Quick Hits (page 4)
Blacklisting Judges
By: Staff (NYT)
The founding fathers, whose brilliant design for the federal government was based on three coequal branches, would be horrified to learn of Attorney General John Ashcroft's latest idea for improving the American justice system. Mr. Ashcroft has ordered federal prosecutors to start collecting information on federal judges who give sentences that are lighter than those suggested by federal guidelines. Critics are right when they say this has the potential to create a "blacklist" of judges who could then be subjected to intimidation.
Congress established the United States Sentencing Commission in the mid-1980's, and charged it with developing guidelines to bring greater uniformity to sentences handed down by federal courts. The guidelines provide a range of sentences a judge can hand down for particular crimes. But they also permit judges discretion to impose a more lenient sentence, known as a "downward departure," if they can justify the decision. Judges frequently depart downward at the urging of the government, to reward defendants who cooperate with prosecutors.
But the administration and its allies in Congress have made no secret of their unhappiness with judges who impose more lenient sentences than guidelines call for. They have tried a variety of methods of pressuring judges to see things their way, including starting a Congressional investigation into the sentencing practices of James Rosenbaum, a United States District Court judge in Minnesota.
Mr. Ashcroft's latest initiative raises these pressures to a new level. Under the new policy, federal prosecutors will be required in many cases to report when a judge departs downward from the sentence recommended by the federal guidelines. The Justice Department has said it intends to use the data to identify how often particular judges depart downward. Obviously, judges are going to be worried about coming in high on the list, and those who do will wonder if they will be subject to intimidation, as Judge Rosenbaum was.
At the very least, the Ashcroft plan would subject federal prosecutors to an unusual, and undesirable, degree of top-down management. Right now, individual prosecutors decide when to appeal a judge's sentence. Mr. Ashcroft seems to want that decision to be made after a review from Washington. A prosecutor who feels a given judge is consistently handing down sentences that are too mild can certainly let his or her feelings be known to superiors. But this new, rigorous and rigid reporting system seems to treat prosecutors as lackeys, and judges as some kind of minor civil servants who can be ordered around by the president and his appointees.
By trying to make federal judges yield to political pressure from Washington, the Bush administration is engaging in a radical attack on our constitutional system. Even Chief Justice William Rehnquist, whose conservative credentials are unassailable, has warned that collecting data on judges' sentencing practices "could amount to an unwarranted and ill-considered effort to intimidate individual judges." Mr. Ashcroft should heed these words, and abandon his dangerous war on the judicial branch.
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Tan 'n' Trends
Growin' Our Own (page 4)
Doctors Tread a Thin Line on Marijuana Advice
By: David Tuller (NY Times)
For doctors who want to discuss using medical marijuana with their patients, the line between advice and advocacy remains almost as blurred as it was before a recent court decision guaranteed a physician's right to address the issue openly.
Some doctors are relieved that the United States Supreme Court let stand a lower-court decision two weeks ago that barred the federal government from punishing doctors who advised patients that marijuana might ease some symptoms.
But some doctors are also perplexed, and even inhibited, by part of the underlying court decision at the center of the case. That decision essentially affirms the federal government's right to hold physicians accountable if they actually take steps to help patients obtain marijuana.
"This decision says that it's fine and appropriate to talk with patients about medical marijuana, and I can even say, 'I think you can benefit from it,' " said Dr. Steve O'Brien, who estimates that a fifth of his H.I.V. patients at the East Bay AIDS Center in Oakland, Calif., use marijuana for medical purposes. "But does that mean I can now sign a form from a medical pot club or write, 'I recommend marijuana,' on a prescription pad? I don't know. It's still kind of murky."
The governing language is found in a decision in 2002 by the United States Court of Appeals for the Ninth Circuit. Of the nine states in that circuit, seven have laws on medical marijuana. The court stated unambiguously that doctors had a First Amendment right to discuss with patients the possible benefits of marijuana for relief of pain, nausea and other symptoms suffered by people with ailments like cancer, H.I.V. and glaucoma.
The court also clearly left open the possibility that doctors could be charged under federal drug statutes.
"If, in making the recommendation," the court wrote, "the physician intends for the patient to use it as the means for obtaining marijuana, as a prescription is used as a means for a patient to obtain a controlled substance, then a physician would be guilty of aiding and abetting the violation of federal law."
The ruling stemmed from a suit by California physicians and patients after the federal government had threatened legal action against doctors who recommended medical marijuana. The government issued the warnings in 1996, after voters had approved Proposition 215, the initiative that protected the right of patients to use marijuana for medical indications.
Although doctors are regulated by the states, they receive their authority to prescribe controlled substances through the federal Drug Enforcement Administration.
