Could Marijuana Be Legal in Illinois?

"I'm hoping they never do this again to anyone. Because if someone else was as sick as I was, and has been through what I've been through, they might not have been able to live through it. I knew inside of me that for the sake of my health, I had a right to do what I did."

-- Brenda Kratovil, on her arrest for marijuana possession

I am sitting across the kitchen table from Brenda Kratovil in her Beach Park home just a few miles north of Waukegan. It's early in the afternoon and Kratovil and her husband have just returned from the nearby Lake County Courthouse. There, in a preliminary hearing, a judge has just ruled that she could not introduce medical necessity into her defense on charges of marijuana possession.

When we meet for the first time after the hearing, Kratovil is quiet. I'm not sure if she is more upset and angry or just sad. I imagine perhaps all these emotions are with her. But now, back at her home as she begins to tell me her story, I also understand that I am speaking with a woman whose spirit remains strong, despite her current legal difficulties. I suspect Brenda's many health challenges have steeled her to life's harder edges.

Brenda Kratovil tells me she has had glaucoma for over 20 years. Legally blind, she was also diagnosed with multiple sclerosis (MS) 15 years ago, and has been on disability since the age of 18. What now has the Beach Park mother of two in so much trouble is the fact that she uses marijuana to relieve her symptoms. Kratovil, who hopes to eventually be able to legally use medical marijuana -- under a little-known Illinois statute -- first got the idea of trying the drug to relieve her eye pain from a specialist she saw in Arizona shortly after she was diagnosed. The physician couldn't prescribe marijuana but suggested the drug might lower the intra-ocular pressure that was causing her so much discomfort.

He was right. When she smoked marijuana, Kratovil had less pain. Her vision also improved. The plant may also have provided some relief for her. Ms. Kratovil has used marijuana since to manage her symptoms.

None of this mattered much on Sept. 4, 2001, however. That's the day the Metropolitan Enforcement Group (MEG) of Lake County, a police task force, raided the home Kratovil shares with her husband and two teenage children. Apparently, a neighbor had seen some small marijuana plants growing in the back yard and called police. For several hours, police ransacked the family's residence in a search for more drugs or information on local dealers.

Notably, police did not arrest Kratovil at the time. That happened about three months later, when they returned and, in front of family and neighbors, Kratovil was handcuffed and taken to jail. But her ordeal was not quite over yet. Six months after the first raid, the MEG crew returned and, with their guns and dogs, embarked on one more intrusive romp through the family's home.

It was, not surprisingly, a highly traumatic experience. Both searches left the house in complete disarray, says Kratovil, with beds turned upside down, drawers emptied onto the floor, and the children's things scattered helter skelter. According to Kratovil's lawyer, David Stepanich of Vernon Hills, $300 in cash was also taken from the home, forfeited as alleged "drug money." The first search was also conducted without a warrant after police warned Kratovil that it would only get worse for her if they had to return later with the required warrant.

In the aftermath of the raids, the family has endured ostracism from neighbors and repeated visits from local police whenever minor incidents of vandalism or other crimes happen to occur in their area of town. The stress of it all has also taken a toll on Kratovil's health and for several months following the MEG raids she struggled with flare-ups of her symptoms. "When I watched my daughter crying with one of the officers telling her he could take me to jail and put her in Department of Children and Family Services (DCFS), I felt so bad," says Kratovil, "I thought, this isn't fair."

What's Going On Here?

Unfortunately, what happened to Brenda Kratovil was not only unfair, it was not an isolated occurrence. Last September, in another more highly publicized incident, the federal Drug Enforcement Administration (DEA) raided the Wo/Men's Alliance for Medical Marijuana in northern Santa Cruz County, about 65 miles south of San Francisco. The group grows marijuana for use by registered members, who suffer from cancer, diabetes, and other diseases. The group was also not breaking any local or state ordinances, as Santa Cruz County residents had voted 10 years before to legalize the use of medical marijuana. Statewide, California voters had approved a similar measure in 1996.

In fact, eight other states -- Alaska, Washington, Oregon, Nevada, Arizona, Hawaii, Colorado, and Maine -- have all, in recent years, passed laws with provisions for the use of marijuana for medical purposes. The justice department, however, remains unequivocal in its opposition to marijuana use in any form, continuing to classify it as a Schedule 1 drug, effectively banning its use except under the strictest research conditions. Consequently, the Bush administration has given the go-ahead for the DEA and other law enforcement to step up prosecutions.

