STATE OF NEW
JERSEY VS NJWEEDMAN.COM
CONSTITUTIONAL
CHALLENGE BRIEF
4/20/2011
2
SUPERIOR COURT OF
NEW JERSEY
LAW DIVISION,
BURLINGTON
COUNTY (CRIMINAL DIVISION)
INDICTMENT NO. 2010—08-0866-I
_________________________
CRIMINAL
ACTION
STATE OF NEW JERSEY, )
Plaintiff, ) Before the Honorable
Charles A. Delehey, J.S.C.
-v- )
EDWARD R. FORCHION, )
Defendant.
)
_________________________
__________________________________________________
BRIEF AND APPENDIX IN SUPPORT
OF PRETRIAL MOTIONS ON BEHALF
OF DEFENDANT EDWARD R. FORCHION
___________________________________________________
EDWARD R.
FORCHION, Pro Se
5453 Corteen
Place #1
Studio City, CA
91607
JOHN VINCENT
SAYKANIC,
ESQ., Pro
Bono
1135 Clifton
Avenue
Clifton, New
Jersey 07013
TEL: (973)
472-5863
FAX: (973)
614-0386
Edward R. Forchion, Pro Se
John Vincent Saykanic,
Esq., Pro Bono
On the Brief
TABLE OF CONTENTS
Page No.
PROCEDURAL HISTORY . . . . . . . . . . . . .
. . . . . . 1
STATEMENT OF FACTS . . . . . . . . . . . . .
. . . . . . 2
LEGAL ARGUMENT:
POINT I
THE INDICTMENT MUST BE DISMISSED
WITH
PREJUDICE SINCE THE
CATEGORIZATION OF
MARIJUANA AS A SCHEDULE I DRUG
IS
UNCONSTITUTIONAL AND VIOLATES
DUE
PROCESS AND EQUAL PROTECTION .
. . . . . . . . . . . 5
POINT
II
N.J.S.A. 2C:35-5A(1)
AND B.10(A)
ARE
UNCONSTITUTIONAL AS THEY VIOLATE
THE
DEFENDANT’S RIGHTS UNDER THE RELIGIOUS
FREEDOM
RESTORATION ACT AND THE FIRST
AMENDMENT
ESTABLISHMENT CLAUSE, AND
ARTICLE
1, PARAGRAPH 4 OF THE NEW JERSEY
CONSTITUTION;
SINCE PEYOTE IS A RECOGNIZED
RELIGIOUS
EXEMPTION ALONG WITH ANOTHER
SCHEDULE
I SUBSTANCE (AYAHUASCA TEA); THE
DEFENDANT,
A PRACTISING RASTAFARIAN,
MUST
BE AFFORDED AN EXEMPTION FOR HIS
RELIGIOUS
SACRAMENT GANJA (MARIJUANA) . . . . . . . 14
SUBPOINT I
THE DEFENDANT’S SACRAMENTAL USE
OF
CANNABIS
IS PROTECTED UNDER THE
RELIGIOUS
FREEDOM RESTORATION
ACT
(RFRA) . . . . . . . . . . . . . . . . . . 22
SUBPOINT
II
THE
STATE OF NEW JERSEY’S INTERFERENCE
WITH
THE DEFENDANT’S SACRAMENTAL USE OF
MARIJUANA
SUBSTANTIALLY BURDENS HIS
EXERCISE
OF RELIGIOUS FREEDOM . . . . . . . . 30
i
SUBPOINT III
THE STATE OF NEW JERSEY’S
ACTIONS
HAVE VIOLATED DEFENDANT’S FIRST
AMENDMENT
RIGHTS . . . . . . . . . . . . . . . 36
POINT
III
N.J.S.A. 2C:35-5A(1)
AND B.10(A)
ARE
UNCONSTITUTIONAL AS THEY VIOLATE
THE
EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH
AMENDMENT TO THE UNITED
STATES
CONSTITUTION SINCE PEYOTE (A
SCHEDULE
I SUBSTANCE) IS A RECOGNIZED
RELIGIOUS
EXEMPTION ALONG WITH ANOTHER
SCHEDULE
I SUBSTANCE (AYAHUASCA TEA); THE
DEFENDANT,
A PRACTISING RASTAFARIAN,
MUST
BE AFFORDED THE SAME PROTECTION . . . . . . .
43
POINT
IV
THE
MARIJUANA STATUTES ARE UNCONSTITUTIONAL
DUE
TO VAUGENESS, INDEFINITENESS AND OVER-
BREADTH;
THEY ALSO VIOLATE THE UNITED STATES
CONSTITUTION’S
PROHIBITION AGAINST BILL OF
ATTAINDERS;
AT THE VERY LEAST, DEFENDANT
SHOULD
BE ALLOWED TO PRESENT EXPERT
TESTIMONY
CONCERNING THIS ISSUE . . . . . . . . . . 48
POINT V
N.J.S.A.
2C:35-5A.(1) AND 2C:35-5B.
