Federal Judge to Allow First Medical Defense for Marijuana Growers
March 22, 2004
The ruling comes after the Ninth Circuit Court of Appeals decided in a civil case last December that the federal arrest and prosecution of medical cannabis patients is unconstitutional. At the hearing today in Los Angeles, an attorney for the advocacy group Americans for Safe Access argued that the precedent set in the Raich vs. Ashcroft should prevent the prosecution of Anna and Gary Barrett.
“The federal prohibition does not apply to patients or their caregivers because it is intended to prevent drug trafficking, not medical treatment,” said ASA attorney Joseph Elford. “Medical marijuana patients are not drug traffickers.”
Judge Manella declined to dismiss the charges, saying it was for a jury to decide if the Barretts met the standard set by the appellate court for exemption from the federal prohibition on marijuana. That means the couple will be the first federal defendants permitted a medical defense.
To date, federal trials have been restricted to simply whether or not the person grew marijuana. The reasons why have been inadmissible, leading to plea agreements or long mandatory sentences for many patients and caregivers, even in states that allow medical use. Outrage over one such case, that of Ed Rosenthal in San Francisco, led the jury to recant and prompted Congress to consider legislation allowing federal marijuana defendants the opportunity to show they were acting in compliance with state law. With today’s ruling, medical marijuana patients will not have to wait for Congress to act.
The Supreme Court has previously said that “medical necessity” is not a viable defense, but Judge Manella said today that a “Raich defense” could be offered. In the Raich case, the appellate court ruled that so long as patients obtain their marijuana without buying it or crossing state borders and use it medicinally in compliance with state law, the federal government cannot legally interfere. The Raich case was the first instance of a court finding an aspect of the federal ban on marijuana to be unconstitutional and led to an injunction against future prosecution.
Today’s hearing involved a five-count federal indictment brought against the Barretts, whose Victorville home was raided by federal DEA agents in May 2003. Both have doctor's recommendations to use marijuana for medical purposes. Gary Barrett, 35, suffers from Crohn's disease and other digestive tract disorders. Anna Barrett, 32, uses marijuana to control chronic pain stemming from a five-story fall. The Barretts have a state court order allowing them to grow 34 adult plants and keep up to 7.1 pounds of dried marijuana. The case is #CR03-457-NM.
For more information or interviews with the Barretts, attorney Joseph Elford, or the Executive Director of Americans for Safe Access, Steph Sherer, contact William Dolphin at (510) 919-1498.