Medical marijuana up in smoke.
How government undermines its constituents.

November 01, 2005 - As if the U.S. “war on drugs” was not absurd enough, a lawsuit filed in September has now proclaimed its first marijuana-related casualty.

Jonathan Magbie, a quadriplegic, was sentenced in 2004 to a 10-day jail sentence in Washington, DC for possession of one joint. He died four days into his sentence.

What makes his death even more horrific is that Magbie was arrested contrary to the will of DC voters. In 1998, 70 percent of voters approved a medical marijuana law, similar to the one here in Oregon. It never took effect, however, because Rep. Bob Barr (of the “get government out of our lives” Republican Party) legislatively killed the initiative on the federal level. He tacked on an amendment to an appropriations bill that would have denied the city any money at all for the year if local officials attempted to “enact or carry out” any democratically approved initiative that would reduce criminal penalties for possession of any kind of drug.

DC caved to keep its city running. Although the amendment was found to be unconstitutional the next year, a federal appeals court reinstated it in 2002, preventing people in wheelchairs from legally smoking pot.

At his hearing, Washington DC Superior Court Judge Judith Retchin could have given Magbie probation, since it was his first criminal offense. But after the judge asked whether Magbie would continue to smoke marijuana in the future and he replied that he would, she sentenced him to 10 days in jail.

While in custody, Magbie, who was paralyzed in a car wreck when he was four, saw his health rapidly deteriorate. He required a tracheotomy tube, a pulmonary pacemaker, and a ventilator at night to breathe in his sleep. Doctors at the Department of Corrections did not have the equipment to sustain his health, and despite Judge Retchin’s knowledge of this, she sentenced him and Magbie died four days later on Sept. 24, 2004.

Two weeks later, U.S. Army veteran Steven Tuck was lying in a Canadian hospital bed. He fled to Canada after his plants were raided in California by the Drug Enforcement Agency. Tuck smoked marijuana to alleviate chronic pain from a 1987 parachuting accident.

Canadian authorities arrested Tuck on his gurney, drove him to the border, and delivered him to U.S. agents, and he then spent five days in jail — all with a catheter still attached to his penis. He was offered no medical treatment during his stay in the hospital, and his lawyer, Doug Hiatt, said, “This is totally inhumane. He’s been tortured for days for no reason.”

Extradition for drug use is becoming a common phenomenon, as the “war on drugs” goes international. On July 29 DEA agents in Vancouver, BC, arrested Marc Emery for selling pot seeds to U.S. citizens on the internet. The U.S., which has engineered prison time for Emery while they try to extradite him to America, wants to charge him in U.S. courts for activities that took place in Canada, and give him a life sentence for a crime that does not warrant jail time in Emery’s home country.

How much further will this madness go? According to figures released by the FBI, there were 771,605 arrests for marijuana in 2004. Approximately 686,000 of these arrests were for marijuana possession, not distribution. All violent crimes combined totaled 590,528 arrests in the same year.

Our prisons are bursting with potheads, while violent criminals are set free to make room for more. Are laws that ban marijuana possession really making us safer?

“The Emperor Has No Clothes,” by Jack Herer, the most comprehensive study of marijuana in existence, shows marijuana has been used medically for thousands of years. The recent criminalization and anti-drug rhetoric contradict all known evidence about marijuana. Some FBI agents who routinely give lectures on the dangers of marijuana have never heard of Herer’s book. Dedicating themselves to arresting a marijuana user every 41 seconds, their manpower to track and detect potential terrorism is significantly reduced.

It is time to concede the “war on drugs” and let the drugs win. It is not working; it is a constant destabilization to our society. The era of marijuana prohibition, only 68 years old, needs to end. As Oregon doctor Fred Oerther says, “More Americans die in just one day in prisons, penitentiaries, jails, and stockades than have ever died from marijuana throughout history. Who are they protecting? From what?”

They certainly did not protect Jonathan Magbie.

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A Tragedy in the Capital

By David Borden October 2004

The attitude that led a judge to send a helpless, wheelchair-bound young man, who had hurt no one, to jail, is a barbaric one that our society desperately needs to leave behind.

The District of Columbia saw a tragedy last week. Jonathan Magbie, a 27-year-old quadriplegic medical marijuana patient, died while under the care of the D.C. court and jail. Magbie had been arrested for marijuana possession, and Judge Judith Retchin sentenced him to 10 days in jail, despite recommendations from officials against it. Her reason? There was a loaded gun in the car with him.

