Deep in the hills of Northern California's Mendocino County, past three locked gates and up a winding dirt road, the trimmers at Green Mountain Farm are bringing in the harvest. The marijuana plants, which stand four to seven feet tall, are garlanded with dense clusters of fragrant, seedless buds that must be carefully picked and cured before they are dampened by winter rains -- or seized by law enforcement, which has set a record by destroying well over one million marijuana plants this year.
The 50 trimmers at this clandestine grow site work 16-hour days for three weeks, hand-trimming top-grade marijuana destined for medical marijuana patients and dispensaries in San Francisco.
"It's a race against time," says Antie M, manager of the Green Mountain Farm collective, which is cultivating 280 plants for 125 patients.
Under California state law, caregivers and patients are permitted to grow marijuana for a group of patients and can be reimbursed for their expenses. In exchange for allowing the growers to post medical cannabis recommendations from patients' doctors at the grow site -- providing some degree of legal protection for the growers -- the patients receive free cannabis. Most collectives meet their expenses by selling their surplus pot to dispensaries or directly to other patients.
Each patient at this collective will receive a quarter pound of free cannabis, plus a chance to take in beautiful scenery, eat good food, and listen to live music.
While San Francisco city supervisors haggle over cultivation limits and zoning restrictions for medical cannabis dispensaries there's another reality taking place a couple hundred miles to the north. Whatever the supervisors decide, someone has to grow all the pot that gets smoked by patients in the city -- and no matter how friendly city officials are to the end product, the growers are still hounded by law enforcement.
The trim camp at Green Mountain Farm is only one of many such gatherings taking place throughout northern California this month. And this constellation of quasi-legal outdoor marijuana grow sites doesn't just cultivate exquisite medical cannabis.
The farmers who tend these plants are also creating environmentally and socially responsible cannabis farms very different from the armed, old-school, commercial marijuana plantations that feed an insatiable market but often damage the land.
An estimated 80 percent of the medical cannabis consumed in San Francisco comes from outside the city. Let's follow some of these buds as they make their way into town.
Quietly cultivating a cannabis crop and then hosting 50 trimmers at a clandestine grow site miles from a power line requires impressive planning. Arriving blindfolded at Green Mountain Farm, I discover a comfortable camp resembling an agricultural version of a Rainbow Family gathering.
The trimmers at Green Mountain sleep in a tidy tent village and eat tasty vegetarian meals prepared by two paid cooks in a well-equipped kitchen complete with two gas ranges and two refrigerators. They take hot showers and listen to music from a laptop and iPods -- all powered by a generator running on 50-cents-a-gallon vegetable oil.
The cultivators here trucked in $30,000 worth of compost to privately owned land to ensure that their cannabis met San Francisco standards. Under California law, patients and caregiver-cultivators are allowed to grow at least 6 mature and 12 immature plants per patient unless the county or a doctor authorizes more. Mendocino County allows 100 square feet of plant canopy per patient. Antie M, who is descended from eight generations of tobacco farmers, says the lush plants in this garden meet those guidelines.
The water that sustains this crop is supplied by a well. A 10,000-gallon tank feeds the irrigation system for the garden, which grows to the edge of the kitchen. A 75-foot-long temporary structure, which serves as a trimming and drying room, stands nearby. The atmosphere in the camp is relaxed but focused. There are no alcohol, hard drugs, or weapons, and everyone must be quiet by midnight. Some people smoke cannabis while they work. The night I visit, the camp puts on a talent show. A shiatsu massage therapist is on hand for those with aching shoulders.
"We live together and work together, we sit and trim plants all day long, it is a very harmonious organization," a 56-year-old trimmer named Jojo says.
The trimmers at Green Mountain Farm range in age from 18 to 65. They are people of color, white folks, queer, straight. Antie M says he met many of the trimmers at music festivals and other gatherings. Others are simply friends. Many trimmers are patients from the collective who also get their free quarter pound. Some are not.
The trimmers are paid in cannabis, and the pay scale is set up to encourage a rapid harvest. Trimmers earn 2.5 grams of cannabis an hour for the first 100 hours, 3 grams for the next 100, and 3.5 grams per hour after that. After the first 200 hours, those who work 8 hours a day can make an ounce -- worth $400 retail -- a day. According to Antie M, 90 percent of the grow is sold to medical cannabis dispensaries. The rest goes to patients in the collective and workers: Trimmers who work hard the entire season can leave with as much as $8,000 to $10,000 worth of cannabis.
"A patient can get their entire year's supply of marijuana," Antie M says. "[With] what people earn here, they can support themselves for a year, they can live their dreams, travel."
"If you put in a long day, you can earn two ounces a day," says a sixtysomething trimmer named Sheila, who clips steadily at the bud in his hands. "Thank you, God. I came to work, and I would love to hold on to a half pound and sell the rest, maybe a pound and a half or more."
Sheila, Antie M, and many other people at Green Mountain Farm are queer men, radical fairies who say watching friends die from HIV/AIDS motivated them to become cultivators. A trimmer named Keer, who has lived with HIV for 10 years, sits quietly on the sofa inside the camp kitchen. He says he first started cultivating marijuana 15 years ago with medical cannabis pioneer Dennis Peron. Keer says Peron emphasized growing high-quality cannabis, not just quick marijuana crops designed to generate fast cash.
"When Dennis and Brownie Mary came along and started the Medical Cannabis Buyers Club in San Francisco, it felt safe, and people could get higher-quality marijuana that was not sprayed or at least organic," Keer says. "The seed they planted caused people to start educating each other, and it grew into a community and set a good example."
Not all the growers are men. Green Witch and members of her all-women's cannabis collective slip quietly into San Francisco one night, taking a break from their harvest up north. High Priestess Farm, which the collective operates, serves 24 mostly low-income women in San Francisco, who each receive six ounces of free cannabis every year.
A member of the collective, named Elf, runs three patient-support groups. She works with eight collectives, which contribute free cannabis each week and earn the money to feed at least 100 indigent San Francisco patients.
"The old-school model are drug dealers, and the new-school model are community workers and healers," Green Witch says. "Our business structure is not about a guy who is never on the land but gets a huge percentage. We share the responsibilities, the risk and profit, evenly."
Mary Jane, a 63-year-old elder in the medical cannabis community who grows for the Grandmother Farm collective, in Mendocino County, also helps supply dispensaries. Her collective provides a pound of free cannabis to patients who are often unable to grow it for themselves.
Plant yields vary wildly. Mary Jane, whose plants have been besieged by fog and rain this year, says she'll be lucky if she gets two ounces per plant.
Mary Jane says she's working with the Mendocino Branch of the Medical Marijuana Patients Union to develop LINK, a matchmaking service between cultivators and patients. "If we have a number of small collectives growing for patients, we can help prevent profiteering and make sure patients get their medicine," Mary Jane says.
While the collectives have protection under state law, all are concerned about being raided by federal authorities. The women keep their grows under 100 plants -- the cutoff for a federal five-year mandatory minimum prison sentence.
"There is a legal fund for the risk-takers, and our sister farms make sure that no matter what happens to us, our patients will get their medicine," Elf says.
The women of High Priestess Farm emphasize that they run an organic farm. Benedict, who spent five and a half months alone tending the plants at Green Mountain Farm, shares these values. And he is wary of a possible raid by law enforcement. When he first arrived, Benedict says, he was frightened of being arrested. "I'd lie awake at night completely terrified."
One day law enforcement paid a visit. Three helicopters surfaced over the ridge and circled the grow, hovering so low that Benedict says he made eye contact with the officers inside. Those officers, Benedict says, worked for CAMP, the California Department of Justice's Campaign Against Marijuana Planting, which destroyed almost 100,000 marijuana plants in Mendocino County this summer.
That time, he was in luck: They never came back.
The old world
The officers of CAMP meet at dawn for a raid in the Shasta Trinity National Forrest. CAMP is an interagency marijuana eradication task force, and there are officers here from eight law-enforcement organizations, including the National Guard. Five CAMP units, with 15 officers each, are on call around the state to support local law enforcement when they raid marijuana gardens.
The men wear camouflage and carry a variety of weapons: AK-47s, .22 rifles, .410/.22 combination guns, Colt sidearms, and M16s. There's a helicopter on site, which transports a Short Term Airborne Operations team that drops agents into marijuana grows. The helicopter has flown five days a week since May and burns a hundred gallons of fuel a day.
CAMP commander Michael Johnson says he relies on county officials to tell him whether a grow site is a posted medical marijuana garden in compliance with local cultivation limits. He says CAMP is not a threat to medical marijuana farms.
"To my knowledge, we have not been involved in one medical marijuana grow all this year," Johnson says.
As a California law-enforcement officer, Johnson says he respects state medical marijuana laws and has orders from the state attorney general's office not to step outside them.
"There is so much commercial marijuana out there, we don't have time to deal with medical marijuana," Johnson says. "We are focused on the large gardens-for-profit, and there are plenty of those to keep us busy."
Johnson says CAMP has destroyed well over a million plants this season, up from 621,000, in 2004.
Funded by the state and federal government, CAMP's 2004 budget of $1 million was increased by 30 percent this year, Johnson says. He says his unit targets multi-thousand-plant grows that are mostly on public land.
Jason Gassaway, of the Shasta County Sheriff's Department, arrives with his dog, Jet, whose job is to run down suspects fleeing from a grow. "Most of the grows are armed, so it's good for us to prevent deadly encounters," Gassaway says. "Most of the time, when they see a dog, they give up."
Johnson says three hunting parties have encountered armed growers this year. One cultivator was killed earlier this summer in a shoot-out with a Fish and Game officer, who was wounded in the exchange.
We pile into trucks, drive to a trailhead, then hike silently up a steep slope. A half mile up the hill, we see irrigation hoses and smell cannabis. I look down and see we are surrounded by marijuana plants -- or what's left of them. The entire garden, camouflaged under oak trees, has been harvested. An agent estimates the grow appears to have been several thousand plants, cut down a few weeks ago.
The plants, terraced on the hillside, appear to have been small. The stalks that remain support runty, shriveled buds. A detective on the raid says most of the marijuana on these farms is sold for $2,500 a pound out of state because it doesn't meet the standards Californians expect from their cannabis.
Kris Hermes, legal campaign director with Americans for Safe Access, a patients' rights group, says he has heard no reports this year of marijuana grows raided by CAMP. But he notes that medical cannabis growers around the state continue to be prosecuted by local, state, and federal authorities. He points to two collectives in Butte and El Dorado counties raided by local sheriffs last month. Down the hill from the harvested garden, we find what remains of the growers' camp. They've left behind their camp stove, plastic sheeting, pots and pans, and pieces of cardboard that appear to have been slept on. No snug tent village or lovingly prepared food for these farmers.
Agent Eddy, a quiet Latino man, says many of the farmers apprehended in the gardens this year come from one Mexican state.
"They come from very poor towns in Michoacn; the organizers go there and pay them a couple of thousand of dollars to come here and farm marijuana," he says. "I don't think I'd want to stay here all season and live like this."
Johnson says CAMP made 46 arrests this year, almost all Mexican field-workers. He says the grow owners are members of Mexican cartels that plant multiple large grows with the assumption that a certain percentage of them will get raided.
Hermes is skeptical about the Mexican cartel allegation, which, he says, is an attempt to draw public support away from marijuana growers. He says this account is similar to a claim put forth by the Drug Enforcement Administration (DEA) that a group of San Francisco dispensary owners raided this summer were members of an Asian mafia.
"Law enforcement loves to issue sensational statements grabbing the public attention and providing a favorable environment to justify their harsh reactions to marijuana cultivation and distribution," Hermes says.
But CAMP officers are just as sincere about the righteousness of their cause as the medical cannabis growers are about theirs. Many agents point to the environmental damage done by commercial grows, and it's clear this grow site was no environmentally sensitive cannabis farm. We see bags of nitrogen fertilizer, rat poison, and malathion pesticide, which the agents say leaches into the local water supply. The hillside and the growers' camp are strewn with trash.
When we descend the hill, I ask Agent Jeff Wallace if he thinks the environmental damage from grows on public land would be eliminated if marijuana could be cultivated openly. "I wouldn't agree with that argument," he says. "It's still a gateway drug for meth or cocaine; I wouldn't want my kids out there recreationally smoking marijuana."
Johnson argues it would be too difficult to control the quality of legal marijuana, and public land provides rent-free, cheap, well-hidden grow sites. "People grow marijuana freely in Mendocino," Johnson says. "But there are still hundreds of illegal gardens. Why would legalization stop that if there is a market and money to be made growing it?"
Sheila, the trimmer at Green Mountain Farm, disagrees, pointing out that large marijuana grows are still illegal. "The laws that were created force people to be clandestine," Sheila says. "They have created a problem for themselves; it is a way to keep busy."
The trim continues
Meanwhile, back at Green Mountain Farm, the trimmers work with quiet intensity harvesting Trainwreck, Grand Daddy Purple, New York City Diesel, Super Kush, and other cannabis strains grown at the site.
Each carefully numbered plant is first chopped at the base with pruning shears, and the branches are cut off with buds intact. The branches are trimmed and brought to the fanners, who cut off the larger outer leaves with two patented Canadian TrimPro machines that look like giant fans inside a metal mesh cage.
The roughly trimmed stalks are carried over to hand trimmers, who sit among the plants on a sunny ridge. Using tiny scissors, the trimmers carefully shape the buds. The trim is gathered in cardboard boxes on their laps and sent to trim racks, where it is dried and used to make hash or marijuana edibles.
After manicuring, the stalks are walked over to the dry room, kept at a constant 50 to 60 percent humidity with the help of a humidifier, a dehumidifier, an air conditioner, and a swamp cooler. The buds are dried for 10 days before being snipped off the stalks and bagged.
Antie M says his intention for Green Mountain Farm is that it be a place of healing where people can ease off alcohol, hard drugs, and turbulence in their lives. A handsome young trimmer named Travis Wade, who says he used cannabis to kick a methamphetamine habit, says living on the land is strengthening his body. A trimmer named Shockra, who fled his damaged house in New Orleans and refugee camps, says the money he makes trimming will help him start a new life.
"Creating community is a major driving factor in bringing this all together," says Antie M, who arranged for a six-piece band to play all last weekend at his trim camp. "I want it to be an incredible experience for people."
I ask Antie M if he's worried about getting busted. He says two of his grows were raided in previous years by county authorities who seized the crop but declined to press charges. He says he has learned to plant smaller grows and has no animosity toward law enforcement.
"If they really want me, they can come and get me, but I am really trying to play by the rules," Antie M says after dinner at Forrest Farm, a smaller 100-plant grow he also manages. "It will be interesting to see what happens between now and Halloween."
Up in Lake County, California, Eddy Lepp's collective openly cultivated the largest-known medical cannabis crop -- 32,000 plants -- and was busted by the DEA. He's now in federal court pleading a religious defense, because federal law does not allow him a medical defense. If convicted, he could serve life in prison.
Phil and Bobby, the cultivators at the Oak Tree Farm collective, in Lake County, are keeping a close watch on their grow. To prevent potentially losing their entire crop to law enforcement, they grew a second, early harvest in their greenhouse, forcing the buds to mature early using light-deprivation techniques.
The two growers have also banded with other small cannabis farms to create an insurance fund that would partially reimburse a farm that gets raided or suffers crop failure.
But these cultivators say one of their greatest concerns is simply being robbed. "The biggest risk is our neighbors," says Bobby, who says two men jumped the fence in the middle of last year's harvest and demanded a payoff. "Someone was going around with a map of the farms last year strong-arming people."
"You can call the local authorities and have them come out and support you and just hope that they don't turn you over to the feds," Phil says.
Back in San Francisco, Hector is also worried about federal agents. His 350-plant indoor grow, which produces about two ounces per plant, supplies a 12-member patient collective, two dispensaries, and an AIDS hospice. Over the past year, Hector says, more of San Francisco's medical cannabis is coming in from outside the city because it's become perilous and costly to grow in town. "I am concerned about the San Francisco Police Department kicking in the door because of their past cooperation with federal officials," he says.
San Francisco's proposed dispensary regulations offer no specific protections for grow collectives. City supervisors are debating cultivation limits. The regulations attempt to protect dispensaries under state law by defining them as "any association, cooperative or collective of ten more qualified patients or primary caregivers that facilitates the lawful distribution of medical cannabis."
Some dispensaries have become grow collectives to comply with the law. But Hector says his collective, which does not run a retail operation, has no intention of registering with the city and revealing the location of its grow. To do so would be too dangerous and expensive. "We are not going to pay $7,000 in permitting fees to give away free marijuana to hospices," Hector says.
On the road
Antie M still has to get his cannabis into the city. We load up his vehicle with several pounds of dried, manicured bud and head into San Francisco. "I've got some Trainwreck," he says on the phone to a dispensary manager. "It's very sparkly."
State law allows eight ounces of medical cannabis to be transported for each patient but doesn't explicitly permit sales to dispensaries. Each county has different limits and interpretations by law enforcement. They could seize the cannabis and arrest us.
Antie M asks me to keep an eye on the speedometer. He says he learned to abide by motor vehicle laws after he was stopped once for running a stop sign with two pounds of pot in the car. We drive like model citizens. I watch for police. Near San Francisco City Hall, we get stuck in heavy traffic. As we approach the dispensary, I ask Antie M please not to make an illegal left-hand turn.
We arrive without incident, park legally, and walk into a dispensary. It's evening, and the place is almost empty. We sit behind the counter, and Antie M and the clerk look at the cannabis under the microscope. It shows no sign of rot or pests and shimmers with droplets of resin. "Beautiful job; well done," the clerk says. The room is pungent. Purchasers come and go. A patient asks for Trainwreck and is told they'll have it soon. It takes Antie M almost an hour to find a scale large enough to weigh his cannabis; the triple beam scale is too small. We finally find a larger scale to weigh the crop. The buds weigh eight and a half pounds.
Antie M agrees to a price of $3,600 a pound. He is pleased to discover that while most of his plants yield an average of one and three quarter pounds of buds, he has just sold a plant that yielded almost three pounds.
He steps into an enclosed alleyway behind the dispensary and loads the transparent bags of cannabis into a bucket. The dispensary owner pulls the bucket up to his second floor office and sends down $5,000 in cash. The rest of the cannabis will be sold on consignment.
Antie M puts the cash in a bag and heads back up to Green Mountain Farm, where the harvest continues.
The U.S. Supreme Court ruled Monday that federal authorities have the power to prosecute medical cannabis patients. Medical cannabis patient Angel Raich says she has no plans to stop using marijuana under California law and will take her fight to Congress.
"Just because the Supreme Court today has ruled against me does not mean that the war on patients should begin," said Raich at an emotional press conference. "It means that it is time for the federal government to have some compassion and have some heart and please use common sense and not use taxpayer dollars to come in and lock us up."
Raich, together with fellow patient Diane Monson sought a court order preventing the federal government from arresting them and two caregivers who grow Raich's medical cannabis. The action stemmed from a raid on Monson's property by federal authorities who seized the cannabis she grew to treat her chronic pain condition.
The 9th U.S. Circuit Court of Appeals granted the women an injunction against prosecution, but the U.S. government appealed the case, Gonzales v. Raich, to the Supreme Court. The justices ruled in a 6-to-3 decision that the federal government can enforce federal drug laws through its power to regulate interstate commerce under the Commerce Clause.
Angel Raich's husband, Robert Raich, who served as one of the attorneys in her case, viewed the decision as a narrow ruling that did not address questions of due process or medical necessity raised in the closely watched case. He emphasized that that the decision will not impact state medical marijuana laws in Alaska, California, Colorado, Hawaii, Maine, Montana, Nevada, Oregon, Washington and Vermont that protect patients from arrest by state and local authorities. Raich noted that federal agencies make only 1 percent of the nation's 750,000 marijuana arrests every year.
"This case had much to gain to protect patients under federal law but nothing to lose because state law is in effect and it preserves the status quo," Robert Raich said. "The federal government will claim as it always has that medical cannabis is not recognized under the federal law, but it is legal for patients under state law, so we have not changed the state versus federal conflict here."
