In a closely watched case with national implications, a federal appeals court has granted a new trial to a well known Northern Virginia pain doctor sent to federal prison for 25 years as a drug dealer. Pain patient advocates and medical associations praised the ruling in the case of Dr. William Hurwitz, who was convicted in late 2004 of 50 counts in a 62-count indictment, including conspiracy to distribute controlled substances.
Hurwitz appealed his conviction, arguing that trial Judge Leonard Wexler erred by not instructing the jury that Hurwitz should not be convicted if he acted in "good faith." Typically in cases where the quality of medical care is in question, such matters are decided by medical boards or civil courts in the form of malpractice suits. Only doctors who are not prescribing in good faith that they are in line with accepted medical practices face criminal charges. In his jury instructions, Judge Wexler removed Hurwitz' only effective defense.
That is why even though even some questioned Hurwitz's prescribing practices, his appeal nevertheless won the support of professional organizations like the American Academy of Pain Medicine, the American Pain Foundation, and the National Pain Foundation, all of which filed briefs in his support. Also joining the fray was the Drug Policy Alliance, which filed its own brief on behalf of pain specialists.
A three-judge panel in the 4th US Circuit Court of Appeals in Richmond agreed with Hurwitz and his allies in its opinion Monday. The panel held that Judge Wexler had erred when he told jurors they could not consider whether Hurwitz had acted in "good faith" when he prescribed large doses of opioid pain relievers like Oxycontin to patients.
"A doctor's good faith in treating his patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice," wrote Judge William Traxler. "The district court effectively deprived the jury of the opportunity to consider Hurwitz's defense." That was a fatal error, the panel held. "We cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard," wrote Traxler.
"We are very gratified by this decision," said Dr. Jane Orient, executive director of the libertarian-leaning Association of American Physicians and Surgeons, a group that has been in the vanguard of the medical profession on the issue of protecting pain doctors and patients. "Overturning one of these verdicts is something that almost never happens, and we hope it represents a tipping point," she told DRCNet. "We hope that the courts will finally begin to pay attention to the fundamental issues of justice involved here. A doctor is not a drug dealer, and neither is he a policeman. Doctors cannot be held responsible for patient misbehavior."
"I'm delighted," said Dr. Frank Fisher, a California physician originally charged with five counts of murder over his prescribing practices by overzealous prosecutors and state agents, but who was eventually completely exonerated. "This means they will have to let Billy out. The appeals court was absolutely correct in its decision," he told DRCNet.
The appeals court decision is a victory for Hurwitz and his supporters, but it is only one battle in a larger war over who controls the prescribing of pain medications -- the medical profession or the cops -- and in the meantime, doctors and patients are the casualties.
"They are still harassing and investigating doctors," said Orient. "And that in itself can destroy your practice. There are still doctors languishing in prison because they tried to do their best for their patients and there are still patients having difficulty finding physicians willing to do the pain treatment necessary to make them functional instead of bed-ridden suicidal people in severe pain," she said. "More doctors are aware of the extreme risk they take in getting involved with chronic pain patients. The DEA wants them to treat patients like they were suspected criminals."
Fisher pointed to the case of Dr. Richard Heberle, an Ohio physician, of how devastating even defending oneself from such charges can be. "Look at what happened to Dr. Heberle," he said. "He won, but his practice is ruined, his reputation is ruined, his life is ruined. The only thing worse than winning one of these cases is losing one, or maybe coming down with a bad case of chronic pain."
A federal appeals court has held that police acted within the law when they seized nearly $125,000 in cash from a man's car during a traffic stop, even though no drugs were found in the car. A three-judge panel from the 8th US Circuit Court of Appeals found in US v. $124,700 in US Currency that the cash may have been linked to the drug trade, overturning an earlier decision by a US Magistrate Court judge in Nebraska.
In court, Gonzolez testified that he had flown from California to Chicago and planned to use the cash to buy a refrigerated truck there, but when he arrived there, the truck had already been sold. He decided to drive back to California, but needed someone to rent a car because he had no credit card, he testified. Gonzolez said he lied about having the money because he feared carrying large amounts of cash could be illegal and he hid it in the cooler because he was afraid it might be stolen. He testified that he didn’t reveal the drunk driving arrest because he didn’t think drunk driving was a crime.