But Magbie didn't use the gun on anyone. And now I've learned it wasn't even his.

Things went haywire immediately after Magbie entered custody. He wound up getting sent back and forth between the jail and the hospital. His mother was not allowed to bring him his ventilator in jail, for two days. By the time the jail finally agreed to it, it was too late.

I don't believe that any of the officials involved in this debacle wanted what happened to happen. Some combination of incompetence and/or overloading of the system and/or poorly crafted regulations or procedures all combined to end Jonathan Magbie's life. But that doesn't mean there's no one to blame.

Surely Judge Retchin shares the blame. According to the Washington Post article, she is known for harsh sentences. In a nation with two million prisoners, whose incarceration rate has been criticized by prominent human rights organizations, such an impulse is part of the problem. The attitude that drove her to send a helpless, wheelchair-bound young man, who had hurt no one, to jail, is a barbaric one that our society desperately needs to leave behind. And knowing how dangerous the jails can be, even for the healthy and strong, it was especially reckless. If she didn't understand that, it is to her discredit.

Others are to blame too. Why did the hospital send Magbie back to the jail and refuse to take him back? Where did the miscommunications take place in the court and jail? The more basic truth, though, is that gulags breed carelessness and error.

It is too late to save Jonathan Magbie – the decision-makers who needed to do that didn't try hard enough. But this sad episode must not be allowed to go gently into the night. Magbie and his family deserve a full accounting, and a reflection on the sad state of criminal justice in this country is long overdue. Let it start here.

David Borden is executive director of DRCnet.

How (and Why) Did Jonathan Magbie Die?

By Colbert I. King
Saturday, October 30, 2004;

With important national and local elections on Tuesday, and with a city in turmoil over baseball stadium financing, why return for a fourth consecutive week to the case of Jonathan Magbie, the 27-year-old quadriplegic who was sentenced by Superior Court Judge Judith Retchin to 10 days in the D.C. jail for simple possession of marijuana? After all, Magbie's dead and buried. Why keep his story alive?

Maybe it's because Jonathan Magbie didn't die the way so many other men of his age and race meet death in the nation's capital: by being gunned down or stabbed in the streets. He didn't lose his life in a house fire or an automobile accident, although it was a car crash at age 4 that left Magbie paralyzed from the neck down, unable to breathe on his own sometimes, and dependent on others for the rest of his life.

Story continues here:

Johnathan Magbie's Last Hours

"Another inmate named Jason Foster and I were cleaning the floor around 11 or 11:30 at night when we noticed Jonathan was in his cell, and he was sweating. He could barely talk," said Darryl Carter in a phone call from the Youngstown, Ohio, jail where he is now assigned. Carter was describing what he saw in a D.C. jail annex called the Correctional Treatment Facility ( CTF ) on Sept. 23 -- Jonathan Magbie's last night on Earth.

Magbie is the 27-year-old quadriplegic who was sentenced to 10 days in the D.C. jail on Sept. 20 for simple possession of marijuana. Magbie used a ventilator at night to sleep but was without it for five consecutive days. Magbie died on Sept. 24 while in the city's custody.

Carter, a convicted felon, said he made sure Magbie got some water, then went to the nurse on duty, named "Binka," and told him that Magbie needed some help.

"But Binka said, 'He's okay,' and never went to see him," Carter said. A little later, Carter said, "Jonathan was making some noise with his wheelchair, banging it into the door of his cell." An officer named Singly wanted to lock Jonathan's cell door, but I told her, 'Don't do that because he can't push the button if he needs help.' " The officer locked the door anyway, Carter said, and he didn't see her check on Magbie anymore.

Carter said he saw Magbie in the hallway the next morning. "Jonathan was saying, 'You hear them calling me?'" Carter said. "I told him, 'Nobody's calling you, Jonathan,' but Jonathan keep saying someone was calling him,"Carter said. (In a second phone conversation on Wednesday evening, Carter described Magbie's lips on the morning of Sept. 24 as "dry and whitish" and said he was stuttering.) Carter said he was unable to stay around because he was taken from the CTF for a scheduled court appearance. Friday morning, Sept. 24, was the last time he saw Magbie alive.

At my request, the D.C. Corrections Department arranged for me to visit the Correctional Treatment Facility on Thursday morning. Quite a reception party was on hand.