(10)(A) ARE UNCONSTITUTIONAL ON
THE
GROUNDS OF “MEDICAL NECESSITY”
OR THE
DEFENDANT IS EXEMPT FROM
PROSECUTION
DUE TO “MEDICAL NECESSITY”; THE
INDICTMENT MUST BE DISMISSED
WITH PREJUDICE . . . . 55
POINT
VI
THE
DEFENDANT SHOULD BE ALLOWED
TO
PRESENT EXPERT TESTIMONY ON
THE
ISSUES RAISED IN THIS BRIEF . . . . . . . . . . 59
ii
POINT VII
THE INDICTMENT SHOULD BE DISMISSED WITH
PREJUDICE IN THE INTEREST OF JUSTICE .
. . . . . . 62
POINT VIII
INTERNATIONAL LAW AND TREATIES
PROHIBIT THE INTERFERENCE WITH
DEFENDANT’S RELIGIOUS USE OF CANNABIS .
. . . . . . 70
CONCLUSION . . . . . . . . . . . . . . . . .
. . . . . . 82
APPENDIX:
Indictment (filed August 31, 2010) . . . . .
. . . . Da1-3
New Jersey State Police Investigation Report
(dated
April
10, 2010) . . . . . . . . . . . . . . . . . . Da4-7
Search Warrant (dated April 1, 2010) . . . .
. . . . . Da8
Certified Laboratory Report (dated May 11,
2010) . . . Da9
Motor Vehicle Summonses (dated April 1, 2010)
. . . Da10-11
California Medical Marijuana Card/Letter
(dated
October 6, 2009) . . . . . . . . . . . . . . . . . . Da12
Article “Federal agency recognizes pot for
Medical use” (dated March 27, 2011) . . . . . . . . Da13
State-by-state Medical Marijuana Summary
Chart with
laws, fee, possession limits, etc. (located at http://medicalmarijuana.procon.org/view.resource.php?resourceID=000881&print=true .
. . . . . . . . . . . . . Da14-31
NORML article dated March 19, 2002; “Special
Release 30 Years After Nixon’s Marijuana
Commission
Advocated Decriminalization,
Report Findings Are Still Valid Nixon Never
Read
His Own Report” . . . . . . . . . . . . . . . . Da32
Defendant Edward Forchion’s Camden County Pro
Se
Motion, Inter Alia, Dismissal of Indictment
Based
Upon Freedom Of Religion; dated June 23,
2000)
. . . . . . . . . . . . . . . . . . . . . . Da33-44
State
v. Hilkevich,
(App. Div. Docket No.
A-3632-00T3,
decided March 5,
2003) . . . . . . . . . . . . . Da45-56
Washington Post
article by Carrie Johnson, dated
October 20, 2009 -- “U.S. eases stance on medical
Marijuana” . . . . . . . . . . . . . . . . . . . Da57-59
iii
Federal Administrative Law Judge Francis L.
Young
Opinion In The Matter of: Marijuana
Rescheduling Petition Docket No. 86-22 (1988) . . . . . . . . . . . . . .
Da61-90
United States v. Edward Forchion
Opinion . . . . . Da91-97
Forchion v. Intensive Supervised Parole
Opinion,
240 F.Supp. 2d 302
(D.N.J. 2003) . . . . . . .
iv
PROCEDURAL HISTORY
On April 1, 2010, in Mount Holly Township, the defendant Edward
R. Forchion was arrested, charged and subsequently indicted for possession of a
controlled dangerous substance (marijuana) in a quantity of one ounce or more
but less than five pounds, contrary to N.J.S. 2C:35-5b(1) (third degree)
(Count One), and possession of a controlled dangerous substance (marijuana) in
a quantity of more than 50 grams, contrary to N.J.S. 2C:35-10a(3)
(fourth degree) (Count Two). (Da1-3).
Motor vehicle summonses were issued for failure to observe a
signal, driving while suspended, cracked windshield, and cds
in motor vehicle. (Da10-11).
A motion to suppress evidence was filed and, following an
evidentiary hearing, was denied on March 15, 2011.
1
STATEMENT
OF FACTS
At this stage of the proceedings, there has been no trial
testimony. The State’s recitation of
facts (as given at the suppression motion) is reflected in the police report of
New Jersey State Trooper Ken Rayhon. On April 1, 2010, Trooper Rayhon
was on patrol on State Highway 38 West in Mount Holly Township when he
approached the intersection at Savory Way “where multiple vehicle’s (sic) were
stopped in the right lane at a red light.” (Da5-6). Trooper Rayhon
observed a vehicle (driven by defendant” allegedly “drive forward into the
intersection crossing the painted white stop bar with all four tires.”
(Da6). This vehicle was a black Pontiac
Grand Am bearing NJ registration YVC47U. (Da6).
The vehicle was a rental car with the name Chanel Forchion on the rental
agreement. (Da6).
Trooper
Rayhon stopped the vehicle, identified himself, and
asked the defendant for his credentials.
The defendant allegedly started asking Trooper Rayhon
if he “could cut him a break.” (Da6).
The defendant stated “that he owed child support, and did not have a
valid license.” Id. Trooper Rayhon noticed “an additional motor vehicle violation,
cracked windshield (3-74).” Id.
