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September 30, 2005 - Austin Chronicle (TX)

Meddling Federal Lawmakers Share Blame In Senseless Medi-Pot Death

By Jordan Smith

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The mother of a quadriplegic man who died last year while in the custody of the Washington, D.C., Department of Corrections filed suit on Sept. 20 against individuals working for the jail and a local hospital for failing to provide adequate medical care in violation of federal laws -- including the Eighth Amendment's ban on cruel and unusual punishment.

Still, medi-pot advocates argue that there's at least one party -- the U.S. Congress -- notably absent from the lawsuit, even though federal lawmakers share equal responsibility for 27-year-old Jonathan Magbie's death.

Indeed, if Congress hadn't meddled with the will of D.C. voters by threatening to withhold money from the city's budget (which is supported entirely by federal appropriation) as a result of voters' attempt to enact a medi-pot law, Magbie might still be alive today.

Magbie, paralyzed from the neck down after a car wreck when he was 4 years old, died on Sept. 24, 2004, four days into a 10-day sentence for simple possession of a single marijuana cigarette; it was his first criminal offense.

Although it was within D.C. Superior Court Judge Judith Retchin's discretion to sentence Magbie to probation only, she imposed the 10-day sentence in response to Magbie's assertion that he would probably continue to use marijuana because the herb made him "feel good," and helped ease painful symptoms of his paralysis and associated medical conditions, The Washington Post reported last year.

"As long as [smoking marijuana is] against the law," Retchin reportedly replied, "you're not permitted to do it, Mr. Magbie." Retchin's 10-day punishment turned into a death sentence for Magbie, who was incapable of moving without the aid of a motorized, chin-operated wheelchair and required a tracheotomy tube, pulmonary pacemaker, and, at night, a ventilator in order to breathe.

Additionally, Magbie was at a high risk for contracting pneumonia and had a history of osteomyelitis, a kind of bone infection -- among other medical problems with which his jailers would have to contend - -- needs that critics say Retchin should have known the District jail could not meet.

During the four days he was in jail, Magbie's health quickly deteriorated, and he was transferred multiple times between the Correctional Treatment Facility (run by the often-criticized private prison operator Corrections Corporation of America) at the D.C. Central Detention Facility and the Greater Southeast Community Hospital.

He was having a hard time taking in enough oxygen, he contracted pneumonia, and was nearly unable to eat, according to the lawsuit filed last week by his mother, Mary Scott. And since Magbie had difficulty speaking above a whisper, he was forced to move his wheelchair around in order to get the attention of his incarcerators. The movement apparently irritated the jailers, reported the Post.

On Sept. 23, they locked him inside an infirmary cell, without access to any kind of panic button, and did not check on him until the next morning, according to the lawsuit.

Magbie died at 6:40pm on Sept. 24. Scott is seeking more than $100 million in damages for the civil rights violations that she alleges caused her son's death.

While Judge Retchin was cleared of any misconduct for her decision to send Magbie to jail, medi-pot advocates say federal lawmakers should not get a similar pass.

Back in 1998, District voters overwhelmingly approved a medi-pot initiative, with nearly 70% of voters in favor of a measure that would have protected patients like Magbie from criminal prosecution.

Before the ballots could be counted, however, then-U.S. Rep. Bob Barr, R-Ga., added an amendment to the district appropriations bill to strip city funding if officials attempted to "enact or carry out" any local initiative to legalize or reduce the criminal penalties for "possession, use, or distribution" of pot (or any other illegal drug).

A federal district judge tossed the so- called Barr Amendment a year later, ruling it was unconstitutional, but the measure was reinstated by the federal appeals court in 2002, which to date has made it impossible for district residents to protect seriously ill marijuana users like Magbie.

"Because Congress intervened to block the democratic rights of District voters, Jonathan Magbie went to jail and died for simply trying to ease his pain," said Aaron Houston, director of government relations for the D.C.-based Marijuana Policy Project. "Magbie's agonizing death was completely unnecessary."

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