U.S. Attorney Retracts Threat of Prosecution After Receiving Demand from ACLU of Hawaii

Affiliate: ACLU of Hawaii
June 13, 2005 12:00 am

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Affirms Doctors Have Constitutional Right to Recommend Medical Marijuana

HONOLULU — The American Civil Liberties Union of Hawaii today said it appreciated the “clarification” of comments by U.S. Attorney Ed Kubo regarding doctors who recommend medical marijuana to their patients.

“The U.S. Attorney has reversed his inaccurate and intimidating threats and clarified the facts for the benefit of doctors and patients in Hawaii,” said Lois Perrin, Legal Director of the ACLU of Hawaii. “Doctors have a right to continue to recommend medical marijuana, and that right is extremely clear under both federal and Hawaii law. In the future we urge the U.S. Attorney be more careful before commenting on a matter that has grave public health implications and impacts thousands of patients and their families.”

As Mr. Kubo has now recognized, in Hawaii doctors are legally allowed to certify patients with debilitating medical conditions to use marijuana. Kubo last week threatened to arrest doctors who recommend marijuana for their patients based on his inaccurate interpretation of the recent U.S. Supreme Court ruling on medical marijuana in Gonzales v. Raich.

The ACLU threatened legal action last week in a letter sent to Kubo, pointing out that the Ninth Circuit Court of Appeals ruled last year in Walters v. Conant that doctors have a constitutional right under the First Amendment to recommend and discuss medical marijuana with patients. The U.S. Supreme Court let stand the Ninth Circuit ruling in 2004 by denying the federal government’s request for review. The national ACLU Drug Law Reform Project litigated the Conant case on behalf of about a dozen doctors and patients in California.

The ACLU’s letter pointed out that, contrary to Kubo’s earlier statements, the Raich ruling did not address any issues related to the continued validity of state medical marijuana laws or doctors’ rights to recommend medical marijuana. It was limited to the federal government’s power under the commerce clause of the U.S. Constitution to enforce federal marijuana laws against individual patients and caregivers who possess or cultivate marijuana for medical purposes.

After receiving the ACLU’s letter, Kubo was quoted in the Honolulu Advertiser as stating that the federal government would not seek from the state a list of doctors who certify marijuana use for their patients or prosecute physicians because they recommend the use of marijuana for medical reasons. Even after these media reports, the ACLU said it continues to receive calls of concern from doctors, patients and community members in the wake of Kubo’s errant claims that he could prosecute doctors who, in compliance with state law, recommend medical marijuana and that the Supreme Court’s decision in Gonzales v. Raich was “the death knell to the medical marijuana issue.”

“Although Mr. Kubo cannot unring the bell entirely because some damage has already been done, his clarification is significant because doctors and patients have the right to know that the marijuana certification process in Hawaii is alive and well,” said Perrin.

Allen Hopper, a senior staff attorney with the ACLU Drug Law Reform Project, added that the ACLU remains committed to aggressively defending state medical marijuana laws in the wake of the Raich decision, and to defending the First Amendment rights of doctors to recommend the use of medical marijuana to patients as permitted under state law. “We are pleased that U.S. Attorney Kubo has affirmed that doctors in Hawaii have the right under both state and federal law to recommend marijuana use for their patients who have debilitating medical conditions,” Hopper said.

For information on the case, Walters v. Conant, see: /node/8759.

For additional information on Gonzales v. Raich, see: /node/16973.

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