday.
Location: 
Philadelphia, PA
United States

Feature: Federal Medical Marijuana Raids in Colorado -- Is the Denver DEA Going Rogue?

Colorado's burgeoning medical marijuana community is up in arms after a series of DEA raids in recent weeks. First, DEA agents hit medical marijuana laboratories in Denver and Colorado Springs that tested for THC levels and contaminants such as mold. Then, late last week, DEA agents raided and arrested Highland Park medical marijuana grower Chris Bartkowicz after he appeared in local media talking about his grow operation.

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Colorado medical marijuana certificate (courtesy cannabisculture.com)
While no charges have been filed against the lab operators, Colorado US Attorney David Gaoutte announced Tuesday that he would prosecute Bartkowicz, who now faces up to 40 years in federal prison for his efforts. The pattern is similar to that seen previously in California, where DEA often raided dispensaries, but federal prosecutors only prosecuted some of those raided.

The DEA actions appear to fly in the face of Obama campaign promises to stop the raids. Those promises were, the medical marijuana community thought, kept when Attorney General Eric Holder issued a Department of Justice memorandum instructing federal officials to lay off medical marijuana in states where it is legal -- unless the provider is violating both state and federal law. That memo went out to all US Attorneys, as well as acting DEA administrator Michele Leonhart, who has since been nominated to be the permanent administrator of the agency.

The October Justice Department memo said the feds should not go after people in "clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." The memo said nothing about "large grows" or testing labs not being included.

Denver DEA Special Agent in Charge (SAC) Jeffrey Sweetin at first sounded as if he had missed the memo. In an interview last Saturday with the Denver Post he threatened to go after the state's rapidly increasing number of medical marijuana dispensaries. "Technically, every dispensary in the state is in blatant violation of federal law," he said. "The time is coming when we go into a dispensary, we find out what their profit is, we seize the building and we arrest everybody. They're violating federal law; they're at risk of arrest and imprisonment."

In an interview with Denver's TV 9 News, Sweetin carried on in the same vein, saying that even though state law allows for medical marijuana, federal law does not. "We will continue to enforce the federal law. That's what we are paid to do," he said.

Sweetin said the Justice Department guidelines give him discretion. "Discretion is: I can't send my DEA agents out on 10-plant grows. I'm not interested in that, it's not what we do. We work criminal organizations that are enterprises generating funds by distributing illegal substances," Sweetin said.

By Tuesday, though, Sweetin was singing a slightly different tune in an interview with Westword. "We are not declaring war on dispensaries," he said -- though he added with a laugh, "If we were declaring war on dispensaries, they would not be hard to find. You can't swing a dead cat around here without hitting thirty of them."

Sweetin also took a pot shot at Denver medical marijuana attorney Robert Corry, who filed a complaint with the Department of Justice inspector general's office alleging waste, fraud, abuse, and misconduct against the department and the DEA. The complaint asks the inspector general to sanction Sweetin and the other agents involved.

People like Corry and others critical of the raids are doing people a disservice, Sweetin said. "I think the people who claim to represent marijuana growers in this state are trying to create this fear, and I think that's sad," he said without a trace of irony.

The question facing Colorado's medical marijuana community is whether Sweetin has gone off the reservation or whether the raids represent a shift in the Obama administration's approach to medical marijuana in the states where it is legal.

"It's hard to say whether it's a rogue law enforcement effort limited to Colorado or whether we have something to worry about in regards to not keeping the promise made by the Justice Department memo last October," said Kris Hermes, spokesman for the medical marijuana advocacy group Americans for Safe Access. "It's worth noting that two days before the first lab raid that President Obama nominated Michele Leonhart to head DEA. She's already acting administrator, a holdover from the Bush administration, but it was alarming to activists and advocates to find out we were going to get more of the same. She was the deputy administrator under Karen Tandy when the DEA carried out more than 200 aggressive raids against the people of California," he said.

