Statements on Introduced Bills and Joint Resolutions

CONGRESSIONAL RECORD
SENATE
Nov. 17, 2004

STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS

By Mr. DURBIN (for himself, Mr. LEAHY, and Mr. JEFFORDS):

S. 2989. A bill to amend the Controlled Substances Act to provide an affirmative defense for the medical use of marijuana in accordance with the laws of the various States, and for other purposes; to the Committee on the Judiciary.

Mr. DURBIN. Mr. President, I rise today with Senators LEAHY and JEFFORDS to introduce the Truth in Trials Act. This is a narrowly tailored bill that would allow defendants in Federal criminal trials regarding medicinal marijuana to introduce evidence that their marijuana-related activity was performed in compliance with State law regarding the medical use of marijuana. It also would provide defendants in such trials with an affirmative defense if they establish, by a preponderance of the evidence, that their activities complied with State law.

Let me be clear. This legislation does not legalize marijuana. It does not even legalize marijuana for medicinal purposes. It only is meant to address the conflict between State and Federal law with regard to medical marijuana. Under this legislation, defendants in the ten States with medicinal marijuana laws could be found not guilty of violating Federal law if their actions are done in compliance with State law.

Why is this legislation necessary?

Over the past 8 years, ten States have passed referendums or enacted laws authorizing medical marijuana in those States. The first of these states was California. In 1996, voters in California passed the California Compassionate Use Act, also known as Proposition 215, to allow seriously ill people who have a doctor's recommendation to cultivate and use marijuana as a form of treatment.

However, in 2001, the Drug Enforcement Administration began aggressively targeting medical marijuana providers in California and these other States-regardless of the fact that these individuals were complying with State law.

Consider who these so-called criminals are that the DEA is targeting and arresting.

The city of Oakland enacted a medicinal marijuana ordinance, as permitted by California law, and Ed Rosenthal grew marijuana to be sold for medicinal uses under the auspices of this ordinance. Even though Mr. Rosenthal was acting as an officer of the city, in February 2002, DEA agents raided his facility and arrested him of marijuana cultivation and conspiracy.

Since Federal law does not recognize "medical necessity" as a defense, Mr. Rosenthal was not allowed to tell the jury that he was growing the marijuana for medicinal purposes. The prosecutors took this opportunity to present Mr. Rosenthal as a big-time drug dealer, and the jury had no choice but to convict Mr. Rosenthal.

After the trial, the jurors learned that Mr. Rosenthal was growing medical marijuana and complained that they had been misled by the court. Five jurors immediately issued a public apology to him and demanded a new trial. Their statement said, "In this trial, the prosecution was allowed to put all of the evidence and testimony on one of the scales, while the defense was not allowed to put its evidence and testimony on the other side. Therefore we were not allowed as a jury to properly weight the case."
During the sentencing phase of the trial, nine of the twelve jurors asked that Mr. Rosenthal not be imprisoned because they had convicted him "without having all the evidence." Due to these unique circumstances, the judge sentenced Mr. Rosenthal to one day in prison and a $1,000 fine, the most lenient sentence allowed under the law. Yet, the prosecutor, who had asked for a six-and-a-half-year sentence, has appealed this sentence.

Another example is the Wo/men's Alliance for Medical Marijuana, a nonprofit collective of patients and their caregivers, 85 percent of whom are terminally ill with cancer or AIDS. One member of this organization is Suzanne Pfeil, who suffers from post-polio syndrome and experiences extreme pain and muscle spasticity. She is allergic to opiates and does not tolerate many pharmaceutical drugs, so her physician recommended medicinal marijuana, in accordance with California State law. Here, in her own words, is what happened to her in 2002:

At dawn on September 5th, 2002, I awoke to five federal agents pointing assault rifles at my head, I did not hear them come in because my respirator is rather loud. They yelled at me to put my hands in the air and to stand up "NOW." I tried to explain to them that I needed to put my hands down on the bed in order to sit up because I am paralyzed. They again shouted at me to stand up. I pointed to my crutches and braces beside the bed and said, "I'm sorry, I can't stand up without my crutches and braces and I normally use a wheelchair." At that point they ripped the covers off the bed and finally realized what I was trying to explain amid their shouts and guns. They handcuffed me behind my back and left me on the bed. The DEA then proceeded to confiscate medication recommended to me by my physician under California State Law Proposition 215. My crime? I am a member of the WAMM, the Wo/men's Alliance for Medical Marijuana, a nonprofit collective of patients and their caregivers working together to provide free medication and hospice services to approximately 250 seriously ill and dying members. The DEA then destroyed our collective garden and arrested our Director Valerie Corral, who is an epileptic, and her caregiver and husband Michael Corral.

This conflict between State and Federal law is a serious one, and one that will be addressed by the Supreme Court later this year in the case of Ashcroft v. Raich. Last year, the Ninth Circuit Court of Appeals rule in this case that is unconstitutional to prosecute medicinal marijuana users under federal law in states with medicinal marijuana laws, as long as the marijuana is not sold or transported across state lines.

The Truth in Trials Act is consistent with this Circuit Court ruling, which I hope the Supreme Court will uphold, and I urge my colleagues to support this bill.