Pubdate: Wed, 05 Feb 2014
Source: Anderson Valley Advertiser (CA)
Copyright: 2014 Anderson Valley Advertiser
Contact:  http://www.theava.com/
Details: http://www.mapinc.org/media/2667
Author: Fred Gardner

JUDGE JAMES A. WASHINGTON

The fact that people of color are punished disproportionately by drug 
prohibition is now widely acknowledged in the United States. Just 
last week in the New Yorker David Remick quoted the President 
stating: "Middle-class kids don't get locked up for smoking pot, and 
poor kids do. And African-American kids and Latino kids are more 
likely to be poor and less likely to have the resources and the 
support to avoid unduly harsh penalties."

Still unacknowledged, however, is the leading role that African 
Americans have played not as victims but as active opponents of 
prohibition. This being Black History Month (we knew her when she was 
Negro History Week) O'Shaughnessy's is honoring some men and women 
whose contributions to the abolitionist cause have been 
underappreciated or overlooked. Starting with...

The Judge Who Recognized Marijuana Use as a "Medical Necessity"

It was a decision by Washington, D.C. Superior Court Judge James A. 
Washington in the case of United States v. Robert Randall that led to 
the federal government creating an "investigational new drug 
protocol" back in the Jimmy Carter era. The case was tried over the 
course of two days in July, 1976. Here are the facts as recounted by 
Judge Washington:

"The government has established, and the defendant has not attempted 
to refute, that on or about August 21, 1975, police officers in the 
course of their normal duties noticed what they believed to be 
cannabis plants on the rear porch and in the front windows of 
defendant's residence... A warrant was issued and a search of the 
premises conducted on August 23, 1975. Several plants and a dried 
substance later identified as marijuana were seized and defendant's 
arrest followed.

"At trial, the government's evidence demonstrated that the substance 
seized at defendant's residence was marijuana, possession of which is 
prohibited by D.C. Code Section 33-402, thus establishing all the 
elements of the crime charged. Moreover, defendant admitted that he 
had grown the marijuana in question and that it was intended for his 
personal consumption. He further testified that he knew that 
possession and use of this narcotic are restricted by law.

"Defendant nonetheless sought to exonerate himself through the 
presentation of evidence tending to show that his possession of the 
marijuana was the result of medical necessity. Over government 
objection of irrelevancy, defendant testified that he had begun 
experiencing visual difficulties as an undergraduate in the late 
1960s. In 1972 a local opthalmologist, Dr. Benjamin Fine, diagnosed 
defendant's condition as glaucoma, a disease of the eye characterized 
by the excessive accumulation of fluid causing increased intraocular 
pressure (IOP), distorted vision and, ultimately, blindness.

"Dr. Fine treated defendant with an array of conventional drugs, 
which stabilized the intraocular pressure when first introduced but 
became increasingly ineffective as defendant's tolerance increased. 
By 1974, defendant's IOP could no longer be controlled by these 
medicines, and the disease had progressed to the point where 
defendant had suffered the complte loss of sight in his right eye and 
considerable impairment of vision in the left.

"Despite the ineffectiveness of traditional treatments, defendant 
during this period nonetheless achieved some relief through the 
inhalation of marijuana smoke. Fearing the legal consequences, 
defendant did not inform Dr. Fine of his discovery, but after his 
arrest defendant participated in an experimental program being 
conducted by opthalmologist Dr. Robert Hepler under the auspices of 
the United States Government.

"Dr. Hepler testified that his examination of the defendant revealed 
that treatment with conventional medications was ineffective, and 
also that surgery, while offering some hope of preserving the vision 
which remained to defendant, also carried significant risks of 
immediate blindness. The results of the experimental program 
indicated that the ingestion of marijuana smoke had a beneficial 
effect on defendant's condition, normalizing intraocular pressure and 
lessening visual distortions."

A Case of First Impression

Randall's attorney John Karr recalled in an interview with your 
correspondent, "Judge Washington had been dean of the Howard 
University Law School before his appointment to the bench and I knew 
him to be extremely intelligent and compassionate. A non-jury trial 
was fine with me....

"Judge Washington was very careful. After the prosecutor had 
conducted his examination and I had conducted the cross-examination, 
he would conduct his own inquiries. It was apparent that he had read 
all the material we had put together on the history of marijuana as 
medicine. In his decision he referred to the 1937 Congressional 
hearings that led to the Prohibition, and a number of recent studies 
and reports."

"This is a case of first impression in this jurisdiction," wrote 
Judge Washington in his decision, "one which raises significant 
issues. Consequently, the Court recognizes its responsibility to set 
forth clearly and in some depth its understanding of the applicable law."

Citing case law, Washington concluded that "the common law recognizes 
the defense of necessity in criminal cases... where the actor is 
compelled by external circumstances to perform the illegal act." He 
listed 3 exceptions. The necessity defense cannot be used when "1) 
The duress or circumstance has been brought about by the actor 
himself; 2) The same objective could have been accomplished by a less 
offensive alternative which was available to the actor; or 3) The 
evil sought to be averted was less heinous than that performed to avoid it."