Raich charged that it was irresponsible for Congress to ignore medical evidence and prohibit seriously ill patients from using cannabis under federal law, and that other courts could consider the due process and medical necessity arguments. The justices agreed that the issue must now be taken up by Congress. "But perhaps even more important than these legal avenues is the democratic process, in which the voices of voters allied with these respondents may one day be heard in the halls of Congress," wrote Justice John Paul Stevens in the last paragraph of his majority opinion.
Angel Raich, who says she would die without cannabis to ease her numerous medical conditions, said she will soon undergo surgery to treat an early stage of cervical cancer and must continue to use medical cannabis because she cannot tolerate other painkillers. She says she even considered leaving the country, but her two children ultimately encouraged her to stay and keep fighting for the rights of cannabis patients.
"I don't like using cannabis; I use it because I have to to stay alive. I promised my kids I would be here for them," said Raich. "I would like to follow the law but I can't because the law is unjust. I will continue to fight if it takes the last breath in my body."
Raich says she will travel to Washington D.C. later this month to urge Congress to pass an amendment to an appropriations bill that bars the Drug Enforcement Administration from using its funds to raid and arrest medical cannabis patients. The U.S. House of Representatives is expected to vote on the Hinchey-Rohrabacher medical marijuana amendment next week.
Raich noted that she lobbied members of Congress earlier this year with talk show host Montel Williams, who uses medical cannabis to ease the symptoms of his multiple sclerosis. But Raich says many members of Congress would not meet with her and that people in positions of power must get more involved in pressuring Congress to reform marijuana laws. "I am here to talk on behalf of constituents and they are not taking my calls," Raich said. "Why? I want to know."
California State Attorney General Bill Lockyer, who supports medical cannabis, submitted an amicus brief supporting the Raich case as did a number of other states. "Today's ruling does not overturn California law permitting the use of medical marijuana," said Lockyer in a statement. "Although I am disappointed in the outcome of today's decision, legitimate medical marijuana patients in California must know that state and federal laws are no different today than they were yesterday."
The arguments in the case were crafted to appeal to federalist Supreme Court justices with a history of upholding states rights. The swing justices were Anthony Kennedy and Antonin Scalia, who had ruled for states rights in past decisions regarding guns in school zones and violence against women. But in the Raich case they broke with their conservative colleagues to uphold the powers of the federal government.
"Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has no demonstrable effect on the national market for marijuana," wrote Clarence Thomas in his dissenting opinion. "If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything -- and the federal government is no longer one of limited and enumerated powers."
Thomas was joined in dissent by Chief Justice William Rehnquist and Sandra Day O'Connor.
Some activists are concerned that the ruling will encourage federal authorities to arrest medical cannabis patients and the growers and dispensaries that provide their marijuana. The DEA has maintained throughout the Raich case that all marijuana use is illegal and that the agency has an obligation to uphold the law.
"Marijuana is not medicine," said DEA spokesperson Richard Meyer, who declined to say whether federal authorities are planning to target the medical cannabis community.
State law enforcement authorities in some California municipalities have voiced concern that doctors are interpreting the state law too broadly and giving medical cannabis recommendations to those who don't need it. But Steve Fox, director of government relations for the Washington D.C.-based Marijuana Policy Project, notes different states apply different standards for qualifying as a medical cannabis patient. He adds that recently recalled pharmaceutical painkillers such as Vioxx have proven to be much more harmful than cannabis.
In addition to its potential for sparking new federal prosecution, the Raich decision will impact over 30 pending federal medical cannabis cases, including that of the Oakland Cannabis Buyers Cooperative (OCBC) where Raich used to purchase her medical cannabis. The OCBC lost its case in the Supreme Court on a medical necessity argument and has been barred from distributing medical cannabis pending a lower court decision. "I didn't expect to win in court -- this is not a legal problem, this is a political problem," said OCBC director Jeff Jones.
Jones believes the federal government may well see the decision as a greenlight to prosecute patients, growers and dispensary owners. But he believes those criminal trials and the controversy they generate will ultimately shift the politics of medical cannabis. "It will be painful for the people involved, but it will help change these laws," Jones said. "Bring it on."
San Francisco, the city where the medical cannabis movement was born, is now working to develop regulations for its medical cannabis dispensaries that could become a model for other cities throughout the nation.
San Francisco city supervisors voted this week to enact a 45-day moratorium on new medical marijuana clubs that are flooding into the city. The number of San Francisco dispensaries has exploded from 10 three years ago, to an estimated 37 clubs. The San Francisco Department of Public Heath has now issued 8,000 medical marijuana ID cards, up from 2,000 in 2002.
There are approximately 125 medical cannabis dispensaries throughout California. Each is subject to local regulations. Opening a new dispensary in San Francisco now requires only a business license and approval of the landlord for a change-of-use permit. California's 1996 Compassionate Use Act (Prop. 215) allows medical marijuana patients and their caregivers to possess and cultivate cannabis if the patient has a doctor's recommendation to use marijuana. But Prop. 215 and a subsequent state senate bill SB420 set up no explicit guidelines for commercial dispensaries, where most San Francisco patients obtain their cannabis.
Federal authorities do not recognize state medical marijuana laws and continue to arrest marijuana cultivators and distributors. This week, agents from the federal Drug Enforcement Administration seized 500 marijuana plants from a San Francisco warehouse, but it was not clear whether the growers were supplying dispensaries. The U.S. Supreme Court is expected to rule any day on the case of Ashcroft v. Raich, which will determine whether the federal government has the authority to prosecute medical cannabis patients and growers operating under state law.
Some activists fear that if the court rules in favor of the federal government, dispensaries will be targeted for a crackdown by federal authorities. But the immediate pressure to regulate San Francisco's dispensaries is coming from neighborhood groups and Mayor Gavin Newsom, who called for tighter regulations after learning that a dispensary was planning to open on the ground floor of a city-funded welfare hotel.
The effort to regulate San Francisco's dispensaries is being led by City Supervisor Ross Mirkarimi, who has been meeting with dispensary owners, neighborhood representatives, patients and activists to develop a set of dispensary guidelines. Mirkarimi said the moratorium, which can be extended up to 22 months, will not limit patients' access to medical cannabis and gives the city and its residents breathing room to set some rules. "We don't want to trigger the intervention of the federal or state government," Mirkarimi said.
During a public hearing on the moratorium, Mirkarimi noted that the nearby city of Oakland had moved to limit the number of dispensaries there from nine to four without extensive public input.
"I would like us to undertake a very deliberative process set by a number of hearings where good people can weigh in on the development of new laws," said Mirkarimi. "The 45-day moratorium does not penalize existing clubs."
Some activists feel that the moratorium will hurt competition and reduce services to patients. Steph Sherer, director of Americans for Safe Access, which advocates for medical cannabis patients, says over 28 cities and towns around the state have already passed moratoriums, some of which have prevented any dispensaries from opening in their community.
"It's different in San Francisco where there is access to medical cannabis, but moratoriums in places like Pasadena where there aren't any dispensaries end up being bad for patients," said Sherer. "The city of San Francisco is a leader on this issue and we don't want to see moratoriums all over the state."
In an effort to make sure everyone's views are heard, Mirkarimi has scheduled an April 25 hearing before the Board of Supervisor's Government Audit and Oversight Committee to discuss proposed regulations including new zoning rules. A group of San Francisco dispensary owners have developed their own proposed guidelines. These include provisions requiring dispensaries to provide a place for patients to smoke cannabis on site, offer cannabis at reduced prices to needy patients, discourage resale of medical cannabis, and abstain from "excessive profits," meaning cannabis prices must not be substantially higher than fair market value.
"We have a rare opportunity to really set a standard for the rest of the state and the rest of the country for years to come," said Martin Olive, co-director of the Vapor Room dispensary in San Francisco, which drafted the proposed guidelines. "I have faith in the city and I think that everyone had honest intention and integrity and there is a genuine consensus that we are working for the same goals. There were too many years where the city was not doing anything and everyone was just in limbo, and now the city is taking an interest and forcing everyone to focus and unify their voices."
Mike Aldrich, co-founder of CHAMP, one of the first San Francisco dispensaries, says he wants every patient issued a city ID card to join a proposed San Francisco Cannabis Cooperative. Patient cooperatives, which are permitted to grow medical cannabis under state law, could then decide whether to license dispensaries and perhaps set up an ombudsman committee to deal with complaints, said Aldrich.
The regulatory process in San Francisco is tackling neighborhood issues that other communities with dispensaries may confront. At a neighborhood meeting earlier this week, residents who live near the Mendohealing Clinic dispensary in the city's South of Market district complained that the facility attracted loiterers, increased illegal parking and led to harassment of pedestrians. Other neighbors raised concerns about the proximity of dispensaries to schools and religious centers where children might be present.
"We have made mistakes, we are looking for guidance from the city," said dispensary operator Alan Novey. He said the dispensary installed more security guards, but people gathered at the door because the club gave away free cannabis to indigent patients. "We want to move; we realize that the location should be fair to the neighborhood," Novey said.
The city's shift towards moratorium and regulations has been supported by many patients and dispensary operators. In a community where internal discussions have often been adversarial, San Francisco dispensary operator Randi Webster says this newfound unity demonstrates that the medical marijuana community has grown up and is seeking to legitimize what they have already legalized.
"We have to be accountable and as with any responsibility, there is a corresponding right," said Webster. "The patients have a right to be heard now and the patients need to have protection and validation and services in this city. We are working with the city, not waiting for it to be decided by the city."
San Francisco's cannabis policies will continue to be in the spotlight this week as members of the National Organization for the Reform of Marijuana Laws (NORML) gather in the city for a national conference. According to Dale Gieringer, director of California NORML, San Francisco's dispensary moratorium is just part of a process toward regulation and taxation of recreational cannabis sales to adults, which Oakland voters supported in an initiative last year. "There is widespread recognition in the Bay Area that this is the way to go for the economy, the government and the community, and we can deal with neighborhood complaints as they arise," said Gieringer.
While the battle to allow marijuana for medical use is still being fought across the nation, the forward edge of the war for acceptance is pushing further: towards ending prohibition altogether. Campaigns to regulate rather than prohibit marijuana are catching fire around the country. The residents of Oakland, California – which already has legal medical marijuana dispensaries, will soon vote on whether to permit marijuana sales to all adults as a way to eliminate street dealing and fund city services.
On June 29, county officials qualified the Oakland Cannabis Initiative for the November election. Supporters of the initiative had turned in over 32,000 signatures. "It would require the City of Oakland to develop a system to tax and regulate adult sale and use of marijuana as soon as possible under state law," says Joe DeVries, a board member of the Oakland Civil Liberties Alliance, which supported the measure. "And until state law makes it possible, it requires that the Oakland police treat adult use and sale of marijuana as the lowest policing priority."
The Oakland Cannabis Initiative is one of several similar measures intended to show local support for statewide marijuana law reform legislation. Medical cannabis is fully legal in only nine states.
"We want Oakland to be at the forefront of a new trend. We have had inquiries from in and out of state to follow Oakland's language and use it elsewhere," says Dale Gieringer, president of the California chapter of the National Organization for the Reform of Marijuana Laws (NORML), which backed the initiative. Gieringer says West Coast cities north of Santa Cruz, California are ready to tax and regulate marijuana. "A couple of local cities in the Bay Area are interested, they are waiting to see what happens in Oakland," says Gieringer, who adds that a group of San Diego activists also contacted the Oakland campaign.
National drug law reform groups – the Drug Policy Alliance (DPA) and the Marijuana Policy Project (MPP) – supported the Oakland campaign. But DeVries says half the funding came from local residents like himself who believe that regulated marijuana sales will make the drug less available to young people. Tight controls on youth tobacco use have resulted in a drop in teen smoking, whereas drug war tactics have not lowered the number of teens smoking cannabis. A study released in May by the Centers for Disease Control and Prevention reported that 21.9% percent of teens reported smoking cigarettes within the last month while 22.4% smoked marijuana.
"By not having any regulation, young people are just using marijuana and putting themselves in danger and then moving on to other drugs," said Oakland resident Jane Coast, 53, who added her signature to the Oakland Cannabis Initiative one Sunday morning. Settling into a nearby cafe for brunch, Margaret Clasing, 24, also signed but took a different view. "If they use it responsibly I don't think its harmful at all,"said Clasing. "But I think it's safer to regulate it and take it off the street."
Initiatives Throughout the Nation
MPP executive director Rob Kampia says his organization put out a call a year ago looking for activists to run local marijuana initiatives. One initiative in Gainesville, Florida, which sought to make adult marijuana use the lowest policing priority, folded after organizers gathered only a small number of signatures. But a similar measure is expected to make the November ballot in Tallahassee, Florida.
In Michigan, a Detroit medical marijuana initiative has qualified for the August 3 primary ballot. Another in Ann Arbor will be put to voters in the November election. One local ballot initiative in Columbia, Missouri takes a decriminalization approach, removing penalties and arrest for persons possessing up to 35 grams of marijuana and allowing only a civil fine. Massachusetts activists are still collecting signatures for up to a dozen non-binding local ballot initiatives which advise legislators to support marijuana law reform.
The first local medical marijuana initiative passed in San Francisco in 1991. But it took another five years for California to pass the Compassionate Use Act (Prop. 215), which legalized medical cannabis throughout the state. Gieringer suggests that passage of a statewide California private adult use initiative will require the same time frame. Kampia agrees that local initiatives are crucial for building statewide support. "Once you get the debate heated up, public hearings and people editorializing about it, then you win a statewide ballot initiative," he says.
Support appears to be strong for statewide medical marijuana in half a dozen states this year. The Vermont legislature just passed a medical marijuana law. Two more are pending in the Rhode Island and New York state legislatures. According to Kampia, a medical marijuana bill will soon be introduced in the Michigan state legislature. Statewide medical marijuana ballot initiatives in Arkansas and Montana will be voted on in November.
DPA Executive Director Ethan Nadelmann points out that while about 80 percent of Americans are comfortable with medical marijuana, only 30 percent to 50 percent now support broader legalization. He notes that state-wide initiatives are expensive and says he is hesitant to support them until polling indicates that they have a clear majority of voters behind them.
A statewide initiative to regulate and tax adult recreational use of marijuana is on the ballot in Alaska this year, and Nevada is struggling to place a major initiative on its ballot, despite a setback in the signature-gathering. Some 6,000 signatures were lost in Clark County and did not make the submission deadline. The Committee for the Regulation and Control of Marijuana submitted 35,000 signatures; 31,360 are required to qualify, but the verification process often discounts about 30 percent.
In 2002, a similar initiative in Nevada lost by 22 percentage points after heavy opposition by the Office of National Drug Control Policy, a massive get-out-the-vote effort by Republicans and several highly publicized deaths attributed to marijuana use. Kampia believes that if the initiative gets on the ballot, the high voter turnout expected in the November election will bring out enough supportive Nevada voters to carry this year's measure. The Nevada initiative removes the threat of arrest and jail for those 21 and over who possess up to one ounce of marijuana. It also also requires the state legislature to establish a privately run system to grow, sell and tax cannabis. Like Oakland, the Nevada initiative emphasizes lowering teen access through marijuana regulation and points out that 28% of Dutch teens have smoked grass (where it is legal) compared to 67% in Nevada.
But Nadelmann cautions activists not to underestimate the resistance to drug reform measures. "We have an incredibly committed, emotional and in some respects fanatical opposition willing to do virtually whatever it can to block this," he says.
Oakland Confronts the Opposition
Some of the ongoing turmoil in Oakland illustrates the opposition against drug law reform. Two Oakland city counselors backed the Oakland Cannabis Initiative, and campaigners say their polls show 71 percent of likely voters support it. But Mayor Jerry Brown, who is running for California State Attorney General, has remained conspicuously silent and declined to comment for this story. According to his spokeswoman, the mayor is still studying the initiative. But Brown has been spotted enjoying a drink at at a trendy new bar in Oakland's "Oaksterdam" district, which has been revitalized by a cluster of medical marijuana clubs that the city has largely shut down. The Oakland City Council decided to license only four of the clubs citywide and went further this month, closing all but three of the city's ten or so thriving medical cannabis dispensaries.
Richard Lee, owner of two Oakland medical cannabis clubs, said the city felt that Oaksterdam was colliding with other development plans. But he points out that the medical cannabis clubs brought in $70 million dollars per year in gross revenue and attracted diners and shoppers that developers find attractive. Lee is optimistic that the city will eventually license more clubs, including those for non-medical cannabis users. "What we hope is that by allowing more clubs, not less, they will eliminate problems and at the same time generate revenue for the city and attract tourism," says Lee who supported the Oakland Cannabis Initiative.
"We want to tax cannabis and get it off the streets," says initiative field director Kim Swinford, who estimates that the marijuana trade in California is a $2-billion-a-year business. "We want the city to put the money into services like schools and libraries and youth programs which are way underfunded. Our schools are the worst."
Swinford notes that California spends $100 million each year enforcing marijuana laws, plus an estimated $40 million incarcerating those non-violent offenders. She adds that people of color, who make up two thirds of Oakland residents, are especially targeted by police for drug arrests. Yet when Swinford ran into Mayor Brown at the Oaksterdam bar, she said he was unhappy that the Oakland Cannabis Initiative received funding from national organizations and later complained to another campaign worker that Oakland was a "guinea pig" for drug law reform. "Oakland is a city of thinkers and city of leaders, we are not guinea pigs," says an angry DeVries. "We are proud to go out and tell John Ashcroft and the Bush Administration that thirty years and billions of dollars spent locking people up, ruining their lives, and making it impossible to return to their jobs doesn't work."
But the Oakland Police are not convinced that the cannabis initiative will reduce street dealing or availability to kids. "If marijuana is more expensive in the stores than on the street you will have a black market and it will not change anything. Street dealers don't have any overhead," says police Lt. Rick Hart who heads the Oakland Police Department's narcotics unit. "There are going to be those customers who have alternative ways to purchase it."
DeVries points out that medical cannabis clubs sell marijuana at below street prices, and those selling to adults from regulated cannabis shops could too. He says undercutting street dealers removes the profit motive and will help de-escalate drug related violence on the streets of Oakland. As for a black market catering to young people, "I don't see a lot of kids out there selling alcohol to minors on the sly," says DeVries.
But Hart says federal authorities will still target Oakland's proposed non-medical marijuana sales whether or not they are sanctioned by state law. "Just because you sell it in a store and because police have a lower priority doesn't mean that the federal government won't target the store or shut them down, make arrests and seize contraband," says Hart, who confirms that two of his Oakland officers are cross deputized to work with a federal Drug Enforcement Agency narcotics task force.
DeVries points out that most people are arrested on marijuana charges under state laws. But he says preventing local police from targeting marijuana sellers under federal law remains a big challenge for local drug law reformers. "If the city of Oakland says we want to tax and regulate cannabis and make it available to adults," says DeVries. "The local police have to stop doing the federal government's dirty work and stop participating in federal drug task forces – like San Jose did last year."
The costs of the war in Iraq can be measured daily in deaths, injuries and decreasing support for U.S. policies. But how do you measure the costs of America's other war -- the war on drugs?
Each year, the U.S. government spends more than $30 billion on the drug war and arrests more than 1.5 million people on drug-related charges. More than 318,000 people are now behind bars in the U.S. for drug violations. This is more than the total number of people incarcerated for all crimes in the United Kingdom, France, Germany, Italy and Spain combined.
At a May 6 forum sponsored by the Independent Institute, an Oakland, California, think tank, analysts tried to quantify the real costs of drug war. Have these efforts actually deterred drug abuse or reduced crime? Boston University economist Jeffrey A. Miron, who spoke at the forum, applied an economic analysis to determine whether drug prohibition is a more effective public policy than legalization -- which would tax and regulate drugs. Miron, author of the new book Drug War Crimes, says the true costs of prohibition should be measured not just by the billions of dollars spent for enforcement of drug laws, but the overall impact on drug consumption, crime, public health and unseen moral consequences.
