Pages tagged "legal"

  • Another big win for patients in California

    By Guest Blogger Lauren A. Vazquez, Esq.

    The recent California Court of Appeal decision in People v. Baniani firmly establishes the right of patients to access medical cannabis through a collective or cooperative. The Court stated what medical cannabis advocates have always believed, state law protects members of a collective or cooperative who are qualified patients and are not engaged in a profit-making enterprise. The case is the culmination of over a decade of legal decisions and challenges by medical cannabis advocates.

    Americans for Safe Access won a similar victory after appealing the conviction of a medical cannabis provider in San Diego in 2012. In People v. Jackson, the court ruled that medical marijuana patients do not have to actively participate in the cultivation of medical cannabis, and that financial support provided by collective members through medical cannabis purchases constitute sufficient involvement in a collective.

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  • Let's Get Jerry Out of Prison!

    Jerry Duval (left) with his son Jeremy

    Last month, on June 11th, Michigan medical marijuana patient Jerry Duval surrendered to federal authorities to serve a whopping 10-year prison sentence, even though he was never in violation of the state's medical marijuana law. Jerry is a kidney-pancreas transplant recipient who also suffers from heart disease and glaucoma. Nevertheless, the Obama Administration saw fit to arrest, prosecute, and imprison Jerry at a cost of more than $1 million.

    This is not just a tragedy for the Duval family, though they were hit hard (as a result of the same case, Jerry's son Jeremy is serving 5 years and the Duvals lost their family farm to forfeiture), it's also an outrage that we have to foot the bill.

    However, two other milestones recently occurred that give Jerry and the rest of us hope for his release sooner than planned. Before Jerry even began serving his sentence, attorney Andrew Greenlee of Brownstone filed an appeal with the U.S. Court of Appeals for the Sixth Circuit on behalf of Jerry and his son Jeremy. We'll be watching that one closely.


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  • National Lawyers Guild Report Condemns Federal Marijuana Policy, Calls for Reclassification of Marijuana for Medical Use

    The National Lawyers Guild (NLG) -- the country's oldest and largest public interest and human rights bar organization -- issued a report yesterday addressing the federal government's flawed policy on marijuana. According to its author NLG Senior Researcher Traci Yoder, High Crimes: Strategies to Further Marijuana Legalization Initiatives "analyzes the legalization process under way in the states, suggests strategies to further marijuana legalization initiatives, and highlights current obstacles to ending prohibition."

    While significant attention is given to the adult use of marijuana, generally, the report recommends reframing drug use as "a social and public health issue and not a criminal justice problem," something we've been saying for years at Americans for Safe Access. High Crimes also recommends reclassifying marijuana for medical use. Citing the "[m]ounting scientific and anecdotal evidence" of marijuana's therapeutic benefits, the Guild rightly points out that "Rescheduling cannabis would allow for expanded medical research and use under international law."

    The NLG report comes days after a report issued by Americans for Safe Access (ASA), detailing the social and economic costs of the federal government's war on medical marijuana. The ASA report entitled What's the Cost? is geared toward educating federal legislators on the consequences of that war, not only in terms of how it affects the prisoners, their families, and thousands of patients, but also how it impacts the average taxpayer and our federal budget.

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  • U.S. Mayors Demand Change to Federal Policy, End to Crackdown on Medical Marijuana in Their Cities



    Mayors from across the United States gathered in Las Vegas this past weekend for the 81st annual U.S. Conference of Mayors. In a watershed moment, mayors voted unanimously yesterday to adopt a  resolution "in support of states setting their own marijuana policies without federal interference." The resolution was introduced in advance of the conference by San Diego Mayor Bob Filner and co-sponsored by 17 other mayors from across the country. Yesterday's passage of the resolution came just days after medical marijuana advocates issued an alarming report detailing how the Obama Justice Department has spent nearly $300 million to undermine medical marijuana laws in the U.S.

    "Ultimately, this is about whether local and state governments can develop, adopt, and implement public health laws without heavy-handed interference by the federal government," said Steph Sherer, Executive Director of Americans for Safe Access, which authored "What's the Cost?" an extensive report issued earlier this month on the economic and social costs of the federal government's war on medical marijuana. "This resolution is emblematic of the frustration experienced by local and state officials, which will continue until the federal government ends its attacks on medical marijuana." More than 100 million people, or 34 percent of Americans, currently live in states with medical marijuana laws.