The first two exceptions clearly don't apply in US v. Randall, wrote 
Washington:

"While the exact cause of defendant's glaucoma is unknown, neither 
the government nor any of the expert witnesses has suggested that the 
defendant is in any way responsible for his condition. Similarly, no 
alternative course of action would have secured the desired result 
through a less illegal channel. Because of defendant's tolerance, 
treatment with other drugs has become ineffective, and surgery offers 
only a slim possibility of favorable results coupled with a 
significant risk of immediate blindness. Neither the origin of the 
compelling circumstances nor the existence of a more acceptable 
alternative prevents the successful assertion of the necessity defense.

"The question of whether the evil avoided by defendant's action is 
less than the evil inherent in his act is more difficult. It requires 
a balancing of the interests of this defendant against those of the 
government. While defendant's wish to preserve his sight is too 
obvious to necessitate further comment, the government interests 
require a more detailed examination.

"One of the oldest recognized drugs, marijuana was not regulated in 
the United States until the Pure Food and Drug Act of 1906, which 
required that the presence of marijuana be indicated on the labels of 
products of which it was a component. The modern prohibition began in 
1937, in response to primarily economic pressures without significant 
inquiry into its effects on users.

[Washington's footnote 21 stated: "Liquor manufacturers and 
distributors, still recovering from the effects of Prohibition, were 
interested in eradicating the potential competition from a drug often 
used for recreational purposes. In addition, criminalizing marijuana 
simplified the task of eliminating the competition for jobs during 
the Depression posed by the principal users of the drug, Mexican 
migrant laborers.]

"The 1970 Controlled Substances Act continued the prohibition of the 
use of marijuana, but a Presidential Commission was appointed to 
study its effects. Pending receipt of this report, marijuana was 
classified as a non-narcotic and although its use was still 
prohibited, the penalties were considerably reduced, with first 
offenders being discharged conditionally. The District of Columbia 
law, however, was not changed, and retains the narcotic 
classification based on the 1937 Uniform Narcotics Act.

"Medical evidence suggests that the prohibition is not well founded....

"Reports from the President's Commission and the Department of 
Health, Education and Welfare have concluded that there is no 
conclusive scientific evidence of any harm attendant upon the use of 
marijuana. According to the most recent HEW study, research has 
failed to establish any substantial physical or mental impairment 
caused by marijuana. Reports of chromosome damage, reduced immunity 
to disease, and psychosis are unconfirmed; actual evidence is to the contrary.

"Furthermore, unlike the so-called hard drugs, marijuana does not 
appear to be physically addictive or to cause the user to develop a 
tolerance requiring more and more of the drug for the same effects. 
The current HEW report also notes the possibility of valid medical 
uses for this drug...

"The Court finds that this defendant does not fall within the third 
limitation to the necessity defense. The evil he sought to avert, 
blindness, is greater than that he performed to accomplish it, 
growing marijuana in his residence in violation of the District of 
Columbia Code. While blindness was shown by competent medical 
testimony to be the otherwise inevitable result of defendant's 
disease, no adverse effects from the smoking of marijuana have been 
demonstrated..."

Judge Washington could have ended his decision at this point, but he 
went on to assert its applicability to other necessity-defense cases. 
He projected and refuted an argument that would deny the necessity 
defense based on the literal wording of the DC Code section, which 
makes no reference to extenuating circumstances. He also discussed 
whether a defendant should have to prove necessity "beyond a 
reasonable doubt" and concluded that "by a preponderance of the 
evidence" was sufficient.

As John Karr put it, "Judge Washington made an effort to find for 
Randall in every important way."

Too far ahead of his time

Attorney Paul Smollar, who worked with Karr on U.S. v. Randall, 
recalls: "As a memento, Bob took two cigarettes out of the first pack 
he received from the government, removed the marijuana, and framed 
the papers -one for each of us to commemorate our victory in 
court...' Medical necessity' was then a new argument. It had been 
argued before in criminal cases, but never in connection with 
marijuana. John is a very creative thinker and an excellent trial 
lawyer. And he had a good working relationship with Judge Washington. 
They respected one another. Judge Washington was not only very 
bright, but he was willing to make a decision that might be unpopular 
or might be on the leading edge of the law. His decision for Randall 
was far ahead of its time.

James Washington

Some 35 years after Judge Washington found for Randall, attorney 
Robert Raich framed a "medical necessity" argument on behalf of the 
Oakland Cannabis Buyers Club in a case that went to the U.S. Supreme 
Court. Raich was unaware of Judge Washington's decision in support of 
Randall. "I wish I had known about it," he told us. "It was 
scholarly, well-reasoned and well written. I would have incorporated 
it... I wish we had more such judges these days."

JUDGE JAMES A. WASHINGTON DIED IN 1998 AT THE AGE OF 83. HIS 
obituaries made reference to his five-year stint in the War Division 
of the Justice Department, joining the Howard faculty in 1946, work 
he did as a lawyer in connection with Brown v. Board of Education and 
other cases leading to the end of public-school segregation in 1954, 
and a terrible fall that confined him to a wheelchair for the last 20 
years of his life. His decision in U.S. v. Randall recognizing a 
marijuana user's medical-necessity defense was too far ahead of its 
time to be recognized as a signal achievement.

(Fred Gardner edits O'Shaughnessy's, the journal of cannabis in 
clinical practice, which is now online at beyondthc.com.)
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