ASA Activist Newsletter - DECEMBER 2011
Volume 6, Issue 12
Governors Christine Gregoire (D) of Washington and Lincoln Chafee (I) of Rhode Island held a press conference November 30 to publicize their bipartisan petition to the Drug Enforcement Administration, which they decided to send after each received threatening letters from federal prosecutors. Govs. Gregoire and Chafee were warned that their states' employees would be at risk for criminal prosecution if they were in any way involved with licensing or regulating the distribution of medical cannabis to qualified patients.
As a result, in April, Gov. Gregoire vetoed sections of a bill that would have permitted dispensaries in Washington because of federal threats, and in September, Gov. Chafee suspended implementation of Rhode Island's dispensary licensing law.
'It is time to show compassion and common sense,' said Gov. Gregoire. 'The people getting hurt in all of this are patients.'
Gov. Chafee called today's filing a 'bi-coastal, bipartisan effort.' The two say they have briefed other governors on their strategy and urged them to join the petition. Connecticut Governor Dan Molloy has indicated he will add his name, and they seem confident more will come on board. Sixteen states and the District of Columbia currently have medical cannabis laws.
'Many medical marijuana patients are too sick to grow their own,' noted Gov. Gregoire. 'There is still not clear and safe access.'
In the rescheduling petition, the governors cite nearly 700 peer-reviewed research studies and reports on medical cannabis, and ask for public hearings 'so that the government can hear from doctors and scientists.'
“We're relieved to see these two governors standing up for the doctors and patients in their states,” said ASA Executive Director Steph Sherer. 'State laws and medical science deserve more respect than they are getting from this Administration.”
Federal prosectors have sent threatening letters to state and local officials throughout the nation. Many officials, such as those in Maine and many cities in California, have forged ahead despite the intimidation tactics.
“Elected officials everywhere have a duty to uphold their laws on medical cannabis,' said Sherer. “And compassion demands that we protect the most seriously ill and injured among us.”
This latest petition follows the DEA’s denial of another petition in July after a delay of nearly a decade, which ended only when ASA sued the government for unreasonable delay. Americans for Safe Access, in collaboration with the Coalition for Rescheduling Cannabis (CRC), has appealed the federal government's denial; the case is pending in the D.C. Circuit.
Gregoire/Chafee press release
Gregoire/Chafee rescheduling petition
DOJ letter to Governor Gregoire
DOJ letter to Governor Chafee
CRC rescheduling petition
California State Judge Blocked all Medical Evidence at TrialIn a case that promises to set important precedent, ASA has appealed the September 2010 conviction of a California dispensary operator because the judge refused to allow any evidence related to his role helping qualified patients.
Jovan Jackson was first tried and acquitted for distributing cannabis to patients in 2009, but San Diego District Attorney Bonnie Dumanis, who opposes all storefront dispensing collectives, brought new charges based on a subsequent raid of his facility the year he was acquitted.
In his second trial, she successfully argued that state law does not provide for the lawful operation of any storefront collective. As a result, San Diego Superior Court Judge Howard Shore blocked all mention of state medical cannabis law and Jackson's intent. Denied a defense, Jackson was convicted and served 180 days in jail before being released on bail pending appeal.
DA Dumanis is among a handful of prosecutors in California attempting to criminalize storefront collectives in the state. These DAs claim storefront collectives are not covered by state law, despite case law to the contrary, the 2008 guidelines for medical cannabis issued by then-Attorney General Jerry Brown, and court filings by Sen. Mark Leno, one of the principal co-authors of the state’s Medical Marijuana Program Act.
California Attorney General Kamala Harris will now defend Jackson's appeal rather than Dumanis, who originally tried him, due to state appellate rules. The ASA appeal not only contests Jackson's conviction and his denial of a defense, it also challenges the prosecution's assertion that 'sales' of medical marijuana are illegal under state law.
'Mr. Jackson and other medical cannabis providers deserve a defense under the state's medical marijuana laws so a jury can decide if they are following the law,' said ASA Chief Counsel Joe Elford, who authored the appeal. 'Denying medical cannabis providers the chance to present a full defense is an unfair way to obtain a conviction.'
At trial, Judge Shore referred to medical cannabis as 'dope,' and called California's medical cannabis laws 'a scam.'
This is one of the first criminal appeals of a medical cannabis case since Harris was elected Attorney General over Los Angeles District Attorney Steve Cooley, one of the DAs who claim storefront collectives are not covered by state law. Harris was formerly the San Francisco District Attorney during the implementation and enforcement of one of the first city dispensary licensing ordinances in the nation. Her office has 30 days to reply to the appeal.
Jackson appeal brief filed by ASA
Oncologist’s Recommendation Trumped by Transplant RulesA medical cannabis patient has been denied a liver transplant for using the cannabis his oncologist recommended.
Norman B. Smith, 63, was diagnosed with inoperable liver cancer in 2009 and put on the transplant list at Cedars-Sinai Medical Center in Los Angeles in Sept. 2010. But after testing positive for cannabis in February, he was removed from the transplant list and told he has to test clean for six months before being reconsidered.