One of the major goals of prohibition is to increase the cost of drugs and thereby reduce demand and drug consumption. But Miron says this approach has failed. He points out that the price of drugs has actually fallen by 80% in the past 25 years. Despite millions of drug arrests, Miron says prohibition has had a relatively small effect on both the supply and consumption of drugs. He says the government's claims of a fifty percent drop in consumption due to prohibition are exaggerated. "Prohibition reduces access of drugs to some people, but there is no evidence that suggests a large effect," says Miron.
Miron also disputes claims by the federal Office of National Drug Control Policy (ONDCP) that drug use makes people violent and contributes to crime. He says prohibition increases violence because people involved in the drug trade have no recourse to the legal system to settle their disputes and are more likely to settle it themselves with force. "There is no evidence that merely consuming drugs makes you go out and do criminal things," says Miron.
Throughout history, Miron says periods of escalating violence have been sparked by attempts to prohibit certain commodities such as drugs, alcohol, gambling or prostitution. In instances where prohibition does increase the cost of drugs, he says drug users are more likely to steal or rob to pay for drugs. Police efforts to curtail violence are often diverted to enforcing drug laws.
Miron also notes that the drug trade enriches only the sellers, who are exempt from paying taxes on their products or minimum wages to workers. Drug sellers are not required to engage in quality control, which leads to more overdoses and accidental poisonings, says Miron. And he notes that there are other social consequences that make prohibition more costly than the legalization. "Because prohibition is a victimless crime, there is strong incentive for police to impede civil liberties and do racial profiling," he says. Miron adds that resistance to needle exchange programs under prohibition also increases the spread of HIV.
The effects of drug use on third parties such as unborn children or those involved in drug-related traffic accidents are exaggerated, says Miron, and not significantly different from the negative effects of alcohol or forgoing sleep for late-night TV. As for those who think that drugs are inherently immoral, Miron argues that the concurrent violence, damage to civil liberties and decreased respect for law which follows prohibition have a larger negative moral impact on people who are innocent bystanders to the drug war. According to Miron, the paternalistic attitude that people need to be protected from themselves opens a Pandora's box of government intervention.
"There is no reason to think that the benefits of reducing myopic drug use balances the costs that prohibition places on society," says Miron. "The best policy is to legalize drugs and do it sooner rather than later."
The Drug War Crimes forum also looked at the impact of prohibition on police forces. Joseph McNamara, former police chief of San Jose and now a research fellow at the Hoover Institution, says police have been greatly influenced by federal escalation of the drug war. He says financially strapped local police departments now receive significant funding and much of their training from federal officials who encourage them to continue to make drug arrests. "It is a jihad, it is a holy war you have to fight," says McNamara.
McNamara says local police are also encouraged by city officials to seize the assets of suspected drug criminals to fund their departments. "In San Jose when I was given zero dollars in the budget they said 'you guys seized four million dollars last year, I expect you to do better this year,"' says McNamara.
McNamara says police are under pressure from citizen groups who worry about the impact of open outdoor drug markets on children in the neighborhood. He emphasized that these concerns cannot be dismissed. But he says current drug policies have vastly increased police corruption, and created a culture of "gangster cops." Protected by a code of silence and supported by an attitude from top officials that police should not be impeded in their duties, McNamara says prohibition gives rise to a range of police abuses. McNamara says this has been illustrated in series of police corruption scandals including one at his former employer, the New York City Police Department. Investigators there, he said, found that narcotics officers had been robbing drug dealers and stealing their drugs. Confronted by the reality that the country is still flooded with drugs, he says police sometimes develop the attitude that "it's hopeless we can't do anything about it, why shouldn't we all benefit."
Despite the impact on prohibition on the stability of social institutions, the US government rarely looks at the unintended consequences of the drug war, says Ethan Nadelmann, executive director of the Drug Policy Alliance (DPA). "The absence of critical analysis on the part of the administration and Congress is worse now than ever," says Nadelmann who once worked for the US State Department analyzing the laundering of drug money.
Nadelmann says the DPA has been building a political movement to shift public opinion concerning drug prohibition. "We want to end prohibition as we know it and reduce the harms of drugs," says Nadelmann. "Nobody should be punished in any way for what we put in our bodies, that should be a fundamental human right and is sound public policy."
According to Nadelmann, one of the greatest concerns about drug legalization is "loss of control." He says that the government's prohibition policies have resulted in greater overall loss of control and regulation and taxation of drugs is the answer to this concern. Since the majority of drug arrests take place for marijuana, he says the dismantling of prohibition has started there. He says the DPA has taken the initiative to the states and helped support the passage of state medical marijuana laws and asset forfeiture reform. DPA also helped pass California's Prop. 36 which significantly reduced the number of people sent to jail for drug crimes by offering treatment as an alternative.
Nadelmann noted that countries with more permissive drug laws have not seen an increase in drug use. When an audience at the panel asked about age limits on drug access, Miron says there was support for age limits such as that which exist for alcohol and cigarettes. But he noted that children would still get access, as they do now to both drugs and alcohol, and it is important that these concerns be addressed by families.
Nadelmann says the marijuana reform movement mirrors the gay rights movement in that it is pushed forward by those who put a human face on the issue by coming out of the closet as marijuana smokers. He says this had helped shift public opinion in which 41% of those polled support the idea that marijuana should be taxed and regulated with numbers approaching 50% in Nevada and Alaska.
As an increasing number of states take steps toward regulating medical cannabis, Nadelmann says the next question will be "what is medical?" He notes that some people use cannabis to generate the same effect as Viagra, to treat depression, or to relax at the end of the day as one would with a cocktail.
According to Nadelmann, the next evolutionary step in the repeal of drug prohibition is the Oakland Cannabis Initiative, a ballot initiative in Oakland, Calif. which would make marijuana enforcement the lowest police enforcement priority and support a statewide effort to tax and regulate the drug. Supporters of the initiative are still gathering signatures to place it on the November ballot.
Another challenge for those who wish to overturn drug prohibition is to end policies that encourage the hatred of those who consume or distribute drugs. McNamara notes that under prohibition, these people are not only imprisoned, but they have property confiscated, driver's licenses taken away and are cut off from access to educational funding. These measures, says McNamara, violate the right of Americans to life, liberty and the pursuit of happiness. He reminded the audience at the Drug War Crimes forum that the first laws supporting drug prohibition were put in place in 1914 by "fundamentalist groups who inserted their concept of sin into the penal code."
"It is not up to the government to tell us what rights they will dole out to us," said McNamara as the audience cheered. "We were born with those rights."
Ann Harrison is a freelance reporter working in the Bay Area.
While the federal government continues to insist that marijuana is not a medicine, the medical marijuana movement has been pushing back -- scoring a recent string of legal victories that will make 2004 a pivotal year for patients and their caregivers.
The latest blow against the federal drug warriors came last week when medical cannabis patient Angel McClary Raich received word that the Ninth U.S. Circuit Court of Appeals had rejected the government's petition for a review of its ruling protecting medical cannabis patients. A three-judge panel of the appellate court decided last December in Raich v. Ashcroft that the arrest and prosecution of medical cannabis patients is unconstitutional as long as they obtain their marijuana without purchasing it or crossing state lines -- and if they use the plant medicinally in compliance with state law.
"It makes me feel really good to know that the Ninth Circuit Court of Appeals has joined the eighty percent of Americans who feel that cannabis is a legitimate medicine," says Raich pointing the November 2002 Time Magazine poll which found overwhelming support for medical marijuana.
The ruling was initiated by a 2002 lawsuit filed by Raich and fellow cannabis patient Diane Monson, whose medical marijuana garden was destroyed by federal agents. The women sought an injunction against the raids, which the Drug Enforcement Administration has been carrying out for seven years against California medical cannabis dispensaries, patients and their caregivers. "That was very scary for me," says Raich who has an inoperable brain tumor and says she needs cannabis to stay alive. "I had to protect myself and other patients."
The U.S. Justice Department attempted to reverse the decision by petitioning the federal appeals court for an "en banc" review by 11 judges. But the judges stood unanimously behind their decision. The final ruling became effective immediately in the seven states within the Ninth Circuit's jurisdiction that have medical cannabis laws. They include Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. The Justice Department has 90 days to appeal the ruling to the U.S. Supreme Court. "We have not made any determination what the next step will be," says Department of Justice spokesperson Charles Miller who declined to comment on the Ninth Circuit decision.
Raich, a frail and determined mother of two, took part in the last Supreme Court decision on medical cannabis. Back in 2001, she was one of the fourteen medical cannabis patients cited by the Oakland Cannabis Buyers' Cooperative (OCBC) in its request for a "medical necessity" exemption to federal drug laws. The court struck down the medical necessity argument and ordered a permanent injunction against the cooperative's distribution of medical cannabis. But judges did not consider the constitutional questions surrounding the government's power to apply federal drug laws to the medical marijuana patients themselves.
Raich v. Ashcroft could well be the case in which the Supreme Court finally addresses these issues. The Ninth Circuit based the Raich v. Ashcroft decision on an interpretation of the Commerce Clause, which gives the government the power to control interstate commerce. Since the medical marijuana in question was used only in state and was not for sale, the court ruled that the federal government had no jurisdiction. Activists are encouraged by the fact that the Supreme Court's conservative majority has already made several rulings restricting federal powers to interstate commerce.
Last year, the Supreme Court also let stand another Ninth Circuit decision that barred the federal government from punishing physicians who recommended medical marijuana to patients. Supreme Court justices declined to hear the case of Conant v. Walters, in which a group of California doctors and patients sued on First Amendment grounds after the federal government threatened to revoke the DEA licenses of physicians who recommend cannabis.
The Legacy of Raich v. Ashcroft
As a landmark ruling, Raich v. Ashcroft could influence the outcome of the OCBC case still under consideration by the Ninth Circuit. But the OCBC case involves the sale of medical cannabis while the plaintiffs in the Raich case got their marijuana for free. The facts of Raich v. Ashcroft have more in common with another lawsuit brought by the Wo/Men's Alliance for Medical Marijuana (WAMM), a patient's cooperative that did not charge for their medical cannabis. WAMM filed their lawsuit in U.S. District Court in San Jose in April 2003 after the DEA seized WAMM's medical marijuana garden in a paramilitary operation that was resisted by local patients. WAMMs lawsuit calling for an injunction against future raids was struck down. But the District Court has now agreed to review its ruling in light of the Raich decision. While the Ninth Circuit focused on the Commerce Clause and not the patients' claim that they had a right to be free from pain and suffering under the Fifth and Ninth Amendments, these constitutional issues are raised in the lawsuit filed by WAMM, which includes many terminally ill patients.
There are signs that the federal government may be getting increasingly nervous about the run of favorable marijuana rulings. Buried in the 2004 federal spending bill is the so-called "Istook Amendment" which cuts off more than $3 billion in federal funding from local transit authorities that display advertisements promoting "the legalization or medical use of any substance listed in Schedule I ... of the Controlled Substances Act." Representative Ernest Istook (R-OK) added the amendment after seeing marijuana law reform ads that he disagreed with. Faced with loosing $85 million in federal funding, the Washington Metropolitan Area Transit Authority rejected an advertisement last month submitted by a coalition of drug policy reform groups. The ad shows a group of ordinary people standing behind prison bars under the headline, "Marijuana Laws Waste Billions of Taxpayer Dollars to Lock Up Non-Violent Americans."
On February 18, drug law reformers stuck back. The ACLU, Change the Climate, the Drug Policy Alliance and the Marijuana Policy Project (MPP) filed a lawsuit against the U.S. Government and the Transit Authority for censoring the speech of those who oppose the federal war on drugs. The lawsuit, ACLU v. Mineta, asks the court to declare the Istook Amendment unconstitutional, order the Washington Metro to accept the groups' paid advertisement, and to prohibit the federal government from cutting off any funds to the Washington Metro or any other transit authority that permits the display of advertisements "promoting the legalization or medical use" of marijuana or other Schedule I drugs. Plaintiffs in this lawsuit point out that the same 2004 federal budget that slams marijuana law reform advertising, includes $145 million in taxpayer money for pro-drug war ads that focus primarily on an anti-marijuana campaign.
As the medical marijuana lawsuits make their way through the courts, the plaintiffs continue to organize. WAMM founders Mike and Valerie Corral have been working with the City of San Francisco to implement Prop. S, a 2002 ballot measure which directs the city to explore the possibility of growing and distributing medical cannabis. MPP is working to pass medical marijuana bills this year through state legislatures in Connecticut, Illinois, New York, Rhode Island and Vermont. Members of the OCBC have been lobbying their local city council in Oakland, California, which moved last month to shut down all but four of the city's dozen thriving medical marijuana dispensaries. Activists succeeded in keeping the city's current allowance of 72 plants and three pounds of dried cannabis per patient.
For her part, Raich has recorded pro-medical cannabis phone messages sent to 600,000 registered voters and is preparing for her next round with the federal government. "I am totally ready to go to the Supreme Court and take on Ashcroft, I am not backing down," said Raich. "Ashcroft has already lost to a dead guy, does he want to go to the Supreme Court and loose to someone like me who is sick and disabled?"
Ann Harrison writes the At Liberty column from San Francisco.
California medical marijuana activists are outraged over the arrest last week of two medical marijuana patients who face potential life sentences on federal drug charges after being turned over by local authorities. David Davidson, of Oakland, California and his partner Cynthia Blake, of Red Bluff, California were arrested in a state courtroom in Corning, California on January 13 as they were seeking to dismiss state charges of marijuana cultivation and distribution.
Davidson and Blake, both 53, have doctor's recommendations to grow and consume medical marijuana under California's 1996 Compassionate Use Act (Prop. 215). While their defense attorneys were meeting in the judge's chambers to discuss the case with Tehama County assistant district attorney Lynn Strom, Strom announced that she was dropping the state charges because Davidson and Blake were being arrested in the courtroom on a federal indictment.
One of the major flaws of California's medical marijuana law is that it does not specify how many plants a patient can grow or how much marijuana they can possess. Each county or city sets its own guidelines and law enforcement around the state has widely ranging interpretations of how much marijuana patients should have.
The Sacramento U.S. Attorneys office did not return calls seeking comment on the case. But Tehama County assistant district attorney Jonathan Skillman argues that Davidson and Blake were growing too much medical marijuana for their personal use. Skillman said prosecutors came to this conclusion after a raid on Davidson and Blake's homes allegedly netted 1,803 plants and over 60 pounds of "processed marijuana."
"He had plans to supply the entire West Coast," Stillman claimed. "It is not in the realm of peronal use."
But Davidson says prosecutors inflated the number of plants seized, which he says is reflected in the charges. He and Blake have been charged with manufacturing more than 100 marijuana plants and conspiracy to cultivate more than 1,000 marijuana plants. The first charge carries a five- to 40-year prison sentence. The second is punishable by a mandatory minimum sentence of 10 years and a maximum of life in prison.
Davidson said Cynthia Blake was growing 33 plants when the Tehama County sheriff's deputies raided her home in July. Skillman acknowledges that the county has no official plant limit for medical marijuana patients. But prosecutors used this information to secure a warrant to raid Davidson's house in Oakland, where he said he grew about 400 plants, mostly single leaf cuttings. Oakland patients are permitted by local ordinance to grow 72 mature plants and 32 square feet of marijuana garden canopy.
In last year's highly publicized federal case of Oakland medical marijuana grower Ed Rosenthal, jurors declined to include cuttings in the count of mature plants. As with that case, Davidson and Blake will likely be barred from arguing that their marijuana was for medical purposes since federal law does not recognized Prop. 215.
'A Spiteful Investigation'
Davidson contends that his lawyers were winning his case in state court, which prompted Strom to turn it over to the federal prosecutors.
Skillman denies this charge and says there was nothing improper about how Davidson and Blake were arrested. Davidson disagrees.
"Our attorneys were lured into the judge's chambers and as soon as the doors were closed, the deputies took us in a car as fast as they could all the way to Sacramento where we spent four hours chained in the county jail and held 24 hours before we could speak to counsel," Davidson said. "Now I'm facing 10 to 15 years in prison and I'm 53 years old. It's unbelievable."
Steph Sherer, executive director of the national medical marijuana coalition, Americans for Safe Access, disputed the allegation that Davidson and Blake possessed 60 pounds of processed marijuana. Sherer says discovery in the case indicates that prosecutors weighed sticks, stems, leaf cuttings and even root balls to arrive at the 60-pound figure -- a tactic employed by some investigators to inflate the weight of seized marijuana.
"This appears to be a spiteful investigation on behalf of the DA, paid for by the taxpayers of California, and if Strom would like to keep her job, she should respect the laws of the state," said Sherer. "If she did not believe this was a medical case she should have taken it to state court, and not handed over two citizens of California to the federal government for a 10-year mandatory sentence."
Sherer adds that Davidson and Blake's cases fall under a recent ruling by the Ninth U.S. Circuit Court of Appeals, which found that if the marijuana is not purchased, transported across state lines, or used non-medically, the federal government has no jurisdiction to prosecute medical marijuana patients in California and other states.
Davidson, who says he's never been arrested or sold marijuana, is currently free on a $50,000 federal and $20,000 state bail, as is Blake.
"I've worked my whole life as a retail business owner and I was set for semi-retirement and now I'm ruined," Davidson says. "I am nearly flat broke and I will be before this is done."
Ann Harrison is a freelance reporter working in the Bay Area.
Medical marijuana patients won a landmark legal victory Dec. 16 when the Ninth U.S. Circuit Court of Appeals ruled that the federal government has no constitutional authority to prosecute two California women for possessing and growing marijuana for their personal medical use.
Federal prosecutors have long argued that California's 1996 medical marijuana law, Prop. 215, was superseded by the federal Controlled Substances Act, which outlaws the use or cultivation of marijuana for any purpose. Law enforcement agents have used this reasoning to raid and arrest medical marijuana patients and their caregivers. But in a 2-1 decision, the court found that if the marijuana is not purchased, transported across state lines or used non-medically, the federal government has no jurisdiction.
The ruling covers the seven states in the Ninth Circuit that have passed medical marijuana laws including Alaska, Arizona, California, Hawaii, Nevada, Oregon and Washington. California just passed another medical marijuana law, SB420 which goes into effect next year.
The appeals court ruling was prompted by a lawsuit filed in October 2002, by medical marijuana patients Angel McClary Raich and Diane Monson plus Raich's two anonymous caregiver growers. It charged Attorney General John Ashcroft and DEA Administrator Karen Tandy with exceeding their authority by embarking on a campaign of seizing privately grown intrastate medical cannabis from California patients and caregivers. The complaint charges that defendants harassed, arrested or prosecuted patients, mounted paramilitary raids against them, and targeted patients for other civil or administrative actions. In its ruling, the Ninth Circuit remanded the case back to federal district court with instructions to issue a preliminary injunction. The parties in the case have several weeks to appeal the ruling.
If the case is not appealed, the district court will issue the preliminary injunction which protects Raich and Monson from arrest by federal agents. The two women argued that their use of marijuana constituted a medical necessity. Raich says she has an array of serious medical conditions including an inoperable brain tumor and a life threatening wasting syndrome. Monson suffers from a degenerative disease of the spine. Their situation is now similar to the six patients who already receive medical marijuana from the U.S. Government under the FDA's "Compassionate Investigational New Drug Program." Raich says she hopes the ruling in Raich v. Ashcroft sends a message to Attorney General John Ashcroft and DEA agents that their harassment of patients is unconstitutional.
"I am totally ecstatic about what this decision will do not only for me, but for hundreds of thousands of patients across the country," said Raich who hopes it will help other patients with cases pending in federal court. "Not too many people get to come up against someone who is as evil as John Ashcroft and actually win and that feels very good. I have the truth on my side, and it was nice to see the justices of the Ninth Circuit Court of Appeals care about my life."
The ruling was also a sweet victory for Monson, whose Oroville, California home was raided in August 2002 by federal officials who seized six of her medical marijuana plants. "Diane feels vindicated as a person who suffered through a raid. This is a source of considerable joy to her," said plaintiff's attorney Robert Raich who is also Angel Raich's husband.