Gonzolez' tale may have been barely credible, but any positive evidence linking his stash of cash to drug trafficking was hard to come by. Still, the appeals court overturned the original decision. "We believe that the evidence as a whole demonstrates... that there was a substantial connection between the currency and a drug trafficking offense," the court wrote. "We have adopted the commonsense view that bundling and concealment of large amounts of currency, combined with other suspicious circumstances, supports a connection between money and drug trafficking."
That wasn’t good enough for dissenting Judge Donald Lay, who argued that there was no evidence linking the cash to drug trafficking. "At most, the evidence presented suggests the money seized may have been involved in some illegal activity -- activity that is incapable of being ascertained on the record before us," Lay wrote.
But what about the drug dog alerting on the cash and the car seat? "Finally, the mere fact that the canine alerted officers to the presence of drug residue in a rental car, no doubt driven by dozens, perhaps scores, of patrons during the course of a given year, coupled with the fact that the alert came from the same location where the currency was discovered, does little to connect the money to a controlled substance offense," Lay reasoned.
San Diego attorney Donald Yates, who represents Gonzolez, told the Associated Press they would appeal the decision. People who do not have credit or bank accounts and who must do business in cash are being treated unfairly, he said. "They do not allow for anybody to have a lifestyle different from the average person in Nebraska."
Seattle's Hempfest turned 15 this year, and attendees at the world's largest marijuana "protestival" basked in the sun, sampled the delectibles, bought glass pipes by the truckload, listened to a stellar lineup of area and touring bands, and some even took in some serious drug policy reform speechifying. With attendance for the two-day annual event estimated at around 150,000 people, the physical space was cramped, but there was plenty of room for partying and politics.
Among those bands was Los Marijuanos, the bilingual hip-hop group describing themselves as "Mexican pro-pot poets." Los Marijuanos' pro-pot repertoire ranged from Cypress Hill-inspired stylings to remakes of classic ranchera tunes, much to the amusement and sometimes bemusement of the crowd.
While it may take on the appearance of a giant rock concert, Hempfest is at root about legalizing marijuana. In a city like Seattle, where residents approved a "lowest law enforcement priority" initiative in 2003, the battle is half won -- but only half won. Still, the ranks of the pro-marijuana legalization forces are growing, and who better to demonstrate that than the city's former police chief, Norm Stamper?
Stamper, a member of Law Enforcement Against Prohibition, has emerged as a leading police critic of the drug war and certainly warranted the main stage speaking slot (among others) he got. Seattlites who remember Stamper primarily as the head cop during the World Trade Organization riots in 1999 were in for a surprise.
Stamper talked about police officers he knew or commanded who were killed or injured enforcing the drug laws, and he talked about the futility of that policy. "It's laughable when people say we are winning the drug war," he said. "We need to legalize all drugs. Police should be focused on violent crime," he told the crowd.
Stamper wasn't the only big name drug policy reformer attending Hempfest; in fact, it would probably be quicker to name those who were not present. They held forth in the Hemporium, a large tent strewn with carpets, where festival goers could wander in and get a taste of what leaders like Ethan Nadelmann of the Drug Policy Alliance, Rob Kampia of the Marijuana Policy Project, Keith Stroup, the founder of the National Organization for the Reform of Marijuana Laws, or DRCNet's David Guard are thinking these days.
But the crowds at the Hemporium were small. For most people, Hempfest is a party, a chance to see some bands, and yes, a celebration of cannabis culture, but that doesn't necessarily imply an especially elevated political consciousness. Structured as an all-volunteer event free to the public, Hempfest attracts many whose commitment to the cause could be seriously challenged if they had to pay an entrance fee.
"I'm here for the weed and the bands and the girls, man," laughed one red-eyed, shirtless young man sporting a top hat. "Pot is cool. Hempfest is cool," he told Drug War Chronicle. But when asked if he had put a dollar in one of the ubiquitous donation buckets being toted around by volunteers, he merely shrugged.
