Quick Hits (page 3)
Medical Marijuana use Could be used as Defense, Federal Judge Rules
By: Laura Wides (AP)
LOS ANGELES -- A federal judge has ruled that evidence of medical marijuana use could be considered by a jury as a defense in a criminal drug trial.
The decision by U.S. District Court Judge Nora M. Manella comes in the wake of a December ruling by the 9th U.S. Circuit Court of Appeals that a congressional act outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.
The case of Anna Barrett, 32, and her husband Gary, 35, of Los Angeles, who were charged with manufacturing and conspiring to manufacture marijuana marks the first time that the 9th Circuit ruling, which was made in a civil case, was argued before a judge in a criminal trial.
The judge set the trial date for August 31. The couple must return to court July 19 to outline the grounds for their defense.
"I'm still overwhelmed," Anna Barrett, said after the hearing. "I'm really grateful to Judge Manella that she's even allowing us to show our case."
Defense lawyers wanted the charges dismissed based on the appellate court's ruling, but Manella ruled that the government had enough evidence the couple may have been growing their marijuana for a "commercial operation," allowing the case to go to trial.
But she warned Assistant U.S. Attorney Thomas Loeser that if the government can't show the couple was growing the marijuana with the intent to distribute it, it will likely have a weak case.
"If a jury believes they were growing marijuana solely for themselves and not for distribution, why would they not be entitled to an acquittal?" she asked.
Attorney Daniel Halpern said he was pleased with the judge's decision.
"What came out was a good thing in the big picture," Halpern said.
Steph Sherer, head of the nonprofit medical marijuana advocacy group, Americans for Safe Access, who uses medical marijuana, said she was buoyed by the decision.
"Before now people like me would have to either go to trial and basically offer no defense, because we couldn't mention medical marijuana, or plead and depend on the judge's discretion in sentencing," Sherer said.
The Barretts pleaded guilty in 2000 to growing marijuana and were allowed to grow 34 adult-flowering plants and keep up to 7.1 pounds of marijuana under a plea agreement. Both had doctors' recommendations, but federal agents found hundreds of dormant clones of the plants during a May 13, 2003 raid. They also discovered the couple were running a Web site with information on medical marijuana and charging people $100 to become members.
The two are also wanted in Oregon on marijuana charges.
U.S. Deputy Public Defender Angel Navarro said the couple were afraid to return to Oregon before the federal trial because a state conviction could add years to any potential sentence.
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Growin' Our Own (page 3)
The Oregon Medical Marijuana Act: 5 Year Report Card
By: Rick Bayer, MD
Cannabis or marijuana has been an important and effective herbal medical therapy for thousands of years.
In our life and times, we now call it medical marijuana (mmj), and federal prohibition laws make it very dangerous to prescribe, produce or use. But this is slowly changing.
State medical marijuana laws granting limited access to the herb and safety from police interference now cover about 20% of all Americans. The first state to remove criminal penalties within limits for mmj use was California in 1996. Oregon voters passed the Oregon Medical Marijuana Act (OMMA) in 1998.
The Oregon Medical Marijuana Program (OMMP), a part of the Oregon Department of Human Services (DHS), was created to administer the OMMA. If a patient has a debilitating condition, as defined in the OMMA, that patient applies by having his/her physician certify the qualifying condition and that mmj "might help".
Debilitating conditions include cancer, glaucoma, HIV infection, or symptoms of wasting (cachexia), severe pain, severe nausea, seizures, or persistent muscle spasms, including but not limited to spasms caused by multiple sclerosis. OMMP issues a one-year permit to qualified applicants who pay the permit fee. Registered patients and caregivers then enjoy limited exceptions from certain areas of Oregon criminal law or are "decriminalized" within limits if there is a valid permit.
Successes of the OMMA are numerous.
At the end of 2003, there were over 10,000 patient and caregiver cardholders registered with the OMMP. Applications continue to rise as more Oregonians learn about the OMMA. Over 1200 Oregon physicians participate in the OMMP--an encouraging number, but more would be better, given the need. There are many who suffer from debilitating conditions who cannot find a doctor to help them because they live in areas where no physician participates in the OMMP.
It is gratifying to realize how the OMMA has helped many suffering Oregonians. Because of confidentiality concerns or costs, not all mmj patients register with OMMP, so the actual numbers of mmj patients are higher than records show. The estimated revenue per biennium to the OMMP from patient permit fees tops $1 million now. This pays for the administration of OMMP, which has never cost taxpayers a dime. Recently, OMMP announced fee reductions.