Smith's oncologist at Cedars-Sinai, Dr. Steven Miles, had approved of his medical cannabis use as a means to deal with the effects of chemotherapy, as well as pain from an unrelated back surgery. Smith's cancer was in remission but has recently recurred, and he is beginning radiation treatments.
Americans for Safe Access has sent a letter to the Cedars-Sinai Transplant Department urging them to change the transplant eligibility policy and re-list Smith for a liver transplant.
'Denying necessary transplants to medical cannabis patients is a brutal form of discrimination,' said ASA Chief Counsel Joe Elford, who authored the letter to Cedars-Sinai. 'Cedars-Sinai would not be breaking any laws, federal or otherwise, by granting Norman Smith a liver transplant. It's certainly the ethical thing to do.'
Smith is not the only patient in the U.S. being denied a transplant because they use cannabis on a doctor’s advice. ASA received a report in 2008 from another Cedars-Sinai patient who reported being kicked off the transplant list because of authorized medical cannabis use. Over the past four years, ASA has received numerous reports of patients being removed from transplant lists across California, as well as in other medical cannabis states such as Hawaii, Oregon and Washington.
The consequences are grave. In 2008, Seattle patient Timothy Garon died after being denied a liver transplant by the University of Washington Medical Center. In 2009, Hawaii patient Kimberly Reyes died at Hilo Hospital after being denied a liver transplant. Both were authorized to use medical cannabis through their state programs.
Cedars-Sinai is demanding that Smith not only abstain from cannabis use for at least six months, forcing him to undergo random toxicology tests, but he is also required to participate in weekly substance abuse counseling. If he complies, Smith will be put at the bottom of the list, even though he was within two months of receiving a transplant before he was de-listed.
'We need to change this callous and unreasonable policy not only for Mr. Smith's benefit, but also for all the other medical cannabis patients whose lives hang in the balance,' said Elford.
Smith not only has the support of his oncologist and other Cedars-Sinai staff, but also his psychologist, who wrote a strong letter of recommendation that Smith be approved for a liver transplant. Nonetheless, the director of Cedars-Sinai's Liver Transplant Program, Dr. Steven D. Colquhoun, characterized Smith's legal medical cannabis use to 'substance abuse' in a letter he sent Smith in May, saying Smith's cannabis use “may adversely impact a new organ after a transplant.' An independent research study has shown that cannabis use has no adverse impact on the survival rate of transplant recipients.
From January 2010 until October, Smith was part of a clinical trial of 60 people that involved weekly infusions and daily pills. Like many people battling cancer, Smith found that cannabis helped manage the side effects of the treatment. Smith was the only patient in the 93-week trial who had a successful remission, though the cancer has now returned.
Video of Norman Smith
ASA letter to Cedars-Sinai
Cedars-Sinai transplant denial letter to Norman Smith
Liver transplant study
US Attorney Jenny Durkan, the federal prosecutor for the area, alleges that the medical cannabis access points were using Washington state law to conceal criminal activity and money laundering. Under federal law, all proceeds of state-licensed medical cannabis distribution are considered illegal and anything done with the money constitutes money laundering.
Earlier this year, Washington Governor Christine Gregoire vetoed several provisions of a bill passed by the legislature that would have legitimized these access points across the state by creating a licensing system for dispensaries. The veto came after federal prosecutors threatened to bring criminal charges against state employees involved in implementing the law.
Despite the threats to state and local officials across the country, federal prosecutors claim patients are not being targeted.
“We will not prosecute truly ill people or their doctors who determine that marijuana is an appropriate medical treatment,” said Durkan.
After Gov. Gregoire vetoed the state-wide measure, the city of Seattle passed a local ordinance providing a regulatory scheme for dispensaries.
“Limiting safe access by intimidating officials and thwarting good faith legislative efforts hurts patients,” said ASA Executive Director Steph Sherer. “More local officials must follow in Seattle’s footsteps and establish their own regulations in keeping with the will of the people of Washington.”
Long Beach officials are attempting to devise a new regulatory approach after a state appeals court overturned their licensing system for dispensaries, saying it 'goes beyond decriminalization into authorization,' thereby violating the federal ban on marijuana. Long Beach had established a lottery to award permits that would have cost $15,000 instead of just creating rules about location and hours of operation.
The Long Beach Collective Association and other local medical cannabis activists are working with officials to craft an approach between the overturned lottery system and an outright ban.
'Dispensary bans needlessly hurt both patients and the community,' said ASA California Director Don Duncan. 'City officials should work with the Long Beach Collective Association, the Greater Los Angeles Collective Alliance and other patient advocates to reach a compromise that protects safe access for those who need it most.'
Under the same legal logic, LA’s cap on dispensaries may also not survive court challenge, but the city can regulate its dispensaries in other ways, including a newly imposed tax for which more than 300 collectives have registered to pay.
The L.A. City Council is considering banning dispensaries altogether, but that would mean declining to collect tax revenue on medical cannabis as the nation’s second largest city faces severe budgetary shortfalls.
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