Indeed, if there were one constant at Hempfest other than the sweet smell of burning sinsemilla it was the unrelenting call from festival volunteers for donations. With a budget in the hundreds of thousands of dollars, Hempfest relies on its crowd for support, but if the ominous rumblings from Hempfest director Vivian McPeak and the legion of volunteers are to be heeded, the crowd is not coming through with enough dollars to ensure Hempfest will be back next year. Is it time to start charging admission?
With the launching of the "Stop the Drug War Speakeasy," DRCNet will now be publishing content on a daily basis -- visit our web site very day to check it out! That said, Drug War Chronicle will continue to be a central part of our educational program. On that note, I thought you might appreciate this wonderful note of support we received from long-time drug reform activist Troy Dayton, whom I first met in 1995 and who is currently doing amazing work as the associate director of the Interfaith Drug Policy Initiative.
Troy wrote this in hopes that you would be inspired to make a donation to enable Drug War Chronicle to continue to be published. Member support makes up a critical part of our budget -- I hope we can count on your support this month! To donate online, please visit http://stopthedrugwar.org/donate -- donation-by-mail info appears below.
I have at least skimmed every issue of the Drug War Chronicle since 1997 when it was called the Week Online. You know that sense of excitement when your favorite television show is about to come on? That's what I feel on Friday mornings when I see the Drug War Chronicle in my box. It's like an old friend.
That means we rely on MPP, DPA, MAP, and DRCNet for the knowledge that we act on and share with our community. MPP and DPA email alerts serve a vital purpose for us since our main goal is to help them with their legislative efforts. MAP is useful because it is an easy way to find out what is being reported in the major media. But the Drug War Chronicle serves a uniquely valuable purpose. It is original hard-hitting reporting that isn't skewed to the perspective of one drug policy reform group's perspective. When I tell people what is happening broadly in drug policy, I am mostly telling them what I read in the Drug War Chronicle.
Every week our views are challenged by the conventional wisdom. The editorial each week is an immediately relevant refresher on the big picture of why I get up every morning... to end the human suffering caused by drug prohibition.
If the Drug War Chronicle were to disappear, the obvious tangible value it brings would be lost. But one thing that might be overlooked is the inspiration it gives to people fighting the good fight and the morale boost that happens when people realize that great work is being done on this front by people of conscience all over the world.
Sincerely,
Troy Dayton, associate director
Interfaith Drug Policy Initiative
http://www.idpi.us
Again, I hope we can count on your support this month! To donate online, visit http://stopthedrugwar.org/donate -- or send a check or money order to: DRCNet Foundation (tax-deductible donations supporting Drug War Chronicle) or Drug Reform Coordination Network (non-deductible donations for our lobbying work), P.O. Box 18402, Washington, DC 20036.
Sincerely,
David Borden
Executive Director
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We've got us a Southern trifecta this week, with missing evidence in Alabama, a rogue task force in Mississippi, and, of course, a drug-dealing prison guard in Louisiana. Let's get to it:
In Tuskegee, Alabama, agents with the Alabama Bureau of Investigation are sniffing around the Tuskegee Police Department to see what happened to drugs and money allegedly missing from the evidence safe. The cops were tight-lipped, but "sources close to the case" told WSFA-12 News $26,000 in cash and an unknown quantity of drugs seized from alleged drug dealers has gone missing. According to WSFA, at least four drug cases may be in jeopardy. The Alabama Bureau of Investigation told the station the investigation could take another month.
In Hattiesburg, Mississippi, at least 34 drug cases were dismissed last month because deputies with the Southeast Mississippi Narcotics Task Force planted evidence on suspects or otherwise planted evidence, the Hattiesburg American reported Tuesday. Those deputies have been charged with crimes and were expected to plead guilty this week to charges including assault, obstruction of justice, and conspiracy. According to Parrish and Jones County Sheriff Larry Dykes, while the task force has been shut down, the drug problem remains, so he is forming a drug enforcement division in his department.
In Columbia, Louisiana, a former Caldwell Correctional Center guard was arrested Tuesday on charges he sold marijuana to jail inmates, KATC-TV reported. Dennis Cartridge, 23, was charged with possession of marijuana, malfeasance in office, introducing contraband into a correctional facility, and conspiracy to distribute marijuana. Cartridge, who had been a jail guard for only two months, is now sitting in a different jail trying to raise $15,000 to bond out.