The most commonly reported debilitating condition reported in applications to the OMMP is severe pain. (It must be noted here that in 1997, the American Society of Addiction Medicine affirmed that physicians are obligated to relieve pain and suffering of their patients, including those with concurrent addictive disorders.) Yet of the approximately 9000 MD/DOs who engage in active clinical practice in Oregon, only a fraction of them routinely serve patients with terminal and chronic illness and, as noted above, only 1200 participate in OMMA. Only a minority routinely prescribes opioids and other scheduled drugs for chronic pain.
In spite of glowing data at the 5-year mark, the OMMA still faces opposition, particularly from law enforcement and politicians. Some of the most entrenched opposition comes from the administrators of OMMP itself. While OMMP management has consistently failed to issue permits within 30 days (as required by law), they always seem to have time to work for changes in the OMMA that would decrease patient access to pain and symptom management. OMMP also is attempting to become more involved in the practice of medicine while seeking to increase the reporting burden on physicians without proof of improving public health.
Finally, spending patients' money without adequate benefit to patients is a recurring irritation.
In the 2003 Oregon Legislative Session, Law Enforcement (LE) and DHS collaborated to pass House Bill 2939 in the Republican-controlled House but fortunately it was stopped in the split Senate. It would have permanently denied an OMMP permit to anyone with a drug crime.
This sort of legislative gambit seeking to overturn the will of the people is unethical.
As affirmed by the American Society of Addiction Medicine (noted above), sick persons should never be prohibited from receiving adequate pain and symptom control. People caught with illegal quantities of prescription drugs (e.g. Rush Limbaugh) are still legally eligible to receive pain control in their future, so why the discrimination? There is never a valid reason to revoke, suspend, or deny an OMMP permit to a patient, regardless of record, when his/her physician says it might help.
There are other challenges rising.
For instance, even though the OMMA was written so each patient can have his/her own garden of 3 mature and 4 immature plants, LE seeks change so there would be no more than one garden per address.
This would mean spouses and roommates could not each be patients and grow a garden together.
Naturally, patient advocates oppose these efforts by LE and DHS. Recently, Democratic Senator Bill Morrisette asked DHS to chair a legislative advisory committee to see if there is consensus among proponents and opponents about the OMMA that can be presented to the 2005 Oregon legislative session.
An Oregon poll showed over 76% of Oregonians support "seriously ill patients to use and grow their own medical marijuana with the approval of their physician". A new mmj ballot initiative, the OMMA2 is collecting signatures www.voterpower.org/news/init_toc.html for the 2004 ballot.
Ten states: Oregon, Washington, California, Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, and Maryland now have medical marijuana legislation. The conflict between state and federal laws has spawned a series of court fights and federal bills concerning questions of states' rights, medical necessity, and drug policy enforcement. A federal bill to cut funding to federal drug enforcement authorities for raiding facilities where marijuana is grown or distributed for purported medical use was defeated partly because of the anti-mmj stance of local prohibitionist and Democratic Congressman David Wu, of Oregon. He was quoted in the Los Angeles Times as saying the "use of marijuana is medically unnecessary and prone to abuse." Of course, Wu has no medical credibility, but remains an obstacle to adequate pain management among sick and dying Oregonians.
Outside of federal raids orchestrated by the Bush/Ashcroft administration and legislative failures described above, recent court rulings have been more favorable to mmj. The US 9th Circuit Court of Appeals held that the federal Controlled Substances Act (CSA) doesn't necessarily dominate state laws. This means the state mmj laws in the 9th Circuit (including Oregon) are federally valid for the moment, but that ruling may be appealed to the US Supreme court.
The US Supreme Court decided not to hear appeals of a 9th Circuit ruling that rejected the US Justice Department's claim the CSA empowered the feds to revoke the narcotics prescribing licenses of doctors who recommended marijuana.
This preserves freedom of speech for doctors and patients--for now.
Things have progressed since a small group of us wrote the OMMA and pursued the political campaign that resulted in the November 1998 victory.
Over the last 5 years, many patients have benefited from the OMMA. Oregon taxpayers have saved money through less marijuana prosecutions and because of a completely patient-funded OMMP. Most importantly, we are a little closer to a world where pain and symptom management of chronic and terminally ill persons can make progress without the heartless bludgeon of reefer-madness era prohibition.
[Ed. Note: Rick Bayer, MD is board-certified in internal medicine, a fellow in the American College of Physicians, and practiced in Lake Oswego for many years. Co-author of Is Marijuana the Right Medicine For You? A Factual Guide to Medical Uses of Marijuana, he was a chief petitioner for the Oregon Medical Marijuana Act in 1998, and manages www.omma1998.org that includes a medical cannabis/marijuana bibliography.]
