Medical Marijuana Ban Overturned in D.C.

A federal law that prohibited District of Columbia residents from proposing, running or voting on a ballot initiative to legalize medical cannabis, has been overturned as an unconstitutional restriction on political speech.

In 1998, 69 percent of District voters approved a measure to legalize the medical use of marijuana. Congress responded with the so-called "Barr Amendment," named for its sponsor, Rep. Bob Barr (R-GA). The Barr Amendment blocked the implementation of the initiative and prohibited the District from spending appropriated federal funds to "enact or carry out" any law that reduces criminal penalties for marijuana or any Schedule I controlled substance.

Last December, the Washington D.C.-based Marijuana Policy Project, and several individual plaintiffs, filed a lawsuit against the federal government and the D.C. Board of Elections and Ethics (BOEE). They argued that the Barr Amendment violated D.C. residents' First Amendment right to utilize the District's ballot initiative process to engage in public debate on a subject of fundamental importance.

Federal Judge Emmet G. Sullivan agreed, and ruled March 28 that the Barr Amendment effectively prohibited the plaintiffs from gathering signatures to place another cannabis initiative on the ballot in November. "There can be no doubt that the Barr Amendment restricts plaintiffs' First Amendment right to engage in political speech," wrote Judge Sullivan.

Barr spoke out against the ruling and said the initiative was a backdoor effort to usurp federal law. "Clearly, the court today has ignored the constitutional right and responsibility of Congress to pass laws protecting citizens from dangerous and addictive narcotics, and the right of Congress to exert legislative control over the District of Columbia as the nation's capital," said Barr in a statement. "This ballot initiative was not about free speech, nor was the court correct in defining it as such. This initiative was about opening the door to drug legalization, and whether federal taxpayer dollars should be used to support a drug legalization agenda."

Barr has written to Attorney General John Ashcroft, asking the Justice Department to appeal the court's decision. But Judge Sullivan permanently enjoined the BOEE from applying the Barr Amendment to block a medical cannabis initiative for the District proposed by the Marijuana Policy Project (MPP).

"Because we won the lawsuit, we get to run a medical marijuana initiative in Washington D.C. this year," says Robert Kampia, executive director of the MPP and a plaintiff in the case. Given that 69 percent of D.C. voters approved the 1998 measure that removed criminal penalties for medical marijuana patients, Kampia believes a similar measure would win handily if it were placed on the ballot in November. "We are conducting a ballot drive starting tomorrow and we want to spark a congressional debate on medical marijuana because we know that Congress is not going to allow a local medical marijuana law without a fight," said Kampia.

Joyce Nalepka, president of Drug Free Kids: America's Challenge, a Maryland-based group that resists medical cannabis initiatives, wants that fight to continue. She is dismayed that the Barr Amendment was overturned and charges that the MPP is waging a "very professional misinformation campaign." "Bob was one of the few government officials who had the backbone to help kids in the District by keeping it from being even more saturated by marijuana and other drugs and letting people know that marijuana is not medicine," says Nalepka, who believes medical cannabis patients should be prosecuted under federal law. "They should be charged, they should enforce the law, it is there to protect the safety and health of the rest of us. I don't want people tooling down the street after they have smoked a joint for a backache."

Voters in eight states -- Alaska, California, Colorado, Hawaii, Maine, Nevada, Oregon and Washington have already expressed their opinion on medical cannabis and approved laws that remove criminal penalties for seriously ill patients who use and grow marijuana with the approval of their physicians. The MPP recently commissioned a poll by the Lucas Organization that surveyed four of these states. The poll indicates that there is stronger bipartisan support for medical cannabis laws now than when they were passed. This support ranges from 74.3 percent of polled voters in Alaska to 78.6 percent in Nevada.

The poll also found support for medical marijuana initiatives in six additional states that do not have such laws -- Arizona, Montana, Nebraska, North Dakota, South Dakota and Wyoming. Those who strongly supported, or somewhat supported, laws that ban arrest and penalties for medical cannabis patients ranged from 63.3 percent in North Dakota up to 72.3 percent in Arizona.