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  • U.S. Supreme Makes it More Difficult for Federal Judges to Impose Mandatory Minimum Sentences

    Federal medical marijuana defendants and those who are particularly vulnerable to federal prosecution can now breathe a little bit easier. On Tuesday, the U.S. Supreme Court issued a 5-4 decision in the case of Alleyne v. United States, which has put juries more in control of mandatory minimum sentencing decisions. The Alleyne Court held that because mandatory minimum sentences increase the penalty for a crime, any fact that is necessary to impose the mandatory minimum must be proven to the jury. This decision will not impact every federal medical marijuana case, but it will raise the burden of proof the federal government must bear in order to impose mandatory minimum sentence on patients and providers.

    Legal History

    Previously, in Apprendi vs. New Jersey (2000), the Supreme Court ruled that under the Sixth Amendment, any fact which could increase the maximum sentence must fact proven to the jury beyond a reasonable amount. However, Apprendi only applied to statutory maximums rather than mandatory minimum sentences.


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  • Kal Penn of "Harold & Kumar" off-base for defending Obama attacks in medical marijuana states

    Last week, Kal Penn, who plays Kumar in the “stoner” film franchise Harold & Kumar, spoke to Huffington Post Live about President Obama’s marijuana policies. During the April 26th interview, Penn defended recent Justice Department attacks on dispensaries in medical marijuana states like California, citing articles he read from a Google search.

    Unfortunately, we cannot always rely on a pliant mainstream media -- that too often quotes Justice Department officials without any counterpoint -- to provide consistently factual information.

    Take, for example, the rationale that forms the basis for the Obama Administration’s most sweeping closures of dispensaries in California, Colorado and Washington State: they’re within 1,000 feet of a school. Using threats of asset forfeiture and criminal prosecution, the Justice Department has succeeded in shuttering hundreds of dispensaries in the past couple of years.

    However, if Penn had done his homework, he would have found out that in California, where well over 500 dispensaries have closed for fear of retaliation by federal drug enforcement officials, dispensaries are only required to be at least 600 feet from schools:

    No medical marijuana cooperative, collective, dispensary, operator establishment, or provider who possesses, cultivates, or distributes medical marijuana pursuant to this article shall be located within a 600-foot radius of a school.


    Also glossed over by Penn was the Obama Administration’s callous attitude about the impact of these dispensary closures. Each of the shuttered dispensaries provided medical marijuana to hundreds, often thousands of qualified patients who are now left with little option to find a medicine that’s legal under state law.

    And, believe it or not, the dispensary operators and their landlords who are warned with letters of imminent legal action are the lucky ones. The dispensaries that are targeted with aggressive SWAT-style raids stand to lose much more. At minimum, those dispensary operators can expect seized bank accounts, computers, patient records, and other property.

    However, if there are arrests, federal defendants can expect 5-10 years in prison. Over the past few months, several state-compliant dispensary operators and cultivators have been sentenced to lengthy prison terms, including California dispensary operator Aaron Sandusky (10 years), Michigan Cultivators Jeremy and Jerry Duval (5 years and 10 years, respectively), and John Marcinkewciz (5 years), as well as Montana cultivator Chris Williams (5 years). Another Montana cultivator, Richard Flor, died in federal custody last August while serving a 5-year sentence.

    Indeed, Penn’s failure to understand the impact of the Obama Administration’s policies on medical marijuana is symptomatic of the lies being told to the American public and the impunity with which it’s being done. President Obama and Attorney General Eric Holder have both claimed that they are not targeting those in compliance with state law, but refuse to confront the evidence that belies such pronouncements.

    It’s about time that the federal government admits that the devastating and costly effects of its enforcement policies in medical marijuana states are unnecessary and unproductive. All patients are asking for is a compassionate and even-handed policy that treats medical marijuana like a public health issue.

  • Off to the U.S. Supreme Court We Go

    Sadly, but not unexpectedly, last week the Court of Appeals for the District of Columbia Circuit denied a petition for rehearing filed be Americans for Safe Access in ASA v. DEA. After more than a decade of legal wrangling with the federal government over the medical efficacy of marijuana and its relative lack of abuse potential, the D.C. Circuit gave great deference to the Drug Enforcement Administration (DEA) position that marijuana has no proven medical value. In doing this, the D.C. Circuit not only ignored voluminous evidence of marijuana’s medical efficacy, but it held the petitioners to a standard above and beyond that advanced by the government itself. Out of thin air, the Court interpreted the phrase “adequate and well-controlled studies” to require FDA-approved Phase II or Phase III studies, rather than the common meaning of the term. A similar such standard as that interjected into the proceedings by the Court at the last possible moment had already been rejected by the same Court and others in the cases of Grinspoon v. DEA, 828 F.2d 881 (1st Cir. 1987) and Doe v. DEA, 484 F.3d 561 (D.C. Cir. 2007).  This, coupled with the failure of the Court even to consider marijuana’s lack of abuse potential, was the basis for ASA’s recent petition for rehearing.