"It seems like a rogue office," said Brian Vicente, leader of the marijuana law reform group Sensible Colorado. "Sweetin is saying marijuana is not a medicine as if he were a doctor, and the US Attorney is following his lead to prosecute the providers. This is very concerning. Sweetin has long been an absolute enemy of marijuana, and now, an enemy of Colorado voters, who voted for medical marijuana."

"Hopefully, this is just an instance of rogue law enforcement, and Obama and Holder will rein it in, but we're not waiting to find out," Hermes said. "We are right now preparing an alert to members to write to the administration expressing their frustration with the DEA's apparent failure to comply with Justice Department policy."

Vicente and dozens of other Sensible Colorado members and medical marijuana patients spent part of Thursday protesting the raids in front of the building where President Obama happened to be making an appearance. "There were probably 75 of us protesting and handing out literature aimed at alerting Obama to these rogue actions and calling on him to tell these agents to quit going after our patients and providers," he said. "We handed out flyers to everyone in the 1,000-person line waiting to get into the event, and we got considerable press coverage."

The Colorado medical marijuana movement is also gearing up against the looming threat, said Vicente. "We're working with a number of local and national groups to establish a firm emergency response plan like they did in California," he said. "We're somewhat fearful that Colorado may become a new DEA focus, and we want to be an organized presence."

As for grower Bartkowicz, who now faces federal drug dealing charges, his case should be dealt with in the state courts, not the federal courts, said Vicente. "We're not sure if he was or wasn't in compliance with state law, but we think the only place where that question could be fairly litigated is state court. The federal courts don't even recognize medical marijuana and are thus unequipped to determine if someone is in compliance with state law. We are asking them to drop the federal charges and let the state courts sort it out."

"I've seen no evidence of a violation of state law," said Hermes. "If there is no violation of state law, defense attorneys should be able to go to federal court and point to the memo and say the Justice Department should comply. The spirit of the policy is to stay out of enforcement when people are complying with state law. By that token, no federal charges should have been filed."

The war over medical marijuana is far from over. But now, it looks like the new battlefield could be Colorado.

Congress: Bill to Do Top-to-Bottom Review of Criminal Justice System, Drug War Passes Senate Judiciary Committee

The Senate Judiciary Committee Thursday approved Sen. Jim Webb's (D-VA) National Criminal Justice Commission Act of 2009 on a unanimous voice vote Thursday. The bill would create a commission to conduct a top-to-bottom evaluation of the country's criminal justice system and offer recommendations for reform at every level.

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Jim Webb at 2007 incarceration hearing (photo from sentencingproject.org)
Webb has been a harsh critic of national drug policies, and has led at least two hearings on the costs associated with current policies. The bill could create an opportunity to shine a harsh light on the negative consequences of the current policies.

An amendment offered by Sen. Arlen Specter (D-PA) and accepted by the committee stripped out the original bill's lengthy list of negative drug policy "findings" and replaced them with blander language, but left the bill's purpose intact.

Passage out of committee was applauded by sentencing reform advocates. "Families Against Mandatory Minimums (FAMM) commends the Senate Judiciary Committee for recognizing that the American criminal justice system needs an overhaul," said Jennifer Seltzer Stitt, FAMM federal legislative affairs director. "Any comprehensive reform of our criminal justice system must include eliminating mandatory minimum laws. One-size-fits-all mandatory drug sentencing laws enacted in the 1980s are responsible for filling prisons with low-level, nonviolent drug offenders, wasting millions in taxpayer dollars, and destroying public trust in the criminal justice system. The National Criminal Justice Commission can help right these wrongs by recommending mandatory sentencing reform."

The bill's prospects are uncertain. It faces a crowded calendar in the Senate and has made little progress in the House.

Feature: With Passage of Medical Marijuana Bill Pending, New Jersey Patient Faces 20 Years for Growing His Medicine

Update: Wilson was convicted of some charges Thursday, but not the most serious one.

