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June 18th, 2009
10:34 AM ET

A legal argument for using marijuana for medical purposes

Program Note: Tune in tonight to for our special coverage of the debate around the legalization of marijuana, 'America's High: The case for and against pot,' on AC360° at 10 p.m. ET.

Allison Margolin
Criminal Defense Attorney

Charles Lynch, a dispensary operator from Morro Bay, California, who was indicted and convicted in federal court for activities related to selling marijuana to medical patients, received a sentence last Thursday of a year and a day.

John Littrell, Lynch’s attorney, indicated that Lynch received what is known as the “safety valve.” This is a federal statute that allows for a defendant who is otherwise subject to mandatory minimum sentences to have a reprieve and be sentenced outside of them. In order to qualify for the so-called 'safety valve,' the defendant cannot be the “leader” of the organization. Littrell indicated the judge would issue a written order amidst objection by the U.S. Attorney to the safety valve in part on that basis.

He also indicated that Lynch was sentenced to 366 days in order to qualify for good time credits that would reduce Lynch’s sentence to around 10 months.

It is refreshing and fabulous that Judge Wu has liberally interpreted the safety valve to help reduce the prison exposure of a defendant who would have a medical defense in state court. Although the attorneys were precluded from mentioning the medical defense during Lynch’s jury trial, it is clear that his medical defense, though not technically available, motivated the court to sentence the defendant far below the 10-year-mandatory minimum that would otherwise apply to his convictions.

I believe that defense attorneys should use this case as well as USA v. Landa, 281 F. Supp. 2d 1139 (2003) , in which the district court contemplated compliance with state law as a basis for a downward departure in the guidelines (although that case lacked evidence of state law compliance), to argue that state law has a place in contemplating punishment when the state and federal law differ and the state gives more rights than the federal government.

I drafted a motion like this for Stephanie Landa on her appeal. For anyone interested, the argument is that the 10th Amendment is violated by the federal enforcement of marijuana’s Schedule I status in the medical states.

A few weeks ago, the New York Times Magazine published an article, “Obama’s Judicial Philosophy Analyzed,” by Charlie Savage, about what the author perceived to be Obama’s judicial philosophy and the one he believed Supreme Court justices appointed by Obama would follow.

The article suggested that Obama is interested in a court who articulates rights that many states (maybe a super-minority) have recognized, and pushes the other states along. That is why the recent legalization of medical marijuana in Rhode Island should be celebrated as a victory and replicated in more states.

Then we can use federal marijuana cases as a vehicle to go back to the U.S. Supreme Court and ask that the use of marijuana for medical purposes be recognized as a right that is held superior to the ban of the conduct by the Controlled Substances Act, the statute that regulates controlled substances and places marijuana in a category that has no medical use, Schedule I.

Editor's Note: Harvard-educated Lawyer Allison B. Margolin is now a practicing criminal defense attorney in Los Angeles. She is often referred to as 'L.A.'s 'dopest' attorney.


Filed under: 360° Radar • Marijuana • Medical News
soundoff (23 Responses)
  1. jeff sells

    i am 43 year old male live in tenn i have never been in any trouble suffer from server back pain it is a shame that for me to grow something that will give me relief is against the law some of u guys that r well know should get all smokers together and go to D C let all the senators and congress know that we will no longer stand for other wise law abiding folks be treated like criminals the american gov. could make large amounts of tax money that they so need.thank you yes we can

    June 18, 2009 at 5:18 pm |
  2. Rena` Sickles

    I don't use it. I know several people who do. Most of them use it to relax. I would much rather see someone smoking pot than using alcohol. I don't get why so many dangerous drugs are available by prescription, but the marijuana issue is so over blown!

    June 18, 2009 at 2:04 pm |
  3. Tony

    Hey Anderson think you can get CNN to put up a actual poll to see where the vote stands!!

