Maryland Starts Test Run Of Medical Marijuana

MD. STARTS TEST RUN OF MEDICAL MARIJUANA
by Tim Craig, (Source:Washington Post)


01 Oct 2003

Maryland
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New Law's Reach An Open Question

Silver Spring lawyer Jonathan L. Katz considers it a defense attorney's dream: A Maryland law taking effect today allows anyone convicted of possessing marijuana to argue for a drastically reduced sentence if the drug was used for medical purposes.

"How many people out there don't have any kind of physical pain that marijuana might alleviate?" asked Katz, who specializes in defending people charged with marijuana-related offenses. "People with sports injuries and back injuries. For people with asthma, marijuana can help breathing. For anorexics, it can help stimulate the appetite. There are a whole bunch of people who like marijuana who can now try to use this defense."

Prosecutors say they are a bit nervous, noting the law lacks language defining just who can use the defense and how a judge should interpret it.

"All I can assume is now we will have defendants come into court with the health section of High Times [magazine] and try to tell me Timothy Leary prescribed use of this," said Harford County State's Attorney Joseph I. Cassilly ( R ).

Maryland's unique approach to medical marijuana -- reducing penalties for possession rather than actually legalizing the drug -- is being watched by other states as a possible model for how to handle the prickly issue.

The first-if-its-kind legislation has also drawn the attention of the White House, which lobbied hard against it and of a national marijuana advocacy group, which argues the measure does not go far enough.

Locally, though, doctors, lawyers and judges wonder how the law will play out in county courthouses and state appellate courts.

The General Assembly's intent was clear last spring when it approved the bill, a compromise between lawmakers who wanted to show compassion for people with severe illnesses and those who wanted to prevent outright legalization.

Legislators spoke of friends and relatives who had depended on marijuana to ease the pain of cancer and other diseases. Some recalled the case of Kathleen Maria "Kitty" Tucker, who was arrested for growing marijuana in her Takoma Park home four years ago. A judge would not let her argue that she used it to relieve fibromyalgia, a disorder that causes muscle pain.

"I could not bring any of that evidence forward," said Tucker, who was sentenced to six months' probation and a $500 fine after she agreed to a plea bargain. The judge later agreed to strike the conviction from her record if she completed probation.

The new law limits the fine for marijuana possession to $100 if the defendant can prove that the drug was used as a medicine. Otherwise, the defendant could be fined as much as $1,000 and spend one year in jail.

Although the measure instructs judges to consider "medical necessity" before sentencing, it does not specify what illness a defendant must have or what evidence the defense needs to produce to argue the case. It doesn't differentiate between people with physical or psychological conditions.

"This is somewhat open-ended," said former Republican state delegate Donald E. Murphy, who lobbied for passage of the legislation. "It really leaves it up to the judge's discretion."

Katz said defense lawyers would constantly test the law's reach. They would be neglecting their clients if they did not try to find out what "physical, emotional or psychological pain" causes them to use the drug. "Sometimes people are self-medicating without even realizing it," he said.

He said he expects to call doctors to testify about how marijuana can help some patients.

T. Michael Preston, executive director of the Maryland State Medical Society, said his organization recommends against such testimony because federal law prohibits doctors from prescribing the drug. Federal authorities have threatened to revoke the medical licenses of doctors who recommend marijuana to their patients.

James N. Vaughan, chief judge of the District Court of Maryland, which hears most marijuana possession cases, said he has seldom heard the medicinal-use defense in his courtroom and doubted that defendants would go through "some great, elaborate ruse" for an offense that carries a fairly light sentence.

In 2001, 17,676 people in Maryland were charged with possessing marijuana, according to FBI statistics. Since the mid-1990s, some have argued in court they used the drug as medicine.

In 1995, an HIV-positive farmer from Charles County was charged with possessing 10 grams of marijuana with intent to sell it. Jerome Edward Mensch, who was then 43, argued that he needed marijuana to counteract the side effects of prescription drugs.

After a legal tussle, a Circuit Court judge ruled that Mensch could make the argument to a jury, though he ultimately pleaded guilty and was sentenced to probation.

Four years later, Tucker was denied the right to make the same argument in Montgomery. Tucker said she hopes that the new law will "offer some relief" to people who use the drug as medicine but worries that it does not go far enough.

Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws, said he, too, is concerned that Maryland's law is too vague and confusing to be effective. The bill that passed the General Assembly is is much different from the original, which would have created a closely supervised program and provided terminally ill patients with permits to possess as much as three ounces of marijuana.

Del. Joseph F. Vallario Jr. ( D-Prince George's ), chairman of the House Judiciary Committee, rewrote the bill because he worried that it violated federal laws banning marijuana possession.

Del. Anthony J. O'Donnell ( R-Calvert ), House minority whip, said the final version has "many potential flaws" because the state was trying to pass a law that could stand up to federal scrutiny. "It was a very good attempt to address the situation, but the fix is not at the state level. The federal government has to change the federal law so medical marijuana can be prescribed," O'Donnell said.

But the Bush administration has been stepping up the pressure on the nine states that have legalized medical marijuana. In those states, qualified patients can possess the drug without risk of prosecution under state law, although possession remains a federal crime.

The White House lobbied Gov. Robert L. Ehrlich Jr. ( R ) to veto the Maryland legislation last spring. Ehrlich refused and became the first Republican governor to sign a medical marijuana bill.

Montgomery County State's Attorney Douglas F. Gansler ( D ) said he hopes that terminally ill patients will never have to plead their cases in court.

"The bill does send a message to prosecutors and the law enforcement community that if someone is possessing marijuana, and doing so legitimately for medicinal purposes, then perhaps that is not where the resources of the law enforcement community ought to be implemented," Gansler said.



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MAP posted-by: Larry Seguin
Pubdate: Wed, 01 Oct 2003
Source: Washington Post (DC)
Copyright: 2003 The Washington Post Company
Contact: letters@washpost.com
Website: http://www.washingtonpost.com/
Details: http://www.mapinc.org/media/491
Author: Tim Craig
Cited: National Organization for the Reform of Marijuana Laws http://www.norml.org/
Bookmark: http://www.mapinc.org/mmj.htm (Cannabis - Medicinal)