Dying Woman Loses Appeal on Marijuana as Medication

March 14, 2007

Jesse McKinley, New York Times

Federal appellate judges here ruled Wednesday that a terminally ill woman using marijuana was not immune to federal prosecution simply because of her condition, and in a separate case a federal judge dismissed most of the charges against a prominent advocate for the medicinal use of the drug.

The woman, Angel McClary Raich, says she uses marijuana on doctors’ recommendation to treat an inoperable brain tumor and a battery of other serious ailments. Ms. Raich, 41, asserts that the drug effectively keeps her alive, by stimulating appetite and relieving pain, in a way that prescription drugs do not.

She wept when she heard the decision.

“It’s not every day in this country that someone’s right to life is taken from them,” said Ms. Raich, appearing frail during a news conference in Oakland, where she lives. “Today you are looking at someone who really is walking dead.”

In 2002, she and three other plaintiffs sued the government, seeking relief from federal laws outlawing marijuana. The case made its way to the Supreme Court, and in 2005, the court ruled against Ms. Raich, finding that the federal government had the authority to prohibit and prosecute the possession and use of marijuana for medical purposes. But the justices left elements of Ms. Raich’s case to a lower court to consider.

On Wednesday, a three-judge panel of the United States Court of Appeals for the Ninth Circuit found that while they sympathized with Ms. Raich’s plight and had seen “uncontroverted evidence” that she needed marijuana to survive, she lacked the legal grounds to exempt herself from federal law.

The court “recognizes the use of marijuana for medical purposes is gaining traction,” the decision read. “But that legal recognition has not yet reached the point where a conclusion can be drawn that the right to use medical marijuana is ‘fundamental.’ ”

Eleven states have medical marijuana laws on the books, and the New Mexico Legislature is poised to approve a medical marijuana bill there, with the support of Gov. Bill Richardson. Medical-marijuana advocates estimate more than 100,000 Americans use the drug to treat medical conditions.

California was the first state to legalize medical marijuana, in a 1996 ballot measure, Proposition 215. That measure set off a decade-long fight over a variety of legal issues surrounding marijuana, including state rights and “common law necessity” defenses like the one Ms. Raich was trying to use.

Graham Boyd, director of the Drug Law Reform Project of the American Civil Liberties Union, which has an unrelated medical marijuana case pending before a federal judge in San Jose, said the decision in Ms. Raich’s case was a setback for the movement but not a crippling one.

“Today is just one chapter in a story that is still not over,” Mr. Boyd said

Robert Raich, Ms. Raich’s husband and lawyer, said she might appeal the case to the full Ninth Circuit. In the other ruling on Wednesday, a judge in United States District Court here handed a victory to the marijuana advocate, Ed Rosenthal.

Mr. Rosenthal, 62, said federal prosecutors had unfairly made him a target with an array of drug, money-laundering and tax-evasion charges, many of which closely mirrored charges he was convicted of in 2003, when he was growing medical marijuana under California’s law at a dispensary in Oakland. That conviction was overturned last year by a federal appeals court, which found evidence of jury misconduct.

Mr. Rosenthal had asked the judge, Charles R. Breyer, for a dismissal at a hearing this month, suggesting that the prosecution was vindictive. On Wednesday, Mr. Breyer obliged in part, dismissing the charges of money laundering and tax evasion, but leaving the marijuana charges in place. And while Mr. Breyer said that he believed the prosecutors had acted in good faith, that nonetheless “the presumption of vindictiveness has not been rebutted.”

Joseph Elford, a lawyer for Mr. Rosenthal, said the case had been “a tremendous waste of taxpayer resources.”

Carolyn Marshall contributed from Oakland, Calif.

 



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