2
While
speaking with defendant, Trooper Rayhon “detected the
odor of burnt marijuana emanating from within the vehicle.” Id. As Trooper Rayhon
“scanned the interior of the vehicle” he “observed a multi-colored smoking pipe
in plain view on the floor behind the driver’s seat.” Id.
Trooper
Rayhon asked defendant to hand him the pipe and the
defendant complied. Id. The
defendant was arrested “for drug paraphernalia, and the odor of burnt
marijuana.” Id. A search of
defendant yielded “approximately $2,000 in U.S. currency in his right front
pants pocket, but no contraband was found.” Id. The amount was found to be $2,059.00. (Da7).
A
DMV look up revealed that defendant’s New Jersey driver’s license was
suspended, he “had an active ATS warrant, and was a
N.J.W.P. for child support.” Id.
The
defendant refused a consent to search the vehicle. Id. The vehicle was towed and secured. Trooper Rayhon
advised defendant that he “was going to get a search warrant to search his
vehicle.” (Da7). At this time the
defendant purportedly stated that “there is a pound of weed in the trunk in a
duffle bag.” Id.
A
search warrant was obtained (Da8) and a search of
the
vehicle yielded “one large clear vacuum sealed plastic
3
bag
containing . . . suspected marijuana over 50/g.” Id. The substance was tested and found to be
marijuana in the amount of 454.7 grams, or just over one pound. (Da9).
The
defendant has been evaluated and approved by a medical doctor in California to
use marijuana, and has been given a California Medical Marijuana Card. As stated by Edward E. Alexander, M.D.
(California License A45272; Dea BA 1607881):
Edward Forchion has been evaluated under my
medical care and reports to me that using marijuana helps relieve his
symptoms. I have evaluated the risk and
benefits of cannabis use as a treatment pursuant to Health and Safety Code
Section 11362.5, otherwise known as Medical Use of Marijuana.
I approve of my patients use of Marijuana for
both medical and spiritual reasons. As a
Rastafarian he uses cannabis sativa as a sacrament, a food and a medicine I
will continue to monitor his condition and provide advice on his progress.
(Da12).
The defendant is a dual citizen of both
New Jersey and California. He is a legal
medical/marijuana patient in the State of California. He operates a medical
marijuana (dispensary) Temple in Hollywood California called the “Liberty Bell
Temple II” (5642 Hollywood Blvd., Hollywood CA 90028; www.libertybelltemple.com).
4
POINT I
THE INDICTMENT MUST BE
DISMISSED WITH
PREJUDICE SINCE THE
CATEGORIZATION OF
MARIJUANA AS A SCHEDULE I DRUG IS
UNCONSTITUTIONAL AND VIOLATES
DUE
PROCESS AND EQUAL PROTECTION
Title
24 defines and categorizes “Narcotic Drugs and Other Dangerous
Substances.” The drug categorization is
made by the State Commissioner of Health. (N.J.S. 24:21-2). Controlled substances are broken down into
five Schedules—Schedule I through Schedule V, with
Schedule I substances being considered to have the highest potential for abuse
with “no accepted medical use in treatment in the
Pursuant
to N.J.S. 24:21-5e(10), the commissioner has categorized marijuana as a
Schedule I controlled substance—one found to have the highest potential for
abuse and either no accepted medical use in treatment in the United States or
lacks accepted safety for use in treatment under medical supervision. Other Schedule I controlled substances
include: 1) Heroin (24:21-5d(11)); 2) Morphine methylbromide (24:21-5d(15)); 3) Morphine methylsulfonate (24:21-5d(16)); 4) Morphine-N-Oxide
(24:21-5d(17)); 5) 3,4-
methylenedioxy amphetamine (24:21-5e(1); 6)
Lysergic acid
5
diethylamide,
commonly referred to as “LSD” (24:21-5e(9)); 7) Mescaline (24:21-5e(11)); and
Peyote (24:21-5e(12)). Thus, the commissioner has placed marijuana in the same
category as heroin, morphine, and L.S.D.
N.J.S.
24:21-3 (Authority to control) specifically grants the commissioner the
authority to add “or delete or reschedule all substances enumerated in the
schedules in sections 5 through 8 of this act” and applies the following
criteria:
(1) Its actual or relative
potential for abuse;
(2) Scientific evidence of its
pharmacological effect, if known;
(3) State of current scientific
knowledge regarding the substance;
(4) Is history and current
pattern of abuse;
(5) The scope, duration, and
significance of abuse;
(6) What, if any, risk there is
to the public health;
(7) Its psychic or
physiological dependence liability; and
(8) whether
the substance is an immediate precursor of a substance already controlled under
this article.
N.J.S.
24:21-3d had provided:
d. The State Department of
Health shall update and republish the schedules in sections 5 though 8 on a
semiannual
basis for 2 years from the effective date of this act and thereafter on an
annual basis.