Clearly, some states and local municipalities are at loggerheads with the federal government over the issue. In the Santa Cruz incident, the mayor and local police sharply rebuked the DEA's action. But what's behind the sharpening jurisdictional crosscurrents are not only the medical arguments of a small, activist minority but the shifting winds of public sentiment. A recent Time/CNN poll finds 80 percent of Americans now support the use of marijuana for legitimate medical reasons. Other estimates point to as many as 76-million Americans who have tried marijuana. Many of them also cannot help but reject from their own experience the propaganda of zealots like White House "Drug Czar" John Walters, for whom marijuana remains a sinister "gateway drug" to other, harder evils like heroin.

Unfortunately for the drug war crusaders, the issue of marijuana's possible medicinal benefits is not going away. There is today a small but growing registry of nearly 2,500 individuals using marijuana under state or local provisions, according to a recent Government Accounting Office report. Ironically, a few patients -- invoking an obscure federal program -- receive their marijuana directly from the government. To be sure, there is a persuasive body of clinical evidence that marijuana is useful in treating the symptoms of a number of health conditions and drug side effects.

But why should any of this be surprising? Marijuana is a plant, and medicine derived from plants is hardly a novel concept. In fact, marijuana's primary active constituent, D9-tetrahydrocannabinol (THC), has undergone controlled study and is already approved for clinical use. Notably, the Scientific Council of the American Medical Association in June 2001 called for "continued research into marijuana's potential therapeutic effects," citing its possible value in aspects of HIV care, treating cancer pain and the effects of chemotherapy, chronic pain, insomnia and other conditions. A similar endorsement and call for wide-scale clinical trials came in a 1999 report, "Marijuana as Medicine: Assessing the Science Base," issued by the Institute of Medicine.

In the treatment of glaucoma, the anecdotal evidence is also there that marijuana helps. "There's no question that the data is very well established that marijuana does lower eye pressure," says Michael Savitt, M.D., an ophthalmologist who has treated Kratovil at the North Shore Glaucoma Center in Libertyville, IL. Dr. Savitt says he believes prescription eye drops work better than marijuana, but acknowledges that some patients, like Kratovil, do not tolerate the drops well and have not benefited from laser surgery. "In those few patients, especially for whom the disease is painful, marijuana could be used to help in control of their pressures," notes Dr. Savitt. "For Brenda, I know she feels that it helps her and makes her more comfortable."

Avoiding the Issue, Lake County-Style

If none of this mattered much to the MEG folks, it also didn't factor in at Kratovil's pre-trial hearing last December. That's when a Lake County judge denied her lawyer permission to introduce the medical necessity defense at trial. Curiously, the judge cited Kratovil's failure to formally apply under Section 11 of the Illinois Cannabis Control Act for permission to use marijuana for medical reasons. The Illinois statute, which was passed in 1971, allows physicians to apply for written approval from the state police to use marijuana for research purposes in a treatment setting.

But it appears that the judge was engaged in specious reasoning, since, for years the state program has, essentially, been put on ice. "The Illinois program has been effectively unenforced since 1984," says Bryan Brickner, director of the Illinois chapter of the National Organization for the Reform of Marijuana Laws (NORML). "It's a victim -- along with many other state programs -- of the 'War on Drugs' launched by the Reagan Administration." Back then, authority for the Section 11 provisions was transferred to the Illinois Department of Alcohol and Substance Abuse. Brickner adds that the move was inherently political, as all medical-related aspects of marijuana research now fell under the rubric of "substance abuse." In other words, it was a way of burying the law. Apparently that move was effective because as far as Brickner or Kratovil's attorney, David Stepanich, are aware, Illinois' medical marijuana statute has never been exercised.

In response to the pre-trial ruling, NORML is now formally requesting that Kratovil be allowed to apply for inclusion in the state program, under Dr. Savitt's supervision. The outcome of her application could prove to be a test case for the future of medical marijuana in Illinois. But however Kratovil's case is eventually resolved, her legal troubles highlight the trenchant absurdity of so much of the so-called war on drugs. Classifying marijuana as a Class 1 drug, in other words, a highly dangerous substance and of no redeeming medical use -- worse even than the most potent opiates and narcotics -- is more than a scientific stretch. Actually, it is a mentality in serious need of thought reform.

The dogged refusal of the federal government to reclassify marijuana's medical status would seem inexplicable were it not for the plant's unique cultural history and notoriety. The drug war evangelists have long seen in every puff of a joint the implicit vapors of impending moral decay, as if marijuana and marijuana alone imperils Western Civilization in ways mysteriously elusive of alcohol or nicotine. It's a hysteria that goes back to the 1930s, when Harry Anslinger, a former prohibition agent turned U.S. Commissioner of Narcotics, led the drive to make marijuana illegal (before 1937 there were no laws banning its use). Anslinger managed to persuade Congress to outlaw it with lurid descriptions of marijuana users as "Negroes and entertainers," lovers of "Satanic music" like jazz, and just your basic all-around degenerates.