    June 18, 2009 at 1:39 pm |
  4. John Jones

    I'm so sick of the lies by the DEA that canabis has no medical value. Up untill prohibition it was the number 1 prescribed medicine not only in the US but the world. It was the lies of Anslinger and big corporations that made it illegal. Anslinger even lied to congress when they asked what the AMA said about it. He said they said it had no medical value when the oposite is true. People, do your research before you say it has no medical value. One collage of medicine recently called it a "miricle drug". Why have we become a country of prohibitionist? What bussiness is it of yours of what I do if I'm not hurting anyone, or mine of whay you do? We boast of freedom while alowing others take it away from us.

    June 18, 2009 at 1:27 pm |
  5. ray

    Marijuana has been used by many religious people from the beginning of time up to this day. Some even use it during their religious service. It is believed by many that Marijuana or a similar plant was one of the ingredients in the holy oil that God gave to Moses. If you are one of the people that believe God created this world and everything in it; you acknowledge that God made marijuana. He has not told me yet why he did it; but looking at all the uses for the plant from clothes to medicines and other positive uses it gives me some indication of his intent.

    June 18, 2009 at 1:11 pm |
  6. Susan

    Melissas statement is correct smoke from anything is harmful, but there's so many other benefits and I'm talking not only marijuana but the hemp plant.

    June 18, 2009 at 1:11 pm |
  7. Susan

    My husband and I think it's great that you're showing all sides re: medical marijuana. I'm sure all of the arguments have been heard, and what about just the hemp plant, which grows like crazy, you can make paper (The constitution) bio for cars, I have hemp hand cream that is awesome and it comes from Canada, if we could make it here think about all of the money we could make? Legallizing pot would be a way to put tax on it and make some more money. OK maybe wine helps your heart but pot helps a slew of stuff too. But, as I said this has all been out there and argued forever. What is the big deal? Hasn't it been proven that it's not the evil drug it's supposed to be? In Seattle in Aug. we have the Hemp Festival every year but all it's done is brought some awareness and nothing else.

    Well, I know I rambled on and on but it's soooooo stupid that President Obama has been advised not to take the Hemp plant seriously, puleeze. Melissa Etheridge discribed it perfectly about how she felt normal after only a few tokes, so many good things as opposed to so many bad things.

    Anyway, enough of my venting,

    HAVE A GOOD DAY! 🙂

    June 18, 2009 at 1:06 pm |
  8. Lee

    Statutory penalties aside, the criminogenic properties of marijuana are negligible. Towering skyward at the top of the list is alcohol, contributing up to 80 times that of all other drugs combined to automobile fatalities, domestic violence and assault. In addition, the medical ramifications of alcohol consumption far exceed any of marijuana, and its dire addictive properties make it a drug with life-threatening withdrawal effects.

    I also contend that formidable alcohol lobbies fuel much of the political opposition to marijuana legalization, fearing a significant revenue loss from people replacing alcohol as their recreational drug of choice.

    June 18, 2009 at 12:58 pm |
  9. Adrian

    There are very many benefits to using cannabis, yes smoking is harmful but there are differnet methods(i.e. edibles, vaporizing, and marinol which is a placebo a big fake made from seseme seed oil) As for the addiction part with stronger pot yes there is somewhat a physical addiction. I smoke high grade pot atleast 3 to 4 times daily, when I need to quit I do notice somewhat of a change in my mood and sleeping at night it doesnt come easy, but it only last about 2-3 days then i'm fine and over it. It is only the detox of the THC for the 2-3 days for it to get low enough, you don't fiend or anything it just sucks not having the pot to feel calm the anxiety I get.

    June 18, 2009 at 12:55 pm |
  10. Melissa

    There is no argument for making pot legal. There is no reason to do it when there are drugs that already contain THC to do the same thing. Using the drugs doesn't expose anyone else to the smoke from marijuana whether they want to be exposed to it or not. Smoking pot does exactly the opposite.

    And people are so selfish in this country that they won't care if they smoke it in public so long as they can get away with it.