According to Robert Raich this is the first time the Controlled Substances Act has been ruled unconstitutional. He says the court based their decision on an interpretation of the Commerce Clause which governs the federal government's ability to control interstate commerce. The court found that the federal government lacked the power under this clause to impose the federal law on plaintiffs.
Writing for the majority, Judge Harry Pregerson found that "The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking." The court further noted that "this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce."
But the dissenting opinion, written by Justice C. Arlen Beam, who was visiting from the 8th Circuit, equated the actions of the plaintiffs with those of a wheat farmer named Filburn. Beam felt constrained by the 1942 war-rationing decision in Wickard v. Filburn, which said that any wheat grown anywhere, even for home use by the farmer who grew it, can be regulated by Congress under the Commerce Clause. This dissent means that the Supreme Court may have to revisit Wickard, which could significantly reduce federal power to regulate local activities.
The plaintiffs had also argued that the federal Controlled Substances Act violated state's rights and their right to be free from pain and suffering under the 5th and 9th Amendments. But the court did not address those arguments, nor did it consider the distribution and sale of marijuana. The court is still considering these questions in another appeal brought by the Wo/Men's Alliance for Medical Marijuana and the Oakland Cannabis Buyers' Cooperative.
Robert Raich says it remains to be seen how the Ninth Circuit will use this ruling as it fashions future decisions. "I would hope that the court would use it as a springboard to provide additional ways for patients to legally, under federal law, have access to their medicine," said Raich. "Now that we have secured the right of patients to possess and use their medication, it is just another step to recognize that patients have to be able to obtain it from somewhere."
Dale Gieringer, coordinator for the California branch of the National Organization for the Reform of Marijuana Laws, believes that an appeal by the U.S. Justice Department to the Supreme Court appears certain. "Nonetheless," said Gieringer in a statement, "Medical marijuana supporters are optimistic of victory, due to the fact that the Ninth Circuit's reasoning was based on recent Supreme Court precedents by the court's' conservative majority restricting federal powers under interstate commerce."
Angel Raich, who credits cannabis with getting her out of her wheelchair, said she wants the Supreme Court justices to understand that she doesn't have any other method or legal alternatives with which to fight her illnesses. She says she is enormously grateful to her physician, Dr. Frank Lucido, for having the courage to stand with her and give a declaration under oath that states her medical conditions. "If the cannabis were taken from me, not only would I die of starvation, I would become crippled and die a torturous death and that is something that really scares me." said Raich. "If they appeal the decision, I will continue to fight this battle with every ounce of breath in my body."
Ann Harrison is a freelance reporter working in the Bay Area.
Set free by a San Francisco federal judge who sentenced him to just one day in prison, medical cannabis grower Ed Rosenthal said today that his case will be the catalyst to overturn all U.S. marijuana laws under which 750,000 Americans are arrested each year.
"These laws are doomed," said Rosenthal to group of cheering supporters outside the courthouse after his sentencing. "I am going to make it safe for everyone to grow by bringing these laws down."
Rosenthal was convicted in January of three marijuana cultivation and conspiracy charges. He faced more than 80 years in federal prison and $2.5 million in fines. The Federal Probation Department had recommended that Rosenthal be sentenced to two 21-month sentences to be served concurrently.
Since Rosenthal was prosecuted under federal law, U.S. District Judge Charles Breyer prevented him from using California's Prop. 215 as a defense in his case. Prop. 215, which is not recognized by the federal government, allows critically ill patients to grow, posses and consume cannabis with a doctor's recommendation. "He did me no favors," said Rosenthal of Judge Breyer. "He made me a felon because he would not allow the jury to hear the whole story."
When the jurors who convicted Rosenthal later discovered that he had been growing starter plants for patients, they renounced their guilty verdict and announced that they had been misled. Eight of the jurors in the case wrote a letter to Judge Breyer asking him to allow Rosenthal to remain free. Several have since campaigned for the Truth In Trials bill (HR1717) that would allow for an affirmative defense in medical cannabis cases.
"Our fight is not over," juror Eve Tulley-Dobkin said after Rosenthal's sentencing. "We have to change the law so that people in Ed Rosenthal's circumstances do not have to go through what he did, so that jurors get the full evidence in the trial, so that people who are in prison get out."
California Attorney General Bill Lockyer also wrote to Judge Breyer requesting that he impose the minimum sentence allowed under the federal sentencing guidelines and take Prop. 215 into account. When sentencing Rosenthal to one day with credit for time served, Judge Breyer acknowledged that due to "extraordinary circumstances" Rosenthal had reason to believe that he was following state and local laws.
Rosenthal asserted during his trial that he had been promised immunity from prosecution by the city of Oakland, Calif., which passed a medical marijuana ordinance based on an exemption in federal statute. "I find that Rosenthal's belief, while erroneous, was reasonable in that Oakland had enacted the ordinance," said Judge Breyer who noted that Rosenthal made no attempt to conceal his crop from fire inspectors and city officials. But Judge Breyer asserted in court that a case like Rosenthal's "should not, and could not happen again" because his rulings assert that municipalities cannot authorize the cultivation of marijuana.
"This judge is dead wrong," said Rosenthal, who predicts that the portion of the federal law which allows this provision will be upheld by the appellate court.
Rosenthal's attorney, Dennis Riordan, said the judge's acknowledgment that Rosenthal believed he was acting lawfully will help Rosenthal appeal his conviction to the 9th Circuit U.S. Court of Appeals. Judge Breyer forbid jurors to hear arguments that he was entrapped because he relied on the advice of public officials.
"Judge Breyer gave us a very, very powerful weapon in the fight to convince the 9th Circuit that it was wrong to prevent the jury from passing its own judgment on the reasonability of Ed's belief," says Riordan. "The federal government view is that the people involved in this act acted in bad faith and are really drug dealers at heart. And the judge certainly said today that the people who are involved in this movement have acted in good faith and believe in the legality of what they are doing."
Riordan noted that Rosenthal's sentencing does not directly impact the current laws on marijuana. But if the appeals court rules that cities can offer immunity under federal statutes, he said it could have an "enormous effect" on the ability of growers and caregivers to provide medical cannabis. Riordan added that Rosenthal's legal team would also argue the appeal based on Commerce Clause and 9th and 10th Amendment issues.
Assistant U.S. Attorney George Bevan had asked the judge to sentence Rosenthal to six and a half years in federal prison, and had no comment on the final sentence. Bevan said during the hearing that Rosenthal was a businessman who began growing before Oakland passed its medical marijuana ordinance in 1998. "This operation was a cash cow and he was putting out thousands and thousands of plants," said Bevan. "He used the city council as an effort to put an umbrella around his illegal cultivation."
Riordan argued that Rosenthal's case was no typical drug conviction. He pointed out that the millions of Californians who voted for Prop. 215 knew that they were participating in a drug law reform movement. "Prop. 215 is a national battle" said Riordan. "This is a law reform case and we all know that this is a law reform case...the test has been made."
But Bevan noted that Prop. 215 does not make provisions for the large scale cultivation of medical cannabis and only permits small grows by patients. "There is nothing in Prop. 215 that gives a free pass to this level of cultivation," said Bevan, who said any Oakland city official who permitted Rosenthal to grow "could be considered a conspirator." "Prop. 215 did not account for the supply of marijuana, this is a glaring omission," said Bevan. "Is it logical to say, `You can have it, if you can get it'?" asked Judge Breyer.
Rosenthal said after his sentencing that Bevan lied to the Grand Jury to secure his indictment. He added that the judge did him no favors by handing down a one-day sentence. Rosenthal charged that Judge Breyer manipulated the evidence at his trial and called for the judge's resignation.
"This is day one in the crusade to bring down the marijuana laws, all the marijuana laws," said Rosenthal, who noted that there are currently 100,000 people in prison for marijuana crimes. "I don't think one day is justice -- no one should serve any time."
Rosenthal, author of several books on marijuana cultivation, will remain on supervised release for three years and pay a $1,000 fine plus $300 in court costs. He told the court that he took responsibility for cultivating marijuana under the Oakland ordinance. "My conscience led me to help people who were suffering," he said.Â
In the meantime, his wife Jane Klein says marijuana activists should pressure lawmakers to change marijuana laws. "This case has shown that it is worth speaking up, that silence is no longer an acceptable answer for our political leaders" said Klein. "Congress, are you listening?"
Ann Harrison is a freelance reporter working in the Bay Area.
For the second week in a row, U.S. District Judge Charles Breyer has delayed ruling on whether convicted medical marijuana grower Ed Rosenthal is entitled to mistrial.
Rosenthal's defense team contends that Rosenthal's right to an impartial jury was violated when juror Marney Craig revealed that she received advice from an attorney friend during the trial that caused her to vote against her conscience. "This court has a major question about whether due process was or was not afforded in this case," said Rosenthal's attorney Dennis Riordan.
Part of the delay in the ruling has been prompted by Craig's refusal to testify, which Riordan says weakens Rosenthal's case. Craig stated in a written declaration that she asked her attorney friend if she had to follow the judge's instructions and decide the case only on the evidence, which excluded any discussion of medical marijuana.
The attorney told Craig that she would get into trouble if she disregarded the judge's instructions, leading her to believe that she had no right to acquit. Craig said she passed this information to another juror, Pamela Klarkowski, a nurse from Petaluma. "I felt that there was only one choice," said Klarkowski when she heard the advice.
The jury later convicted Rosenthal on three federal counts of marijuana cultivation and conspiracy. Unless a mistrial is declared, Rosenthal faces a mandatory minimum sentence of five years when he is sentenced in June. He remains free on bail.
Craig's admission prompted an earlier hearing on April 1, in which Judge Charles Breyer considered holding Craig in contempt for refusing to obey his order against discussing the case. Klarkowski testified that Craig had discussed the lawyer's advice. Craig, a 58-year-old property manager from Novato, California, has declined to name her attorney friend. She was subpoened by the defense, but invoked her 5th Amendment right against compelled self-incrimination unless the government granted her immunity from prosecution.
During the second evidentiary hearing on April 8, U.S. Prosecuter George Bevan declined to grant Craig immunity from prosecution and said that portions of her declaration that documents her uneasiness with the withholding of evidence at trial were inadmissable. "Her declaration does not establish misconduct by a juror," said Bevan.
Craig again invoked the 5th Amendment. But Riordan said he knew of no case in the past 200 years where a juror has been penalized for seeking outside legal advice during a trial. "If the court overrules the 5th Amendment privilege, and the compelled testimony is never used against her in any ruling of the court, she will never have to fear that the testimony will be used against her in any legal proceedings," said Riordan.
The judge backed away from a contempt charge. He said he was uncomfortable with Craig's contact with the attorney, but suggested that she had asked him only a "derivative" question regarding a point of law. "He said she has to follow the law. Is someone prejudiced by a lawyer saying you have to follow the law? I don't think so," said Breyer.
Riordan told Judge Breyer that Craig was prejudiced by the attorney's inaccurate advice that a hung jury can only result if a judge endorsed the idea in his instructions. "You would never say you can only have a hung jury if I tell you and if you vote the other way, you will get into trouble," said Riordan to the judge. "The point is that this juror received information that she would never have gotten in an exchange with the court."
The judge replied that he would never attempt to tell jurors when they could hang a jury, or even use the term hung jury. Riordan asserted that any outside communication was improper and Craig's testimony was needed to document her mental state during deliberations after receiving the attorney's advice, and that any such information should be admissable. But the judge declined to compell testimony from Craig and discharged the juror from further testimony suggesting that her declaration was sufficient. He gave the defense team 10 days to submit further briefs supporting their request for a retrial.
"These jurors were intimidated," said Rosenthal after the hearing. "They felt that if they voted the way they really felt they should vote they could get into trouble. If that is the way you are going to have a jury, you might as well eliminate it and have the judge make a decision."
Under federal statute, a conviction can be overturned if a juror is influenced during the course of a trial. The Supreme Court has ruled that bias or fear influencing even a single juror is grounds for dismissing a verdict.
Since learning after the trial that Rosenthal was deputized by the City of Oakland, California to grow medical marijuana, Craig and Klarkowski have joined with six other jurors to denounce the verdict and call for jury reform. They said they would not have convicted Rosenthal had they known the whole truth.
Riordan said after the hearing that while Craig did not testify, he was satisfied that the defense had noted for the record that Craig's mental state and her reaction to the attorney's information was admissable. He noted that the court accepted that she believed the lawyers advice. "Now the issue is whether a juror who received that information and formed those impressions can constitute a fair juror. There is a presumption that they are not if they are getting instructions from someone other than the judge."
"We are not going to offer evidence only on what she was told, we are going to offer evidence on the fact that she accepted and believed what she was told, which is a separate thing."
Juror misconduct is only one issue in a series of legal challenges raised by Rosenthal's defense team in their motion for new trial, including the charge that the judge wrongly withheld evidence from jurors. But it remains Rosenthal's strongest card. "One presumptively prejudiced juror is enough to set aside a verdict so it is going to get a judge's close considerations," said Riordan. "It is very, very difficult to get a verdict overturned, but I feel confident that this is a very interesting and powerful and unusual claim."
After the hearing, Craig declined to discuss why she asserted her 5th Amendment rights. But she said the advice she received from the lawyer left her feeling trapped. "I felt like I was without a real choice, like I was not free to vote my conscience."
On April 8, Craig said she was on her way to Washington D.C. to testify on behalf of legislation proposed by US Congressman Sam Farr that would allow defendants to mount an affirmative defense in medical marijuana cases. Rosenthal says he fears that such legislation, even if it is passed by Congress, will be vetoed by President Bush. But Craig says the government must be prevented from withholding evidence in cases like Rosenthal's.
The Truth In Trials Act was introduced on April 9 by U.S. Reps. Sam Farr (D-CA), Dana Rohrabacher (R-CA), and Barney Frank (D-MA). It seeks to prevent the withholding of information from jurors, such as those in the Rosenthal case who were not allowed to consider that Rosenthal was growing medical marijuana with the express authorization of the city of Oakland, California.
"It is a huge step in the right direction to make medical marijuana a legal defense for cultivation, it will eliminate all of what just happened in this trial and all of what happened to us as jurors," said Craig. "In a state where medical marijuana is legal and Feds come in and say it's not legal, all of us, Ed Rosenthal, his family, the defense team, the medical marijuana patients, all caregivers and all jurors are caught in the middle."
The director of California's best-known medical marijuana club has announced that he will begin a hunger strike when he is imprisoned March 3 for issuing leaflets outside a courthouse.
Oakland Cannabis Buyers' Cooperative (OCBC) director Jeff Jones was sentenced to three months in prison for distributing pamphlets outside a Sacramento federal court where potential jurors were assembling for the trial of medical marijuana grower Bryan Epis.
If he follows through with his plan, Jones will be one of the first California medical marijuana activists to starve himself in an effort to draw attention to the conflict between state and federal laws governing medical cannabis.
"I am doing this to build solidarity, support and awareness," said Jones. "To further the education of the public and juries about problems with the federal law on this issue, and the damage it is causing in states that have already passed favorable laws."
A thin, clean-cut man, Jones has pioneered community acceptance of medical marijuana since the passage of California's Compassionate Use Act (Prop. 215). The law permits patients to grow and consume medical cannabis with a doctor's recommendation. The city of Oakland, California passed a 1998 ordinance establishing a medical marijuana distribution system, and designated OCBC operators as officers of the city immune from prosecution.
That same year, the federal government filed a preliminary injunction to halt the OCBC from distributing medical cannabis. While the U.S. Supreme Court ruled in May 2001 that the club could not dispense medical cannabis under "medical necessity," it did not consider larger constitutional issues. An appeals court is still deciding whether the City of Oakland has the power to offer the club legal immunity. Steph Sherer, director of the medical marijuana advocacy group, Americans for Safe Access, notes that Jones and his club have frequently pushed the envelope and "set an example for the implementation of Prop. 215 for the rest of the state."
But Jones says he is now the target of selective prosecution. U.S. Magistrate Judge Peter A. Nowinski ignored a probation recommendation, and ordered Jones into federal custody on a misdemeanor charge of influencing a juror by writing.
During Jones' sentencing hearing, his attorney Michael Bigelow attempted to explain to Judge Nowinski that Jones was among a group of activists who were distributing literature supporting Epis' right to grow medical marijuana under Prop. 215.
But each time Bigelow spoke the words, "medical marijuana," Nowinski cut him off, insisting that the issue was irrelevant to the primary concern of jury integrity.
"He was totally biased and politically motivated and didn't allow my attorney to make a discussion or an argument," said Jones "The judge said 'we are not going to talk about medical marijuana in here, this is not about that.' But it is."
Judge Nowinski's exclusion of the medical marijuana issue mirrors the tactics of U.S. District Judge Charles Breyer who presided over the recent trial of medical marijuana grower Ed Rosenthal. Rosenthal's jurors later denounced Judge Breyer's successful efforts to block discussion of medical marijuana during the trial, which jurors said resulted in an incomplete presentation of the facts.
The leaflet distribution, which took place during jury selection for Epis' trial, was an attempt to present the very type of information Rosenthal's jurors said they were denied. The leaflets asserted that Epis was growing medical cannabis under state law for a group of patients in Chico, California.
When U.S. District Judge Frank C. Damrell Jr. discovered that some of the potential jurors in the case had received the leaflets, he charged Epis with obstruction of justice. Judge Damrell then agreed with prosecutors that the entire panel of 42 potential jurors had been tainted, and dismissed all of them. When Jones arrived at the hearing for the obstruction of justice charge, he said court officials positioned the rejected jurors near the courtroom entrance where they identified him as the pamphleteer. He was arrested on June 24.
Judge Damrell convened a second panel of jurors who were not permitted to hear evidence that Epis was growing medical cannabis. Epis was convicted in July of federal marijuana cultivation charges, and is now serving a 10-year mandatory minimum sentence in federal prison. His conviction is being appealed.
The obstruction of justice charge against Epis was later dropped. But federal prosecutors pursued their case against Jones. Assistant U.S. Attorney Samantha Spangler issued a memorandum which acknowledged that there was other "other activity occurring outside the courthouse" when Jones was handing out leaflets. But the memorandum asserted that "Mr. Jones' conduct was egregious. He stood on the courthouse steps distributing pamphlets specifically targeting prospective jurors."
Jones said he simply passed leaflets to people walking into the courthouse. "I didn't interrupt the court," said Jones. "I didn't talk directly to people who were jurors."
Jones told Judge Nowinski during a hearing in December that had not even closely read the information he was handing out. But Jones pled guilty to the jury tampering misdemeanor in order to avoid a felony obstruction of justice charge. A report issued by the county probation department recommended that Jones be placed on probation and pay $3,924.93 in restitution charges to cover the cost of seating a new jury.
Bigelow objected to the restitution, arguing that Judge Damrell acted hastily in dismissing the entire jury pool. This argument evidently angered Judge Nowinski, who upheld the restitution and made an unsuccessful effort to take Jones into custody immediately.
Jones says he has filed an urgent request with a District Court Judge asking to be released on bond. He is also appealing his conviction with the Ninth Circuit Court of Appeals on 1st Amendment and other grounds.
"This is David and Goliath," says Jones, who says he will surrender to U.S. Marshals in Sacramento, and then refuse food. "I want to show how far a judge will go to undermine justice."
Ann Harrison is a freelance journalist, in the Bay Area. She can be reached at: email@example.com
Lawyers for convicted medical marijuana grower Ed Rosenthal say he is entitled to a new trial because two jurors in the case received outside legal advice that compromised their ability to make an impartial judgment.
Jurors Marney Craig and Pamela Klarkowski have been subpoenaed by Rosenthal's attorneys, who today presented U.S. District Judge Charles Breyer with evidence of juror misconduct.
Judge Breyer repeatedly admonished the jurors to judge the case according to federal law, and consider only the evidence presented in court. But Craig has revealed that during the trial, she contacted a friend who is a practicing attorney. Craig believes that her decision to seek his advice was not improper because she revealed no details about the case, and asked a narrow question about a point of law.