Dr. Jack Lewin, chief executive of the California Medical Association, acknowledged that the Ninth Circuit's decision and the Supreme Court's refusal to review it left some questions unresolved. Dr. Lewin said he hoped that at least some concerns about discussing marijuana with patients would be reduced.
"The verbal position of the Department of Justice," he said, "was very threatening and put an absolute chilling effect on doctors' communications with their patients. And most did not want to talk about marijuana, much less recommend it."
Doctors in states with medical marijuana laws have long tried to balance state and federal laws that conflict. Govenor Gray Davis of California signed a bill that establishes a state-sponsored identification card for users of medical marijuana, to protect them from arrests, even as the federal government insists that doctors cannot help their patients obtain it.
Because of the legal uncertainties, doctors, as well as medical organizations, have struggled to devise ways to avoid running afoul of the law.
The Oregon Medical Association has advised doctors to record only on patients' charts any suggestion that marijuana could help with some symptoms. If patients photocopy that part of the medical record and use the documents to obtain marijuana, the president of the association, Dr. Colin Cave, said, the doctor cannot be held responsible.
"We have told physicians to avoid at all costs writing it anywhere else," Dr. Cave said. "They should not write it on a prescription pad. They should not write it on a separate letter, because that leaves them absolutely vulnerable to prosecution by the Drug Enforcement Administration."
The language in the Ninth Circuit ruling, Dr. Cave said, does nothing to change those recommendations.
"The D.E.A.," he said, "is still out there, and we know the federal government is not going to give up on this."
With some doctors fearful or reluctant to address the issue, 12 or so physicians from California have in the last few years emerged as consultants on medical marijuana. Those doctors routinely issue recommendations to hundreds of patients who see them expressly for that purpose.
Their activities have drawn intense scrutiny from the Medical Board of California, which regulates medical licenses for the state. The board has investigated at least nine physicians, according to Ana Facio, its deputy chief of enforcement.
The Supreme Court action has no direct bearing on these cases, Ms. Facio said, because the board respects California law and is not seeking to prevent doctors from recommending marijuana. But the board's mandate is to ensure that doctors behave ethically and follow correct standards of care, she added.
"I don't know that I would consider it appropriate medicine to simply sit there and issue recommendations for a fee without a medical history and a physical," Ms. Facio said.
Some doctors view the board's inquiries as overzealous. Dr. Tod Mikuriya of Berkeley, who said he had issued about 20 marijuana recommendations a week, called the investigation of his practice a vendetta. Dr. Mikuriya said he had conducted an extensive review of medical history for each patient and had required documentary proof of illness.
"The prosecutorial mind is boundless in its ways of applying different parts of the law," said Dr. Mikuriya, whose case is still pending before an administrative law judge.
In the region covered by the Ninth Circuit, seven states -- Alaska, Arizona, Hawaii, Nevada, Oregon and Washington, as well as California -- have medical marijuana laws. Despite the lingering questions, some doctors in the region consider the Supreme Court decision not to review the appellate ruling as an unmitigated victory.
"I'm home free now," said Dr. William Wenner, 77, a retired surgeon who lives on Hawaii's Big Island and estimates that he has issued more than 400 "certifications" to use medical marijuana in the last few years.
"Who's going to come and get me, and for what?" Dr. Wenner asked. "I'm listening to these people and evaluating their complaints, and I've got three file drawers with their charts."
Three states outside the Ninth Circuit -- Colorado, Maine and Maryland -- have some form of medical marijuana law. Although the ruling is not strictly binding outside the Ninth Circuit, advocates for medical marijuana predict that it will strongly influence authorities elsewhere, especially given the Supreme Court decision to let it stand.
"Frankly, lawyers are ready to pounce on the government as soon as they start harassing doctors anywhere outside the Ninth Circuit," said Daniel Abrahamson, a lawyer for the plaintiffs who is legal affairs director of the Drug Policy Alliance.
Federal officials have promised to continue enforcing the drug laws, reiterating their view that Marinol, an oral prescription drug that includes a form of THC, the psychoactive component of marijuana, precludes the need for using marijuana itself as a medication.
Marijuana contains dozens of ingredients besides THC, and doctors say many patients report that smoked marijuana works better and has fewer side effects than the drug.
"Smoking marijuana is shorter acting, and it's easier to control the dose," Dr. Stephen Becker, an H.I.V. physician in San Francisco, said. "But I'm not indiscriminate. I have to be convinced that the patient has failed the conventional pharmacopeia. I think physicians have a responsibility not to abuse this and get themselves and their colleagues and patients in trouble."
Some doctors are pressing forward with research into medical marijuana, hoping to strengthen the scientific basis for proclaiming its medicinal benefits.
