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The Honolulu Advertiser

Posted on: Tuesday, June 14, 2005

ACLU not suing over marijuana remarks

By Ken Kobayashi
Advertiser Courts Writer

The American Civil Liberties Union's Hawai'i chapter says it will not file a federal lawsuit in view of U.S. Attorney Ed Kubo's comments Friday that he will not prosecute doctors for certifying marijuana for their patients.

The ACLU had threatened to file a lawsuit if Kubo did not retract by tomorrow his comments last week after a U.S. Supreme Court's 6-3 decision on California's medical marijuana laws. The high court did not strike down medical marijuana laws in Hawai'i and 10 other states but cleared the way for federal marijuana prosecution.

Kubo said a week ago that his office would not prosecute medical marijuana users, but cautioned that doctors could be prosecuted as accomplices to the distribution of marijuana.

The ACLU later called on Kubo to stop "spreading fear and intimidation" among Hawai'i's doctors and demanded a written retraction by tomorrow. The group cited a 2002 decision by the 9th U.S. Circuit Court of Appeals that the ACLU says gives doctors the constitutional right to recommend marijuana use.

If Kubo did not issue a retraction, the group said, it would file a federal lawsuit to prohibit Kubo from prosecuting doctors for certifying marijuana use for their patients.

On Friday, Kubo said he stood by his comments that he believes the medical marijuana law in Hawai'i is essentially "dead."

But he said he would not prosecute doctors unless they went beyond the certification by, for example, providing marijuana samples to patients, directing them to street drug dealers or certifying a medical condition that is not "debilitating" as required by state law.

"I don't think physicians have anything to fear about prosecution solely for certification," Kubo said Friday.

The ACLU yesterday said it appreciates the comments about the doctors. Kubo now recognizes that Hawai'i doctors are legally allowed to certify marijuana use for patients, the ACLU said.

"The U.S. attorney has reversed his inaccurate and intimidating threats and clarified the facts for the benefit of doctors and patients in Hawai'i," said Lois Perrin, legal director of the ACLU chapter. "Doctors have a right to continue to recommend medical marijuana, and that right is extremely clear under both federal and Hawai'i law."

Perrin said at this time, there is no need for the lawsuit as long as Kubo stands by his word about not prosecuting doctors who certify marijuana use.

Hawai'i's medical marijuana program has about 2,600 patients certified by more than 100 doctors to use marijuana for their "debilitating" medical conditions. These include cancer, glaucoma and HIV.

Under state law, the patients are allowed to have three mature marijuana plants, four immature plants and an ounce of usable marijuana for each mature plant.

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