Know the Facts - Change the Law

Know the Facts - Change the Law
Life - Liberty - Pursuit of Happiness

Wednesday, May 7, 2008

Action Alert - May 7, 2008

Today's alert is in reference to a new feature, above the line action alerts. The alert today is a call to send a letter or email to your state congress persons in favor of fair treatment of ganja consumers.

Included in the action call is amodel letter and alink to a service to send the email (or you can print out the letter and mail it as well.). Included is a link to a free service to send the email to the appropriate state politicians.

Please visit the blog and take action today!

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  1. How can I support the bill by Barney Frank and Ron Paul? I saw the link somewhere else, but now I can't find it.

  2. Green Ganja, I'll be adding that as a legislative action item soon.

  3. Hempman, I'm perfectly willing to write a letter to my legislators, however since I am a little new to this game I wanted to educate myself a bit first.

    I doesn't seem to me that it is quite that clear that the medical necessity defense would be upheld in Delaware. Do you know if it has ever been used? I see that one could TRY that defense under the "Choice of Evils" Statute (Title 11, Part 1, Chapter 4, Section 463), but the way that section is worded in such a way that it is very subject to interpretation. The section seems to say that an action must be "an emergency measure to avoid an imminent public or private injury".

    It is the word "emergency" that makes me wonder. The wording seems to connote some imminent catastrophe; an illness may not fall into that category. If this has not been tested, we just don't know.

    Since marijuana is classified as a Schedule I controlled substance in Delaware, the definition of which includes "Has no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision", I don't believe that the Choice of Evils Statue would allow medical use of marijuana since it is considered as not being acceptable for that purpose.

    Could another course of action be to write legislators to remove marijuana from the Schedule I list? I am sure there is convincing evidence out there on medical uses. This would be a small step, but from what I get from our legislators they would not be ready for sweeping legislation and this would be a foot in the door for future action.

    Let me know what you think.

  4. Yeah, the Title 11 is the section we have seen success under. SOME lower courts have allowed the defense, based on the "test" that marijuana must have no accepted medical use in the United States". The key words being test and "in the United States". That last does not mean under federal law (or it would specifically say that as it does for other, similar laws). It literally means, no accepted medical use anywhere in the United States. Since many states have accepted medical use of marijuana, and with the increasing number of medical organizations endorsing cannabis as medicine, the "test" has been broken.

    I am still puzzling over this:

    § 4754. Prohibited acts D; penalties.

    (a) It is unlawful for any person knowingly or intentionally to possess, use or consume any controlled substance or counterfeit substance classified in Schedule I (except Schedule I controlled substances classified in subsection (d)(19) of § 4714 of this title) ... unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of the practitioner's professional practice, or except as otherwise authorized by this chapter.

    subsection (d)(19) of § 4714; Any material, compound, combination, mixture, synthetic substitute or preparation which contains any quantity of marijuana or any tetrahydrocannabinols, their salts, isomers or salts of isomers;

    So, is the penalty against the possession of a material preparation of marijuana exempted from being prohibited?? It certainly seems to say that,particularly with the inclusion of the statement about order of a practitioner. The modifier listing material preparations of marijuana comes directly after the list of prohibited substances, not after the prescription/order statement. The generally accepted format is that the modifier directly follows, not preceeds, the statement that it modifies.

    The definition does go on:
    (b) It is unlawful for any person knowingly or intentionally to possess, use or consume any Schedule I controlled substance or counterfeit substance classified in subsection (d)(19) of § 4714 of this title, except as otherwise authorized by this chapter.

    But in the section just above this, it seems to exempt material preparations of marijuana PARTICULARLY IF the person holds an ORDER OF A PRACTITIONER while acting in the course of the practitioner's professional practice.

    I know of two AIDS patients who have used this in a lower court, and the prosecutor declined pursuing an appeal (my guess is that they did not want to look so rabid that they would persecute a dying person).

    It appears that Delaware DOES indeed, recognize medical marijuana - IF you can get a lawyer who will do their job. Actually, one of the AIDS patients who I knew (who has died, unfortunately) successfully defended himmself (he was a president's list grad of - get this - Oral Roberts University) using exactly the process I described. We had Dr. Morgan from NY College of Medicine testify as an expert, and the patient provided reams of studies, including the one in San Fran by Dr. Abrams that showed that medical marijuana staved off wasting syndrome, which the patient’s doctor had said was the problem most threatening him when the doc recommended using cannabis to treat the wasting syndrome. He was told he would die before 1996. He lived until 2006. His case could be a model for other patients.

    The greatest problem we face is that, just like states with actual medical marijuana law, it is up to each court how they chose to interpret the law. Both AIDS patients were able to get in front of a jury, which are not held to “letter of the law” interpretations. Basically, without coming right out and saying it in court, we encouraged the jury to use nullification. We were lucky to get judges who allowed that.


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