6
The
New Jersey State Legislature amended that provision in 2007 and it now reads:
d. The director shall update and
republish the schedules in sections 5 though 8.1 of P.L. 1970, c. 226, as
amended and supplemented (C. 24:21-5 through 24:21-8.1) periodically.
Recently,
the National Cancer Institute* has ruled that marijuana does in fact have
medical benefits, making it the first federal agency to do so. (See The Raw Story Article “Federal Agency recognizes pot for
medical use” by David Ferguson, dated March 27, 2011; Da13).
Defendant submits that the
categorization of marijuana as a Schedule I drug is unconstitutional and
violates substantive due process and equal protection. Many scientific studies (and a growing number
of states) have proven that marijuana does have an accepted medical use in
treatment and should not be a Schedule I drug.
As explained in defendant’s pro se motion dated May 12,
1999:
Marijuana has been scientifically
proven to have many legitimate, scientific medical uses. Most
______________________
* The National Cancer Institute
(NCI) is part of the National Institutes of Health (NIH), which is one of
eleven agencies that compose the Department of Health and Human Services
(HHS). The NCI, established under the
National Cancer Institute Act of 1937, is the Federal Government’s principal
agency for cancer research and training.
7
recently the
National Academy of Science [through its] Institute of Medicine released a
report March 18th, titled Marijuana and medicine. This report was commissioned by Drug Czar
General Barry McCafferty and the office of National
Drug Control Policy. [ONDCP]. The report described marijuana (1) as a
natural medicine used for at least 5,000 years by humans for varied medical
ailments. (2) It denies marijuana is physically addictive. (3) It describes
marijuana use as such – not abuse. In fact it notes that there has never, ever
been a
recorded case death associated with marijuana use. The report challenges the very classification
of marijuana as a schedule I drug. (Da
35).
Fifteen states (and District of Columbia) have legalized
marijuana for medical use: Alaska, Arizona, California, Colorado, the District
of Columbia, Hawaii, Maine, Michigan, Montana, Nevada, New Jersey, New Mexico,
Oregon, Rhode Island, and Vermont. (See Summary Chart with laws, fee, possession limits, etc.; annexed at Da14-31).
In 1972, the Shaffer Commission, named after former
Pennsylvania Governor William
Shaffer, challenged the Scheduling of marijuana as a Schedule I drug, along
with the appropriateness of prosecution individuals for using
it. President Nixon, after not even reading the
truthful report, suppressed it. (See NORML article dated March 19,
8
2002; “Special Release 30 Years
After Nixon’s Marijuana Commission Advocated Decriminalization, Report Findings
Are Still Valid Nixon Never Read His Own Report”; Da32).
The State of New Jersey has now recognized marijuana as a
medicine but, since Governor Christie has for political reasons blocked
implementation of the law, the State Health and Human Services Department has
failed to reclassify marijuana (in spite of the fact that marijuana is both
factually and scientifically not a schedule I drug). After New Jersey passed its medical marijuana
law on January 18, 2011, the defendant, a medical marijuana card carrying
person, brought his medical marijuana with him to New Jersey from California,
believing that he would have some legal protection. As can be seen in the ProCon.org Medical
Marijuana States and DC Summary Chart, as to whether New Jersey “Accepts other
states’ registry ID cards?” this is “Unknown.” (Da25).
In
addition to the failure of the State of New Jersey to reclassify marijuana from
a Schedule 1 drug, similarly, the federal government has failed to do so. In enacting the Controlled Substances Act
(CSA) in 1970, Congress specifically identified and defined a number of
substances as "controlled substances" subject to strict regulation
and
9
it
assigned substances to specific schedules.
Congress
took the precaution of setting up a commission to determine on which schedule,
if any, cannabis should be placed. After
an exhaustive study, this commission issued in March, 1972, its report
entitled; "The First Report of the National Commission on Marihuana and
Drug Abuse," subtitled; "Marihuana, a Signal of Misunderstanding." This study stands as the first and foremost
comprehensive scientific study ever done on the effect of cannabis on the
health and safety of the United States population. It recommended that simple possession of
cannabis be totally decriminalized and concluded that cannabis did not pose a
significant health and safety risk to the U.S. population. Despite these findings, President Nixon used
his prerogatives to place cannabis on CSA's Schedule 1 of controlled
substances, which are described in the CSA rules as being "extremely
dangerous." Recent documents
obtained through the Freedom of Information Act recount and document President
Nixon's incomplete understanding and his prejudices surrounding cannabis. These documents support already well-known
attitudes of Nixon about cannabis and its use among some of his chosen
enemies. Nixon had cannabis placed on
the Schedule 1 of controlled substances to punish
10
these
political enemies despite having in hand the Congressionally mandated study.
Since that time cannabis users have been punished with savage
severity unbecoming of a free nation, but totally in character with President
Nixon's vindictive tendencies. The
millions of arrests for simple possession of cannabis in the intervening years
and the percentage of cannabis arrests of all arrests for Schedule 1 substances
suggest the political nature of placing cannabis on Schedule 1 of the CSA and
calls into question the basic motivation of those charged with enforcing the
prohibition of Schedule 1 substances.
