Quick Hits (page 3)
Court Okays Growing Pot
By: Maria Alicia Gaura (SF Chronicle)
A Santa Cruz medical marijuana collective shut down by federal agents two years ago can grow and distribute marijuana for its patients while its civil lawsuit against the federal government is decided by the courts, a federal judge has ruled.
The ruling by U.S. District Judge Jeremy Fogel in San Jose marks the first time a court has granted a medical marijuana organization the right to grow the federally outlawed herb without interference from federal drug agents.
The ruling clears the way for the Wo/Men's Alliance for Medical Marijuana in Santa Cruz to challenge the federal government's authority to raid medical marijuana gardens operating within the boundaries of California law.
"This is an incredible victory for us, though we do realize that everything is temporary," said Valerie Corral, the founder and director of the collective. "We are so pleased to be able to begin our garden again."
Federal Drug Enforcement Administration agents raided the collective's marijuana farm on Sept. 5, 2002, seizing 167 plants and detaining several of the group's members.
At the time of the raid, the collective had been operating openly for several years with the explicit support of Santa Cruz city and county officials, including local law enforcement. The group's approximately 250 members, suffering from a variety of serious illnesses, collectively grew marijuana and distributed it to members free of charge.
The federal raid was denounced by Santa Cruz officials, who responded by allowing the group to distribute marijuana from the steps of City Hall -- as an unmarked helicopter repeatedly circled overhead.
Even Attorney General Bill Lockyer protested the raid, firing off a letter to U.S. Attorney General John Ashcroft in which he called the DEA's actions in Santa Cruz a "provocative and intrusive incident of harassment."
The collective's first foray into court was a civil suit demanding the return of items seized in the raid, but it was dismissed by Judge Fogel in December 2002. The case has since been appealed.
In April 2002, the collective and Santa Cruz city and county officials filed suit again, challenging the federal government's authority to interfere with medical marijuana activities that are legal under California law.
Federal authorities claim authority to pre-empt state law under provisions of the Commerce Clause of the U.S. Constitution, arguing that marijuana use of any kind constitutes interstate commerce.
But a December 2003 decision by the Ninth Circuit Court of Appeals in San Francisco in a separate medical marijuana case was cited by Judge Fogel as critical in leading to his decision.
In that ruling, the Ninth Circuit found that medical marijuana grown and used by Angel Raich, an Oakland woman suffering from a brain tumor, does not constitute interstate commerce. The appeals court ruled that Raich could use marijuana free from federal prosecution.
The collective will be allowed to grow marijuana at least until the balance of its case challenging the applicability of the commerce clause is decided in Fogel's courtroom.
Fogel dismissed four additional claims against the federal government, narrowing the case to the single issue.
The Justice Department appealed the Raich case to the U.S. Supreme Court.
Fogel's decision was hailed as a victory for patients' rights and states' rights by the collective's jubilant legal team.
"This is wonderful news for the patients who have really endured a good deal of suffering since the raid," said collective attorney and Santa Clara University law Professor Gerald Uelmen. "Since the raid we have lost more than 20 patients, and there is no question but that their deaths were more painful than they needed to be.
"The Raich decision was really the breakthrough, but this (decision) takes it a step further," Uelmen said. "It says there is no difference between a single patient growing their own medicine and a collective group assisting each other to achieve exactly the same purpose."
Officials from the Justice Department and the DEA declined to comment on the decision.
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Mary Jane'z Novelties
Growin' Our Own (page 3)
Medical Marijuana Caught in Legal Haze
Users in Chowchilla and Clovis sue authorities over handling of cases.
By: Marc Benjamin and Charles McCarthy (The Fresno Bee)
Three Valley medical marijuana users say law enforcement and the judicial system function backward for them, that they are guilty until proven innocent.
A Chowchilla man and a Clovis couple, each eventually cleared of marijuana charges, showed medical certification when they were arrested. They still went to jail and had to prove their innocence in court.
The medical marijuana patients want authorities held responsible for keeping them from their medication. And they point to a state law that says they should be left alone. But law enforcement officials say they are bound by local and federal guidelines which require that they pursue marijuana users.
It's a tug of war that both sides refuse to back down from.
"It's repugnant to the foundation of our entire system," said William McPike of Auberry, who defended both recent Valley cases. "These people are innocent, so how can you lose defending innocent people?"