Assembled in the administrator's office were Warden Fred Figueroa; Walter Fulton, the CTF's program manager and public information officer; Lorella Willis, the Corrections Department's health services administrator; Patricia Wheeler, the Corrections Department's communications director; and Jeremy Wiley, director of government relations for Corrections Corp. of America, the private, for-profit company based in Nashville that operates the CTF under a Corrections Department contract.

The CTF is no longer the drug and substance abuse treatment facility that I visited years ago. Today it's a detention annex that houses the D.C. jail's overflow of inmates. Currently 1,186 male and female inmates are imprisoned in the medium-security facility on various felony and misdemeanor charges. Some are pretrial inmates; a few are under the federal witness protection program; others are awaiting transfer to a federal Bureau of Prisons facility. The CTF also has an infirmary. It was into this world that Superior Court Judge Judith Retchin sent the totally dependent Jonathan Magbie.

I asked to see where he was housed. Led by the warden, our party of six went to the infirmary, a 37-cell facility with three dormitories and a cell set aside for the suicidal.

It was clear why Darryl Carter said he warned against locking the door to Magbie's cell. Although the room was equipped with an emergency button, there was no way an inmate in Magbie's condition -- a wheelchair user with upper and lower body paralyzed -- could reach it. Karen Yates, the officer on duty during the tour, agreed. She said there were written instructions to not lock Magbie's door, and she left it open during her tour of duty.

Yates volunteered that she recalled seeing Magbie on the Friday morning before he was taken by ambulance to Greater Southeast Community Hospital, where he later died. Asked about Magbie's condition at the time, Yates, with the party of six looking on, said he was fine. She remembered hearing Magbie say, "They're calling me" and "my sister's coming to get me" and "I'm telling you, I'm leaving here." How and why he began experiencing breathing problems on the morning of Sept. 24 -- as reported by the Corrections Department -- Yates could not say. In response to my question about his behavior, Yates said she was unqualified to make medical judgments. She nonetheless maintained that in her view, Magbie was "fine" on the morning of the day that he died.

But was he?

Could it be that the breathing difficulty inmate Carter observed was a sign that Magbie was suffering from hypoxia, or lack of oxygen, and maybe hypercarbia, which is an excess of carbon dioxide? With his breathing diminished, Magbie's mental capacity could have been negatively affected, hence the things that Carter and officer Yates heard him say on Sept. 24. At least that's the thought of one anesthesiologist who has been following this case in the media.

Clearly there were visual signs of Magbie's breathing difficulty; this coupled with the condition of his lips, which, while not blue, were "whitish," as described by Carter, may have suggested cyanosis, or a lack of oxygen in his blood.

Is it possible that without a ventilator to help him breathe when he was asleep, Magbie was becoming fatigued and beginning to decompensate with regard to his ability to take in oxygen and get rid of carbon dioxide? If so, that kind of condition, according to the medical expert, can become a vicious cycle from which recovery is unlikely even with medical help. The carbon dioxide builds up and the lack of oxygen leads to a mentally dulled person who then breathes less, which leads to more carbon dioxide and less oxygen. The heart tries to overcome things, but it eventually starts to fail -- a vicious cycle and a downward spiral toward death.

The Corrections Department said it gave Magbie nasal oxygen as prescribed by physicians at Greater Southeast Community Hospital, where he was sent on the night of Sept. 20 when he began to have breathing difficulties and first told them he used a ventilator at night. Wrote another physician who did not treat Magbie:

"Nasal oxygen for a quadriplegic is an absurd recommendation. You can blow all the oxygen in the world up someone's nose but, if they can't move their chest adequately to breathe the oxygen in, it will be futile. Mr. Magbie almost certainly died from lack of oxygen, so nothing of note is likely to show up in any autopsy report." A vicious cycle and downward spiral toward death.

Where do things stand?

Yesterday Corrections Department officials identified the nurse and the officer cited by Carter as medical nurse Alexander Ebiringa and correctional officer Patricia Singley. I informed Corrections Department spokesman Bill Meeks about Carter's allegations and requested an opportunity to interview the nurse and officer. I received this e-mail:

"The Department of Corrections is very emphatic that the cell where inmate Jonathan Magbie was housed was not locked at any time. The warden has interviewed at least six of the correctional and medical staff that was on duty during that period. All staff members interviewed emphatically denied and have submitted written statements to the fact that Magbie's cell was never locked on the evening of Sept. 23, 2004, and the morning of Sept. 24 or at any time."

