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The Honolulu Advertiser

Posted on: Saturday, June 11, 2005

Medical cannabis outlook clarified

By Ken Kobayashi
Advertiser Courts Writer

U.S. Attorney Ed Kubo says he won't seek from the state a list of doctors who certify marijuana use for their patients and he won't prosecute the physicians just because they recommend the drug use.

Ed Kubo

But, Kubo says, doctors could face prosecution if, for example, they certify marijuana use for a condition that is not "debilitating" as required under the state medical marijuana law; direct a patient to get marijuana from a street dealer; or give a patient a sample of marijuana.

Yesterday's statements elaborated on what he said Monday after the U.S. Supreme Court ruled that the federal ban on marijuana — cannabis — supersedes state laws on medical use of the substance.

At the time, Kubo said the ruling signaled the end to a state program used by about 2,600 patients in Hawai'i, because doctors who must sign off on the use of the drug could now be prosecuted.

Kubo also said at the time that his office would not prosecute the medical marijuana smokers, but cautioned that the doctors could be prosecuted on misdemeanor charges as accomplices to the distribution of marijuana.

Kubo's remarks triggered a firestorm of criticism from medical marijuana advocates who contended that he misread court decisions and embarked on a "scare tactic" campaign to destroy a viable and legal state program.

More than 100 doctors have certified patients to use marijuana under the state law for "debilitating" medical conditions ranging from glaucoma to cancer.

The American Civil Liberties Union of Hawai'i strongly denounced Kubo's remarks, which the group said were aimed at intimidating doctors into not participating in the program. The group said any prosecution of a doctor who certifies marijuana use is still prohibited by a 9th U.S. Circuit Court of Appeals ruling in 2002.

Yesterday, Kubo said that before the U.S. Supreme Court decision on Monday, doctors and patients could "operate under state law without any fear whatsoever of federal prosecution."

"The Supreme Court took that assumption away," he said.

He said that's the reason he believes that the state medical marijuana law is now essentially "dead."

The ACLU has demanded that he retract his original statements by Wednesday or the group will file a federal lawsuit seeking an injunction preventing his office from prosecuting a doctor for certifying marijuana use.

"Mr. Kubo's comments (yesterday) reaffirm the ACLU's position that the recent Supreme Court decision said nothing about the doctors' constitutional right to converse with their patients about medical marijuana," said Lois Perrin, ACLU legal director. "We strongly urge Mr. Kubo to issue a formal retraction to undo some of the damage that was done by his initially threatening statements."

Kubo said that he would not comment on whether he will issue a retraction and that if he responds to the ACLU's demands, he'll announce it.

But he made clear yesterday his thoughts about prosecuting doctors. "I don't think physicians have anything to fear about prosecution solely for certification," he said.

Kubo said he wasn't taking that position because of the ruling by the 9th U.S. Circuit Court of Appeals. He said he had not been able to enforce the federal drug laws because of the appeals court decision, but the high court's ruling now allows him to prosecute.

Kubo spoke yesterday after announcing the results of the latest Operation Green Harvest marijuana sweep, but said none of the plants were taken from medical marijuana users.

Under state law, certified users can each have up to three mature marijuana plants; four immature plants; and an ounce of usable marijuana for each mature plant.

Kubo has said he doesn't plan to prosecute patients. He said those cases traditionally are turned over to state and county authorities for their review.

Reach Ken Kobayashi at kkobayashi@honoluluadvertiser.com or 525-8030.