Michael Celli, 42, of Chowchilla has a hearing May 21 to determine if Madera County District Attorney Ernest LiCalsi and John Robinson, former Chowchilla police chief, will face contempt of court sanctions -- fines or jail -- for not returning a pound of medical marijuana seized as evidence last year.
Possession charges filed against Celli were dismissed by LiCalsi's office 10 months ago. A Madera judge then ordered the return of Celli's marijuana, but when Celli showed up last July at the Chowchilla Police Department, Robinson refused to hand it over.
Following a phone conversation with LiCalsi, Robinson told Celli that federal law prevented the drug's return and that federal Drug Enforcement Administration officials may take charge of the marijuana, McPike said.
In court papers, McPike calls Robinson and LiCalsi's decision "a warped scheme to challenge this court's jurisdiction." The marijuana still sits in a Chowchilla police evidence locker.
Chowchilla police can keep the marijuana now, McPike said, because it has been sitting so long that it has questionable medicinal value. But, he said, Celli should be paid $4,800 for the marijuana and $5 per day for the loss of its use since July.
McPike also asks "appropriate criminal penalties and sanctions" and $4,050 in lawyer's fees.
In his response papers, LiCalsi denies "each and every allegation." At no time did his office have possession of the disputed substance, he said.
The battle started when Chowchilla officers issuing a parking citation reported finding about 6 grams of marijuana, or one-fifth of an ounce.
Celli told officers he had medical marijuana authorization issued by a cannabis cooperative. He also advised officers they could find more in the car; they discovered an additional 15.5 ounces.
Chowchilla's city-contracted lawyer, Neal Costanzo, said returning the marijuana might be a crime under federal law.
"The DEA knows about this stuff, and they're monitoring the situation very carefully," Costanzo said.
In November 1996, California voters approved Proposition 215, which allowed medical marijuana use. The measure was supported by the U.S. Supreme Court, but justices did not change the way federal law enforcement treats marijuana use, even when it meets medical use guidelines.
Chris Warner, acting agent in charge of the Fresno DEA office, said he couldn't comment about investigations. He reiterated that federal law does not allow for medicinal use of marijuana and that state courts have no jurisdiction over federal agents.
"Small amounts of marijuana are not exactly high on our radar screen," Warner said. " If there's marijuana in front of us, obviously, we're going to seize it."
In the Clovis case, Gary Ainsworth, 43, and his wife, Paula, 46, were growing marijuana in the back yard of their home. When local teenagers saw it creeping over a wall, they tried several times to climb into the yard to take some. Gary Ainsworth said he did not believe any of the drug was taken because his dogs were threatening.
The couple uses the drug for pain relief. She has chronic back pain that Vicodin, which makes her ill, can't relieve; he has diverticulitis and has undergone three stomach surgeries.
"You don't have any side effects from marijuana," he said.
The Ainsworths called Clovis police repeatedly for assistance when the teens began climbing the wall. When officers arrived, they suggested the Ainsworths conceal the plants or cut them back.
"They were growing marijuana in the back yard that was visible, and kids were hopping the fence," said Janet Stoll-Lee, a Clovis police spokeswoman. "They were asked several times to cut it back or conceal it. It was a nuisance, and, for all intents and purposes, they were inviting the kids."
In September, the Ainsworths were arrested for cultivating marijuana. The Ainsworths' certification did not prevent their arrests, a jail stay, bail and attorney costs.
The following week, after investigators obtained a search warrant, they removed seven 5-foot-tall plants and packaged marijuana.
They also charged the couple with an additional felony: cultivation in the commission of a felony because they had a shotgun.
Stoll-Lee said Fresno County has a "zero tolerance" policy for marijuana, even for medical uses.
Fresno County sheriff's Lt. Rick Hill, who commands the Fresno County sheriff's narcotics enforcement team, said medical marijuana use is a defense in court but does not prevent arrest.
"Until we can establish these are legitimate medicinal marijuana users," Hill said, "it doesn't keep them from going to jail. It's just a defense."
As more medical users begin to emerge, Hill said, the county may look at other avenues for prosecution, perhaps moving the cases into federal court.
"We don't want to have people coming into the Sheriff's Department and have us hand them over marijuana," he said. "We are abiding by court orders. If a judge orders us to release it, we will, reluctantly."