The scheduling of cannabis
stands in stark contrast to all other substances found on Schedule 1, on
Schedule 2, or on any other substance found on any other schedule of the CSA in
its comparative mild and benign qualities.
Cannabis is not only benign in its effects upon the user, it has
provable
and recognized medical qualities recognized by all but the DEA who continue to
promote their mantra that cannabis has no medical uses--since otherwise, it
could not be a controlled substance on CSA's Schedule 1.
While the United States
government has in the past impeded medical marijuana’s acceptance, in October
of 2009 the Obama Administration announced a shift in the
11
enforcement of
federal drug laws, stating that the administration would effectively end the
Bush Administration’s frequent raids on distributors of medical marijuana. See Washington
Post article by Carrie Johnson dated October 20, 2009 “U.S. eases stance on
medical marijuana”; at Da57-59 http://www.washingtonpost.com/wp-dyn/content/article/2009/10/19/AR20091010903638.html.
Federal
Administrative Law Judge Francis L. Young in In
The Matter of: Marijuana Rescheduling Petition Docket
No. 86-22 (1988) recommended that the DEA remove marijuana from Schedule
One, stating: “Marijuana is one of the safest therapeutically active substances
known to man.” http://www.druglibrary.org/olsen/medical/young/young.html
(Opinion at Da61-90). The Bush Administration, like the Nixon
Administration, refused.
Among the plethora of
misinformation about cannabis is the DEA's dire predictions
of what would happen if the prohibition on cannabis were to be lifted. These predictions should have been forever
put to rest by the experience of Alaska when these prohibitions were totally
absent for a period of many months, during such time none of the DEA's dire
predictions about the effects of lifting these laws took place. What is more likely, according to
12
many social scientists, is that the federally
imposed prohibition on cannabis has had the same effect-especially on the
youth-of creating a "forbidden fruit" syndrome, by which more people
use the substance than would normally be the case. This is borne out in the experience of The
Netherlands, which issued its own study on cannabis at the same time of the
1972 Congressional study. The
Netherlands allowed for a relatively permissive approach and saw cannabis use
among its young people drop markedly.
The United States government's
stubborn refusal to allow challenges to its severe restrictions on cannabis
(and its penchant for ignoring studies and evidence contradicting its general
prohibition of cannabis) call into question whether it does so simply to
perpetuate a lucrative bureaucracy built on the destruction of an otherwise
innocent class of citizens who, because of their felony convictions, are robbed
even of the legal means to remedy their oppression. This injustice is multiplied infinitely by
the denial of the Rastafarian and other churches' cannabis sacrament, a
sacrament that has been used religiously by man throughout recorded history.
For these reasons, the
indictment against Edward R. Forchion must be dismissed with prejudice.
13
POINT II
N.J.S.A. 2C:35-5A(1)
AND B.10(A)
ARE
UNCONSTITUTIONAL AS THEY VIOLATE
THE
DEFENDANT’S RIGHTS UNDER THE RELIGIOUS
FREEDOM
RESTORATION ACT AND THE FIRST
AMENDMENT
ESTABLISHMENT CLAUSE, AND
ARTICLE
1, PARAGRAPH 4 OF THE NEW JERSEY
CONSTITUTION;
SINCE PEYOTE IS A RECOGNIZED
RELIGIOUS
EXEMPTION ALONG WITH ANOTHER
SCHEDULE
I SUBSTANCE (AYAHUASCA TEA); THE
DEFENDANT, A PRACTISING RASTAFARIAN,
MUST
BE AFFORDED AN EXEMPTION FOR HIS
RELIGIOUS
SACRAMENT GANJA (MARIJUANA)
The First Amendment provides that
“Congress shall make
no law respecting an establishment of
religion, or prohibiting the free exercise thereof.” Article I, paragraph 3 of
the New Jersey Constitution provides: “No person shall be deprived of the
inestimable privilege of worshipping Almighty God in a manner agreeable to the
dictates of his own conscience ...” Article I, Paragraph 4 of the New Jersey
Constitution provides that “There shall be no establishment of one religious
sect in preference to another ...”
The
14
and no courts are bound to enforce
it." 16th American Jurisprudence 2nd edition, Sec 177,
late 2nd, Sec 256. "All laws which are repugnant to the
Constitution are null and void." Marbury v. Madison, 5 U.S. (2 Cranch)
137, 174, 176, (1803).
“Where rights secured by the Federal Constitution
are involved, there can be no rule-making or legislation which would abrogate
them.” See, Miranda v. Arizona, 384 U.S. 436, 491, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)
("An unconstitutional act is not a law; it confers no rights; it imposes
no duties; it affords no protection; it creates no office; it is in legal
contemplation, as inoperative as though it had never been passed"); Norton
vs. Shelby County, 118 U.S. 425, 442 (“Challengers asserting that a
statute
is unconstitutional based on a claim of vagueness ordinarily is analyzed in
light of the facts of each particular case; however, when First Amendment
freedoms are involved, statute may be challenged on the grounds that it is
facially invalid”); Luckei v. State of New
Mexico, 901 P.2d 205, 120 N.M 274 (N.M. 1995) (“Due Process requires
all laws which seek to regulate First Amendment activities must be sufficiently
definite and certain so as not to be
15
impermissibly vague”); Ellwest
Stero Theater v. Boner, 718 F.Supp.