''I simply asked him if I had to follow the judge's instructions, or if I had any leeway at all for independent thought,'' said Craig in declaration. "His answer was that I definitely did have to follow the judge's instructions, and that there was absolutely nothing else that I could do.''
Craig said that her friend, whom she declined to name, further warned her that she could get into trouble if she strayed from the judge's instructions. She passed this information on to Klarkowski, who said in her declaration that the two women had discussed whether past cases challenged the law.
Craig and Klarkowski later voted with their fellow jurors to convict Rosenthal on three federal counts of marijuana cultivation and conspiracy. Rosenthal remains free on a $200,000 cash bond, but faces a mandatory minimum sentence of five years in federal prison when he is sentenced in June.
"In order for a new trial to be warranted, we simply have to show there is a reasonable possibility that the independent judgment, or freedom of action, of one or more of the jurors was affected in some way," said Rosenthal attorney Joe Elford. ''We have met that standard because Marney Craig was given what we consider to be erroneous legal advice which suggested she would get into trouble if she refused to convict."
The defense team has until March 14 to present a motion for a new trial. But when Rosenthal's attorneys alerted Judge Breyer of potential juror misconduct on February 20th, he gave the defense just three business days to produce evidence of impropriety, and reasons for requesting hearing to determine if the information warranted a new trial. Government prosecutors now have until March 5 to respond. The San Francisco U.S. Attorney's Office declined to comment on the potential impact of juror prejudice in the case. But the government must show beyond a reasonable doubt that the jurors are lying, or that the extraneous influence or improper contact was harmless.
Craig confirms that the advice she received during the trial did affect her actions in the courtroom. She said she was upset to discover after the verdict that she had the power to reject the judge's instructions, and vote to acquit Rosenthal if she felt the law itself was unjust. She said she wished someone had told her about the right to jury nullification.
"Had I known that it existed, I think it would have given me the confidence to pursue other options both in my own mind, and in deliberations talking to other jurors," said Craig from her home in Novato, California. "I think we might not have been able to come up with a unanimous verdict, I think it is entirely likely."
Craig says she sought her friend's advice because while Rosenthal was accused of conspiring with a medical marijuana club, Judge Breyer forbade the issue of medical marijuana to be presented at trial. Craig said in her declaration that this left her feeling "frustrated and confused."
''We don't condone what the jurors did," said Rosenthal attorney Bill Simpich. "But at the same time, we are deeply sympathetic that they are torn between conscience and duty, and in that vein we feel we have a right to a new trial given this unparalleled situation."
Craig and Klarkowski were among the seven jurors who later said they were misled when Judge Breyer blocked the defense from explaining that Rosenthal was growing medical cannabis under California's Compassionate Use Act (Prop. 215). Judge Breyer ruled that because all cannabis cultivation is illegal under federal law, Rosenthal's motivations for growing the marijuana were irrelevant. Jurors said they were outraged to discover after the trial that Rosenthal had been deputized by the City of Oakland, California to grow medical cannabis for patients.
During Rosenthal's trial, his attorneys filed a series of motions citing other grounds for a new trial. These included Judge Bryer's rejection of federal immunity provisions granted to Rosenthal, and the judge's refusal to permit testimony from DEA supervisor Mike Heald.
But Elford said the defense alerted Judge Breyer to the juror misconduct because they wanted to separate this argument from others. He expressed concern that Judge Breyer will decide the issue before the defense has an opportunity to fully brief it in their motions for a new trial. If Judge Breyer rules that the evidence of juror impropriety does not support a new trial, Elford says all defense motions will be presented to the Ninth Circuit Court of Appeals.
In the meantime, Elford says the defense has no scheduled reply or oral arguments to respond to the government's interpretation of the juror's actions. But he says the defense will cite numerous cases in both the Ninth Circuit and the U.S. Supreme Court where outside influence on jurors overturned convictions and resulted in new trials. ''The jury misconduct issue is by far the strongest grounds for a new trial,'' said Elford. ''The other issues that have already been raised have been denied by the court."
Ann Harrison is a freelance journalist in the Bay Area. She can be reached at: firstname.lastname@example.org.
In an extraordinary condemnation of federal drug war tactics, five jurors who convicted medical cannabis grower Ed Rosenthal of federal marijuana cultivation and conspiracy charges, held a press conference yesterday (Tuesday, Feb. 4) to apologize and to call for a new trial.
The jurors said they were outraged to discover that Rosenthal had been deputized by the city of Oakland, Calif. to grow medical cannabis for patients under California's Compassionate Use Act (Prop. 215). The judge denied all but two of Rosenthal's defense witnesses, including the Oakland city attorney who drafted the legal immunity provisions for the city's medical marijuana program.
"I fail to understand how evidence and testimony that is pertinent, imperative and representative to state government policy, as well as doctor and patient rights, and indeed your own family, are irrelevant to this case," said jury foreman Charles E. Sackett III, who read a letter to Ed Rosenthal.
Defense lawyers made repeated attempts to inform jurors during the trial that Rosenthal was a medical cannabis grower who had been promised immunity from prosecution. But U.S. District Court Judge Charles Breyer blocked every effort, ruling that federal law considers all marijuana use and cultivation a criminal offense. When former Oakland city council member Nate Miley testified that he met Rosenthal, "in the context of Prop. 215," the judge instructed the jury to ignore the comment, and took over the questioning of Miley himself.
"I wondered why the defense portion of your case was so brief as to almost be non-existent?" asked Sackett, a landscape contractor. He said the court was unfair to Rosenthal and to the citizens of California and eight other states where state and federal medical marijuana laws conflict. "We as a jury was unaware that your counsel was being denied the opportunity to present most of your evidence and outside testimony."
Eight of the 14 sitting jurors condemned the verdict. This included one of the two alternate jurors who did not vote, and two jurors who were not present. At the courthouse press conference, jurors and city officials offered their condemnation and apologies. "It is the most horrible mistake I have ever made," said juror Marney Craig, a 58-year-old property manager who voted to convict. "I feel like we were sheep, we were manipulated."
Rosenthal's attorney, Robert Eye, said the defense team held no ill will toward the jurors, whom he called a "courageous" group of people that had simply been placed in an untenable position. Facing the TV cameras with the jurors, Rosenthal and 30 some supporters, Eye added that in a democracy, justice does not end at the courthouse doors.
"Both the jury and I were victims of vicious persecution by an illegal government action," said Rosenthal. He said that prosecutor George Bevan, "persecuted me to shut down the medical marijuana movement -- he lost. I have no regret for helping thousands of patients get their own medicine."
Rosenthal's trial has generated extensive national media coverage, including a Feb. 4 editorial in the New York Times, which asserted that Rosenthal's potential 5- to 20-year sentence "shows that the misguided federal war on medical marijuana has now escalated out of control."
The War At Home
Before their press conference, several jurors attended a hearing in which Bevan pressed Judge Breyer to revoke Rosenthal's $200,000 cash bond and send him to jail until his sentencing on June 4. Bevan insisted that Rosenthal was a flight risk, and complained that Rosenthal had referred to the proceedings as a "kangaroo court." But Judge Breyer cited the "exceptional" nature of the case and allowed Rosenthal to remain free.
Bevan's unsworn testimony to the grand jury has been cited in a defense motion to overturn the indictment against Rosenthal. According to Eye, Bevan secured the indictment by telling skeptical jurists that Rosenthal's cannabis cultivation violated the terms of Prop. 215. If Rosenthal is denied a new trial, Eye says the defense will take the case to the Ninth Circuit Court of Appeals.
San Francisco District Attorney Terence Hallinan asserts that Rosenthal was not violating California medical cannabis laws, and should never have been charged for providing marijuana to patients. "It doesn't take a rocket scientist to know that people are sick and dying," said Hallinan, who worked with the city's health department and medical marijuana clubs to develop a regulated patient supply system. "It's a matter of prosecutorial discretion within the U.S Attorneys office as I, for many years, have exercised my prosecutorial discretion with regards to Prop. 215."
One of the jurors who spoke against the verdict was Pam Klarkowski, a registered nurse who said she has attended to at least one medical marijuana patient. Klarkowski acknowledged that medical cannabis provides effective relief for cancer and AIDS patients, and said that convicting growers makes it more difficult for them to get their medicine. "I do apologize to Ed and his family and to all the patients for whom this will make their lives very difficult," said Klarkowski. "I feel as if we were ramrodded in a way, and not given all the evidence involved to make an educated decision."
Matt Gonzalez, president of San Francisco's Board of Supervisors, or city council, said jurors in cases like Rosenthal's should know that they can nullify a verdict if they find the law is unjust. Craig said she and her fellow jurors had no idea that they had power to disregard the federal law, because the judge never told them. "We were good little girls and boys, and we did what he said because we trusted the system," said Craig. "We felt so intimidated by the way the trial proceeded."
"What the judge did in this case is not only violate the spirit of the constitution, he violated the letter of common law," said Gonzalez. [The jury's] will was not carried out, and their rights were violated by this court."
Another Rosenthal attorney, Bill Simpich, noted that Rosenthal is one of more than 40 medical marijuana patients and caregivers now being threatened with federal prosecution. District Attorney Hallinan said he hoped the federal government would not use Rosenthal's verdict as an excuse to trample the rights of California or San Francisco residents. But Rosenthal's conviction -- and the threat of continued prosecution against medical marijuana caregivers and patients -- appear to have invigorated medical cannabis supporters.
Some are anxiously awaiting an appeals court ruling on Judge Breyer's interpretation of the immunization statute. The ruling, which applies to an Oakland cannabis club, could overturn Rosenthal's conviction. In the meantime, Craig says she will do "whatever I can to get this verdict set aside and see that Ed gets a fair trial with full information provided to the jurors."
Among the activists at the press conference chanting, "No truth, no justice," was Giovanni Leiva, who said he represented an alliance of medical marijuana growers from San Francisco and California's San Joaquin Valley. "We are a coalition to disarm the DEA," announced Leiva. "You are with with us, or you are against us."
Jury foreman Charles Sackett, who described himself as a conservative person who would rather be home pruning his roses, said Rosenthal's trial left him questioning the judicial system for the first time in his life. In his criticism of the trial, Sackett said "I am but a simple gardener, Mr. Rosenthal, and truly do not know if reading this letter is somehow a contempt of court. If it is, perhaps we can share a cell. I'm sure we can find a lot to talk about."
Ann Harrison reports on the drug war from San Francisco. She can be reached at email@example.com.
After she and her fellow jurors found Ed Rosenthal guilty of federal marijuana cultivation and conspiracy charges in San Francisco last week, Marney Craig discovered that that she had made a terrible mistake.
Instead of the "businessman" she thought she had convicted, Craig learned that Rosenthal, was, in fact, a widely published marijuana advocate who had been asked to grow medical cannabis for critically ill patients. The judge had kept this information from jurors, because Rosenthal was tried under federal drug laws that do not recognize the medicinal use of marijuana.
"What happened was a travesty and it's unbelievable, unbelievable that this man was convicted. I am just devastated," said Craig. "We made a terrible mistake and he should not be going to prison for this."
Craig is not alone in her remorse. Five other jurors, including the jury foreman, are expected to join Craig to denounce the verdict in a joint press conference this week. The event will take place immediately after a hearing to determine whether prosecutors will succeed in revoking Rosenthal's $200,000 cash bond and send him to jail until sentencing on June 4. Attorneys for Rosenthal, who is facing five to 20 years in prison, say they will ask an appeals court for a new trial.
"I was not allowed to tell my story," said Rosenthal. "If the jury had been allowed to hear the whole truth, and nothing but the truth, I would have been acquitted."
Juror Debra DeMartini said she was distressed to discover that Rosenthal had been deputized by the city of Oakland, California to grow marijuana for its medical cannabis program. Oakland city officials testified during pre-trail hearings that they had tried to reconcile the conflict between the federal Controlled Substances Act, which bans all marijuana cultivation, and California's Compassionate Use Act (Prop. 215) which permits patients to possess, consume and grow their own medical cannabis.
In an effort to provide medical cannabis to patients who could not grow their own, the city granted Rosenthal immunity from prosecution under a section of the Controlled Substances Act. But U.S. District Judge Charles Breyer halted every attempt by the defense team to directly tell jurors for whom Rosenthal's marijuana was being grown and blocked city officials from explaining Rosenthal's deputization during the trial.
"If I had known that he was told he could grow this by the city, that would have raised some questions for me in front of the judge," said DeMartini. "It's a waste of taxpayer money to bring these cases and prosecute people."
Craig sobbed as she recounted her growing concern during the trial that Judge Breyer was withholding critical information. Craig said she became alarmed when the judge took over questioning of the witnesses, when he repeatedly cut off the defense attorney, and when she saw protest signs in front of the courthouse suggesting that jurors were not fully informed.
"The more information we get, the more we realize how manipulated and controlled the whole situation was, and that we were pawns in this much larger game," says Craig. "As residents, we voted to legalize medical marijuana and now we are forced to sit here and not take any of this into consideration?
"In some sense it is a major setback, and in another it is a call to arms,"said Jeff Jones, executive director of the Oakland Cannabis Buyers' Cooperative, one of the medical marijuana clubs that Rosenthal was growing for.
Rosenthal's trail was attended by a number of medical marijuana patients, many of whom wept when the verdict was announced. Nicholas Feldman, a quadrapalegic cerebral palsy patient who says he smokes medical cannabis to ease the pain and spasticity in his limbs, was one of several people who arrived in court in a wheelchair. "How can they do this to us? People are in pain and it means a lot to us as citizens not to see a person suffer." said Feldman. "I stand here to day for people who could end up in jail for helping to ease my pain."
Despite the emotion surrounding the case, some jurors felt that they had no choice but to follow Judge Breyer's instructions, based on the evidence in front of them. DEA agents testified that they seized thousands of marijuana plants and cuttings at a San Francisco medical marijuana club, and at an Oakland warehouse owned by Rosenthal. But jurors said they distrusted the testimony and based their convictions on video tapes of the marijuana grow sites. They found that Rosenthal conspired with others at the club to to grow not more than 1,000 marijuana plants, as the prosecutor claimed, but more than 100 marijuana plants, a fact which will affect Rosenthal's sentencing. Jurors also found him guilty of growing more than 100 plants at the warehouse and maintaining a place to grow marijuana.
Shortly after the verdict was read, juror Bill Zemke walked solemnly from the courthouse past past two medical marijuana patients who sat weeping. "We considered the evidence in the case, the evidence that we could review, it was not an easy decision," said Zemke evenly. [Medical cannabis] was in the back of everyone's mind, a factor in the case, but it was not in the evidence in this case."
"We have state's rights," shouted the disconsolate patient, "you can't lock all of us up."
Jurors Have Power But Not The City
Jury foreman Charles Sackett agreed with Zemke that jurors came to the only conclusion that they could have, given the information they were provided. But he said he supports medical marijuana and hopes Rosenthal will win his appeal. "The medical issue was not introduced into the court proceedings, it was never an issue for us," said Sackett. "We weren't allowed to discuss it amongst ourselves, ever."
Sackett says he's now intrigued by the idea of jury nullification, which he says none of the jurors was aware of. Jury nullification is a legal principal which allows the jury to find a defendant innocent if the law itself is unjust or unjust in a particular application. Would jurors have taken the option of jury nullification in Rosenthal's case? "It would be speculation on my part, but it's very possible; dare I say, probable," says Sackett. "I think jury nullification is going to be part of the answer regarding states' rights in future cases."
Down at San Francisco City Hall, Matt Gonzalez, president of the city's Board of Supervisors, or city council, said jurors in cases like Rosenthal's should know that they can simply refuse to follow federal law. "The judge is not giving the jury any space, whatsoever, to engage in what has been an extremely long tradition in common law as it relates to jury nullification," said Gonzalez.
Craig said she believed that if she had taken a stand during deliberations and said the federal law was wrong, she would have been removed from the jury. "I didn't know what would happen to us if we didn't follow the rules, how much trouble I would get into," said Craig. "I was totally intimidated into going along with the verdict because I didn't see any other way."
San Francisco public defender Jeff Adachi noted that there have been a number of decisions involving jury nullification in which judges have removed jurors who have refused to convict. But he said a jury instruction that permitted this was ruled to be unconstitutional in the last year. "Over the past 20 years, there has been a movement to limit the power of the jury by keeping the jury ignorant of the facts," said Adachi. "Jury nullification is a constitutional right that every individual person who is called for jury duty possesses, and unless we appreciate that right, we will lose it because the courts will take it from us."
In the meantime, Adachi warned that Rosenthal's conviction will encourage federal authorities to arrest more medical cannabis growers and distributors. "The kind of prosecution that we are seeing in the Rosenthal case could be multiplied 50 or 100 times over in the next year or two here," said Adachi.
Despite the warning of coming prosecutions, Rosenthal's attorney Bill Simpich noted that city officials were absent during Rosenthal's trial. While Prop. 215 passed by 78 percent in San Francisco, he said officials have been slow to comply with a recent ballot initiative ordering them to investigate a city-run medical cannabis growing and distribution system.
"'The single biggest thing that hurt us is that we did not have the cities of San Francisco and Oakland by our side," said Simpich. "They were not there and if they had been there we would have won. They made a mistake and the time to correct it is now."
Simpich is calling for California cities and counties to continue immunizing medical cannabis caregivers because the judge's condemnation of this tactic applies only to those cases in front of him. "I'd love to get deputized," said Bob Martin, proprietor of the San Francisco's Compassion and Care Center medical marijuana club. "We are scared every day."
Gonzales says he is still meeting with officials and legal advisers to review the city's options. DEA spokesman Richard Meyer has made it clear that any San Francisco city authority involved growing or distributing medical marijuana will be subject to arrest and property forfeiture.
Craig said she upheld federal law and convicted Rosenthal because she felt she didn't have any choice. But she says that following instructions was no excuse for not acting on her conscience and refusing to convict a medical marijuana grower. "Anyone who said I was just following orders ... well yeah, we just wiped out this village in Viet Nam, we were just following orders, or the Europeans turning away when the Jews were taken away by the Nazis. We are no better than that if we can't take a stand for what we believe in," said Craig.
"I feel like if I had done something in this trial, even if I had been thrown off the jury, it would have made a difference because it would have been on the record that someone said 'No,' and that is something I have to live with."
Rosenthal's case is a challenge by federal prosecutors to California's Compassionate Use Act (Prop. 215), a 1996 voter referendum that made the cultivation, possession and consumption of medical marijuana legal in California with a doctor's recommendation. Since the act did not provide for the distribution of medical cannabis, several California cities, including Oakland, have passed ordinances that authorize growers and distributors to meet this need.
Rosenthal, who has written or edited more than a dozen books on marijuana cultivation and social policy, seemed like a good choice as cultivator of Oakland's Medical Marijuana Program. But last February, he became one of the first people indicted by the U.S. Justice Department for providing marijuana to patients in the San Francisco Bay Area.
Rosenthal, 58, is now facing charges of cultivating more than 100 marijuana plants at a San Francisco medical marijuana club, conspiracy to grow more than 1,000 marijuana, and maintaining a place to grow marijuana at an Oakland warehouse. The warehouse reportedly contained several thousand tiny starter plants that Rosenthal says were intended for distribution to medical marijuana patients who want to grow their own cannabis.
George Bevan Jr., the government's lead prosecutor, had no comment on the proceedings. But Rosenthal says the outcome of his case will determine the government's future approach to medical marijuana, considered by activists to be a sharp wedge in the larger fight against the U.S. government's war on drugs.
''If they win this battle, then I think that the dispensaries in the nine states that have legal medical marijuana are going to be in for a tough time from the federal government,'' says Rosenthal. ''If we win this, it's like taking several bricks out of the bottom of a wall, it weakens the wall so much that it will eventually implode.''
