Marijuana for Medical Use - A Federal Crime

Last month, Joyce Priddy wrote an article in this space about a Bernie Ellis, a Tennessee farmer who was prosecuted by the Federal government for growing marijuana, which he used to alleviate pain associated with his degenerative joint disease and pain and sleep disturbance associated with fibromyalgia. He was also providing free cannabis to several ill people in the area. Mr. Ellis was convicted in a Federal court and was incarcerated in a half-way, minimum security facility, for eighteen months. According to Ms Priddy's article and the sources she cites, Mr. Ellis is now trying to avoid the statutory forfeiture that is often part of a Federal drug case. There is considerably more to the story and the reason why the Federal authorities choose to target Mr. Ellis!

It seems to me that there are two distinct issues presented.

First, are the Federal statutes forbidding the growing, use and distribution of marijuana (more properly, cannabis) appropriate where such use is limited to medical uses, prescribed by a physician and in a state which specifically authorizes medical use. (It happens that Tennessee is not one of those states; bills are pending in the state legislature that would allow a "medical exception" to the laws against the growing, possession or distribution of cannabis. Tennessee legislators who introduced the Bill are quite pessimistic about its passage.) That question, at least for now, was answered, on June 6, 2005, by the U. S. Supreme Court in Gonzales v Raich. The bases of this decision, allowing Federal prosecution for medical-cannabis even where such use is specifically permitted under state law, seem strained and it may well be that a reverence for states' rights will reverse the holding.

Second, are the Federal forfeiture laws fairly applied to Mr. Ellis' farm. While it has no bearing on the principles involved, the farm consists of 187 acres and is worth far more than the $200,000. demanded by the government.

Federal and state policies collide.

The basic Federal statute regulating cannabis is the Comprehensive Drug Abuse Prevention and Control Act of 1970, which describes drugs as being under one of five classes or schedules. Cannabis is considered a "Schedule I" substance, one that has a high potential for abuse, no accredited medical use, and a lack of accepted safety. (One may, and many have, questioned that description of cannabis, but that's where the law is now.)

In United States v. Oakland Cannabis Buyers' Cooperative, decided in 2001, the Supreme Court held that "medical necessity" was not a defense to a prosecution for the producing and distribution of cannabis to ill persons. The Court said that Congress had made cannabis a Schedule I drug and that was that!

With regard to the Federal view of cannabis, ironies abound. At one point, a Federal Medical Marijuana program was establish that grew cannabis at the University of Mississippi and distributed it to a number of ill patients. The program was scrapped by President Bush (41) and seven people are still receiving Federally grown pot.

The Federal Drug Enforcement Agency remains adamant that smoking cannabis has no documented medical value. A 2006 report from the DEA states that none of the following organizations support cannabis as medicine: the American Medical Association, the American Cancer Society, the American Academy of Pediatrics, the National Multiple Sclerosis Society and others. However when one reads the actual statements of these organizations, it is clear that the DEA has taken some liberties in quoting only parts of the various position papers.

What is uncontroversial? Medical cannabis does bring relief to patients with a number of diseases and conditions. These include pain relief -- particularly of neuropathic pain (pain from nerve damage) -- nausea, plasticity, glaucoma, and movement disorders. Cannabis is also a powerful appetite stimulant, specifically for patients suffering from HIV, the AIDS wasting syndrome, or dementia. Emerging research suggests that cannabis' medicinal properties may protect the body against some types of malignant tumors and are neuroprotective.

As a result of a growing acceptance of cannabis as a medicinal substance and a similar rejection of the old scare-stories from years ago, 12 states have, by statute or state constitutional amendment allowed the regulated use of cannabis for medical purposes.

And here is where the conflict remains. The Supreme Court, citing the 1970 Act, and the supremacy of Congress over states, has ruled that, regardless if the growing, distribution, possession and use of cannabis for medical purposes is authorized by local state law, the case can proceed as a Federal criminal proceeding. (The Bush administration and its supporters are constantly arguing that states' rights are paramount and that Federal judges do not give enough credence to the views of the people. Oh well....)

