The war on drugs continues

[Louis Proyect <lnp3@xxxxxxxxx>]

NY Times, March 15, 2007
Dying Woman Loses Appeal on Marijuana as Medication
By JESSE McKINLEY

SAN FRANCISCO, March 14 ? 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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