Pubdate: Fri, 04 Nov 2005
Source: Washington City Paper (DC)
Copyright: 2005 Washington Free Weekly Inc.
Contact:  http://www.washingtoncitypaper.com/
Details: http://www.mapinc.org/media/489
Author: Ryan Grim
Bookmark: http://www.mapinc.org/people/Jonathan+Magbie
Bookmark: http://www.mapinc.org/i59.htm (Initiative 59 (DC))

CONGRESSIONAL MALPRACTICE

How Bob Barr & Co. Killed Jonathan Magbie

Thirteen months ago, Superior Court Judge Judith Retchin sentenced
Jonathan Magbie, a 27-year-old quadriplegic, to a 10-day D.C. jail
sentence for marijuana possession, assuring attorneys she had checked
with the jail and that it could handle someone in his condition.

By the fourth day of Magbie's sentence, he was locked in a cell with
no ability to communicate or call for help. His breathing tube had
been improperly placed; his weight had plummeted since his arrival;
his apparent pneumonia had gone untreated.

That night, Sept. 24, 2004, he was taken to Greater Southeast
Community Hospital, where he died.

Retchin, an investigation has since determined, had not told the jail
that Magbie was a quadriplegic or that he needed a respirator to
assist his breathing.

Nevertheless, Retchin has not been sanctioned in any way. In fact, she
was recently reappointed to the criminal docket. So far, no wrists
have been slapped at the jail or at Greater Southeast Community
Hospital, either, though all three parties have been thoroughly
dragged across the media's coals, mostly by Washington Post op-ed
columnist Colbert King.

Despite the spotlight that shines on this tragedy, one connection has
so far gone unnoticed--the U.S. Congress set the stage for the entire
tragedy to unfold by means of a proclamation a couple of dozen words
long: "The Legalization of Marijuana for Medical Treatment Initiative
of 1998, also known as Initiative 59, approved by the electors of the
District of Columbia on November 3, 1998, shall not take effect."
Those words are attached to the city's annual federal allocation every
year, toward the end of a long list of provisos on payments to the
District, not far from restrictions on needle exchange, abortion, and
promoting full congressional representation. When the U.S. Senate sent
that language to conference committee Oct. 18, it all but guaranteed
the ban will yet again survive at least another year.

When Magbie was 4 years old, he was struck by a car passing a stopped
bus. Since then, he was unable to use either his arms or his legs. But
immobility is not the only consequence of quadriplegia. Because of
damage to nerves that control the diaphragm, along with extremely
limited control of the body below the neck, breathing becomes
difficult; hence Magbie's respirator. And with the interruption of the
body's normal nerve control, quadriplegics commonly suffer from muscle
spasms--think of the worst charley horse you've ever had, one that
threatens to strike at any time, in any situation.

Not only are the spasms frequent and extremely painful, but they can
be so severe that they literally buck patients out of their
wheelchairs.

Magbie's mother, Mitchellville, Md., resident Mary Scott, is not a
crusader for drug-policy reforms.

She says she hasn't given much thought to the legal issues surrounding
the medical-marijuana debate but rather is focusing her ire on the
negligence that allowed her son to die: She is now suing the city, the
jail, and Greater Southeast Community Hospital. "Jonathan's needs were
extensive," she says. "If they're going to take custody of people,
they should be treated humanely. Jonathan was not."

One of Magbie's needs was relief from his intense spasms.

The Valium he was prescribed, says Scott, wasn't enough, and so he
used marijuana to relieve them. Scott says that she was aware of
Magbie's marijuana use and that if it had been legal for him to obtain
a prescription from a doctor for medical marijuana, she is certain he
would have done so.

There is some question as to why Retchin chose to sentence Magbie, a
first-time offender, to jail instead of to probation.

According to King's analysis, she did so largely because a loaded gun
was found in the car he was riding in when he was arrested.

Before the sentencing, she told Magbie it was "just unacceptable to be
riding around in a car with a loaded gun in this city," even though
someone else in the car claimed responsibility for the gun. But
Retchin also made clear that she based her stiff sentence on Magbie's
refusal to swear off marijuana. "But Mr. Magbie," she lectured while
sentencing him, according to a transcript, "this [pre-sentence] report
tells me that...using marijuana makes you feel better.

The Pre-sentence Report writer believes you will not stop using
marijuana and you don't believe there's anything wrong with it. As
long as it's against the law, you're not permitted to do it Mr.
Magbie." (Through a spokesperson, Retchin declined to comment on the
Magbie case.)