One of the most prominent and poignant cases of federal prosecution of people involved in the medical marijuana movement has come to a relatively good end. Renee Boje, who fled to Canada in 1998 rather than face a 10-year to life mandatory minimum sentence for her peripheral involvement in a Los Angeles medical marijuana research grow, pleaded guilty last week to possession of ½ gram of marijuana, was sentenced to one year of probation and allowed to return to Canada. Boje's good news comes roughly four months after another well-known American medical marijuana refugee in Canada, Steve Kubby, saw his own case resolved with a relatively short amount of jail time.
Facing the tender mercies of the US federal criminal justice system, Boje fled to the more cannabis-friendly nation of Canada, where she was embraced by that country's marijuana movement. In 2001, she married activist and author Chris Bennett, and the following year gave birth to a son in Canada. Despite the pleas of people from around the world and her growing links with Canada, the Canadian government rejected all her efforts to stay in the country, and it appeared that she would be deported to face justice American-style.
But federal prosecutors in Los Angeles apparently lost interest in persecuting the young woman and sent word they were interested in resolving the case. On August 10, Boje reentered the United States and on August 14, she pleaded guilty before Judge George King, the same judge who presided over the McWilliams and McCormick hearings. When sentencing Boje to probation, he also gave her permission to return to Canada.
While Canadian border officials had threatened not to allow her back into the country -- after all, she had now pleaded guilty to possessing ½ a gram of marijuana and was thus eligible to be denied entry under Canadian law -- they ultimately granted her a six-month visitor's permit. Boje will use that time to obtain Canadian citizenship.
The California Assembly Monday passed a bill that would allow farmers there to produce hemp oil, seed, and fiber for nutritional and industrial purposes. The bill, AB 1147, was sponsored by Assemblymen Mark Leno (D-San Francisco) and Chuck DeVore (R-Irvine), and passed by a margin of 43-28. It has already passed the state Senate and now awaits the signature of Gov. Arnold Schwarzenegger (R).
Both hemp and marijuana are members of the cannabis family, but are different cultivars within that family. Hemp contains only trace levels of THC, the primary psychoactive ingredient in recreational marijuana, but its fibers are used in paper, clothing, car parts, and building materials, and its seeds and oils are used as food products.
"Hundreds of hemp products are made right here in California, but manufacturers are forced to import hemp seed, oil and fiber from other countries," said Leno during debate on the bill. "When this bill becomes law, it will be an economic bonanza for California."
The bill passed on partisan lines, with only one Republican joining Democrats to vote for it. GOP lawmakers resorted to Reefer Madness-style posturing to explain their opposition. "As a conservative Republican, I can't have my name attached to hemp," said Assemblyman Dennis Mountjoy (R-Monrovia). According to Mountjoy, the bill would make the fight against marijuana cultivation more difficult because hemp "sends off the exact same heat signal that is used to spot marijuana crops." Assemblyman John Benoit (R-Palm Desert) sang the same tune, claiming marijuana and pot plants are "indistinguishable."
But law enforcement officers in the 30 countries where hemp is grown legally seem to be able to tell the difference, a point that Assemblyman Leno made. The differences between marijuana and hemp are such that "a five-year-old could tell the difference... Law enforcement who have the gift of sight would have no trouble."
"We thank legislators from both parties that listened to the facts about industrial hemp and made an historic decision to bring back the crop," said Eric Steenstra, president of Vote Hemp, an advocacy group that supported the bill. "Passage in the California Legislature is a major accomplishment for the authors and sponsors of the bill, as well as for thousands of environmentally-conscious voters, farmers and businesses who wrote California legislators," says Steenstra.
No word yet on whether Schwarzenegger will sign or veto the bill.
A study released Tuesday by Roosevelt University's Institute for Metropolitan Affairs in Chicago has found that Illinois is second only to California when it comes to locking up drug war prisoners. Some 13,000 drug offenders were sent to prison in Illinois in 2002, second only to California's nearly 40,000. Illinois trumped states with larger populations, such as Texas and New York.