1553 (M.D. Tenn. 1989).
The Establishment and Equal Protection
Clauses of the Constitution require state neutrality and prevent a state from
passing laws which prefer one religion over another. Olsen
v. Drug Enforcement Admin., 878 F.2d 1458, 1463 n. 5 (D.C.Cir. 1989); Walz v.
Tax Comm’n, 397 U.S. 664, 696, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)
(establishment requirement of neutrality “in its application requires an equal
protection mode of analysis”).
Our Christian/Jewish legislators have
chosen their Judeo/Christian faith as the genesis of our drug laws by allowing
the use of wine as a sacrament but prohibiting the use of “marijuana” as a
sacrament. The defendant is a practicing
Rastafarian. Rastafarians use marijuana
as both a sacrament in religion and as a medicine.
The
defendant is a practicing Rastafarian and marijuana—-known as ganja in the
religion--operates as a sacrament and is an integral part of the Rastafarian
religious ceremony. Prior to discussing
the religion of Rastafarianism a brief overview of the history of marijuana and
the marijuana laws is in order.
16
THE
HISTORY OF MARIJUANA AND THE MARIJUANA LAWS
Marijuana has been used by man (mostly men of color,which defendant is), for
over 5000 years as a 100% natural medicine. (Da33). Cannabis saliva L. was one of the first
plants to be used by man for fiber, food, medicine, and in social and religious
rituals. There were approximately 20
traditional medicinal uses of cannabis in Western medicine from the mid-19th
to early 20th century. In
1941, the United States Government ordered marijuana passed out of the National
Formulary and the United States Pharmacopeia. (Da 34).
Marijuana
was first regulated in the United States at the federal level by the Marijuana
Taxation Act of 1937 (MTA of 1937). The
MTA of 1937 “required anyone producing, distributing, or using marijuana for
medical purposes to register and pay a tax.” (Da33).
Although
the Act did not make medical use of marijuana illegal, from the years 1937
through 1939 the Federal Bureau of Narcotics, under Harry Anslinger,
prosecuted 3,000 doctors for “illegally” prescribing cannabis-derived
medications. In 1939, the American
Medical Association reached an agreement with Anslinger
and stopped prescribing marijuana. (Da34).
In 1942 marijuana was removed from the
17
United
States Pharmacopeia. (Da34).
The
MTA of 1937 remains one of the toughest Jim Crow still being enforced. It is no mistake that blacks are
disproportionately incarcerated.
Defendant submits that, while the government knows that marijuana is
safe, the marijuana laws are a major vehicle for the legalized enslavement of
citizens into the all-white controlled private and public prison industry. These marijuana laws, which enslave African-American
(minority) citizens, also enrich the white investors in the prison industry.
(Da34).
Today’s
inner cities have been transformed into war zones by these racist inspired
policies. Whenever a prohibition is
created, a black market will naturally appear in a capitalist culture. (Da35).
When
a similar thing happened in the white communities with the Prohibition era
(illegalizing alcohol), the black market element (organized crime) that
Prohibition created eventually led to the end of Prohibition. During the roaring 20’s, from Los Angeles to
New York, whites started shooting each other, with drive by shootings became
common. The only difference from then
and now is the color the
combatants. In 1933 the all-white Congress ended the “War
on
Alcohol” with the 21st Amendment. (Da36).
18
THE
RELIGION OF RASTAFARIANISM
As
stated above the defendant is a practicing Rastafarian. The Supreme Court has defined
"religion" broadly. See United States v. Seeger, 380 U.S.
163, 176 (1965) (religion, for the purposes of the Selective Service statute,
encompasses any "sincere and meaningful belief which occupies in the life
of its possessor a place parallel to that filled by the God of those admittedly
qualifying for the [religious] exemption"). Rastafarianism unquestionably is within this
definition.
In
considering the definition of "religion," the Tenth Circuit canvassed
a large number of lower court decisions to arrive at a list of attributes that
typically indicate religiosity, and Rastafarianism possesses all these
attributes. See United States v. Myers, 95 F.3d 1475,
1482-84 (10th Cir.
1996). First, religions often address
"fundamental questions about life, purpose, and death," id. at 1483, and Rastafarianism does so. Second, religious beliefs often are
"metaphysical" in that they "address a reality that transcends
the physical and immediately apparent world." Id. Rastafarian beliefs are metaphysical in just
this way. Third, religions
"prescribe a particular
19
manner of
acting, or a way of life that is 'moral' or 'ethical.'" Rastafarians are expected to adhere to this
type of conduct. Finally, Rastafarian
doctrine is also "comprehensive" in the manner defined by the Tenth
Circuit. See United States v. Myers, 95 F.3d
at 1483.