Unfortunately, such "Reefer Madness" stupidities never quite seem to go away; they just reinvent themselves to suit the times. Now we are told that using marijuana gives support to terrorists -- as government-sponsored commercials declared (with Orwellian flair) in their debut during 2002's Super Bowl game. Such claims might otherwise be laughable were it not also for the reality that the prisons are packed with drug offenders.

According to NORML's Brickner, as many as 26 percent of state prisoners in Illinois are convicted of drug-related crimes, with arrest rates for all drug offenses having risen dramatically over the last ten years. Nationally, there were more than 500,000 marijuana-related arrests between January and September of last year. Of course, while most arrests today for marijuana possession in small amounts are not likely to result in imprisonment, NORML receives many reports of cases where arrested individuals subsequently find their employment in jeopardy.

A Cruel and Brutal Ignorance

If legalizing or decriminalizing marijuana use remains unlikely in the near future (several recent, more far-reaching decriminalization initiatives were defeated in last fall's state elections), the trade winds are destined eventually to steer us toward the shores of more rational, humane drug policies. In 1999, the 9th U.S. Circuit Court of Appeals ruled that medical necessity was a legitimate defense in the manufacture and distribution of marijuana. It proved to be a short-lived victory, however, later overturned by the U.S. Supreme Court in May 2001. But the mere fact that a circuit court was willing to rule as it did shows that the medical marijuana issue has come a long way, no matter the twists and turns of a legal battle that may play itself out for some time.

As for Brenda Kratovil, she deserves our compassion, not hard-nosed, letter-of-the-law vigilance by prosecutors, judges, and police. When measured against the hardships of her life, such a stance amounts to nothing short of a cruel and brutal ignorance. The pros or cons of marijuana use belong in the realm of a public health debate, not a criminal or moral crusade whose front lines consist of gangs of cops given free rein to terrorize and run roughshod over people's lives.

Marijuana use per se is also not the same thing as drug abuse. Actually, when used for legitimate medical reasons, it is the opposite.

Mark Harris is a freelance writer based in Chicago, IL.

A Test Case for Medical Marijuana

As we go to press, Brenda Kratovil waits to go on trial for felony marijuana possession. Her lawyer, David Stepanich of Vernon Hills, IL., tells us that he plans to ask the court to reconsider a motion on her medical necessity defense. Stepanich admits that without earlier precedent in Illinois case law, the medical necessity defense is an uphill argument. Nonetheless, he insists it's vital to raise the issue.

"The courts and cops and prosecutors will do whatever they can to keep the debate narrow-minded and conclusory [shut out further evidence]," says Stepanich. "But we want to go to the heart of what this case is really about. This is also a case where the lack of a search warrant and the threats by the cops to tear-up Brenda Kratovil's home were rewarded, not punished by the court, which so far has acceded to every whim of the police."

Still, Stepanich remains hopeful that while Kratovil's application to use medical marijuana under Section 11 of the Illinois Cannabis Control Act is pursued, the court will, in the interests of compassion, agree to a negotiated plea that will spare his client jail time or a felony conviction. Bryan Brickner, Illinois NORML spokesperson, adds that the courts should consider that Kratovil now has a physician willing to formally sponsor marijuana research in treating her condition. But whether the courts actually will do so remains to be seen.

Read it For Yourself!

Illinois Cannabis Control Act, Section 11

(Selected applicable excerpts)

Statute #720 ILCS 550/11

Sec. 11. (a) The Department, with the written approval of the Department of State Police, may authorize the possession, production, manufacture and delivery of substances containing cannabis by persons engaged in research and when such authorization is requested by a physician licensed to practice medicine in all its branches, such authorization shall issue without unnecessary delay where the Department finds that such physician licensed to practice medicine in all its branches has certified that such possession, production, manufacture or delivery of such substance is necessary for the treatment of glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure certified to be medically necessary; such authorization shall be, upon such terms and conditions as may be consistent with the public health and safety. To the extent of the applicable authorization, persons are exempt from prosecution in this State for possession, production, manufacture or delivery of cannabis.

(b) Persons registered under Federal law to conduct research with cannabis may conduct research with cannabis including, but not limited to treatment by a physician licensed to practice medicine in all its branches for glaucoma, the side effects of chemotherapy or radiation therapy in cancer patients or such other procedure which is medically necessary within this State upon furnishing evidence of that Federal registration and notification of the scope and purpose of such research to the Department and to the Department of State Police of that Federal registration.

(Source: Public Act 84-25.)

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