It's not just raw numbers where Illinois ranks high, according to "Intersecting Voices: Impacts of Illinois' Drug Policies". When it comes to drug possession prisoners per capita, Illinois again ranks second in the nation, trailing only Mississippi and throwing people in prison for drug possession faster than "lock 'em up" states like Oklahoma, Missouri, Georgia, and South Carolina.
Not in the least surprisingly, the study, authored by researchers Kathleen Kane-Willis and Jennifer Janichek (a member of the board of directors of Students for Sensible Drug Policy), found that although whites and blacks used illicit drugs at the same rates, blacks were imprisoned at a rate of six for each white drug offender. Here, Illinois can claim first place nationally in the per capita rate of African Americans imprisoned for drug offenses.
"The number of people who face incarceration in Illinois for drug possession -- and the racial disparity of those who are incarcerated -- is just staggering," said Kathleen Kane-Willis, lead author of the study and assistant director of the Institute for Metropolitan Affairs.
What is also staggering is the explosive growth in drug war prisoners in Illinois. In 1983, drug offenders made up 4.9% of the state prison population; in 2002, they made up 37.9%. The drug war prisoner population grew from a little over 400 in 1983 to almost 13,000 in 2002, a mind-bending 2,748% increase in two decades.
Also staggering is the cost of locking up thousands of nonviolent drug offenders. The study estimates that Illinois spent about $280 million to imprison drug offenders in 2002. There is a better way, said Kane-Willis. "Drug abuse is a public health problem, and our study suggests that treatment for drug offenders is more appropriate, more cost-effective and has better results than incarceration."
It's official. Local initiatives that would make adult marijuana infractions the lowest law enforcement priority will be on the November ballot in three California cities -- Santa Barbara, Santa Cruz, and Santa Monica -- and the college town of Missoula, Montana. Missoula County officials certified that effort Thursday, and certifications of the California local elections came in over the summer.
In California, organizers in Santa Barbara, Santa Cruz, and Santa Monica also succeeded in gathering sufficient signatures to make the ballot. The three California local initiatives contain almost identical language and describe themselves similarly. As the Santa Monica web site notes, the initiative "makes marijuana offenses, where cannabis is intended for adult personal use, the lowest police priority" and "it frees up police resources to focus on violent and serious crime, instead of arresting and jailing nonviolent cannabis users."
The Santa Cruz initiative goes one step further by establishing an official city position in favor of marijuana legalization. "Voters in Santa Cruz are tired of the failed and immoral federal war on drugs," said Andrea Tischler, chair of Santa Cruz Citizens for Sensible Marijuana Policy. "Let's move to a more reasonable marijuana policy, and make sure that our police and courts are not wasting their time and resources arresting and prosecuting nonviolent marijuana offenders. By passing this initiative, Santa Cruz can be a beacon of light showing the way to a more sensible policy that is compatible with the values of the majority of citizens."
Lowest priority initiatives have already passed in Seattle and Oakland, which was the model and inspiration for this year's local California initiatives, as well as a handful of college towns around the country.
Although China has long waged war on drug users and traffickers, it has never had statutes aimed specifically at the drug trade and dealing with drug users. That is about to change. Chinese lawmakers Tuesday began debating a new bill that would expand police powers to crack down on the cross-border drug trade and set standards for drug treatment, the Chinese state news agency Xinhua reported.
Chinese authorities estimate the country has more than 1.1 million drug users, including 700,000 heroin addicts. In addition to heroin and opium, authorities report problems with methamphetamine and ecstasy use.
The drug trafficking portion of the proposed bill would expand police powers. According to Xinhua, "The bill will also authorize police to search people and their luggage for illegal drugs at key public places such as train stations, long-distance bus stations and border crossings."
Police would also be granted the power to force suspected drug users to submit blood or urine samples -- a practice so far limited to primitive places like South Dakota -- and owners of bars and nightclubs would have to post anti-drug propaganda on their premises.
