[Congressional Record Volume 150, Number 132 (Wednesday, November 17, 2004)]
[Senate]
[Pages S11430-S11431]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      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.

[[Page S11431]]

  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.
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