    Unfortunately, for medical marijuana patients and others, the extremely small number of active judges on the D.C. Circuit makes rehearing en banc (by the entire circuit) next to impossible. Because there are only eight active judges on the D.C. Circuit, en banc review is extremely rare, with only one petition granted by this Court last year. Thus, the next legal step is to challenge the DEA’s action in the Supreme Court of the United States through a petition for writ of certiorari , which must be filed within ninety days. This opens the possibility for arguments that exceed those allowed under the recently denied petition for rehearing.  It also provides an opportunity to raise awareness of this wrong-headed approach to medical marijuana at the highest judicial level.

    Stay tuned for more details on the upcoming appeal to the U.S. Supreme Court in ASA v. DEA.

  • SB 289 means trouble for legal patients

    California Senator Lou Correa (D-Santa Ana) has proposed a bill that would turn most of the state’s legal medical cannabis patients into criminals. SB 289 will make it a crime to drive with any amount of a controlled substance in your blood, unless the drug was prescribed by a doctor. The bill makes no exception for medical cannabis patients, whose medicine is recommend by a doctor, as opposed to prescribed. That means trouble for responsible, law abiding medical cannabis patients statewide.

    Regular medical cannabis users may have detectable levels of tetrahydrocannabinol (THC), one of the active compounds in cannabis, for up to two days after using medicine (See G. Skopp and L. Potsch, "Cannabinoid concentrations in spot serum samples 24-48 hours after discontinuation of cannabis smoking," Journal of Analytical Toxicology 32: 160-4, 2008). However, measurable impairment from medical cannabis use may only last a few hours. This means that a legal medical cannabis user will be in violation of SB 289, because he or she has a detectable amount of THC long after there is any potential for impairment.

    ASA is asking medical cannabis supporters to speak up against SB 289 to protect legal patients from unnecessary arrest. The bill will be heard in the Senate Public Safety Committee on Tuesday, April 30, so your California Senator needs to hear from you now.

     



    Testing for cannabis and medical cannabis impairment is a controversial topic nationwide. Voters in the state of Washington approved an absurdly-low threshold for cannabis-impairment when they approved I502 last year, and rule makers in Colorado seemed poised to do the same. Why the zero-tolerance approach to cannabis and medical cannabis, even where it is legal? Certainly no one wants to see impaired drivers on the road, but the root of the issue is stigma. Zero tolerance measures like SB 289 ignore science and rely instead on the perception of cannabis and medical cannabis users as irresponsible and dangerous on the road. Stigma makes laws that enshrine discrimination plausible, and that in turn, gives medical cannabis opponents the chance to push back on safe access.

    California law already makes driving while impaired by any drug – legal or otherwise – a crime. We do not need another bill to turn up the heat a little more – especially when some of those drivers are obeying the law. Lawmakers should reject SB 289 and rely on science and common sense when making policy.
  • Unfortunately, Maryland Did NOT Become the 19th Medical Marijuana State

    When the Maryland Senate voted earlier today to approve HB 1101 today, it failed to become the 19th medical cannabis (marijuana) state. In spite of the bill's comendable intentions, it remains highly flawed. Some have touted the HB 1101 approach as a "yellow light" on medical cannabis, yet sadly, it can only be seen as a "yellow light" on a "bridge to nowhere."

    In spite of the bill's laudable intent, the approach is completely untested, and causing even greater concern, the program is almost certainly  unimplementable for legal, financial and practical reasons. In fact, the Maryland Department of Legislative Services found that participation program is "expected to be low (or nonexistent)" and will "not likely to be able to comply with the bill’s requirement to set its fees at a level sufficient to offset program costs...unless it sets its fees at a level that would likely be prohibitively high."



    Legal Reasons for Concern

    HB 1101 would allow patients to obtain medical cannabis from "Academic Medical Centers" (AMCs), which are essentially teaching-hospitals that have federal approval to conduct trails on human subjects. While this is creative way to reinvent how medical cannabis is distributed to patients, only one potentially eligible AMC (Sinai Hospital in Baltimore) has expressed interest in becoming an AMC. However, by becoming an AMC, the hospital would likely be placing its credentials to conduct research on human subjects in jeopardy. Considering that federal interference is one of the reasons Maryland has been reticent to adopt a proven safe access model, it does not add up why Maryland would be encouraging its facilities to endanger the credentials.

    But let's assume for a moment that this legal concern is not in fact an issue...