Moreover,
Rastafarianism possesses all but one of the verifiable "[a]ccoutrements of [r]eligion"
that the Tenth Circuit said "may indicate that a certain set of beliefs is
'religious.'" Meyers, 95 F. 3d at 1483. It has a ["f]ounder,
[p]rophet, or [t]eacher,"
"[i]mportant [w]ritings," "[g]athering
[p]laces," "[k]eepers of knowledge,"
"[c]eremonies and rituals," "[s]tructure or [o]rganization,"
"[h]olidays," "[d]iet
or [f]asting," and special "[a]ppearance and [c]lothing.” The sole "accoutrement" listed by
the Tenth Circuit that Rastafarianism does not display is an "attempt to
propagate their views and persuade others of their correctness." Meyers,
95 F.3d at 1384.
Rastafarianism
is a recognized religion by both the United Nations and United States.
(Da44). Rastafarianism first took root in
Jamaica in the nineteenth century, and is based on a combination of Old
Testament ideology and
20
East
African philosophy.
During the 1920’s, with the rise of Jamaican Nationalism and the
African-American leader Marcus Garvey, the religion gained adherents in the
Rastafarianism
proclaims the divinity of Haile Selassie,
the former Emperor of Ethiopia, and anticipates the eventual redemption of its
adherents from the “Babylon” of white oppression. Steele
v. Blackmun, 236 F.3d 130, 132 (3rd Cir. 2001). It is a religious group sufficiently stable
and distinctive to be identified as one of the existing religions in this
country. See J. Gordon Melton, Encyclopedia of American Religions,
870-71 (1991). Standard descriptions of
the religion emphasize the use of marijuana in cultic ceremonies designed to
bring the believer closer to the divinity and to enhance unity among believers. Marijuana--known as ganja in the
religion--operates as a sacrament with the power to raise the partakers above
the mundane and to enhance their spiritual
21
unity. Bauer,
84 F.3d at 1556. Marijuana
is utilized for “spiritual healing.”
SUBPOINT
I
THE
DEFENDANT’S SACRAMENTAL USE OF
CANNABIS IS PROTECTED UNDER THE
RELIGIOUS FREEDOM RESTORATION
ACT (RFRA)
By
depriving defendant (and all Rastafarians) of his ability to partake in and
possess his sacramental cannabis, the State of New Jersey has burdened
defendant’s exercise of his religion in a manner forbidden by the RFRA, Pub. L.
No. 103-141, 107 Stat. 1488 (1993), codified at 42 U.S.C. §§
2000bb-2000bb-4 (1994).
The statutory prohibition
established by § 2000bb-1(a) & (b) is judicially enforceable. See 42
U.S.C. § 2000bb-(c). Moreover the
Act applies to any "branch, department, agency, instrumentality, and
official (or other person acting under color of law) of the United
States," as well as to any" State, or . . . subdivision of a
State." City of Boerne v. Flores, 521 U.S.
507, 516 (1997).
The
United States Supreme Court case of Employment Div., Dep’t of Human Res. of
22
1993
(RFRA), which prohibited the government from substantially burdening a person’s
exercise of religion. In City
of Boerne v. Flores, 521 U.S. 507, 117 S.Ct.
2157, 138 L.Ed.2d 624 (1997), the Supreme Court struck down that
legislation, and Smith remains controlling law.
In People
of Guam v. Guerrero, 290 F.3d 1210 (9th Cir. 2002), the
Ninth Circuit ruled that the RFRA forbids prosecuting Rastafarians for using
marijuana within the federal realm, such as a United States territory or a national
park, thus upholding a portion of the RFRA.
The Court in Guerrero, however, ruled that the defendant could be
prosecuted for importing marijuana, since Rastafarianism does not require
importation of a controlled substance, which increases its availability.
The
distinction in Guerrero does not make sense since it is the equivalent
to saying that, while wine is a necessary sacrament for some Christians, the
persons administering the sacrament would have to grow their own grapes. If a Rastafarian is permitted to smoke ganja
on federal grounds as a constitutionally protected behavior, it is illogical to
prosecute the person who provides the ganja.
23
The
RFRA protects the religious use of marijuana by practicing Rastafarians,
just as the 1919 Volstead Act (Prohibition Act) protected the religious use of
alcohol in the Catholic Church. When
Neither the 1970 Controlled Substance
Act (21 U.S.C.321(p)(1)) nor N.J.S.A.
2C:35-5a(1) and b.10(a) provide for First
Amendment religious exemptions to drug laws.
Congress attempted to rectify this with the 1993 Religious Restoration
Act (“RFRA”) (42 U.S.C. §2000bb(a)), but
instead created an unconstitutionally “vague” situation.
Defendants
such as Forchion were led to believe “marijuana” was legal for religious
purposes. The RFRA protects the
religious use of marijuana by practicing Rastafarians, just
24
as the 1919 Volstead Act
(Prohibition) protected the religious use of alcohol in the Catholic Church.
In Employment Division v. Smith,
494
Church, ingested peyote for sacramental
purposes at a church ceremony. This led Smith’s employer to fire him.
burdened his First Amendment right, and the
Supreme Court allowed Oregon to enforce the anti-drug law against
Smith.