    June 18, 2009 at 12:52 pm |
  11. Laura

    My sister has ms and I think it is sad that the only 'medicine' that helps her is illeagle.Pot has helped her more than any leagle medicine with no side effects.Think about this,how many fatilities are ther a year caused by drunk drivers .Now compare that to the number of fatilities caused by people driving high.

    June 18, 2009 at 12:50 pm |
  12. Sam Frickleton

    I completely agree with JAD^^. But one issue that I would like to see addressed (while we have this week of someone FINALLY talking about this issue) is that of border reform along with legalization. When you showed the farms in public land CA, it was made clear, repeatedly, that illegal cartels were behind this. This is not acceptable. I think it would be wise to explore what might happen if these cartels' demand for the herb from our country went away immediately with the federal regulation.

    June 18, 2009 at 12:48 pm |
  13. Jeremiah Bartholomew

    Good comment, JAD.
    Also why does CNN never mention the other more healthy ways of ingesting cannabis, like vaporization, tinctures, teas, and other edibles? That addresses everyone's fears about lung damage. And why do my comments about these things always end up removed?

    June 18, 2009 at 12:40 pm |
  14. Dan

    I'm really underwhelmed by your coverage of this topic, after all the hype about this "special series" over the past couple of weeks. Ten minutes out of an hour – repeated?

    Judging just by the comments on these blogs an overwhelming majority of people have come to the realization that the plant has been demonized by the government for the past 70+ years and it is not only nowhere near as dangerous as some would have us believe, but actually has beneficial qualities.

    Someone asked on another blog here on this site how and why this substance was made illegal in the first place, and why you don't report on that?

    If you're curious you should check out http://www.druglibrary.org/schaffer/History/whiteb1.htm.

    June 18, 2009 at 12:36 pm |
  15. Chuck Brown

    I am chronic pain patient on 480mg of Oxycontin which is slowly turning me into a zombie who doesnt even want to leave the house.I vomit daily and have trouble keeping food down.I ws prescribed Marinol at 10mg x3.It was impossible to swallow a pill while vomiting of nauseas,not to mention that it made me so paranoid that I had to leave the store I was shopping in w/my family and go home.However I can pick up my pipe with a little pot and smoke maybe 4 draws and voila,I can eat,almsot sleep and get comfortable.Whats it going to take to get this done? I dont want to die and not see this happen.Common sense needs to come into play.We need to all organize and desend on Washington and demand that something gets done.But the Gov is too busy raping us with fuel prices so nobody can afford to travel to group up.I just want to grow my own medicine sell it to noone and be left alone.I dont see any harm in that.True most folks busted for weed dont go to jail.However its cost 100's if not 1000nds of dollars in fines afterwards.Who can afford that hit Not me on SSDI.Lets make this work for us and please all flood your reps with e-mails,phone calls and letters.

    June 18, 2009 at 12:36 pm |
  16. JAD

    You should interview Dr. Andrew Weil on your program.

    In your discussions about legalizing pot, you leave out an examination of the very different effects of different drugs. This is a very important premise for any educated discussion involving legalization of pot. Recognizing the differences in health effects between drugs (and by extension all things ingested by humans, including sugars and fats) completely changes the context of the discussion.

    June 18, 2009 at 12:29 pm |
  17. Brittany from Canada

    From the March 2009 issue of the scientific journal Medicinal Research Reviews, “Research on the chemistry and pharmacology of cannabinoids and endocannabinoids has reached enormous proportions. … [A]pproximately 15,000 articles on Cannabis sativa L. and cannabinoids and over 2,000 articles on endocannabinoids (are available in the scientific literature)."

    Donald Tashkin of the UCLA David Geffen School of Medicine, Division of Pulmonary and Critical Care Medicine, had to say about the subject earlier this month in an interview with the McClatchy newspaper chain. (**Note: Dr. Tashkin has performed US-government sponsored studies of marijuana and lung function for over 30 years and is considered to be the United States’ — if not the world’s — foremost expert on the subject.)