    Financially Unimplementable

    The DLS analysis points out that HB 1101 must be able to offset the financial costs incurred by the commission that will be set to implement it. While the DLS report mentions that the state might not be able to find any willing and eligible AMCs, it concludes that even if Sinai or another institution stepped forward and applied to be an AMC, the program would still be unable to offset its anticipated costs. Moreover, the state will have to bear the costs of establishing the administrative rules for the program, even if no AMCs ever apply to the state. It's rare feat for an essentially symbolic piece of legislation to come with a price tag, but that's what HB 1101 does, meaning Maryland taxpayers could be forced to pay for a program that may not serve any of the state's patient population.

    But let's assume for a moment that the price tag issues are not a factor...

    Dubious Practical Value

    Absent concerns about the financial and legal viability of HB 1101, the program still contains practical flaws that would make it arguably the least patient-friendly bill in the country. The bill fails to grant physicians to right to recommend cannabis to their patients unless an eligible AMC has been approved by the state to recommend and distribute medical cannabis for certain conditions. In other words, if an AMC did not have foresight to include a patient's particular condition in its application to become an AMC, the patient would be shut out from the program. This would be particularly harmful to patients with rare conditions and conditions for which medical cannabis is an emerging therapeutic option. This also means that the Commission would have to approve conditions, and given the strong resemblance of the work group created by SB 308 (2011) that had difficulty meeting its statutory requirements, it would also require the state's patients to take a serious gamble that the Commission could meet its function.

    Geography is another practical concern that should resonate with patients across the state. The most likely AMCs (Sinai, Johns Hopkins Hospital, and the University of Maryland Hospital) are all in Baltimore. Patients who do not live along the I-95 corridor, such as combat veterans living with PTSD in Cumberland, or retirees with cancer living on the Eastern Shore, may have to drive 2-3 hours each way in order to access their AMC to obtain medicine. Even if a patient is fortunate to have a caregiver assist them, the potential 6-hour trip is a completely unnecessary burden to safe access.

    So what are Maryland patients left to assume? As someone who lived in Maryland for over 30 years, and has most of my loved ones still residing in the state, there was no state in 2013 that I had more personal hope for than Maryland. I really wanted Maryland to be the next medical marijuana state, but HB 1101 simply falls short, and significantly so.

    Maryland's new medical may make lawmakers feel better, but it remains extremely unlikely that it will do the same for the state's patient population.

     

     
  • San Diego prosecutor to try dispensary operator for third time

    Third time’s a charm? Not in the case of Navy veteran and former San Diego dispensary operator Jovan Jackson.

    San Diego Assistant District Attorney (ADA) Chris Lindberg decided this week to try Jackson for a third time in as many years. Jackson, who operated the San Diego dispensary Answerdam Alternative Care Collective (AACC), was raided by a multi-agency law enforcement task force in 2008 and again in 2009. Jackson was tried the first time on possession and distribution charges, but was acquitted by a jury in 2009.

    Unsatisfied with that result, ADA Lindberg, likely at the behest of San Diego District Attorney Bonnie Dumanis, tried Jackson a second time on charges levied after the 2009 raid on AACC. The second trial was not considered “double jeopardy” by the court because the prosecution was based on a different raid. During Jackson’s second trial in 2010, Lindberg prevented him from using a medical marijuana defense and, as a result, was convicted this time on the same charges of possession and distribution.

    Outraged by this official persecution of a law-abiding dispensary operator and the waste of taxpayer dollars, Americans for Safe Access (ASA) appealed Jackson’s conviction in late 2011. In a unanimous landmark decision by California’s Fourth District Court of Appeal, Jackson’s conviction was overturned in October 2012. The court also held that Jackson should have been entitled to a medical marijuana defense, rejecting arguments made by both Lindberg and the Attorney General that patients must take part in the cultivation used to supply dispensaries.

    Although the Attorney General decided not to appeal the 2012 ruling overturning Jackson’s conviction, in an unusual move Lindberg appealed to the California Supreme Court. Clearly disappointed by the High Court’s decision earlier this year not to review the case, Lindberg is seeking to try Jackson again. This time, however, Jackson is ensured a defense at trial.

    The new trial, which has been set for May 1st in San Diego County Superior Court, is clearly a waste of taxpayer dollars in a time of fiscal crisis, but is also a futile attempt to undermine patients’ rights to safely and legally obtain their medication from storefront dispensaries.

    Since the landmark appellate ruling, San Diego Mayor Bob Filner has indicated his disinterest in prosecuting state-compliant dispensary operators in the city. Mayor Filner has also promised to help pass an ordinance that would establish local dispensary regulations, thereby making Jackson’s third trial that much more superfluous, yet still injurious for Jackson.

    It seems doubtful to say the least that Jackson could now be convicted by a jury. It’s long past time for law enforcement in San Diego to abandon its hostile stance toward medical marijuana and allow California law to be implemented without further interference.