Prop. 215 passed with 78 percent in San Francisco. Many area residents are aware of the ongoing conflict between Prop. 215 and the federal Controlled Substances Act. Richard Meyer, spokesman for the DEA San Francisco field division, notes that under the Controlled Substances Act, marijuana is classified as a Schedule One substance with no medicinal value and a high potential for abuse. Federal agencies have blocked nearly all attempts to conduct scientific studies on medical marijuana.
When U.S. District Judge Charles Breyer asked prospective jurors in Rosenthal's case if they could set aside their potential support for Prop. 215 and enforce possible criminal drug penalties under the Controlled Substances Act, many rebelled. Over half the 77 prospective jurors refused to acknowledge the supremacy of federal law and were excused from the case.
''I feel it is very frustrating when voters in the state of California make a statement on medical marijuana and the government prosecutes," said a juror from Napa, Calif. who was later disqualified. ''I think it should not be a political fight but we should go into the science and figure it out.''
The judge's questions regarding Prop. 215 alerted potential jurors that medical cannabis is an issue in the case. But it's uncertain how much specific information about medical cannabis the judge will permit jurors, or whether jurors will nullify by entering a verdict contrary to the instruction of the court. Jurors who convicted another medical marijuana grower two months ago were outraged when they later learned that their vote had sent him to prison for 10 years.
''It is not the court that placed marijuana in Schedule One; the court is simply following the law,'' said Judge Breyer.
A Bitter Legal Struggle
During two weeks of hearings prior to jury selection, Rosenthal's lawyers engaged in a bitter legal struggle with Judge Breyer, who sought to block Rosenthal from using Prop. 215 as a defense against federal charges. Breyer denied defense motions to dismiss the charges based on selective prosecution, lack of jurisdiction, official immunity, and 9th and 10th Amendment arguments.
The defense also argued that the charges should be dismissed on due process grounds because the government's prosecution is a form of entrapment by estoppel. This argument applies when a government agent tells the defendant that certain conduct is legal and the defendant believes the official.
''I was following 215 in good faith,'' argues Rosenthal. ''I had been made an officer of the city and been immunized, and the whole question is whether in spite of all this, the federal government can come in and arbitrarily choose one person to persecute.''
Rosenthal's attorneys presented evidence that the DEA gave assurances to local medical marijuana activists that they would respect California's medical marijuana laws. Several Oakland city officials, including the city attorney and the former head of the Oakland Police Department's Narcotics Division, also testified in pre-trial hearings that they were never told told by the DEA that they were violating federal law and could be subject to federal prosecution.
The City of Oakland sought to protect medical marijuana providers using a provision in the Controlled Substances Act which allows local municipalities to deputize agents of the city and immunize them from civil and criminal liability. This legal exception, known as 885(d), protects law enforcement agents who possess, buy or sell drugs in the course of their duties.
Judge Breyer rejected the estoppel argument asserting that DEA assurances not to prosecute were hearsay. He also ruled that Oakland city officials were not authorized to relay such assurances and that lack of swift enforcement action by federal law enforcement did not imply consent. On Jan. 16, Rosenthal's defense team took the unusual step of going over the judge's head by filing a writ with the 9th Circuit Court of Appeals asking them to rule on the entrapment by estoppel defense; however, a few days later the court rejected the writ.
Rosenthal's trial is now set to begin on Tuesday, Jan. 21. It is still unclear whether he will take the stand in his own defense, or what the judge will permit him to say. If Rosenthal cannot testify about his state of mind at the time of the alleged crime, he cannot convince the jury that that he had no intent to break the law -- which is normally required for conviction.
Judge Breyer is eager to try the Rosenthal case swiftly with little fanfare, but activists are registering their outrage over what they considered a muzzled trial. Outside the San Francisco federal building on the day that prospective jurors were assembling, five demonstrators stood mute with their mouths gagged. They held signs showing a marijuana leaf which read, ''This is my medicine.''
People excused from the jury said they were aware of the demonstrators. The question now is how much the remaining jurors know about Rosenthal's medical marijuana crop.
Ann Harrison is a San Francisco based science journalist.
Jodi James is a 34-year-old single mother of two, a Democratic candidate for the Florida House of Representatives and a marijuana smoker. James, who made a point of disclosing her marijuana use at the Florida state Democratic convention, is one of a growing number of people who believe it's time for pot smokers to step forward and challenge their negative stereotype.
"If many prominent people come out of the closet, it will change the idea that we have to hide, that we have to be ashamed," James says. "Coming out on this issue will change what will be okay for other politicians to do."
Some politicians have already been forced out of the closet, or have come out on their own. Michael Bloomberg, the mayor of New York City, was revealed to be a marijuana smoker by the National Organization for the Reform of Marijuana Laws (NORML), which ran a series of advertisements featuring Bloomberg's reply to a reporter who asked him last summer if he had smoked marijuana, "You bet I did," said Bloomberg, "and I enjoyed it."
Other people who have voluntarily chosen to reveal their cannabis use include Don Topping, a professor emeritus at the University of Hawaii and Norm Kent, an attorney from Ft. Lauderdale and a recovering cancer patient. Kent uses marijuana for medical relief, as does James who became permanently disabled after a fall in 1987. But Kent hopes to move the cannabis debate beyond the question of medical use. He notes that the vast majority of the estimated 12 million American cannabis users are not lighting up to ease an ailment.
According to Kent, healthy cannabis smokers need to become a political constituency, much like gays and lesbians who built a political movement by shedding the "shame" of being homosexual. "It is about your right to be free and make decisions without the government telling you what you can do with your body," said Kent who publishes Express, the largest gay and lesbian newspaper in the state of Florida. "The rights you fight for can keep someone from going to jail."
Cannabis Consumers Campaign
A group of outspoken cannabis users, including James and Topping, are uniting to support the newly launched Cannabis Consumers Campaign -- a California-based movement that lobbies for the civil rights of marijuana smokers. "Are you tired of being treated like a second-class citizen, denied the same rights in society that our alcohol and tobacco-consuming peers enjoy?" reads a letter sent by the Campaign to prospective activists.
Campaign director Mikki Norris points out that cannabis smokers could have their children, jobs, public housing, drivers licenses, student loans and even their freedom taken away from them at any moment. "This is not just about the right to get high, it's about equal rights," said Norris in a recent address to the annual NORML conference in San Francisco. "I pay taxes, I earn a living, I recycle, I am a good neighbor, and at the end of the day and at the end of work, I like to smoke a joint."
The Cannabis Consumers Campaign asserts that marijuana prohibition is based on the false presumption that pot smokers are a detriment to society who lack a moral compass and fail to achieve their potential. The Campaign is conducting a survey that intends to clarify who cannabis consumers are and how they use the plant. Norris says the Campaign will culminate in an advertisement featuring 100 prominent cannabis smoking celebrities who will "come out" together.
"We need to present ourselves with dignity and stand up to the persecution and harassment that we live with," said Norris. "I would love to see a time when we are judged not by the contents of our urine, but by our characters."
Bill Maher, host of the television show Politically Incorrect, told attendees at the NORML conference that it's time Harrison Ford and Ted Turner stood up and acknowledged their cannabis use. Spokespersons for Ford and Turner did not return calls seeking comment on Maher's statement.
Norris acknowledges that coming out of the closet is not entirely without risk. The first wave of people that the Campaign is seeking to reach are self-employed professionals or entrepreneurs who are less likely to lose their jobs by coming out of the cannabis closet. Norris also cautions that such admissions could be used against parents who are involved in child custody disputes.
According to San Francisco criminal defense attorney Anthony Feldstein, a public statement of cannabis use is constitutionally protected speech. But Feldstein says there is no guarantee that law enforcement investigators will not use such an admission in support of a search warrant. Much depends on where the person making the admission lives and on the attitudes of the local judges. In general, he says, prosecutors in the San Francisco area have not been aggressive in pursuing cannabis possession cases. "The risk would be radically different from one county to the next," Feldstein says.
Feldstein adds that there also is a big difference between saying that you have smoked cannabis and admitting that there is a bag of cannabis presently in your house.
Should the Campaign create a critical mass of public cannabis smokers, Feldstein says the resulting publicity would also decrease the chances of arrest. "There is safety and strength in numbers," says Feldstein. "The more people who take the risk, the less risk there is for other people doing the same."
Speaking Out and Coming Out
Washington D.C. DEA spokesman Will Glaspy says federal authorities that prosecute drug traffickers will not target outspoken cannabis smokers. But Glaspy argues that the Campaign undermines the government's warnings about marijuana. "If we try to convince kids that smoking marijuana is safe, it is the wrong message and not the message that should be put out," said Glaspy.
Nick Spadafino, owner of Pacific Park Recovery Center, in Tustin, Calif., says he is concerned that those who proudly smoke marijuana increase their chances of addiction to other substances. "I started smoking pot at a very young age and I didn't think anything was wrong with it," says Spadafino. "But it led me to smoking cocaine and I smoked cocaine every day for 13 years. That almost destroyed me."
Spadafino adds that he does not believe that all cannabis use leads to addiction or self-destructive behavior. Many cannabis smokers now coming forward say that marijuana has not been damaging, but instead has enhanced their quality of life. "I get stoned and I listen to Mahler -- classical music with weed is fabulous," said 80-year-old Arthur B. Waugh who attended the recent Cannabis Freedom Day Rally in San Francisco.
The Cannabis Freedom Day Rally also drew San Francisco immigration attorney Steve Baughman who strolled through the crowd handing out a leaflet entitled "Vital Stats On One Pot Smoker." Among the items listed were "Number of persons in my employ who will lose their jobs if I go to jail: 15."
"I think it's important for mainstream, day-job people like myself to show up at events like this to get the word out that this is not just potheads wanting a bigger party," said Baughman, who wore a neatly pressed business suit. "This is a fundamental civil liberties issue."
Ann Harrison is a freelance writer in San Francisco.
In an effort to fight what they say is the targeting of the medical marijuana community by federal law enforcement, a California group called the Cannabis Action Network (CAN) has launched a campaign to revive the statewide movement that helped pass Prop. 215 -- the 1996 initiative that allows seriously ill Californians to use cannabis with a doctor's recommendation.
The campaign, called Americans for Safe Access (ASA), was sparked by a series of raids carried out in San Francisco by the Drug Enforcement Administration on Feb. 12. The operation led to the indictment of four men under federal narcotics laws and the closure of the city's Sixth Street Harm Reduction Center medical cannabis club. The men, who are legal medical marijuana patients under California law, face cannabis cultivation and conspiracy charges -- that carry potential life sentences.
"We are completely committed to protecting patients who are very close to losing their access to medical cannabis," said CAN director Steph Sherer, who notes that a number of California patients have been arrested on federal drug charges. "We are talking about death, we are talking about AIDS patients who will not have access to medication to let them live. That is a reality."
DEA director Asa Hutchinson was in San Francisco the day of the raid, but he denied that the DEA was targeting patients or cannabis clubs. Federal prosecutors said the operation was in response to an alleged marijuana trafficking operation at Sixth Street which had been under surveillance for months.
"The marijuana clubs are not our primary priority; we could, but we have not, targeted them for investigations," said Richard Meyer, a special agent for the DEA's San Francisco field division. Meyer asserts that his agency is focused on investigating drug trafficking operations, no matter where it leads them. "We have heard people in the community saying that many traffickers are using [the cannabis clubs] as a smoke screen to engage in this business for profit and are not concerned with the sick. Any cultivation, possession, and distribution of marijuana is illegal under federal law. It is our job is to enforce those laws and we will."
The DEA rejected an appeal made in 2000 by California Attorney General Bill Lockyer to reschedule marijuana from a Schedule One substance to Schedule Two of the Federal Controlled Substances Act. This would permit doctors to issue a cannabis prescription with medical oversight. Instead, the federal government wants to punish doctors who now recommend cannabis to their patients. The Justice Department is seeking to overturn a federal district court ruling, Conant v. McCaffrey, which found that stifling cannabis recommendations violated physicians' First Amendment rights. On April 8, judges on the Ninth Circuit Court of Appeals questioned Department of Justice attorneys who are appealing an injunction against sanctioning these doctors.
"Why on earth does an administration that's committed to the concept of federalism . . . want to go to this length to put doctors in jail for doing something that's perfectly legal under state law?" asked Judge Alex Kozinski at the hearing. U.S. Attorney Mark Stern argued that the government should be allowed to investigate doctors whose advice "will make it easier to obtain marijuana." But he had difficulty convincing judges that there was a distinction between discussing cannabis and recommending it.
It's unclear when the appeals court will issue a ruling in this case. But the cannabis clubs say they are bracing for more federal raids. The ASA campaign is trying to rally public opinion to support the clubs and understand "the futility of the war on drugs and the value of medical marijuana." ASA is encouraging supporters to sign a "letter of resistance" opposing Hutchinson and the Bush administration's medical cannabis policies.
"This is going to be ASA vs. Asa," says Sherer. "We are looking the Bush administration in the eye, the voters here voted for this and this country is a democracy, you are not going to take medical marijuana away from the state of California."
Allegations And Proposals
The ASA campaign is also attempting to build stronger ties between the cannabis clubs and their local communities. To support this effort, it is developing a set of recommended protocols for the operation of cannabis dispensaries. The guidelines include a mediation process that clubs can use to address the concerns of residents, city officials, or local law enforcement. The protocols are modeled on those which have already been used by the Alliance of Berkeley Patients to address a zoning dispute at a Berkeley club and two armed robberies at a second club. The Alliance represents five Berkeley cannabis clubs. "We are involving city government in the process so that if there is an issue or a situation with the city government or antagonism by the federal government, we have allies," says Sherer.
Prop. 215 offers no specific controls for the operation of medical cannabis clubs in California. Each club has its own regulations and each city and county negotiate their own medical marijuana laws. Sherer wants to encourage a set of statewide club guidelines, export the model to other cities, and network the Alliances together. "How do you police yourself when you are playing a fine line on the state level and illegal on the federal level?" asks Sherer. "Where do you go?"
The Alliance guidelines include membership restriction to qualified patients, the need to demonstrate patient eligibility and screening of members. Membership is not required but all the Berkeley clubs follow Alliance protocols. The Alliance investigates issues of non-compliance. "We don't provide cannabis to people that are not legally sanctioned to have it from their doctors and we won't provide more than they need for their personal use" said Debby Goldsberry, director of Berkeley Patients Group, a cannabis club which helped draft the Alliance guidelines.
Ed Rosenthal, one of the four men facing federal drug charges in connection with the DEA raid, agrees that common accounting standards could help thwart charges of club profiteering. He proposes that the city of San Francisco charter all its medical marijuana clubs and make the club employees officers of the city. The author of numerous books and articles on cannabis cultivation, Rosenthal also supports efforts to regulate cannabis quality and price. "I think patients have a right to expect a certain quality of product and the way to do that would be to standardize it," says Rosenthal.
Fred Medrano, the director of health and human services for the city of Berkeley, says the city has taken a low profile in regulating the medical cannabis clubs, leaving the responsibility of community coexistance to club operators. He says the Alliance guidelines are a useful way to set standards and mediate disputes. "Typically, in most communities, there is tension between the needs of patients to receive medical marijuana for medical purposes and the potential effects on the community living in the neighborhood," said Medrano. "There has to be acceptance and you can't have that unless you are willing to meet people and form relationships. This is a pretty good first step."
The importance of resolving community concerns became clear after the February DEA raid in San Francisco when it was revealed that accusations of trafficking by a city clergy member, had helped the DEA obtain search warrants. The complaint was brought by the Reverend Father Nazarin, who says he the presiding bishop of a breakaway faction of the Iraqi-based Assyrian-Chaldean Catholic Church. Nazarin was associated with another San Francisco cannabis club -- the St. Martin de Porres Chapel which he considered a department of his church. According to a DEA affidavit, Nazarin wrote a letter to the agency alleging that some of the medical marijuana dispensaries were "owned and operated by greedy, professional drug dealers who hide behind the shield of Proposition 215."
In a later statement, Nazarin further charged that the medical cannabis movement had been "hijacked" by profiteers who hid profits with fraudulent bookkeeping. Nazarin said staff members at the Sixth Street Harm Reduction Center club told him that another member of the staff, Rick Watts, was "operating an illegal drug market in the back room" and insisted that "the medical marijuana movement is either unwilling or unable to expel its criminal elements."
Watts, son of the philosopher Alan Watts, was one of the four men arrested in the DEA sweep. Neither Watts, nor his attorney, had any comment on the case.
Counter Charges And Court Rulings
Nazarin's allegations rocked the Bay Area medical cannabis community. The directors of the St. Martin de Porres Chapel say they were not aware of Nazarin's concerns before he sent his letter to the DEA. They reject Nazarin's charges and have banished him from the St. Martin club, which is being reorganized under a new name. St. Martin director Wayne Justmann, said that Father Nazarin grew cannabis as a patient caregiver under Prop. 215 and attempted to sell it to St. Martin at inflated prices. Both Justmann and Rosenthal say Nazarin is motivated by a financial interest in the Sixth Street club. "He wanted control over [St. Martin] and the Sixth Street facility," said Justmann. "He wanted to take over."
Nazarin vehemently denies that he sought to control the St. Martin or Sixth Streets clubs. He says he simply wants to alert authorities of club mismanagement, and wrote another letter to the DEA this month claiming that "a criminal element is moving to take control" of the Northern California clubs. Debby Goldsberry says she wishes there was an Alliance in San Francisco where Nazarin could put his issues on the table. Had Nazarin's charges been directed against a Berkeley club, Goldsberry said the Alliance would have investigated and reached a consensus solution satisfactory to all parties. At this point, Goldsberry says she is skeptical of Nazarin's allegations of mismanagement.
"I have been involved in these issues for 10 to 12 years and I haven't seen that kind of profiteering," she said. "It doesn't seem to me that he has any widespread experience with the movement, he is applying limited experiences in a broad and sweeping way and he is harming us all."
Medrano points out that without a forum for settling disputes, the potential for conflict will continue to exist. "Unless you create the vehicle for opportunities for relationship building and coexistence, you are basically left with a lot of unknowns and sometimes the unknowns can lead to hasty conclusions and prejudices," Medrano said.
For his part, Nazarin says the clubs should address allegations of mismanagement by working more closely with federal authorities. He proposes that club workers and volunteers undergo background checks. But he declined to provide any information about his own background or the activities of his breakaway church. The Assyrian-Chaldean Catholic diocese in the United States does not recognize him as a priest.
Nazarin further proposes that the DEA and the Attorney General of California designate non-profit organizations to cultivate and distribute medical marijuana to approved dispensaries that buy only from these sources. "I would ask the U.S. Attorney General to encourage faith-based organizations to assume the lead in this project," writes Nazarin.
DEA special agent Meyer says the agency is not ready to acknowledge that marijuana has any medicinal value or help to distribute it. "I think it is good that the clubs are concerned about people abusing the system," says Meyer. "But that does not change the fact that under federal law marijuana is illegal and we all know that federal law supersedes state law."
Federal legislation does not always trump state law. The U.S. Supreme Court ruled last May that medical necessity was not a defense against prosecution under the Federal Controlled Substances Act. But on April 19, the case will be heard again by a U.S. District Court judge who will decide whether the state or the federal government has jurisdiction over medical marijuana distribution inside California. The ASA campaign is planning street protests to mark the date.
Ann Harrison is a freelance writer in San Francisco.
The U.S. Drug Enforcement Administration touched off a firestorm of protest in San Francisco this week when DEA agents raided a medical marijuana club and arrested three medical marijuana activists. An arrest warrant has been issued for a fourth activist who is currently in Canada and may seek political asylum there if the U.S. attempts to extradite him.
The arrests underscore the ongoing conflict between federal and state laws which regulate medical marijuana in the U.S. The federal Controlled Substances Act prohibits the growing and consumption of marijuana. But California's Compassionate Use Act (Proposition 215) permits seriously ill patients to consume marijuana for medical purposes and allows marijuana plants to be grown for medicinal use. Eight U.S. states have passed medical marijuana laws.