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Pipeline (page 3)
S.F. May Help Establish Pot Cooperatives Marijuana Would be for the Sick
By: Lee Romney and Eric Bailey (Times staff writers)
SAN FRANCISCO - Buoyed by a recent federal court decision and changes in state law, this seaside sanctuary for the medical marijuana movement might soon try to help establish nonprofit cooperatives to grow pot for the ill.
"It's looking better and better," said San Francisco Supervisor Tom Ammiano.
"We've always had the inclination for the public policy and a lot of cooperation from the police, the Department of Public Health, the city attorney and district attorneys. The public sentiment is there. I think San Francisco is in a pivotal position to push this forward. It's up to us elected officials to find a way."
But a push by city leaders to back medical cannabis dispensaries might prompt swift retaliation by the federal government, a city staff report warned.
Ammiano said, however, that the city believed it had found "the most benign way, with minimum liability and preemption of the federal government."
Backers of medical marijuana welcomed the report, which comes more than a year after voters in the city overwhelmingly approved a ballot measure that directed city officials to explore establishing a program to grow and distribute cannabis to the sick.
Although city officials stop far short of recommending that San Francisco get into the marijuana cultivation business, cannabis activists say it is a solid first step.
"San Francisco has a long-standing commitment to medical marijuana," said Marsha Rosenbaum of the Drug Policy Alliance. "It is now up to the city government to work closely with patients and caregivers to put this plan into practice."
The report by the city's Office of Legislative Analysis spells out several possible ways for San Francisco to get involved in growing medical marijuana - as well as potential pitfalls.
City help could range from amending the planning code to providing grant funds for the purchase of land or equipment used by a cooperative. The benefit of city involvement, the report said, would be to reduce the risk and cost of providing medical marijuana to chronically and terminally ill patients in the city, which for years has had one of the largest concentrations of AIDS patients in the nation.
But steps to help establish dispensaries, the report warned, could pose risks on several fronts.
City endorsement and funding of cannabis cooperatives could increase liability problems. The city might be liable, for instance, for an accident caused by a driver intoxicated on marijuana provided by a city-sanctioned cooperative.
The city could face an even greater legal risk in terms of the federal government's possible reaction. The U.S. maintains a strict prohibition on the use of marijuana by the general public, and might challenge an effort by San Francisco to help with medical marijuana cultivation. Even if the U.S. failed to deter the city in the courts, politics could come into play if the Bush administration moved to pull grants earmarked for San Francisco, the analysis said.
An official with the U.S. Drug Enforcement Administration's San Francisco office said the city could become a target.
"Federal law doesn't make any distinction about marijuana," said Richard Meyer of the agency.
"No individual or institution is above the law. They would be in violation of the law, and it would be within our right to proceed as with any other investigation."
For more than a decade, San Francisco has been a hot spot for the medical marijuana movement.
More than 7,000 medical cannabis ID cards have been issued by the city health department, and 14 medical marijuana buyers clubs operate within its borders. Buyers clubs, unlike cooperatives, do not grow their own supply and therefore have less protection under state and federal law, the city report said.
The city is looking to model its approach on a medicinal marijuana cooperative in Santa Cruz that challenged federal prohibitions on constitutional grounds after a September 2002 raid by drug agents shut down its growing operation.
Unlike pot-buyer clubs that sell marijuana to patients, the Wo/Men's Alliance for Medical Marijuana is a collective of 250 patients who grow and distribute cannabis with no money exchanging hands. The alliance argues that it is free of all vestiges of interstate commerce and thus immune from federal drug laws, which are based on the constitutional provisions of the commerce clause.
Under a federal court decision in December, collectives such as the alliance enjoy more protection from legal action by the U.S. government, officials in San Francisco believe.
State legislation signed into law last year also would help, city officials said. The law clarified that a single caregiver can serve more than one patient - allowing a collective to have a few gardeners who tend and distribute crops to a number of patients - and allowed for the creation of nonprofit cooperatives.
The statute also provides that marijuana may not be cultivated or distributed for profit, although a primary caregiver may get compensation for expenses.
Meanwhile, across the bay in Oakland, the City Council angered medical marijuana activists last week by approving limits on the city's swirling collection of medical marijuana vendors.
The City Council voted to issue business licenses to four nonprofit providers, forcing eight others to close in a medicinal pot zone known locally as "Oaksterdam."
The new regulations, which take effect in June, also forbid patients to smoke pot or consume pot brownies at the nonprofit clubs where they buy the drugs and limit possession per patient to 8 ounces of dry marijuana, six mature plants and a dozen immature plants.
The city had received complaints from a few businesses and nonprofits operating in the district because some patients allegedly were smoking pot outside. But other business owners said the pot clubs had increased foot traffic and commerce in the neighborhood.
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