Congressional Malpractice

By Ryan Grim, Washington City Paper. Posted November 9, 2005.

Thirteen months ago, Superior Court Judge Judith Retchin sentenced Jonathan Magbie, a 27-year-old quadriplegic, to a 10-day Washington D.C. jail sentence for marijuana possession, assuring attorneys she had checked with the jail and that it could handle someone in his condition. By the fourth day of Magbie's sentence, he was locked in a cell with no ability to communicate or call for help. His breathing tube had been improperly placed; his weight had plummeted since his arrival; his apparent pneumonia had gone untreated. That night, Sept. 24, 2004, he was taken to Greater Southeast Community Hospital, where he died.

Retchin, an investigation has since determined, had not told the jail that Magbie was a quadriplegic or that he needed a respirator to assist his breathing. Nevertheless, Retchin has not been sanctioned in any way. In fact, she was recently reappointed to the criminal docket. So far, no wrists have been slapped at the jail or at Greater Southeast Community Hospital, either, though all three parties have been thoroughly dragged across the media's coals, mostly by Washington Post op-ed columnist Colbert King.

Despite the spotlight that shines on this tragedy, one connection has so far gone unnoticed--the U.S. Congress set the stage for the entire tragedy to unfold by means of a proclamation a couple of dozen words long: "The Legalization of Marijuana for Medical Treatment Initiative of 1998, also known as Initiative 59, approved by the electors of the District of Columbia on November 3, 1998, shall not take effect."

Those words are attached to the city's annual federal allocation every year, toward the end of a long list of provisos on payments to the District, not far from restrictions on needle exchange, abortion, and promoting full congressional representation. When the U.S. Senate sent that language to conference committee Oct. 18, it all but guaranteed the ban will yet again survive at least another year.

When Magbie was 4 years old, he was struck by a car passing a stopped bus. Since then, he was unable to use either his arms or his legs. But immobility is not the only consequence of quadriplegia. Because of damage to nerves that control the diaphragm, along with extremely limited control of the body below the neck, breathing becomes difficult; hence Magbie's respirator. And with the interruption of the body's normal nerve control, quadriplegics commonly suffer from muscle spasms--think of the worst charley horse you've ever had, one that threatens to strike at any time, in any situation. Not only are the spasms frequent and extremely painful, but they can be so severe that they literally buck patients out of their wheelchairs.

Magbie's mother, Mitchellville, Md., resident Mary Scott, is not a crusader for drug-policy reforms. She says she hasn't given much thought to the legal issues surrounding the medical-marijuana debate but rather is focusing her ire on the negligence that allowed her son to die: She is now suing the city, the jail, and Greater Southeast Community Hospital. "Jonathan's needs were extensive," she says. "If they're going to take custody of people, they should be treated humanely. Jonathan was not."

One of Magbie's needs was relief from his intense spasms. The Valium he was prescribed, says Scott, wasn't enough, and so he used marijuana to relieve them. Scott says that she was aware of Magbie's marijuana use and that if it had been legal for him to obtain a prescription from a doctor for medical marijuana, she is certain he would have done so.

There is some question as to why Retchin chose to sentence Magbie -- a first-time offender who was arrested carrying only 0.39 grams of marijuana -- to jail instead of to probation. According to King's analysis, she did so largely because a loaded gun was found in the car he was riding in when he was arrested. Before the sentencing, she told Magbie it was "just unacceptable to be riding around in a car with a loaded gun in this city," even though someone else in the car claimed responsibility for the gun.

But Retchin also made clear that she based her stiff sentence on Magbie's refusal to swear off marijuana. "But Mr. Magbie," she lectured while sentencing him, according to a transcript, "this [pre-sentence] report tells me that...using marijuana makes you feel better. The Pre-sentence Report writer believes you will not stop using marijuana and you don't believe there's anything wrong with it. As long as it's against the law, you're not permitted to do it Mr. Magbie." (Through a spokesperson, Retchin declined to comment on the Magbie case.)

"Jonathan was very candid with the court reporter....That's what was picked up by the judge," says Magbie's attorney, Boniface Cobbina. "The judge based [the sentence] on future conduct." Documents also show that Cobbina raised the issue of the legitimacy of medical marijuana with Retchin prior to sentencing, but it didn't matter; Magbie was sentenced to 10 days regardless.

Ryan Grim is an editorial intern at Washington City Paper.