But he said a policy outlined in the state health and safety code may give law enforcement greater latitude to deal with those using medical marijuana.
The code has to be adopted on a county-by-county basis and requires users to present a photo identification card. The county would have a 24-hour, toll-free phone number to check the card's validity and a date of expiration.
"If they set up this program, they would show us this card ... then we may have to back off," Hill said. "Everybody wants to be compassionate for the people who really need it."
In March, the Ainsworths were exonerated of all charges and their case was dismissed.
Fresno County Superior Court Judge Alan Simpson ordered their marijuana returned, saying the Ainsworths are "qualified patients ... entitled to legally possess and cultivate medical marijuana for their purposes."
All property taken from the Ainsworths -- including their shotgun and now-withered plants that were in storage for more than seven months -- was returned last week.
"We have been scraping and struggling, and we have had to do without a lot," Gary Ainsworth said.
Lawyer McPike, who also has filed a civil claim against the city of Clovis, said the Ainsworths' situation is "a clear case where the war on drugs is more harmful than the legally prescribed medication."
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Pipeline (page 3)
$31,000 a Year to Lock up a Drug Abuser
By: R. Konrad Moore
Most public spending decisions involve some measure of oversight. The criminal justice system is an exception. The cost of incarcerating one person in prison for a single year in California is nearly $31,000. Yet, in sentencing offenders to prison, judges are not expected to - indeed, they are not statutorily permitted to - consider cost.
Why should this be? After all, politicians are routinely grilled on how they intend to pay for proposals to expand healthcare, education or other social programs. In most spheres of government, it is understood that benefits have to be weighed against costs. But when it comes to criminal justice, safety and peace of mind are precious commodities, and the assumption is that they justify the expenditure not just of substantial sums but of whatever it takes.
The result is the $5.7-billion-a-year Department of Corrections, the largest state agency in California.
Granted, murderers, rapists and child molesters should be locked away at any cost. But should we really do the same in cases involving nonviolent crimes such as drug possession and theft?
Given the significant costs of incarceration and the demands of mandatory sentencing schemes such as three strikes, isn't it appropriate to give thought to introducing cost into the sentencing equation?
Simple possession of a controlled substance provides an apt starting point. When punished with imprisonment, the crime carries a sentence of 16 months, two years or three years. A two-year sentence, or the "mid-term" as it is referred to in the parlance of criminal practice, translates to a cost of nearly $62,000.
The price jumps significantly if the offender has prior convictions; a three-strikes sentence - which requires a minimum of 25 years in prison - costs more than $750,000, before adjustment for inflation.
Even when parole and the moderating effect of Proposition 36, the initiative that provides an opportunity for drug treatment, are factored in, the fiscal effect remains enormous. Eight and a half percent of the prison population (or more than 13,000 people) are serving prison sentences for simple possession of drugs. Is this a reasonable expenditure? Is it worth the cost to society to
keep drug users off the streets (especially when the cost of incarcerating drug offenders outstrips all but the most exclusive private rehabilitation clinics)?
Or consider another common criminal offense: petty theft - a theft of less than $400 - with a prior. A person convicted of misdemeanor shoplifting who is sentenced to serve any time in jail may be charged with a felony if caught stealing again and punished with up to three years in state prison. Roughly 5,500 people are serving prison sentences in California for this crime,
including more than 100 serving a minimum of 25 years for the offense as a third strike.
Their sentences reflect the judgment that shoplifters and thieves should be punished, and if they don't learn their lesson the first time, a harsher punishment is warranted. The underlying reasoning is self-evident, but the solution appears to have been calculated without regard to economics.
Incarcerating shoplifters at an annual cost of nearly $31,000 each is probably applauded as good public policy by merchandising executives, but taxpayers might secure greater value from other uses of the same funds. For example, a teacher in California earns an average of a little more than $54,000 a year.
Of course, legislation targeting reductions in prison commitments will invariably be assailed as being soft on crime. Meaningful change is unlikely to occur until the electorate more viscerally connects criminal penalties to taxpayer costs. Until then, we might at least consider permitting judges to take account of the resources they are being asked to commit on our behalf.
[Ed. note: R. Konrad Moore is a deputy public defender in Bakersfield]
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