Just weeks before the New Jersey Assembly votes on pending medical marijuana legislation, a trial is set to take place that demonstrates precisely why such a law is needed. A sick Somerset County resident, John Ray Wilson, is looking at up to 20 years in prison for growing his own medicine.

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courthouse demo supporting John Ray Wilson, 2009
In the summer of 2008, Wilson, a Multiple Sclerosis (MS) sufferer, was broke, had no health insurance, and was desperate for relief from the debilitating symptoms of his disease. Unable to afford pharmaceutical medications and having already resorted to alternative healing practices, when Wilson saw fellow MS victim Montel Williams talk on TV about how medical marijuana had helped him, he decided to try it for himself.

Wilson had even resorted to bee-sting therapy in a bid to relieve his symptoms, but it was marijuana that worked best, he said. "I was diagnosed with MS in 2002," he said. "I suffer from blurred vision, pain in my joints, and muscle spasms. I didn't have any medical benefits, so I tried to get some financial assistance to actually get some MS medicine, but that didn't succeed. I even tried getting stung by bees. Then I saw Montel Williams on TV saying he had MS and smoked marijuana and it helped. So I tried it, too, and it definitely helped, especially in relieving the pain and the muscle spasms."

Lacking access to medical marijuana, Wilson decided to try his hand at growing his own in the backyard of his Franklin Township home, and that's when his life took a real turn for the worse. A National Guard helicopter on a training flight spotted Wilson's garden and reported him to state authorities, who promptly seized his 17 plants, arrested him, and charged him with a number of drug possession and drug manufacturing offenses that could get him 20 years in prison. If convicted on the most serious charge -- maintaining a drug production facility -- Wilson would be ineligible for pre-trial diversion and would have to go to prison.

Wilson and his attorney explored plea bargain negotiations with prosecutors, to no avail. "We were prepared to settle for a reasonable deal, but the best they offered was five years in prison," he said.

Now, Wilson is going on trial. Jury selection is set to begin Monday.

It will be tough for Wilson to prevail. In October, Superior Court Judge Robert Reed ruled that his medical condition, and the fact that he had been taking marijuana to treat his condition, could not be revealed to the jury during the course of the trial.

"By striking my medical history from the trial, they've pretty much tied my hands behind my back," said Wilson. "Hopefully, we can get a jury that can see through what they're doing to me, but it's more than a little scary. The consequences of what they're doing would be horrendous for me. My health would definitely deteriorate in prison. Stress makes all the symptoms worse, and going to prison would definitely be stressful."

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Wilson with Jim Miller and Ken Wolski
"Wilson tried marijuana and found it does in fact help," said Ken Wolski, head of the Coalition for Medical Marijuana-New Jersey, which has lobbied hard to pass a medical marijuana bill in the Garden State to protect patients. "Interestingly enough, a National MS Society expert opinion paper recently acknowledged that conventional therapies don't adequately control MS symptoms and marijuana does. But he will not be able to tell the jury he has MS, and that's the only reason he was using marijuana in the first place," said Wolski. "He's got no job, no health insurance, no access to medicine that might bring him some relief. He tries to eke out a living on eBay."

"This is exactly why New Jersey needs a medical marijuana law," said Roseanne Scotti, head of the Drug Policy Alliance New Jersey office, who has been walking the statehouse corridors in Trenton for years trying to get medical marijuana passed. "John Ray Wilson's case is every medical marijuana patient's worst nightmare," she added.

"He was using for medical purposes, but is precluded by the courts from introducing evidence as to why, and the court is correct -- this is the law in New Jersey," Scotti continued. "But that's exactly why we need to change the law -- so people like Mr. Wilson can get safe and legal access to medical marijuana, and we don't go around arresting and prosecuting someone patients seeking some relief."

"John Ray Wilson is a poster child for the legalization of medical marijuana," said Wolski. "So many people are outraged that he is facing 20 years for trying to treat himself and will not even be able to tell the truth during the course of his trial."

