Pages tagged "legal"
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.Read more
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.
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.
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.
In 1998, Washington voters approved state Initiative Measure No. 692, allowing a qualifying patient or designated provider to have a 60-day supply of medical cannabis, later defined as 24 ounces and 15 plants. Qualifying patients and caregivers within those limits are protected from arrest and prosecution; a patient who exceeds those limits is entitled to an affirmative defense of medical necessity. Designated providers must be 18 years of age or older. Dispensaries are not permitted under Washington law, but up to ten (10) patients may participate in a collective garden of 45 plants or less. In 2011, the state legislature changed also the requirements for recommending cannabis to patients; currently, recommendations must be on tamper-resistant paper and include an original signature by the healthcare provider, a date, and a statement that the patient may benefit from the medical use of marijuana. In November 2012, voters passed Initiative 502 relating to the adult use of cannabis, but that law does not directly affect the rights and protections afforded to patients.
In 2015, the state approved SB 5052, which establishes state regulated medical cannabis retail access points utilizing the I-502 retail stores and made significant changes to the state's patient cultivation rights. Collective gardens will no longer be allowed as of July 2016, but can apply to form non-commercial cooperatives to provide an alternative to access from retail stores.
Safe access to medical cannabis was first approved in Alaska by Measure 8 (1998), an initiative supported by 58 percent of voters. The voter initiative, approved by 58 percent of voters, created Alaska's medical marijuana law, which affords a legal defense to qualifying patients who can demonstrate adequate need to possess medical marijuana.
Senate Bill 94 was passed in June 1999 and modified the law created by Measure 8 to require medical marijuana patients to register with the state health department and limit the amount of marijuana they and their caregivers may legally possess. Any patient with a valid registry card may legally use cannabis for medicinal purposes and their caregiver may assist them in doing so. It removed legal protections for medical marijuana patients who refuse to register with the state health department, or who possess greater amounts of marijuana than authorized by state law.
Measure 2, passed in 2014, allows people age 21 and over to possess up to one (1) ounce of marijuana and up to six (6) marijuana plants. It also made the manufacture, sale and possession of marijuana paraphernalia legal for adults age 21 and over.
In 2015, Alaska House Bill 123 established the Marijuana Control Board. The current, enforced version of the laws are as follows:
- Alaska Statute Title 17, Chapter 37: “Medical Use of Marijuana”
- Alaska Statute Title 17, Chapter 38: “Regulation of Marijuana”
The regulations contained on medical marijuana in the Alaska Administrative Code (“ACC”) are found in Chapter 37. “Medical Use of Marijuana.” These rules provide a procedure for obtaining a medical marijuana registry identification card.
While it is now legal for adults to possess marijuana, this does not limit the privileges or rights of a medical marijuana patient or medical marijuana caregiver under the state’s medical marijuana law.
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.
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.
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.
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.
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.