Maryland is one out of the 11 states to include provisions for the use of medical marijuana in their drug laws. In 2003, former Governor Robert Ehrlich signed the medical marijuana affirmative defense law which allows defendants to make a case based on their medical need. Although Maryland is one of the more progressive states to pass such a clause, it still has some of the harshest penalties for recreational use and medical marijuana users can only make their defense after an arrest.
Despite the urging of President George W. Bush, Ehrlich signed the bill into law, allowing a defendant to make a case based on his or her medicinal need. If the jury accepts the defendant's medicinal need, then the maximum penalties that can be enforced is a $100 fine. Compared to the one year in prison and $1,000 fine that recreational users face for possession of any amount, this is quite lenient.
The cultivation of fifty pounds or less is a felony which is punishable by up to five years in prison and a $15,000 fine, but one Prince George's County man has already successfully made a case for the use of medical marijuana. After a search warrant was issued, local police officers found thirty marijuana plants in his basement. The man now faces felony distribution and cultivation charges which would probably result in jail time and fines.
John Katz, P.C., a criminal defense attorney, began to prepare a medical marijuana case based on his client's severe sleep apnea. After consulting numerous medical marijuana experts and physicians, he was able to present a comprehensive report to the judge. Since the police reports showed no evidence of intent to distribute the marijuana, the man was able to make a successful case to the judge who agreed that grounds for the use of medical marijuana were established. The man had to pay the $100 fine plus $145 for the court fees.
This judgment set a precedent for medical marijuana users in Maryland. Hopefully, as Maryland's view towards cannabis matures, it will become more widely accept as it is in California. Proposition 215, which passed on Nov. 5, 1996 in California, exempts patients and caregivers from criminal laws prohibiting possession and cultivation of marijuana, protects physicians who prescribe cannabis, and declares that the measure is not meant to encourage non-medicinal marijuana use and cultivation. Although the law is in place at the state level in California, the federal government does not recognize Proposition 215 because of the Supremacy Clause of the Constitution which gives states the right to govern any area where the federal law does not cover. Recently, the Bush administration has taken a harder stance on medical marijuana, raiding multiple dispensaries throughout California. The Drug Enforcement Agency ( DEA ) raided the Los Angeles Cannabis Resource center, arresting its directors. In a landmark decision, Judge Howard Matz sentenced each man to one year probation and a $100 fine, the minimum punishment allowed by California law. During the proceedings, Judge Matz said the federal prosecution was "badly misguided" and that he was confused why the Department of Justice was using its limited resources in such a way. [Another landmark case went all the way to the Supreme Court.] Gonzales v. Raich reversed the Federal position by arguing that the cultivation of marijuana was outside the Federal regulatory scheme of interstate commerce. Although the federal government cannot regulate interstate commerce, the Supreme Court rejected this position, but Justice O'Connor did write in her dissenting option that, "This case exemplifies the role of states as laboratories."
With more and more states enacting laws allowing medical marijuana, conflicts between state and federal government will become more pronounced. What does this mean for the campaign? Neither mainstream candidate is explicitly in favor of medical marijuana provisions, but both have expressed their view that the War on Drugs has failed America and its citizens.
When asked by an active duty police officer if he thought the War on Drugs was a failure, McCain responded that he'd support a very small increment of reform, stating that "too often we put first-time drug users in prison." Despite this concession, McCain is a staunch prohibitionist, following in the footsteps of the Bush administration.
Obama has been more open about his past use of marijuana and even cocaine, writing openly about it in his autobiography. Although he has made no action to back it up, Obama has said that he is in favor of medical marijuana, stating that, "I don't think that should be a top priority of [the U.S ], raiding people who are using medical marijuana," and that it is "...not a good use of Justice Department resources."
With the renewed debate between the federal and state governments, the next presidential candidate could have his signature on the bill legalizing the use of marijuana. At the moment, a bill is still in deliberation in Congress that would completely decriminalize the possession, use, and not-for-profit transfer of up to 100 grams. This is a landmark bill, but it is still gridlocked in the committee process of the House of Representatives. Known as H.R. 5843, the bill would remove any federal penalties for recreational use and possession. This would allow states to decide their own laws on cannabis, a big win for state's rights.
Although both bills face harsh criticism, it is important that the government keeps deliberating. If you believe that the War on Drugs has failed or that the idea that we lock up recreational pot smokers is ridiculous, then send a quick message to your Senators and representatives and tell them to vote 'yes' on H.R. 5843. NORML has a form that should make things easier ( http://capwiz.com/norml2/home/ ).
By Brian Tschiegg
Tuesday October 14, 2008