In a cruel twist of fate, Wilson is being prosecuted just weeks before New Jersey is likely to adopt a medical marijuana law. The state Senate has already passed it, and the Assembly will vote on it early next month. Outgoing Gov. Jon Corzine (D) has indicated he will sign it. Two of the bill's sponsors, Sens. Nicholas Scutari (D-Union) and Raymond Lesniak (D-Union), have highlighted Wilson's plight as indicative of why New Jersey needs a medical marijuana law.

"It seems cruel and unusual to treat New Jersey's sick and dying as if they were drug cartel kingpins. Moreover, it is a complete waste of taxpayer money having to house and treat an MS patient in a jail at the public's expense," said Scutari. "Specifically, in the case of John Ray Wilson, the state is taking a fiscally irresponsible hard-line approach against a man who's simply seeking what little relief could be found from the debilitating effects of multiple sclerosis. Governor Corzine should step in immediately and end this perversion of criminal drug statutes in the Garden State."

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But Corzine hasn't stepped in or stepped up. Instead, his office said it would wait until Wilson was convicted to consider a pardon.

"The attorney general and the governor didn't want to take any action, but they could make this case go away by exercising prosecutorial discretion," said Wolski. "They chose to let it move forward, and now its getting a lot of regional and national attention, and rightfully so, because it shocks the conscience of the community."

"The only way we're going see fewer of these cases come before the court is if the 'New Jersey Compassionate Use Medical Marijuana Act' becomes the law of the land," said Lesniak. "This has been an issue that has taken years to resolve in New Jersey, and legislative approval and enactment into law are long past overdue. It's time that the Assembly posts this bill for a vote, so we can focus our attention on putting real criminals behind bars, and not piling on the suffering for terminal patients simply seeking a little relief from the symptoms of their diseases."

But while an Assembly vote is now set for next month, John Ray Wilson's trial will be over by then. Barring a miracle of jury nullification, Wilson will be drug felon. And in the meantime, he's going without his medicine. "I'm not going to buy marijuana on the street," he said. "That would get me thrown back in jail."

Prosecution: No More Crack Pipe Felonies for Houston

Beginning January 1, prosecutors in Harris County, Texas, will no longer file felony drug charges against people found with less than one one-hundredth of a gram of illegal drugs. Currently in Houston, people caught with trace amounts of drug or holding crack pipes with drug traces are routinely charged with felonies.

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crack pipe
But under a new policy promulgated by Harris County District Attorney Pat Lykos, police are instructed to instead issue Class C misdemeanor tickets to people caught in possession of crack pipes or trace amounts of drugs. That means arrestees will face only a $500 fine, not the up to two years in state jail mandated by the felony charge.

The cops are not happy. "It ties the hands of the officers who are making crack pipe cases against burglars and thieves," said Gary Blankinship, president of the Houston Police Officers' Union. "A crack pipe is not used for anything but smoking crack by a crack head. Crack heads, by and large, are also thieves and burglars. They're out there committing crimes," he told the Houston Chronicle.

But Lykos told the Chronicle there were good reasons to change the policy. Less than one-hundredth of a gram of a drug is not enough for more than one drug test, and defense attorneys often want to run their own tests, she said.

The policy change also "gives us more of an ability to focus on the violent offenses and the complex offenses," she added. "When you have finite resources, you have to make decisions, and this decision is a plus all around."

Last year, Harris County prosecutors filed 46,000 felony cases, with 13,713, or nearly 30%, for possession of less than a gram of controlled substances. It is difficult to say how many of those would not have been charged as felonies under the new policy because most were charged only as possession of less than a gram.

While police are grumbling, defense attorneys are beaming. "It's a smart move and it's an efficient move and it lets us get down to the business of handling criminal cases of a more serious magnitude," Nicole Deborde, president-elect of the Harris County Criminal Lawyers Association, told the Chronicle.

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