And this is where Mr. Ellis found himself. Tennessee is not one of the states that has a medical marijuana or cannabis exception for medical use, but even if it had, Mr. Ellis would still have been in trouble. As it is, his sentence was comparatively light by Federal drug conviction standards.

Why did the Feds go after this guy?

We can stipulate several things. Bernie Ellis is not your average defendant. Ellis, a public health epidemiologist, readily acknowledged that he was growing a small amount of medical marijuana to cope with a degenerative condition in his hips and spine. He was giving cannabis away to a few terminally ill people too. There were only a couple dozen plants of any size scattered around his place-enough to produce seven or eight pounds of marijuana worth about $7,000. Moreover, at his sentencing hearing, character references, affidavits and testimony, were bountiful. Ellis is, they all said, better than sliced bread.

There is more to the story, however. The question remains as why the Federales targeted this man? Because he is a classic activist and advocate for the use of cannabis for medical purposes. Mr. Ellis earned his BA in Psychology, Sociology and Political Science from Vanderbilt University, an MA in Sociology (Demography and Human Ecology) from the University of Texas at Austin and an MPH (Public Health Education and Epidemiology) from the University of California at Berkeley. He also had additional graduate training in Sociology (Vanderbilt) and Health Communication, Health Promotion and Medical Anthropology (Stanford). He has held research and program management positions with two federal agencies (NIH and CDC) and with three state governments (Tennessee, New Mexico and Wyoming), provided consulting services for the American Medical Association and the American Cancer Society. In short, he is a highly visible "target" if one wants to prove a point!.

But what about the old guy's farm?

Civil forfeiture has a long history in this country; lately, it has become a boon to law enforcement agencies. The agency seizes automobiles. trucks and cell telephones, for example; the law enforcement agency now has new, expensive equipment and not one penny of taxpayer money has been expended. Sounds like "win-win" except for the former owner of the property.

Forfeiture proceedings are, in form, against the property on the nebulous theory that, somehow, by taking part in a illegal transaction, the property, itself, had become tainted. Thus, an automobile in which drugs have been transported or a car in which a drunk driver had been tooling down the highway can be seized and forfeited!

The history of forfeiture dates back to Biblical times. It is a thoroughly discredited concept, subject to much academic criticism and needs to be re-examined. There is a difference between seizing the fruits of a criminal's activities, a bank account in which proceeds of a robbery are deposited, and a seizure of a "thing" which has been said to have "facilitated" a crime. Be that as it may, Mr. Ellis' farm is caught in the middle!

The Federal law upon which Mr. Ellis was prosecuted allows seizure of his farm but allows the parties to negotiate the release of the property by the payment of a fine.

Mr. Ellis' attorneys had argued that to seize all of a million dollar farm with an offense so relatively minor, it would be grossly disproportionate. Meanwhile, at last glance, the parties were trying to negotiate a penalty that would take the place of the farm.

An update.

Mr. Ellis is scheduled to be released from the minimum-security facility, after eighteen months, in mid-May. His supporters, and they are many, have had fund raisers, the latest around the end of April, 2007, at which some $11,000 was raised. Articles in the local Nashville newspapers, where Mr. Ellis is considered a beloved hero, mostly repeat the same phrases over and over. An e-mail to Mr. Ellis' website, requesting the current status received no response. Similar inquiries to The Nashville Scene and the author of many articles about Mr. Ellis have also been unanswered.

While Mr. Ellis is, for the most part, a sympathetic person, he has some customs and habits which are a bit "in your face". For example, he calls himself, "Devil Weed" in e-mail and on-line. Perhaps if he had maintained a lower profile, the cannabis would have slipped beneath the radar. We will never know. What we do know is that Bernie Ellis has become the "poster boy" for the normalization and decriminalization of medical-use cannabis - whether he wants that role or not.

I am certain that we will hear more about Mr. Ellis as his case proceeds.