The San Francisco DEA operation took place on Feb. 12, the same day as President George W. Bush unveiled his administration's new anti-drug strategy aimed at cutting use of illegal drugs by 10 percent over two years and 25 percent over five years. Top DEA official Asa Hutchinson was heckled by audience members when he outlined the government's anti-drug agenda during a speech in San Francisco later that evening.
San Francisco has declared itself a sanctuary for patients who use marijuana to treat the symptoms of serious ailments such as glaucoma, AIDS and cancer. Hutchinson was condemned by city officials and San Francisco District Attorney Terence Hallinan, who supports medical cannabis. "The voters should be outraged," Hallinan told a crowd of chanting protesters gathered outside the hall where Hutchinson spoke. "This is the federal government trying to make a point in opposition to the voters of California."
The raided medical marijuana club, known as the "Harm Reduction Center," is one of approximately 30 such clubs in the San Francisco Bay Area, which is the center of the medical marijuana movement in the U.S. A temporary injunction against another Bay Area club, the Oakland Cannabis Buyers' Cooperative (OCBC), was reviewed by the U.S. Supreme Court last year. The court determined that the club could not use a "medical necessity defense," but it chose not to address constitutional issues. Robert Raich, an attorney for the OCBC, has filed a motion in U.S. District Court to dissolve or modify the preliminary injunction against the club based partly on a federalist interpretation of states rights.
San Francisco city supervisor Mark Leno said he spoke with Hutchinson the day after the arrests and expressed his concern about the DEA operation. Leno says he is authoring a resolution to put before the board of supervisors on Feb. 18 urging the DEA to reconsider their action and "refamiliarize" themselves with the city's medical cannabis identification card program. He says the government should focus on the more serious problems of heroin, cocaine and crack instead of targeting medical marijuana.
"I believe this to be a direct assault on the public health of San Francisco as well as a direct assault on the voters of California, who by nearly 70 percent approved Prop. 215 in 1996, allowing for the compassionate use of medical cannabis," said Leno. "Our city, including the board of supervisors, mayor, city attorney, district attorney and law enforcement will continue to support the right of every patient to safe and affordable medical cannabis."
Hutchinson told his San Francisco audience that the DEA is compelled to follow federal drug laws which are set by Congress. Richard Meyer, a spokesperson for the DEA San Francisco Field Division, noted that under the Controlled Substances Act, marijuana is classified as a Schedule One substance with no medicinal value and high potential for abuse. Meyer said the investigation did not initially target the marijuana clubs, but was focused on marijuana trafficking and smuggling.
The Harm Reduction Center, which has been closed, was one of eight locations in the San Francisco Bay Area that was searched on Feb. 12. Meyer said 8,135 marijuana plants were seized from the sites. Computers were also taken from the club, but Meyer said no patient records were removed.
The Rev. Lynnette Shaw, founder and owner of a Bay Area medical marijuana club called the Marin Alliance for Medical Marijuana, says she is concerned about her club being raided by federal authorities. "This is an abhorrent violation of our civil rights in America," said Shaw. "This is not just about four people sitting in jail, this is about a thousand patients today who have no medicine and they will just get sicker."
In affidavits in support of the search warrants, DEA agents allege that Kenneth Hayes, who operates the Harm Reduction Center, heads an organization that cultivates and distributes large quantities of marijuana, imports and distributes marijuana from Canada, and launders drug proceeds in the U.S. and Canada. According to the affidavit, an informant claimed to be selling marijuana from British Columbia to the club. A second informer alleged that the club was selling to non-patients and allegedly purchased marijuana from club employee Richard Watts at Watts' home using DEA funds. The same informer allegedly returned to the club to buy more marijuana and 400 young plants from Hayes.
Hayes and Watts, the son of philosopher Alan Watts, were both charged with two counts of cultivating more than 100 marijuana plants after DEA agents found over 600 plants growing in the club. The charges carry a maximum penalties of 40 years in jail and $2 million in fines. They were also charged with a third count of maintaining a place for the purpose of cultivating marijuana, for which they could face 20 years in jail and a $500,000 fine.
Edward Rosenthal, author of the Marijuana Growers Handbook, was also charged with cultivating more than 100 marijuana plants and maintaining a marijuana cultivation site in Oakland, CA. He faces similar penalties. The DEA claims that Rosenthal produces marijuana for Hayes and Watts. "The Controlled Substances Act, which was passed in the 1970's, was based on judgment and information ... that is thirty years old," said Rosenthal's wife, Jane Klein, at his bond hearing. "We need laws that are based on current research."
In a separate complaint, James Halloran of Oakland was charged with one count of cultivating more than 1,000 marijuana plants, which carries a maximum penalty of life imprisonment and a $4 million dollar fine. He also faces another count of maintaining a place to manufacture marijuana. According to the affidavit, Halloran came to the attention of authorities after a paid DEA source pointed agents to his cultivation site in Oakland.
It is unclear whether any of the defendants are medical marijuana caregivers who are permitted to grow for patients under California state law. The DEA alleges that it received a complaint from a patient and a medical marijuana dispenser named Father Nazarin that the Harm Reduction Center was selling marijuana out the back door to non-patients. The DEA also alleged that one of its agents was able to get a medical marijuana recommendation from a San Francisco doctor without showing a prescription or medication for his condition. OCBC attorney Robert Raich notes that if clubs were found to be importing cannabis from Canada, it would undermine a possible Commerce Clause argument which asserts that Congress has no power to prohibit the production and sale of medical marijuana inside California.
Watts is still in custody. Rosenthal and Halloran both posted a $500,000 bond on Feb. 13 and have been released. Hayes was arrested in Canada on Jan. 12, after he allegedly chartered a small plane to land in a remote airfield south of Vancouver with $13,000 in U.S. currency hidden in his clothes. According to the DEA, he was held by the Royal Canadian Mounted Police, which conducted thermal imaging of his Vancouver residence to detect cannabis cultivation. The DEA says he was deported by Canadian immigration to the U.S. Customs Service to face a pending U.S. arrest warrant.
But his Canadian lawyer, John Conroy, says Hayes was charged on Feb. 12 with one count of production of marijuana under Canadian law. Conroy says Hayes, who uses medical marijuana for a chronic pain condition, was interviewed by Canadian immigration authorities and released without bail for a six-month visitor's stay. The case may take up to a year to settle during which time Conroy says Hayes can remain in Canada. If Hayes is found to have been cultivating marijuana for his own medical purposes or for a "compassion club," Conroy said he would likely get an "absolute discharge," in which his conviction would be overturned and purged from police records.
Conroy said Hayes initially intended to apply for political asylum, but U.S. authorities have yet to request his extradition. If an extradition warrant is served, Conroy says his client will seek bail, await an extradition hearing, and plead his case all the way up to the Supreme Court of Canada. The San Francisco U.S. Attorney's Office, which has until March 5 to indict the defendants, would not comment on whether they would seek to extradite Hayes.
"At any time in this process if there is an attempt to take him to the border and deport him or if the extradition is made, we will make a refugee claim based on a well-founded fear that if he is returned to the U.S., he will be persecuted," said Conroy. "He is from a well-defined group that is being persecuted in the U.S., the medical marijuana community."
Ann Harrison covers technology and politics from San Francisco. She can be reached at firstname.lastname@example.org.
When Muhammad Rafiq Butt died in the New Jersey's Hudson County jail on Oct. 23 after a month of detention, no one knew he was there. The 55-year-old Pakistani restaurant worker was one of the 1,147 people detained for questioning in the investigation of the Sept. 11 attacks. Until county officials announced that Butt had been found dead in his jail cell, neither the Pakistani consulate, Butt's family, nor members of the local Pakistani community knew of his incarceration.
The Justice Department has since confirmed that they have no evidence linking Butt to the hijackers. Butt, instead, was being held by the Immigration and Naturalization Service for overstaying his visitor's visa and lacking proper travel documents. Yet his detention was cloaked in secrecy. Butt's name was expunged from immigration charging documents. The INS has sealed the records of his bond hearing. Pakistani consulate officials were never notified of his detention.
According to the Regional Medical Examiner's office in Newark, New Jersey, a preliminary autopsy determined that Butt died of heart problems and that there was no evidence of trauma or foul play. A Hudson County spokesman said Butt had complained of pain in his gums and had been brought to a dentist, who gave him the antibiotic tetracycline.
When Butt was found dead by prison guards, the spokesman said a Hazmat unit was called in as a precautionary measure because officials said he was detained days after the attacks and he was of Middle Eastern descent. Butt's cell mate and a handful of guards received nasal swab tests for anthrax which proved negative. But no one bothered to contact the Pakistani consulate to report his death.
Human rights attorneys say many immigrants like Butt, who speak little English, often do not understand that they have the right to make phone calls to lawyers and loved ones. And some, such as political dissidents, have good reasons for not contacting their consulates. But civil liberties groups say Butt's virtual disappearance into detention on Sept. 19 is just one of many cases where the government has withheld public information about detainees. Non-citizens held on immigration charges are most vulnerable because they have no right to an attorney while in custody. Butt appeared at his hearing with a translator, but without legal counsel.
Dr. Mansoor Khan, a Pakistani physician who publishes the Pakistan Voice, a newspaper for the New York area Pakistani community, says the lack of information about Butt's detainment has prompted his family back in Pakistan to imagine the worst. "They are saying that something went wrong with him in interrogation," said Khan. "No information is there. They do not think that he died of natural causes."
To date, little is known about the identities and detention conditions of others held on immigration charges related to the Sept. 11 investigation. The government has released only a trickle of information about those detained as material witnesses and those arrested on unrelated criminal charges. According to civil liberties organizations, the absence of those basic facts, coupled with the lack of debate and rushed passage of anti-terrorism legislation, has cast the government's actions in an unprecedented veil of secrecy.
"I think it is alarming to have people picked up by the hundreds and held on secret charges," says Kate Martin, director of the Center for National Security Studies in Washington D.C. "It raises serious questions about mass secret detentions and we have never had those in this country."
Who Are the Detainees?
According to Justice Department spokesperson Dan Nelson, the 1,147 people detained in the anti-terrorism investigation fall into three categories: approximately 185 people are being held on immigration law violations; a small, but undisclosed number are being held as material witnesses; and a large group is detained under federal, state or local criminal charges unrelated to the Sept. 11 attacks. The Justice Department will not reveal how many detainees have been released. Nelson says withholding information about detainees is necessary to protect the privacy of those held on immigration charges or to shield sensitive grand jury records.
"The Department of Justice has consistently released to the public information on criminal complaints and INS documents as they have been made available," said Nelson. "Our practice will be to continue to release as much information as possible."
No civil liberties groups are suggesting that Butt died of anything but natural causes. But they contend that the continuing secrecy surrounding the detainees, and the selective release of information by the government, raises questions about the possible rights violations which the government should address. On Oct. 17, the American Civil Liberties Union sent a letter to Attorney General John Ashcroft seeking more information about the detainees. When Ashcroft declined to provide any information, ACLU members met on Oct. 26 with Robert S. Mueller III, director of the Federal Bureau of Investigation. The group said that Mueller was unresponsive to their requests.
Prompted in part by the government's brushoff, Kate Martin filed a Freedom of Information Request on Oct. 29 demanding that authorities identify individuals arrested or detained since Sept. 11 and produce the charges filed against them, the names of their attorneys, and where they were being held. The FOIA request was signed by a coalition of 21 civil liberties, human rights and electronic privacy organizations. According to Martin, six members of Congress, including Senate Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.) have since asked for the information in the FOIA request to be made public.
On Nov. 1, the Justice Department agreed to expedite the FOIA request, and Martin says they have 20 days to reply. Ashcroft also has announced that the Justice Department will limit disclosures under FOIA requests whenever there is a legal basis for doing so (though the Justice Department has not spelled out under what authority they would withhold such information). If the FOIA request is denied, Martin says it would be an unprecedented claim of secrecy. INS laws permit the agency to withhold the names of those charged with immigration violations unless questions are raised about the agency's performance. It is unclear whether the FOIA request will trigger this exemption.
Martin, whose organization monitors civil liberties violations carried out in the name of national security, says she knows of no legal authority that would permit the government to withhold the names of those arrested or detained. While the government may argue that they need to keep intelligence gathering or terrorism investigations secret, Martin says the real issue at stake is ensuring that the criminal justice system remains an open and transparent process.
"While certain aspects of the FBI investigation into the terrorist attacks need to be secret, we do not live in a country where the government can keep secret who they arrest, where they are being held or the charges against them," said Martin. "We think it is unconstitutional for arrests to be secret and there have been a number of press reports, which if accurate, raise questions about whether people arrested have had their rights violated."
Civil Rights Violated?
None of those detained or arrested since Sept. 11 have actually been charged with crimes directly related to the highjackings. Still, these cases are held up as examples of progress in the government's anti-terrorism campaign. On Oct. 31, Ashcroft claimed that three Middle Eastern men, held in Michigan for falsifying documents, had advanced knowledge of the attacks. But the Justice Department later acknowledged they had no hard evidence of direct links. The Detroit Free Press quoted lawyers for two of the men who said they could not respond to the accusation because a federal judge in Detroit had barred them from discussing the case.
Meanwhile, Ashcroft has firmly stated that the government will not violate anyone's rights while investigating the Sept. 11 attacks. "We will preserve the rule of law because that's what makes us civilized," Ashcroft said in a speech to the U.S. Conference of Mayors on October 25.
The ACLU contends that while the government lacks evidence to charge suspects with terrorism crimes, the Justice Department is using minor immigration violations as a pretext for the detention and interrogation of non-citizens. "The government's goal is to get them into custody and ask them questions, and the device for getting them into custody is that they overstayed their visa," said Steve Shapiro, national legal director for the ACLU.
"Let terrorists among us be warned," Ashcroft said in his address to the mayors. "If you overstay your visas even by one day, we will arrest you. If you violate a local law, we will work to make sure that you are put in jail and kept in custody as long as possible."
Khan says he is worried that Pakistanis like Butt who overstay their visas will be held under the new anti-terrorism law, which allows the U.S. government to detain non-citizens without charging them with a crime.
"We are really concerned about how many other people are being arrested for the same issue and have no access to the Pakistani embassy," said Khan. "If they arrest you on any charges under the new regulations, they can take you for a week. How is my wife going to know where I am? How is my consulate going to know about me?"
The USA Patriot Act
Congress has largely complied with requests by law enforcement for broader powers to detain non-citizens. The initial proposal that the administration made to Congress on Sept. 19 asked for the attorney general to be able to detain non-citizens based on suspicion of involvement with terrorist groups and hold them indefinitely with no judicial review.
This caused a partisan uproar in the House and the new anti-terrorism law signed into law on Oct. 26 took some steps to reign in the administration's request. It required the attorney general to start deportation of foreign detainees immediately, charge them with a crime or release them within seven days.
The anti-terrorism law, dubbed the USA Patriot Act, also gives the attorney general the power to certify individuals as a threat to national security. Non-citizens accused of terrorism can be detained for "periods of up to six months," if they cannot be deported. They are also held in jail during deportation proceedings. An INS spokesman said that Butt accepted a voluntary deportation order during a hearing Oct. 15. But his departure was delayed because he lacked travel papers, which the INS was requesting from the Pakistani consulate.
Non-citizens deemed by the attorney general to be dangerous could also be held if a person's home country is unwilling to accept them back. Under the new law, Congress has the authority to review such detentions every six months. But Shapiro, of the ACLU, says there will be a certain percentage of people held for deportation hearings, and found to be deportable, but with no travel papers or a clear destination. "There are not many countries in the world willing to take someone we have labeled a terrorist under a deportation order," said Shaprio. "If there is nowhere to send them, these people can be held in jail indefinitely."
Even if deportation proceedings go smoothly, immigration advocates say it is possible for non-citizens to disappear in custody. Elisa Massimino, director of Washington Office of the Lawyers Committee for Human Rights, says the human rights community is concerned that that federal agencies will hold suspects for the allotted time and then pass them back and forth to continue the period of detention. Butt, for instance, was arrested and questioned by the FBI and then transferred into INS custody.
Massimino adds that those held on immigration charges are frequently shuttled between county jails, INS facilities or federal prisons, and it is sometimes difficult to determine exactly where detainees are being held. "Many innocent people are likely to be intimidated and, worse, picked up and lost in this new detention power without the ability to really challenge it," said Massimino. "We get calls from family members who say, 'My brother has been gone for two weeks, and we don't know where he is or what to do.'"
Civil liberties groups say that it has been difficult to identify those held on immigration charges because, even before Sept. 11, their names are expunged from public immigration charging documents under INS privacy laws. Detainees are also usually entitled to bond hearing before an immigration judge where charges are read in open court. According to Massimino, the INS has taken the extraordinary step of not permitting bond hearings for those detained in anti-terrorism investigations.
"Presumably, if they had evidence, then they would charge them," said Shapiro. "But now we are holding people based on suspicions of proof, and that is a fundament shift in how we administer justice in this country."
Nelson, of the Justice Department, confirms that immigration judges have the discretion to close hearings in order "to protect witnesses, interested parties or the public interest." But he could not say how many hearings associated with the detainees had been conducted or whether they have been open. He insists that those detained for immigration violations have access to phones and can contact attorneys.
"Any time a detainee enters an INS facility, they are informed that they have the right to counsel, they can contact their consulate for their nation of origin and they also are provided with a list of free legal services and a handbook that lists their rights and responsibilities," said Nelson. He adds that detainees have access to attorneys, law libraries and material needed to defend their case, and and every reasonable effort is made to provide information in their language.
This policy differs sharply with what civil liberties groups say they are hearing from attorneys and family members of detainees. "Some significant number of the [the detainees] are having enormous difficulty contacting attorneys," said Lucas Guttentag, director of the Immigration Rights Project of the National ACLU. He adds that very few legal services organizations that can provide counsel have open access to detainees. "The question is how many detainees are getting jailed and held for weeks and weeks without representation?"
Guttentag says he has heard of detainees held for a week before being able to contact an attorney and then then losing contact again for weeks after being transferred to a new holding facility. He also said there are people who, while attempting to leave the country after overstaying their visas, have been detained at the airport before departure. There have been additional accounts of detainees permitted to make a single phone call to an unresponsive legal aid organization and then waiting a week to make another one.
"Incommunicado becomes an undefined term," said Guttentag. "As a practical matter, they are being denied reasonable access to lawyers."
A Quiet Expansion of Detention Policies
While the USA Patriot Act expands the power of immigration laws, the existing material witness statute is being used to secretly detain others swept up in the anti-terrorism investigations. A federal judge can issue a material witness warrant to hold someone who prosecutors say may have valuable information about a crime and who is at risk for fleeing the country. Material witnesses are entitled to an attorney and a judicial hearing, but much of the information about material witnesses detained in the anti-terrorism investigations has been sealed by judges at the request of prosecutors.
The material witness statute includes no time limit on how long people can be held, a fact that deeply concerns Martin. "If it is going to be evoked in this situation," she says, "we need to know when it is being evoked, what criteria they are using and whether or not is is being used as a proxy for preventative detention on mere suspicion, because that is not the intent of the laws."
Martin's FOIA request asks for the names of lawyers representing those detained as material witnesses, a list of courts asked to enter orders sealing any of the proceedings, the orders that have been entered, and the legal authority that the government relied on in seeking the order. The ACLU and the Lawyers Committee for Human Rights also signed the FOIA request.
As for those detainees arrested on state and local charges unrelated to the Sept. 11 attacks, Nelson says that information is available from law enforcement agencies in the jurisdictions where suspects were detained. He said the names of those arrested on federal charges are available from "two or three binders" of paper records publicly available at the Justice Department in Washington D.C. But Nelson said he could not confirm how many people had been arrested or where and said there was no master list of those arrested on criminal charges.
Civil liberties groups says they recognize that the government has a legitimate interest in keeping some information about the terrorism investigation confidential. Martin believes there is a role for secrecy in terms of withholding information on anticipated war plans and the details of terrorism investigations. But Shapiro points out that no civil liberties organizations are asking for details of the investigation, names of informants or classified information. Rather they are requesting that basic facts on detainees should be made available so that the public can judge how the FBI is conducting their investigation.