Dr. Donald Abrams, a professor of clinical medicine at the University of California at San Francisco, is one of several investigators with the Center for Medicinal Cannabis Research, which is affiliated with the University of California. Dr. Abrams is studying whether marijuana can relieve the sharp pains that some people with H.I.V. experience in the feet and hands. He is also recruiting cancer patients for a clinical trial on whether marijuana can increase the analgesic effects of other painkillers.
Dr. Abrams said he had discussed medical marijuana with patients since beginning his practice more than 20 years ago.
"People have been using marijuana as medicine for thousands of years," he said. "It's only been in the last 60 years that it hasn't been available in the United States."
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Pipeline (page 4)
Budding Medical Marijuana Clubs may Spur Regulations
By: Beth Fouhy (AP)
OAKLAND - If there's an epicenter of the nation's medical marijuana movement, it may be right here in a gritty six-block area near City Hall, where at least eleven dispensaries sell pot to any California resident with a doctor's note.
Some of the people who use pot to ease symptoms of AIDS, cancer and other illnesses leave quickly, tucking small bags of the drug into their purse or pockets. Others stay at the clubs, where pot smoke occasionally wafts into the street, earning the neighborhood the nickname Oaksterdam, after the freewheeling Dutch capital where marijuana use has been decriminalized.
While federal law prohibits the use or sale of marijuana for any reason, nine states including California permit the use of marijuana for medical purposes. Since voters approved a state ballot measure legalizing medical marijuana in 1996, "pot clubs" have popped up in California cities including San Francisco, Hayward, Los Angeles and Santa Cruz. But nowhere is their concentration as high as Oakland, leading some residents of this famously tolerant city of 400,000 to wonder whether the proliferation of clubs has gone too far.
"I'm a strong supporter of implementing voters' wishes in making sure medical marijuana is available to patients who need it," said Nancy Nadel, an Oakland City Council member whose district includes Oaksterdam. "But because the industry has expanded quite quickly in our city, we need to put some regulations in place."
The Oaksterdam neighborhood is gentrifying, and most businesses in the immediate area have welcomed the pot clubs, saying they've helped the local economy.
But the City Council is set to vote as early as next week on several proposed restrictions, after complaints from some business owners about problems ranging from the smoke to an escalation of street violence.
Armed robbers recently tied up a bouncer outside one club and fled with pot and a significant amount of cash. It was the last straw for a gay and lesbian youth center next door - its director decided to move the center.
"It's very good to have the clubs, but it brings in a lot of sketchy people who are trying to profit off the legalization," said Brian Bauman, who owns a record store near three of the clubs. "It brings people who hang around the streets and harass patients coming to pick up their medicine."
That the council would consider any restrictions on the clubs is a striking departure from the past.
In 1998, the city enacted what many advocates consider the most sweeping protection of medical marijuana use in the country, allowing patients to possess 24 times the amount of pot permitted under state law, and deputizing operators of a cannabis collective as "officers of the city," a title that confers some protection from local police enforcement. With the Oaksterdam area's relatively cheap rent and access to public transportation, the policy made Oakland a magnet for distributors.
Now the council is considering a requirement that clubs carry business licenses, or zoning rules that would limit the concentration of clubs in an area. The city's far-reaching anti-smoking ordinance, which prohibits smoking in any commercial building unless it has a separate ventilation system, will likely be applied to the clubs as well.
Even the club owners have concluded that some limits could be a good thing.
"The clubs are definitely starting to push the boundaries - it's part of figuring out how we fit in the medical world," said Ken Estes, owner of the 420 Cafe, a pot club that serves about a thousand patients each week.
Estes, who has used marijuana to treat pain ever since a motorcycle accident paralyzed him 20 years ago, said he would favor limits on the growth of the clubs.
"To slow fear down, I would really like to come up with a moratorium to stop growth and then revisit it after a few months," Estes said.
But Ed Rosenthal, an Oakland resident and leader in the national medical marijuana movement, said the clubs could remedy many problems on their own, like beefing up security and purchasing "negative ion generators" which would cut the smell of smoke. Any government efforts to regulate the clubs would only hurt sick patients, Rosenthal argued.
"By having a number of facilities, there is competition and it brings down the price," Rosenthal said. "If there are fewer of these clubs, it means more people will be buying on the street."
Earlier this year, Rosenthal himself was at the center of a pitched clash with federal drug laws, when he was convicted on charges of cultivating marijuana, though the city of Oakland had deputized him to do so.
Adam Lerch, a lifelong Oakland resident who just opened a restaurant called The Hot Dog Stand down the street from the 420 Cafe, said he is a strong supporter of the clubs. He likes their commitment to sick people, he said, and he thinks they will be good for his business.
"You smoke pot, you get the munchies - and I'm selling the food!" Lerch said.
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