"Jonathan was very candid with the court reporter....That's what was
picked up by the judge," says Magbie's attorney, Boniface Cobbina.
"The judge based [the sentence] on future conduct." Documents also
show that Cobbina raised the issue of the legitimacy of medical
marijuana with Retchin prior to sentencing, but it didn't matter;
Magbie was sentenced to 10 days regardless.

Dr. Gregory T. Carter, who does research on rehabilitative medicine at
the University of Washington in Seattle, has published several
medical-journal articles on the use of marijuana to treat the effects
of nerve and muscle diseases; he has treated many patients who use
marijuana to control pain and spasms. "Cannabinoids"--the active
ingredients in marijuana--have an analgesic effect, says Carter,
distinct from that of opiates such as morphine. "The
cannabinoids...don't suppress breathing--and so in that regard are
considerably safer than opiates," he says. "There's never been a
reported death or overdose from cannabinoids."

Carter's published research, he says, shows that cannabinoids are
better tolerated and more effective at relieving pain and spasms
associated with some disorders of the peripheral nerves.

In his experience, many spinal-cord patients get better relief from
cannabinoids than from opiates, particularly with respect to muscle
spasms. And marijuana, he says, is safer than the Valium that Magbie
was prescribed. "Using cannabis for spasticity is not really
questioned anymore," Carter says.

Now that cannabinoids have demonstrated their medical efficacy, the
pharmaceutical industry is figuring out how to make and sell them
legally. The British firm GW Pharmaceuticals has recently been
approved to market Sativex--a spray derived from marijuana extracts--to
multiple-sclerosis patients in Canada, following extensive clinical
trials demonstrating its ability to relieve neuropathic pain and
spasticity. A former White House deputy drug czar is now pressing for
approval of the drug in the United States, citing its medical benefits.

But District residents shouldn't have to wait for its
approval.

In 1998, a coalition of D.C. HIV/AIDS activists--marijuana is known to
alleviate nausea and increase appetite, assisting in the treatment of
the disease--successfully petitioned to place a medical-marijuana
question on the citywide ballot.

That October, Congress passed a spending-bill rider attached by Bob
Barr (R-Ga.) that prevented the city from processing the
medical-marijuana election.

Since ballots had already been printed, the election went ahead as
planned.

The votes were counted only after a federal judge ordered the city to
do so nearly a year later, following an American Civil Liberties Union
lawsuit. The initiative had passed with 69 percent support.

Two months after the vote count was released, Congress passed another
version of the rider--now known as the Barr Amendment--saying that the
District couldn't spend money to "enact or carry out" any laws that
reduced penalties for marijuana.

For Barr, it was all about the children. "Marijuana remains illegal
under federal law, and it would send a terrible message to America's
young people to allow those laws to be openly flouted in the same city
where they were passed," he told the Post at the time. Barr, traveling
abroad, could not be reached for comment on the Magbie case.

Scott says that she had been vaguely aware that the District had
attempted to pass a medical-marijuana law.

Since 1998, the Barr Amendment has been attached to all congressional
payments to the District. It has survived one veto attempt, by Bill
Clinton in 1999, and a 2002 court challenge.

The House version sailed through this past June, and the Senate
version passed by voice vote two weeks ago. It's highly unlikely any
necks will stick out in conference committee to prevent it from
reaching the White House. Rep. Ron Paul (R-Texas), an outspoken
opponent of the amendment, says he sees little chance of stopping the
bill. "I wish they had a little more courage," he says of his colleagues.

The guilt of Congress, of course, doesn't excuse or forgive the
actions of the D.C. Jail, Greater Southeast Community Hospital, or
Retchin. That's the attitude of D.C. Congressional Delegate Eleanor
Holmes Norton: "[T]he inexcusable and near-criminal neglect by
several parties who failed to use existing law to save Jonathan
Magbie's life is the proximate cause of his death," she said in a
statement. However, she said, "[c]ertainly if he had had a medical
prescription for a marijuana cigarette, he would not have been jailed
if the referendum had been in place, but otherwise he could have been
jailed like anyone else."

On the final day of Magbie's life, his mother learned that doctors had
not given him a respirator. She rushed to bring him one, but by that
time he had been taken to Greater Southeast, his final destination.
"If they're going to assume responsibility for their needs, they have
to deal with those needs," Scott says.