Pressing For More Information
If there is no satisfactory reply to the FOIA request, Massiminio says the Lawyers Committee for Human Rights and other civil liberties organizations will sue the government for information about detainees. She said those groups will closely monitor for potential civil liberties violations and people should stay vigilant and continue to pressure the government for more information. "People ought not to throw up their hands and say there is nothing they can do," says Massimino. "Oversight is the key."
Massimino says she is particularly concerned about those who have had any contact with the 46 organizations the State Department has labeled as terrorist organizations. She says people (not just detainees) may have supported these groups with the understanding that they were humanitarian or educational organizations.
But they could now be swept up in the government's new detention policies, which are based on a very broad definition of what constitutes terrorism. "What it means under the new powers is that you could be a terrorist and not know it," said Massimino. "It is going back to the McCarthy era where it is guilt by association, which is what we have been edging towards since Sept. 11."
Ann Harrison is a San Francisco journalist who writes regularly for SecurityFocus.com and BusinessWeek.com.
Since launching their no-holds-barred investigation into the Sept. 11 attacks, the FBI has released an astonishing amount of information about the men who they have identified as the hijackers. There are photographs of them passing through airport security and peering into ATM machines. The FBI has records of their cell phone calls, their cash transfers, air travel, credit card purchases, car rentals, email messages and hotel bills.
Now that the hunt is on for accomplices who could be planning more attacks, law enforcement officials have sought the legal authority to collect even more information about the minutiae of daily life. The new anti-terrorism law signed into law on Oct. 26 grants law enforcement authorities sweeping new surveillance powers that are not limited to terrorism investigations but also apply to criminal and intelligence investigations.
The new law, known as the USA Patriot Act, reaches into every space that Americans once imagined was private. For instance, police can now obtain court orders to conduct so called "sneak and peak" searches of homes and offices. This allows them to break in, examine and remove or alter items without immediately, if ever, presenting owners with a warrant detailing what they were entitled to do and where.
This seismic shift in the government's power of search and seizure also extends to the examination of records. Authorities can browse medical, financial, educational or even library records without showing evidence of a crime. The law overrides existing state and federal privacy laws if the FBI claims that the information is connected to an intelligence investigation.
In addition, credit reporting firms like Equifax must disclose to the FBI any information that agents request in connection with a terrorist investigation, without the need for a court order. In the past, this was only permitted in espionage cases.
Biometric technology, such as fingerprint readers or iris scanners, will become part of an "integrated entry and exit data system" to identify visa holders entering the United States. Face recognition technology is now being installed in several U.S. airports.
The legislators who rushed these provisions through the House and Senate say that law enforcement authorities need this data to help track down terrorists and prevent future attacks. "We were able to find what I think is the appropriate balance between protecting civil liberties, privacy and ensuring that law enforcement has the tools to do what it must," said Senate Majority Leader Thomas Daschle (D-S.D.) in a statement following the passage off the bill.
But civil liberty groups have been alarmed by this legislation since it started whisking its way through Congress. Jim Dempsey, deputy director of the Washington D.C.-based Center for Democracy and Technology (CDT), says he is particularly concerned about the provision in the law that allows the FBI to share with the CIA information collected in grand jury investigations. The 1947 National Security Act states that the CIA should have no domestic police or subpoena powers. But Dempsey says CIA agents could now use their close relationship with the FBI to essentially fill in subpoenas provided by prosecutors. "To do this with no prior judicial approval is a fundamental change in the way we have set up our police agencies and set them apart from our foreign intelligence agencies," said Dempsey. "And it was done with very little debate."
Legislators who voted for the USA Patriot Act pointed out that the most controversial surveillance sections will would expire in 2005. Senate Judiciary Committee chairman Sen. Patrick Leahy (D-Vt.) announced that a four-year expiration date "will be crucial in making sure that these new law enforcement powers are not abused."
Dempsey says the CDT is hoping there will be a Congressional review prior to any extension of the provisions. But he, and many others, have pointed out that these so-called "sunset provisions" do not apply to the sharing of grand jury information, giving the CIA the permanent benefits of grand jury powers.
The so-called "sneak and peak searches" are permanent as well. And further, the sunset provisions do not apply to ongoing cases. This means that intelligence investigations, which often run for years, would continue to operate under the law even if provisions are not extended past 2005. Also exempted are any future investigations of crimes that took place before this date.
Internet surveillance via "pen register" devices, which capture phone numbers dialed on outgoing telephone calls, and "trap and trace" devices, which capture the numbers of incoming calls, are also exempt from the sunset provisions. These orders were originally used to provide investigators with telephone numbers dialed by suspects. They can now be used to monitor email addressing information and Web pages visited, in some circumstances without judicial oversight. Investigations approved by the secretive FISA intelligence court would also not require notification.
Lee Tien, senior staff attorney for the San Francisco-based Electronic Frontier Foundation, notes that this type of surveillance requires mere certification with no evidence that the person being monitored is involved in criminal conduct or is a suspected member of a terrorist organization. While this online surveillance requires a judge's approval, the law mandates that the judge must approve every request and is not required to evaluate how the order was carried out.
Tien said he will be working with other online civil liberties groups to get the government to notify targets of pen/trap surveillances and increase judicial oversight. "The potential for pen/trap surveillance on the Internet is enormous," says Tien.
The new law also permits any U.S. attorney or state attorney general to order the installation of the FBI's Carnivore Internet surveillance system, which also has the capacity to capture the contents of email messages. The agency says the public must trust that investigators will not review this information.
Unlike trap and trace orders, Carnivore requires that investigators set up an audit trail which includes what information was gathered, by whom and when. But Tien notes the court is not required to review the information and make sure that it complies with the terms of the certification. "No one has that oversight role," says Tien.
While the government has the power to snoop, citizens who engage in similar activities now fall under the government's new definition of terrorists. The current definition of terrorism has been expanded to include hacking into a U.S. government computer system or breaking into and damaging any Internet-connected computer. Prison terms of between five to 20 years can now be used to prosecute the new crime of "cyberterrorism," which covers hacking attempts causing $5,000 in aggregate value in one year, damage to medical equipment or injury to any person.
Even Internet Service Providers, universities and network administrators are authorized under the new law to conduct surveillance of "computer trespassers" without a court order. The new law compels any Internet provider or telephone company to turn over customer information, including phone numbers called, without a court order, if the FBI claims that the records are relevant to a terrorism investigation. The company is forbidden to disclose that the FBI is conducting an investigation, has immunity to provide any sensitive data and is not bound by statutory rights to suppress the information. "There is no incentive for anyone to know about it, or challenge it or rein it in," says Dempsey.
Prior to the passage of the USA Patriot Act, Laura Murphy, Director of the ACLU Washington National Office, wrote letters to the House and Senate warning that the bill would give enormous power to the executive branch unchecked by meaningful judicial review. "Included in the bill are provisions that would allow for the mistreatment of immigrants, the suppression of dissent and the investigation and surveillance of wholly innocent Americans," said Murphy.
Civil liberties groups point out that the government has a history of launching investigations against political dissidents. These include the FBI investigations of Martin Luther King and other civil rights leaders in the 1960s, illegal spying on anti-war protesters in the 1960s and 1970s and surveillance on the sanctuary movement that provided asylum for those fleeing Central American death squads during the 1980s.
Attorney General John Ashcroft has brushed off these concerns and issued a directive to law enforcement investigators, urging them to aggressively use the new powers, which he says will be used to launch a "law enforcement campaign."
Steve Shapiro, national legal director for the ACLU, says Congress should use its unique subpeona power to get information about investigations and exercise its oversight authority on investigators. "Congress has given them these powers," said Shapiro. "And it has a big responsibility to make sure these powers are not abused."
Tien said the EFF would also be actively opposing calls for national ID cards, for biometric systems and for mandatory record keeping by ISPs, which has already been discussed seriously in Europe.
Dempsey says the CDT is concerned about the possibility that because the FBI has not been able to get to the core of the suspected terrorist cells, they will cast an even wider net. Cut loose from past standards and judicial controls, investigators, he fears, will collect more information on innocent people and be distracted from the task of actually identifying those who may be planning future attacks.
"That is where the law allows them to take it," says Dempsey. "And that is bad for civil liberties and bad for anti-terrorism investigations."
Ann Harrison is a San Francisco journalist who writes regularly for SecurityFocus.com and BusinessWeek.com.
Last month's Supreme Court decision to reject a medical necessity defense for the Oakland Cannabis Buyers Cooperative (OCBC) has set the stage for constitutional challenges that directly confront the federal government's ability to regulate medical marijuana.
The ruling, which barred the OCBC from distributing cannabis to patients, disappointed many supporters of medical marijuana. But OCBC attorney Robert Raich says the Cooperative's legal team is now considering a range of constitutional arguments and procedural strategies that will force the courts to address fundamental issues in the case. These constitutional arguments include questions of state sovereignty, trial by jury, due process, and the rights of patients to select their own medical treatments.
Raich compares the OCBC ruling to the Dred Scott decision of 1858 that reaffirmed the legality of slavery.
"In the course of time, the Supreme Court's decision will also be recognized as wrongly decided," says Raich, who believes the government's fight against medical marijuana patients has ignited a new civil war. "Any time a nation fights against its own citizens it is a civil war, and in this case the government is fighting against its weakest citizens, its medical patients."
If the U.S. government is indeed waging a campaign against sick people, the Supreme Court's ruling in the OCBC case is just the latest of many battles. The question for Raich and other drug-reform activists is how to create a legal and legislative strategy that will win the war for patients.
The immediate legal impact of the high court's decision is limited only to the OCBC, which has not been distributing medical cannabis since last August when the court stayed an amended injunction against the Cooperative. OCBC is barred from the manufacture or distribution of cannabis, but will continue to issue identification cards to patients that meet the requirements of Prop. 215.
What About the Other Cannabis Clubs?
"To the extent that other cannabis providers operate in a discreet fashion and fully in accordance with state law," says Raich. "I believe that the federal government will feel it has little interest in interfering with their operations."
The feds may well leave the other clubs alone. But Raich and others are still concerned about securing the rights of individual patients. While the OCBC case did not address the validity of Prop. 215 or other state medical cannabis laws, he is worried that local authorities might use the Supreme Court decision to harass patients in areas where they disapprove of medical marijuana.
"In those cases, the authorities might use the decision as an excuse to make life difficult for patients and that is a tragedy," says Raich.
Marijuana's listing by Congress as a Schedule I drug under the Controlled Substances Act means that "it has no currently accepted medical use in treatment in the United States." In oral arguments before the Supreme Court, the federal prosecutor assured the court that marijuana had no accepted medical use. The justices chose not to consider conflicting evidence and instead deferred the issue to Congress.
Both Raich and OCBC attorney Gerald Uelman are particularly angry that the Supreme Court ignored the fact that the federal government had been dispensing medical marijuana to a select group of patients for years through its Compassionate Investigative New Drug (IND) Program.
"The fact that the government itself operates this program, illustrates that medical cannabis can medically be distributed to patients in accordance with the Controlled Substances Act," says Raich.
Part of the reason that patients have a necessity to obtain cannabis from the Cooperative, says Raich, is that the federal medical marijuana supply program stopped. Uelman points out that the program was closed to new applicants in 1992 because too many AIDS patients were applying.
A Narrow Ruling and Many Unanswered Questions
In order to fully understand the effects of the Supreme Court's ruling, it is important to remember what the decision did not consider in the government's case against the OCBC.
The Supreme Court's 8-0 decision was a narrow ruling that declared that "medical necessity is not a defense to manufacturing or distributing marijuana." Medical necessity refers to a situation where obeying the law would result in death or great bodily harm for medical reasons.
The court's opinion did not hold that federal law trumps state law. It simply looked at whether the medical necessity defense could override federal law. Justice Clarence Thomas, writing for the majority, said that while drafting the Controlled Substances Act, Congress already considered whether cannabis could be used medically and decided that it could not.
Justice Thomas ruled that the U.S. Court of Appeals for the Ninth Circuit in San Francisco misinterpreted federal law when it ruled last year that the OCBC could raise a medical necessity defense against an effort by the U.S. Department of Justice to shut it down.
The DOJ originally brought the case against the Cooperative as a request for an injunction rather than as a criminal prosecution that would have required a jury trial. They did this because 70 percent of Oakland voters supported Prop. 215 to permit medical use of cannabis and were unlikely to convict the OCBC.
When the DOJ went to federal appeals court, however, it did not ask the court to rule on constitutional issues. The government appealed only a narrow question of whether the injunction could be amended to include medical necessity for the OCBC.
While arguing for the Cooperative in front of the Supreme Court, Uelman, a law professor at Santa Clara University, attempted to raise Ninth and Tenth Amendment issues pointing out that the U.S. Constitution does not allow the federal government to infringe on states rights. The OCBC legal team also briefed the court on constitutional issues of substantive due process and ramifications of the Commerce Clause.
But these arguments were not considered because they were not the ones the court had been asked to decide. This doesn't mean that the courts will forever ignore these issues. The justices themselves pointed out that the usefulness of a medical necessity defense for an individual patient who grows or possesses cannabis for their own use is still undecided.
Declaring that "the Court reaches beyond its holding, and beyond the facts of the case, by suggesting that the defense of necessity is unavailable for anyone under the Controlled Substances Act," Justices John Paul Stevens, David H. Souter, and Ruth Bader Ginsburg declined to sign Justice Thomas's opinion. They wrote a separate concurring opinion pointing out that the case left open many unanswered questions.
"Most notably," wrote Justice Stevens, "whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here."
So What Are the Constitutional Issues?
Perhaps the strongest constitutional argument advocates of medical marijuana can make is that of states' rights. In the concurring opinion written by the three justices, Justice Stevens declared that Justice Thomas' opinion "showed inadequate respect for the sovereign states that comprise our federal union."
In a footnote in his opinion, Thomas responded by noting that "because federal courts interpret, rather than author the federal criminal code, we are not at liberty to rewrite it."
A number of constitutional issues, including that of states' rights, were included in amicus briefs filed in support of the OCBC case. One such brief, filed by California State Attorney General Bill Lockyer, argued that, "The Controlled Substances Act unduly interferes with the privilege afforded the states by the Ninth Amendment to enact voter approved initiatives protecting the health, safety, and welfare of their citizens."
Lockyer's brief went on to assert that application of the Controlled Substances Act to prohibit the use of cannabis by seriously ill patients in states which have voter approved initiatives, violates traditional notions of state sovereignty protected by the Tenth Amendment.
According to Raich, Lockyer's Ninth and Tenth Amendment arguments offer fertile ground for further legal challenges now being considered by the OCBC.
"I think that the fact that the state of California made those arguments is an extremely important factor," says Raich. "If the federal government and the courts are going to respect the constitution, then they must give deference to the rights that the people have reserved for themselves and the powers that the state has reserved for itself regarding the regulation of medical cannabis."
Another constitutional argument raised by the OCBC before the Supreme Court is the issue of substantive due process. To simplify, this means Americans have the right to be free from pain and prolong their lives. Patient interveners in the OCBC case filed their own amicus brief that declared that the government may not abrogate those rights absent a compelling government interest, which does not exist in the case.
During oral arguments at the Supreme Court, the justices themselves raised questions about the role of due process in the case. Conservative Justice Antonin Scalia was among those most troubled by the government's injunction strategy raising the possibility that those charged with contempt in the case could go to jail without a jury trial.
Medical marijuana patient Sudi Pebbles Trippet filed her own compelling amicus brief that contended that the Controlled Substances Act violated the constitutional rights of both the patients and states as construed by the Supreme Court in numerous cases over the past two centuries.
Trippet argues that OCBC attorneys should pursue constitutional arguments that benefit more patients, not just those with a medical "necessity" for cannabis. Trippet, who uses cannabis to prevent and relieve migraine headaches, says she is one of the many OCBC patients who have the right to use cannabis under Prop. 215 but might not qualify under the necessity defense.
In her brief, Trippet specifically addressed the federal government's right to regulate state activities through the Commerce Clause. Many expansions of the federal government's authority to regulate citizen's activities have taken place under the Commerce Clause, which regulates interstate commerce. But Trippet argues that since the 1995 Lopez decision, a majority of the current Supreme Court believes that the Commerce Clause, "does not allow federal 'police' powers over local activities."
In the Lopez decision, the majority of the court found that a federal law that made it a crime to have a gun within a school zone." was unconstitutional because it attempted to regulate behavior inside a state.
Raich, who says the OCBC attorneys raised the Commerce Clause in their brief to the court, agrees with Trippet that it presents a strong constitutional argument. He notes that the Cooperative is not engaged in interstate commerce because all of its activities take place wholly within California.
The cannabis used by the Cooperative to supply patients is grown only in the state of California by California growers. The cannabis is distributed only within California by Californians to California patients under recommendations or approvals from California physicians. The patients then consume the cannabis within the borders of the state.
"It exceeded the federal government's power in this case to regulate or prohibit this commerce that took place only within the borders of California," says Raich. "It is another issue that will receive additional attention in further proceedings in this case."
Trippet also called attention to the 1925 case of Linder v. U.S., which found that the forerunner of the Controlled Substances Act could not bar doctors from supplying small quantities of drugs to patients for bona fide medical purposes. The ruling found that Congress lacked the constitutional authority to control the practice of medicine within a state. Raich notes that the California Medical Association also filed a brief in support of the OCBC case raising constitutional issues that support medical necessity.
Roe v. Wade is cited in Trippet's brief as an example of a case where the court found constitutional protection for the patient's right to choose one medical treatment, in this case abortion, with no need to claim medical necessity "and with no suggestion that the constitution gave abortion any more protection than it gives other medical choices."
Trippet noted that forcing a woman to bring a pregnancy to term also violates the Eighth Amendment's ban on cruel and unusual punishment. Raich agrees that this point is applicable in the OCBC case where denying patients cannabis would cause suffering. He notes that the OCBC brief to the court cites a Cooperative patient by the name of Robert Manardy who had cancer of the larynx and was suffering greatly as a result of cancer therapy. Before Manardy died, he filed a declaration for the case stating that cannabis was the only medicine that relieved his symptoms.
And Then There Are Other Potential Arguments ...
The OCBC case will now be handed back down to the Ninth Circuit, which may refer it once more to the district court for further proceedings. Raich says the Ninth Circuit will likely ask the parties what they would now like to do next. The Cooperative could continue with new arguments or bring another case on behalf of medical cannabis patients.
One potential defense for the Cooperative is what has become known as the joint user defense. According to Raich, the passing of controlled substances among various people for their own consumption is not considered distribution under the Controlled Substances Act. They may be engaging in possession, but not distribution.
The potential usefulness of the joint user defense to the Cooperative is that it is not charged with possession of cannabis. The Cooperative is charged with manufacturing and distributing cannabis as well as maintaining a place for such activity and conspiracy to engage in these activities. By employing the joint user defense, Raich says the Cooperative would not be liable for any of the activities for which it is alleged to be engaged.
There is one more potential argument that the OCBC can pursue. According to Raich, the judgment of the Supreme Court will not issue until 25 days after the date of the appeal. Under certain procedural circumstances, such as the issuance of an injunction or an amended injunction, defendants are also allowed to appeal issues before a final judgment is issued.
In the OCBC case, Raich says the cooperative could explore interlocutory issues regarding the Oakland City Council. In 1998 the Oakland City Council passed an ordinance that set up a medical cannabis distribution program that the City of Oakland itself runs. The city of Oakland contracted with the Cooperative to administer the program.
This is relevant because section 885B of the Controlled Substances Act declares that an officer of a city has immunity from the provisions in the act. This is intended to protect undercover narcotics officers who may, in the course of their duties, buy, sell, or possess otherwise illicit drugs. But it does not limit its applicability to such circumstances. Using the plain language of the Controlled Substances Act, Raich says that same immunity applies to the Cooperative and its employees. As operators of Oakland's cannabis distribution program they are officers of the city of Oakland.
Ann Harrison is a San Francisco based science journalist.