Could Marijuana Be Legal in Illinois?

February 10, 2003

Mark Harris,

"I'm hoping they never do this again to anyone. Because if someone else wasas sick as I was, and has been through what I've been through, they mightnot have been able to live through it. I knew inside of me that for the sakeof my health, I had a right to do what I did." – Brenda Kratovil, on herarrest for marijuana possession I am sitting across the kitchen table from Brenda Kratovil in her Beach Parkhome just a few miles north of Waukegan. It's early in the afternoon andKratovil and her husband have just returned from the nearby Lake CountyCourthouse. There, in a preliminary hearing, a judge has just ruled that shecould not introduce medical necessity into her defense on charges ofmarijuana possession. When we meet for the first time after the hearing, Kratovil is quiet. I'mnot sure if she is more upset and angry or just sad. I imagine perhaps allthese emotions are with her. But now, back at her home as she begins to tellme her story, I also understand that I am speaking with a woman whose spiritremains strong, despite her current legal difficulties. I suspect Brenda'smany health challenges have steeled her to life's harder edges. Brenda Kratovil tells me she has had glaucoma for over 20 years. Legallyblind, she was also diagnosed with multiple sclerosis (MS) 15 years ago, andhas been on disability since the age of 18. What now has the Beach Parkmother of two in so much trouble is the fact that she uses marijuana torelieve her symptoms. Kratovil, who hopes to eventually be able to legallyuse medical marijuana – under a little-known Illinois statute – first gotthe idea of trying the drug to relieve her eye pain from a specialist shesaw in Arizona shortly after she was diagnosed. The physician couldn'tprescribe marijuana but suggested the drug might lower the intra-ocularpressure that was causing her so much discomfort. He was right. When she smoked marijuana, Kratovil had less pain. Her visionalso improved. The plant may also have provided some relief for her. Ms.Kratovil has used marijuana since to manage her symptoms. None of this mattered much on Sept. 4, 2001, however. That's the day theMetropolitan Enforcement Group (MEG) of Lake County, a police task force,raided the home Kratovil shares with her husband and two teenage children.Apparently, a neighbor had seen some small marijuana plants growing in theback yard and called police. For several hours, police ransacked thefamily's residence in a search for more drugs or information on localdealers. Notably, police did not arrest Kratovil at the time. That happened aboutthree months later, when they returned and, in front of family andneighbors, Kratovil was handcuffed and taken to jail. But her ordeal was notquite over yet. Six months after the first raid, the MEG crew returned and,with their guns and dogs, embarked on one more intrusive romp through thefamily's home. It was, not surprisingly, a highly traumatic experience. Both searches leftthe house in complete disarray, says Kratovil, with beds turned upside down,drawers emptied onto the floor, and the children's things scattered helterskelter. According to Kratovil's lawyer, David Stepanich of Vernon Hills,$300 in cash was also taken from the home, forfeited as alleged "drugmoney." The first search was also conducted without a warrant after policewarned Kratovil that it would only get worse for her if they had to returnlater with the required warrant. In the aftermath of the raids, the family has endured ostracism fromneighbors and repeated visits from local police whenever minor incidents ofvandalism or other crimes happen to occur in their area of town. The stressof it all has also taken a toll on Kratovil's health and for several monthsfollowing the MEG raids she struggled with flare-ups of her symptoms. "WhenI watched my daughter crying with one of the officers telling her he couldtake me to jail and put her in Department of Children and Family Services(DCFS), I felt so bad," says Kratovil, "I thought, this isn't fair." What's Going On Here? Unfortunately, what happened to Brenda Kratovil was not only unfair, it wasnot an isolated occurrence. Last September, in another more highlypublicized incident, the federal Drug Enforcement Administration (DEA)raided the Wo/Men's Alliance for Medical Marijuana in northern Santa CruzCounty, about 65 miles south of San Francisco. The group grows marijuana foruse by registered members, who suffer from cancer, diabetes, and otherdiseases. The group was also not breaking any local or state ordinances, asSanta Cruz County residents had voted 10 years before to legalize the use ofmedical marijuana. Statewide, California voters had approved a similarmeasure in 1996. In fact, eight other states – Alaska, Washington, Oregon, Nevada, Arizona,Hawaii, Colorado, and Maine – have all, in recent years, passed laws withprovisions for the use of marijuana for medical purposes. The justicedepartment, however, remains unequivocal in its opposition to marijuana usein any form, continuing to classify it as a Schedule 1 drug, effectivelybanning its use except under the strictest research conditions.Consequently, the Bush administration has given the go-ahead for the DEA andother law enforcement to step up prosecutions. Clearly, some states and local municipalities are at loggerheads with thefederal government over the issue. In the Santa Cruz incident, the mayor andlocal police sharply rebuked the DEA's action. But what's behind thesharpening jurisdictional crosscurrents are not only the medical argumentsof a small, activist