ACLU may sue to shield doctors
By Ken Kobayashi
Advertiser Courts Writer
The American Civil Liberties Union's Hawai'i chapter wants U.S. Attorney Ed Kubo to retract public comments that doctors who certify marijuana use for their patients can be prosecuted in the wake of a U.S. Supreme Court ruling this week.
The ACLU yesterday said any prosecution of the doctors would violate their First Amendment protections established by a 2002 decision by the U.S. 9th Circuit Court of Appeals.
Kubo
In a letter sent to Kubo, the ACLU said if it doesn't receive a written retraction by June 15, the organization will file a federal lawsuit seeking an injunction that would prevent any federal prosecution of doctors for issuing the certifications.
Kubo yesterday said he can't comment on the ACLU's demand until he has a chance to fully review the letter, but said he is aware of the appeals court ruling. He said although "reasonable minds" might differ about that ruling, he understands what the federal government can and cannot do in light of the U.S. Supreme Court's decision.
The high court's 6-3 decision on Monday did not strike down medical marijuana laws in Hawai'i and 10 other states, but essentially held that the federal government could enforce federal drug laws against two women who were permitted to use marijuana for medical reasons under California law.
Under Hawai'i's five-year-old law, about 2,600 patients have certificates issued by more than 100 doctors for "debilitating" medical conditions. The certification permits them to use marijuana and must be renewed each year.
After the high court issued its ruling, Kubo on Monday said his office would not prosecute the medical marijuana users, but warned that doctors who issue the certifications could be prosecuted on misdemeanor charges as accomplices to the distribution of the marijuana, which is illegal under federal law.
He said the high court's ruling was the "death knell to the medical marijuana issue."
"I would advise all physicians or anyone who is involved in distributing or helping in the distribution of any illegal narcotic to be very, very leery," he said.
As to whether he would open any prosecutions, Kubo said he would need to consult with the Justice Department and state, city and county prosecutors.
The ACLU said Kubo misinterpreted the high court's ruling, which the group says is limited to the federal government's authority to enforce marijuana laws against the patients.
"He must withdraw his statements and stop spreading fear and intimidation among Hawai'i's doctors and the 2,600 sick and dying patients using medical marijuana legally and safely under Hawai'i law," said Lois Perrin, legal director for ACLU's Hawai'i's chapter.
According to the ACLU, the 2002 appeals court decision held that doctors have a constitutional right to recommend and discuss marijuana with patients.
The Drug Policy Forum of Hawai'i, which favors treatment over prison, applauded the ACLU's demands. Jeanne Ohta, the group's executive director, said no other federal official is "making the kinds of threats" that Kubo is making.
"Kubo's threats against doctors who are following Hawai'i's law are unbelievably out of step with his law enforcement colleagues across the nation," she said.
Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.
