Congressional Malpractice

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.

Dr. Gregory T. Carter, who does research on rehabilitative medicine at the University of Washington in Seattle, has published several medical-journal articles on the use of marijuana to treat the effects of nerve and muscle diseases; he has treated many patients who use marijuana to control pain and spasms. "Cannabinoids"--the active ingredients in marijuana--have an analgesic effect, says Carter, distinct from that of opiates such as morphine. "The cannabinoids...don't suppress breathing--and so in that regard are considerably safer than opiates," he says. "There's never been a reported death or overdose from cannabinoids."

Carter's published research, he says, shows that cannabinoids are better tolerated and more effective at relieving pain and spasms associated with some disorders of the peripheral nerves. In his experience, many spinal-cord patients get better relief from cannabinoids than from opiates, particularly with respect to muscle spasms. And marijuana, he says, is safer than the Valium that Magbie was prescribed. "Using cannabis for spasticity is not really questioned anymore," Carter says.

Now that cannabinoids have demonstrated their medical efficacy, the pharmaceutical industry is figuring out how to make and sell them legally. The British firm GW Pharmaceuticals has recently been approved to market Sativex--a spray derived from marijuana extracts--to multiple-sclerosis patients in Canada, following extensive clinical trials demonstrating its ability to relieve neuropathic pain and spasticity. A former White House deputy drug czar is now pressing for approval of the drug in the United States, citing its medical benefits.

But Washington D.C. residents shouldn't have to wait for its approval. In 1998, a coalition of D.C. HIV/AIDS activists (marijuana is known to alleviate nausea and increase appetite, assisting in the treatment of the disease) successfully petitioned to place a medical-marijuana question on the citywide ballot. That October, Congress passed a spending-bill rider attached by Bob Barr (R-Ga.) that prevented the city from processing the medical-marijuana election. Since ballots had already been printed, the election went ahead as planned. The votes were counted only after a federal judge ordered the city to do so nearly a year later, following an American Civil Liberties Union lawsuit. The initiative had passed with 69 percent support.

Two months after the vote count was released, Congress passed another version of the rider--now known as the Barr Amendment--saying that the District couldn't spend money to "enact or carry out" any laws that reduced penalties for marijuana. For Barr, it was all about the children. "Marijuana remains illegal under federal law, and it would send a terrible message to America's young people to allow those laws to be openly flouted in the same city where they were passed," he told the at the time. Barr, traveling abroad, could not be reached for comment on the Magbie case.

Mary Scott says that she had been vaguely aware that the District had attempted to pass a medical-marijuana law.

Since 1998, the Barr Amendment has been attached to all congressional payments to the District. It has survived one veto attempt, by Bill Clinton in 1999, and a 2002 court challenge. The House version sailed through this past June, and the Senate version passed by voice vote two weeks ago. It's highly unlikely any necks will stick out in conference committee to prevent it from reaching the White House. Rep. Ron Paul (R-Texas), an outspoken opponent of the amendment, says he sees little chance of stopping the bill. "I wish they had a little more courage," he says of his colleagues.

The guilt of Congress, of course, doesn't excuse or forgive the actions of the D.C. Jail, Greater Southeast Community Hospital, or Judge Retchin.

That's the attitude of D.C. Congressional Delegate Eleanor Holmes Norton: "[T]he inexcusable and near-criminal neglect by several parties who failed to use existing law to save Jonathan Magbie's life is the proximate cause of his death," she said in a statement. However, she said, "[c]ertainly if he had had a medical prescription for a marijuana cigarette, he would not have been jailed if the referendum had been in place, but otherwise he could have been jailed like anyone else."

On the last day of Magbie's life, his mother learned that doctors had not given him a respirator. She rushed to bring him one, but by that time he had been taken to Greater Southeast, his final destination.