minority but the shifting winds of public sentiment. Arecent Time/CNN poll finds 80 percent of Americans now support the use ofmarijuana for legitimate medical reasons. Other estimates point to as manyas 76-million Americans who have tried marijuana. Many of them also cannothelp but reject from their own experience the propaganda of zealots likeWhite House "Drug Czar" John Walters, for whom marijuana remains a sinister"gateway drug" to other, harder evils like heroin. Unfortunately for the drug war crusaders, the issue of marijuana's possiblemedicinal benefits is not going away. There is today a small but growingregistry of nearly 2,500 individuals using marijuana under state or localprovisions, according to a recent Government Accounting Office report.Ironically, a few patients – invoking an obscure federal program – receivetheir marijuana directly from the government. To be sure, there is apersuasive body of clinical evidence that marijuana is useful in treatingthe symptoms of a number of health conditions and drug side effects. But why should any of this be surprising? Marijuana is a plant, and medicinederived from plants is hardly a novel concept. In fact, marijuana's primaryactive constituent, D9-tetrahydrocannabinol (THC), has undergone controlledstudy and is already approved for clinical use. Notably, the ScientificCouncil of the American Medical Association in June 2001 called for"continued research into marijuana's potential therapeutic effects," citingits possible value in aspects of HIV care, treating cancer pain and theeffects of chemotherapy, chronic pain, insomnia and other conditions. Asimilar endorsement and call for wide-scale clinical trials came in a 1999report, "Marijuana as Medicine: Assessing the Science Base," issued by theInstitute of Medicine. In the treatment of glaucoma, the anecdotal evidence is also there thatmarijuana helps. "There's no question that the data is very well establishedthat marijuana does lower eye pressure," says Michael Savitt, M.D., anophthalmologist who has treated Kratovil at the North Shore Glaucoma Centerin Libertyville, IL. Dr. Savitt says he believes prescription eye drops workbetter than marijuana, but acknowledges that some patients, like Kratovil,do not tolerate the drops well and have not benefited from laser surgery."In those few patients, especially for whom the disease is painful,marijuana could be used to help in control of their pressures," notes Dr.Savitt. "For Brenda, I know she feels that it helps her and makes her morecomfortable." Avoiding the Issue, Lake County-Style If none of this mattered much to the MEG folks, it also didn't factor in atKratovil's pre-trial hearing last December. That's when a Lake County judgedenied her lawyer permission to introduce the medical necessity defense attrial. Curiously, the judge cited Kratovil's failure to formally apply underSection 11 of the Illinois Cannabis Control Act for permission to usemarijuana for medical reasons. The Illinois statute, which was passed in1971, allows physicians to apply for written approval from the state policeto use marijuana for research purposes in a treatment setting. But it appears that the judge was engaged in specious reasoning, since, foryears the state program has, essentially, been put on ice. "The Illinoisprogram has been effectively unenforced since 1984," says Bryan Brickner,director of the Illinois chapter of the National Organization for the Reformof Marijuana Laws (NORML). "It's a victim – along with many other stateprograms – of the 'War on Drugs' launched by the Reagan Administration."Back then, authority for the Section 11 provisions was transferred to theIllinois Department of Alcohol and Substance Abuse. Brickner adds that themove was inherently political, as all medical-related aspects of marijuanaresearch now fell under the rubric of "substance abuse." In other words, itwas a way of burying the law. Apparently that move was effective because asfar as Brickner or Kratovil's attorney, David Stepanich, are aware,Illinois' medical marijuana statute has never been exercised. In response to the pre-trial ruling, NORML is now formally requesting thatKratovil be allowed to apply for inclusion in the state program, under Dr.Savitt's supervision. The outcome of her application could prove to be atest case for the future of medical marijuana in Illinois. But howeverKratovil's case is eventually resolved, her legal troubles highlight thetrenchant absurdity of so much of the so-called war on drugs. Classifyingmarijuana as a Class 1 drug, in other words, a highly dangerous substanceand of no redeeming medical use – worse even than the most potent opiatesand narcotics – is more than a scientific stretch. Actually, it is amentality in serious need of thought reform. The dogged refusal of the federal government to reclassify marijuana'smedical status would seem inexplicable were it not for the plant's uniquecultural history and notoriety. The drug war evangelists have long seen inevery puff of a joint the implicit vapors of impending moral decay, as ifmarijuana and marijuana alone imperils Western Civilization in waysmysteriously elusive of alcohol or nicotine. It's a hysteria that goes backto the 1930s, when Harry Anslinger, a former prohibition agent turned U.S.Commissioner of Narcotics, led the drive to make marijuana illegal (before1937 there were no laws banning its use). Anslinger managed to persuadeCongress to outlaw it with lurid descriptions of marijuana users as "Negroesand entertainers," lovers of "Satanic music" like jazz, and just your basicall-around degenerates. Unfortunately, such "Reefer Madness" stupidities never quite seem to goaway; they just reinvent themselves to suit the times. Now we are told thatusing marijuana gives support to terrorists – as government-sponsoredcommercials declared (with Orwellian flair) in their debut during 2002'sSuper Bowl game. Such claims might otherwise be laughable were it not alsofor the reality that the prisons are packed with drug offenders. According to NORML's Brickner, as many as 26 percent of state prisoners inIllinois are convicted of drug-related crimes, with arrest rates for alldrug offenses having risen dramatically over the last ten years. Nationally,there were more than 500,000 marijuana-related arrests between January andSeptember of last year. Of course, while most arrests today for marijuanapossession in small amounts are not likely to result in imprisonment, NORMLreceives many reports of cases where arrested individuals subsequently findtheir employment in jeopardy. A Cruel and Brutal Ignorance If legalizing or decriminalizing marijuana use remains unlikely in the nearfuture (several recent, more far-reaching decriminalization initiatives weredefeated in last fall's state elections), the trade winds are destinedeventually to steer us toward the shores of more rational, humane drugpolicies. In 1999, the 9th U.S. Circuit Court of Appeals ruled that medicalnecessity was a legitimate defense in the manufacture and distribution ofmarijuana. It proved to be a short-lived victory, however, later overturnedby the U.S. Supreme Court in May 2001. But the mere fact that a circuitcourt was willing to rule as it did shows that the medical marijuana issuehas come a long way, no matter the twists and turns of a legal battle thatmay play itself out for some time. As for Brenda Kratovil, she deserves our compassion, not hard-nosed,letter-of-the-law vigilance by prosecutors, judges, and police. Whenmeasured against the hardships of her life, such a stance amounts to nothingshort of a cruel and brutal ignorance. The pros or cons of marijuana usebelong in the realm of a public health debate, not a criminal or moralcrusade whose front lines consist of gangs of cops given free rein toterrorize and run roughshod over people's lives. Marijuana use per se is also not the same thing as drug abuse. Actually,when used for legitimate medical reasons, it is the opposite. Mark Harris is a freelance writer based in Chicago, IL. A Test Case for Medical Marijuana As we go to press, Brenda Kratovil waits to go on trial for felony marijuanapossession. Her lawyer, David Stepanich of Vernon Hills, IL., tells us thathe plans to ask the court to reconsider a motion on her medical necessitydefense. Stepanich admits that without earlier precedent in Illinois caselaw, the medical necessity defense is an uphill argument. Nonetheless, heinsists it's vital to raise the issue. "The courts and cops and prosecutors will do whatever they can to keep thedebate narrow-minded and conclusory [shut out further evidence]," saysStepanich. "But we want to go to the heart of what this case is reallyabout. This is also a case where the lack of a search warrant and thethreats by the cops to tear-up Brenda Kratovil's home were rewarded, notpunished by the court, which so far has acceded to every whim of thepolice." Still, Stepanich remains hopeful that while Kratovil's application to usemedical marijuana under Section 11 of the Illinois Cannabis Control Act ispursued, the court will, in the interests of compassion, agree to anegotiated plea that will spare his client jail time or a felony conviction.Bryan Brickner, Illinois NORML spokesperson, adds that the courts shouldconsider that Kratovil now has a physician willing to formally sponsormarijuana research in treating her condition. But whether the courtsactually will do so remains to be seen. Read it For Yourself! Illinois Cannabis Control Act, Section 11 (Selected applicable excerpts) Statute #720 ILCS 550/11 Sec. 11. (a) The Department, with the written approval of the Department ofState Police, may authorize the possession, production, manufacture anddelivery of substances containing cannabis by persons engaged in researchand when such authorization is requested by a physician licensed to practicemedicine in all its branches, such authorization shall issue withoutunnecessary delay where the Department finds that such physician licensed topractice medicine in all its branches has certified that such possession,production, manufacture or delivery of such substance is necessary for thetreatment of glaucoma, the side effects of chemotherapy or radiation therapyin cancer patients or such other procedure certified to be medicallynecessary; such authorization shall be, upon such terms and conditions asmay be consistent with the public health and safety. To the extent of theapplicable authorization, persons are exempt from prosecution in this Statefor possession, production, manufacture or delivery of cannabis. (b) Persons registered under Federal law to conduct research with cannabismay conduct research with cannabis including, but not limited to treatmentby a physician licensed to practice medicine in all its branches forglaucoma, the side effects of chemotherapy or radiation therapy in cancerpatients or such other procedure which is medically necessary within thisState upon furnishing evidence of that Federal registration and notificationof the scope and purpose of such research to the Department and to theDepartment of State Police of that Federal registration. (Source: Public Act 84-25.)

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