But while the proposed bill takes a tough line on trafficking, it strikes a softer tone when it comes to drug users and addicts. It includes provisions that would bar treatment centers from physically punishing or verbally humiliating addicts and demands they pay addicts for work they do. The bill also provides for people ordered into treatment to receive it in their communities rather than forcing them into treatment centers. Treatment center admissions would be limited to injection drug users, people who refuse community help, or people who live in communities without treatment resources.
"Drug takers are law violators, but they are also patients and victims. Punishment is needed, but education and assistance are more important," Zhang said.
A poll of Brazilian adults conducted by the newspaper Folha de Sao Paulo found that a whopping 79% think marijuana smoking should remain a crime. Only 18% favored legalizing the use of marijuana.
Marijuana, known locally as "maconha," is grown in the Brazilian northeast, as well as being imported from Paraguayan pot plantations. The drug is widely consumed in Brazil, with the United Nations Office on Drugs and Crime estimating that roughly two million Brazilians smoked marijuana at least once in the last year.
But it appears Brazilians are in a conservative mood these days. The poll asked respondents to identify themselves politically and found 47% saying rightist, 23% saying centrist, and 30% saying leftist. The conservative trend was even stronger on criminal justice and moral issues, with 63% opposing abortion, 84% supporting lowering the age at which juveniles can be charged as adults, and 51% supporting the death penalty.
Brazilian observers blamed too much influence from the United States. Former national anti-drug secretary Walter Maierovitch told Folha the results show "a lack of generalized information" among the population. "Brazilians are ill-informed on these polemical matters and generally align themselves with positions that emanate from the United States, where these discussions are more profound and conservative," he told the Folha.
American political scientist David Fleischer, a professor at the University of Brasilia, agreed. "The television is the great source of information for Brazilians," he said. "Cultural imperialism and North American customs, which have become more conservative in the past 20 years, are very relevant."
(Brazilians who want to help change things should join Psicotropicus.)
August 27, 2002: Canadian Press, Canada’s national newswire, reports that Health Minister Anne McLellan said the federal government is not backing away from its plan to supply patients with medical marijuana. Bristling at earlier reports that the project had been shelved, McLellan said, “In fact, far from shelving it, what we're doing is implementing the second stage.”
August 28, 1964: The Beatles are introduced to marijuana.
August 28, 1995: The World Health Organization (WHO) publishes "WHO Project on Health Implications of Cannabis Use: A Comparative Appraisal of the Health and Psychological Consequences of Alcohol, Cannabis, Nicotine and Opiate Use." The original version -- not the official one -- states, "...there are good reasons for saying that [the risks from cannabis] would be unlikely to seriously [compare to] the public health risks of alcohol and tobacco even if as many people used cannabis as now drink alcohol or smoke tobacco."
August 29, 2001: The Dallas Morning News reports that Ernesto Samper, former president of Colombia, said, “The problem is the law of the marketplace is overtaking the law of the state… We have to ask, is legalization the way out of this? We cannot continue to fight this war alone. If the consuming nations do nothing to curb demand, to control money-laundering, to halt the flow of chemicals that supply the drug-production labs, then in a few short years the world is going to see legalization as the answer.”
August 30, 1996: The Washington Post reports that presidential hopeful Bob Dole hammered President Clinton for his drug policy and made the war on drugs one of his top campaign issues. Declaring that President Clinton had “surrendered” in the war against drugs, Dole called for an expanded role for the National Guard, and for military and intelligence services to fight drugs.
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AcademicsElectoral PoliticsBallot Measures (Prop 19), Candidates/RacesFederal GovernmentCongress, Executive Branch (DEA, ONDCP), Federal CourtsLegal CommunityOur SideProp 19, Organizations (Changing Minds 2009, Changing Minds 2010), Political LeadersPolitics Outside USCanada, United NationsState & Local GovernmentState & Local Executive Branches, State & Local Legislatures, State CourtsThe Drug DebateDecriminalization, Legalization (Legalization Supporters, Marijuana Legalization), Media, Medicalization, Moderates, Prohibition, Public Opinion, Spending Priorities, Tax and Regulate (Prop 19), Treatment Not JailThe Other SideBarry McCaffrey, Jim Sensenbrenner, John Walters, Mark Souder