    “What we found instead was no association (between marijuana smoking and cancer) and even a suggestion of some protective (anti-cancer) effect. … Early on, when our research appeared as if there would be a negative impact on lung health, I was opposed to legalization because I thought it would lead to increased use and that would lead to increased health effects. But at this point, I’d be in favor of legalization (of marijuana). I wouldn’t encourage anybody to smoke any substances. But I don’t think it should be stigmatized as an illegal substance. Tobacco smoking causes far more harm. And in terms of an intoxicant, alcohol causes far more harm.”

    Just for the record, in 2006, Tashkin led the largest population case-control study (yes, Dr. Tashkin actually performed research on humans, not ‘calf thymus DNA’) ever to assess the use of marijuana and lung cancer risk. The study, which included more than 2,200 subjects (1,212 cases and 1,040 controls), reported that marijuana smoking was not positively associated with cancers of the lung or upper aerodigestive tract – even among individuals who reported smoking more than 22,000 joints during their lifetime.

    The stuff is amazing, the human body is pre-wired to accept and make use of it. The pharmacorps version of THC provides the EXACT same side effects as the natural plant does, yet they can sell it to people for an insane markup, but these same people that need it can't grow it legally for themselves for free, thereby avoiding giving the cartels blood money or going into the poor house trying to pay for their prescriptions.

    Go watch a movie on Google video titled: The Union: The business behind getting high.

    very well made and edited documentary about the how's and why's of prohibition and how the marijuana business works.

    The growers and dealers and cartel bosses love it that it's prohibited, prohibition makes them oodles of easy money. They don't care one iota if people die or go to jail, as long as they keep making money. Look to Mexico if you don't believe me...

    Has prohibition worked to stem the usage rates in the USA? Nope, not at all.

    Legalize it.

    June 18, 2009 at 12:18 pm |
  18. Grene

    It is sad to see the government against medicine for people. To cause suffering is unforgiveable.

    June 18, 2009 at 12:12 pm |
  19. mikebellman

    I am so sick of this debate. I am not a pot user. If it were methodically planted all over the USA by people simply scattering the millions of seeds they now smoke, it would become a ubiquitous weed.

    how in the world could anyone control that?

    June 18, 2009 at 12:03 pm |
  20. Tonisha Fortune

    I am with you all the way my true love Mr. Cooper! We should plan a one million smoke-out march to Washington to protest legalizing it NOW! YES WE CAN........

    June 18, 2009 at 11:57 am |
  21. Rev Bookburn

    It is incredible that the tremendous medicinal benefits of marijuana are denied to suffering people. The costly hysteria in this culture is an incredible exercise in failure. It is time to significantly change the current outrageous laws as well as freeing the marijuana prisoners. Rev. Bookburn – Radio Volta

    June 18, 2009 at 11:49 am |
  22. Sober says legalize it

    I don’t even smoke. But legalize it, tax it, and focus on REAL PROBLEMS like cocaine and meth.

    Once it’s legal it will be exciting for the first 3 months. After that, the people who smoke now, will probably smoke the same amount. And the people who won’t, simply won’t. Not much will change.

    Pot is not the issue. Prohibition and closed minds are the issue. The same people who say no, were probably drinking at last night at bars across the US… Hypocrites.

    Also, how strange it is that every other commercial during a sports game is for beer, and how people at work talk about how they went to a party and got drunk and yet my friends that casually smoke can’t say they stayed home, smoked a little, and watched a movie.

    Just treat it like alcohol.

    I don’t get when people say they are worried about kids. If treated like alcohol, as the post says above, they won’t be able to get it. The “what about the children” argument makes no sense.

    Finally, the US can make tons of money if they tax it.

    June 18, 2009 at 11:45 am |
  23. Puddytat

    Will legalizing POT add to the health care bill of those that have to be KEPT and contribute to their own ill health ?

    June 18, 2009 at 11:39 am |