Medical marijuana legislation is already underway in two states. On March 25, the Maryland House of Delegates overwhelmingly approved H.B. 1222, the Darrell Putman Compassionate Use Act, which removes criminal penalties for the medical use of marijuana. A full Committee and Senate vote on the bill is expected the week of April 1. On March 15, the Vermont House of Representatives became the first Republican-controlled state legislative chamber in the country to initiate and pass medical marijuana legislation (H. 645) which allows patients with their doctors' approval to use, possess and grow cannabis for medical purposes.

A medical cannabis bill proposed in the Connecticut House of Representatives died in the judiciary committee in March and is not expected to be revived this year. A campaign is still underway to gather signatures to put a medical cannabis bill on the ballot in Arizona and Kampia says he is confident that it will succeed. He says the MPP is also hoping to run medical marijuana initiatives in Montana and North Dakota this year and in the remaining polled states by 2004.

"Our strategy is that we are hoping to run medical marijuana initiatives in all six of these states in the next two years," said Kampia. "That would double the number of states with medical marijuana laws from eight to sixteen." The Lucas poll, which surveyed more than 1,000 voters, also indicated bipartisan support for initiatives that would make medical marijuana distribution and sales legal under state law. No existing medical cannabis initiatives have yet tackled this issue. Support for such a ballot measure ranged from 51.4 percent in Nebraska to 67.9 percent in Nevada. A proposed initiative that would require state governments to grow and distribute medical marijuana to seriously ill patients was even more popular attracting the support of 55.9 percent of Nebraska voters and 73.4 percent of the voters in Nevada.

Nalepka dismisses these figures and suggests that surveys of this sort can be manipulated to produce the desired results. She points to a statement from the National Institute of Heath that people with HIV and others whose immune systems are impaired should avoid marijuana use. "The most dangerous thing that is happening is that kids are being misled to believe that marijuana is somehow helpful," says Nalepka. "It has been known for a long time that it damages the immune system."

Ethan Russo M.D., a neurologist from Missoula, Montana, has sparred with Nalepka over these assertions. He points out the Institute of Medicine recommended that cannabis be made available to people with HIV, cancer and other serious illnesses. Russo also notes that the Food and Drug Administration has recognized medical indications for cannabis by virtue of its approval as an Orphan Drug for treatment of AIDS wasting syndrome. The FDA approved Russo's Investigational New Drug application for cannabis in migraine treatment, but the process was derailed by the refusal of the National Institute on Drug Abuse to provide the drug for the trial.

Russo says he is encouraged by the Lucas poll figures, which indicate that over 65 percent of voters in Montana support removing threat of arrest and penalties for seriously ill patients who grow and use medical marijuana with the approval of their physicians. "I would love to see it happen, it would make my life and that of my patients easier," says Russo, who says he advises his patients about cannabis but cannot recommend it under existing laws. "If you ask me if it helps, I say yes, for a wide variety of conditions. I know that there are a good number of patients out there who are interested in pursuing the matter."

In Vermont, where medical cannabis legislation is coming up for a Committee and Senate floor vote at the end of April, the local law enforcement community has chosen not to pass judgment on whether medical cannabis should be available. "That is not my place at all," says Steve McQueen, the police chief of Winooski, Vermont, who represents the Vermont Chiefs of Police Association on legislative issues. "It is the medical community that needs to debate these issues and the legislature needs to be comfortable with that debate."

McQueen helped the state's judiciary committee review the legislation and point out potential problems from an enforcement perspective. The bill permits patients to possess immature and mature cannabis plants with a maximum yield of three ounces. McQueen is still concerned about determining maturity and yield and potential liability issues for doctors. He is also concerned that the legislation conflicts with federal drug laws that can still be imposed on Vermonters. But overall, he's pleased with provisions of the law that require cannabis patients, their caregivers and their doctors to be certified with the Vermont Department of Public Safety and listed in the Vermont state police database. Patients possessing more than permitted amounts can be charged with felonies and doctors who issue recommendations without thorough examinations can loose their licenses.

"I was quite impressed with how they solved this," said McQueen. "I am not ashamed of my role to make this process work. If the legislature decides to make [medical cannabis] available, it is my job as a police professional to show them how to get there legally and make it enforceable."

Ann Harrison is a freelance writer in San Francisco.

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