The D.C. Health Department's Philippa Mezile said yesterday that the investigation of Magbie's death, completed Oct. 22, is still under review in the department.

Beverly Fields, chief of staff to the D.C. chief medical examiner, said yesterday that Magbie's death was due to "acute respiratory failure following dislodgement of tracheotomy tube placed for treatment of respiratory insufficiency due to remote upper cervical spinal cord injury with quadriplegia due to blunt impact trauma. The manner of death was accidental."

A physician who's had an upsetting experience with the Superior Court wrote to me:

"Anyone at all familiar with the care of quadriplegics knows that sentencing Mr. Magbie to 10 days in jail was a probable death sentence. In settings where medical issues are raised [Judge Retchin's office was advised of the possible adverse medical consequences of her sentencing of Magbie], the Court always has an obligation to act to preserve life and health. While the Court will undoubtedly almost always object to having Court decisions questioned or objected to by those outside the purview of the Court, it is the height of arrogance, of which I believe there is an abundant supply in the Superior Court, to assume that judicial decisions in arenas with which the Court is supremely incompetent are, nonetheless, infallible."

So I called Judge Retchin's chambers and spoke with her yesterday. The judge said she had consulted with the court's ethics counselor and was advised that the code of judicial ethics prevented her from speaking about the Magbie case. However, she did say on the record,

"Everyone on my end thinks his death was terribly tragic" and an outcome"that no one intended." Judge Retchin, I should note, is held in high regard by mutual associates.

Where to go from here? As one reader wrote, Magbie's death should not be regarded by the court and public as simply an aberration for which there is nothing in need of fixing. Jonathan Magbie was more victim than perpetrator. If the court and Corrections Department staff involved in this reprehensible tragedy fail to undertake a substantial revaluation of their approach to people at significant disadvantage, and no one is held accountable, then Jonathan Magbie's death will have been in vain.

Was it?

And then this. When sentencing Magbie on Sept. 20, Judge Retchin said she had assurances that the jail could accommodate Magbie's needs. But wait a minute. In response to my request, the D.C. Superior Court sent me at 4:09 p.m. yesterday a copy of a transcript of a July 20 bench conference that Judge Retchin had with Magbie's attorney, Boniface Cobbina, and Charles Stimson, assistant U.S. attorney. Judge Retchin asked Stimson why the government was offering Magbie a guilty plea to a misdemeanor and was dismissing all other counts of his indictment.

Stimson spelled out the government's reasons, and then said this to Judge Retchin:

"So, with all those things in mind, that's why we did what we did, and I think it's a fair offer, and I think both sides got something. I would also say, talking to the jail, that they can't accommodate Mr. Magbie because when he was arrested, they actually had to take him in an ambulance to the hospital to be catheterized because he gets catheterized every four or six hours sometimes. So, you know, these were all part of our considerations."

That was three months before Judge Retchin sent Magbie to jail. Oh, my goodness.


Last week I reported that the D.C. medical examiner declared Magbie's death an accident and said it was caused by "acute respiratory failure following dislodgement of tracheotomy tube placed for treatment of respiratory insufficiency."

Yesterday I asked Beverly Fields, chief of staff to the chief medical examiner, where and when the dislodgement occurred.

"We are only authorized to release the cause and manner of death," she said.

The D.C. Corrections Department had custody of Magbie from Sept. 20 until he died on Sept 24. Yesterday I asked the Corrections Department when on Sept 24 Magbie began having respiratory problems. The department's e-mail response, a clear brushoff, said that it is cooperating with the investigation of Magbie's death and that it will give information to investigative agencies that will determine the facts in the case.

The D.C. Department of Health investigated Magbie's death but has not released its report. Yesterday I asked the department if the "accidental" dislodging of the tracheotomy tube occurred at the D.C. jail facility, in the ambulance or at Greater Southeast Community Hospital, where Magbie died. Briant Coleman, the department's public information officer, was authorized to say, "The incident is currently being reviewed."

Yesterday, I asked the hospital whether the dislodging of Magbie's tracheotomy tube occurred at that facility. Joan Phillips, chief executive officer of Greater Southeast Community Hospital said, "This is now a legal case. Our attorneys are handling it as such. I cannot comment at this time."

A younger
Jonathan Magbie

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