In response to Employment Division,
Congress enacted the RFRA. However, the
Court in City of Boerne v. P.F. Flores, 521
25
relying on an ordinance governing additions
and new construction in a historic district which included the church as a
contributing property. The Archbishop
brought a lawsuit challenging the permit denial under the RFRA, arguing that
his congregation had outgrown the existing structure. The Archbishop claimed that his ability to
act on his beliefs was substantially burdened by the denial of the proposed
addition.
The Supreme Court in Boerne, in
an opinion by Justice Anthony Kennedy, struck down RFRA as an unconstitutional
use of Congress’s enforcement powers.
However, the scope of Boerne was
limited in Gonzales v. O Centro Espirita Beneficente, Uniao do Vegetal,
546 U.S. 418 (2006), involving the Federal Government’s seizure of a
sacramental tea (ayahuasca), containing a Schedule I
substance, from a New Mexican branch of the Brazilian church Uniao do Vegetal
(UDV). The church sued and claimed that
the seizure was illegal, and sought to ensure future importation of tea for
religious use. The United States
District Court for New Mexico agreed and issued a preliminary injunction under
the RFRA. The Government appealed to the
Ten Circuit Court of Appeals, which affirmed.
26
The Supreme Court heard the case and
found that the Government had failed to meet its burden under the RFRA that
barring the substance served a compelling government interest. The Court also disagreed with the
government’s central argument that the uniform application of the Controlled
Substances Act (CDS) does not allow for exceptions for the substance in this
case, as Native Americans are given exceptions to use peyote, another Schedule
I substance. It should be noted that the
ruling is not binding on the states, as the Act was amended in 2003 to only
include the federal government and its entities, such as Puerto Rico and the
District of Columbia.
So both peyote (a Schedule I substance) and
sacramental tea (ayahuasca) (another Schedule I
substance) have been provided religious exemptions by the Supreme Court. Accordingly, ganja (marijuana) must be
afforded the same exemption to Rastafarians.
In People of Guam v. Guerrero,
290 F.3d 1210 (9th Cir. 2002), the Ninth Circuit ruled that
the RFRA forbids prosecuting Rastafarians for using marijuana within the federal
realm, such as a United States territory or a national park, thus upholding a
portion of the RFRA.
27
In Guerrero the defendant, a
Rastafarian arrested at the Guam airport with marijuana and seeds, was
charged with importing the drugs. The
Court ruled that a Rastafarian whose Jamaica-based religion regards marijuana
as a sacrament that brings believers closer to divinity could not be prosecuted
for merely possessing marijuana in the “federal realms.” The ruling applies to California, eight
other Western states, and the Pacific territories of Guam and
the Northern Mariana Islands. If it
became a nationwide standard, it would cover the federal enclaves of
Washington, D.C., Puerto Rico, and any other federal property. The Court, however, ruled that the defendant
could be prosecuted for importing marijuana, since “Rastafarianism does not
require importation of a controlled substance, which increases (its)
availability ...”
This distinction in Guerrero
does not make sense since it is the equivalent to saying that, while wine is a necessary
sacrament for some Christians and Jews, the persons administering the sacrament
would have to grow\their own grapes. If
a Rastafarian is permitted to smoke ganja on federal grounds as
constitutionally protected 1st
28
Amendment
behavior, it is illogical to prosecute the person who provides the ganja. See
also Church of Lukumi Babalu
Aye v. City of Hialeah, 508 U.S. 520 (1993) (Supreme Court held
unconstitutional an ordinance passed in Hialeah, Florida, that forbade the
“unnecessary[y] killing of “an animal in a public or private ritual or ceremony
for the primary purpose of food consumption.”)
The RFRA protects the religious use of
marijuana by practicing Rastafarians, just as the
1919 Volstead Act (Prohibition Act) protected the religious use of alcohol
in the Catholic Church. When New
Jersey revised its criminal code with the 1997 omnibus crime bill N.J.S.A.
2C:35-5a(1) and b.10(a), it failed to provide for a
religious exemption for marijuana. As a
Rastafarianism regards marijuana as a sacrament necessary to the practice of
the religion, the statutes are unconstitutional. Since to utilize the
sacrament of ganja/marijuana it is necessary to
import it, then any law which prohibits the importation and distribution (and
possession with intent to distribute) for this purpose is also
unconstitutional.
On January 18, 2010, the State of New
Jersey officially recognized marijuana’s medicinal value but
29
failed to reclassify marijuana from a Schedule
I drug. The new law clearly made a
secular medical “exemption” for the criminal drug statutes but failed to make a
religious exemption.
For the foregoing reasons and authorities
cited, the indictment against Edward Forchion must be dismissed with prejudice.
SUBPOINT
II
THE
STATE OF NEW JERSEY’S INTERFERENCE
WITH
THE DEFENDANT’S SACRAMENTAL USE OF
MARIJUANA
SUBSTANTIALLY BURDENS HIS
EXERCISE
OF RELIGIOUS FREEDOM
In
addition to being a violation under the RFRA, the State’s interference with the
defendant’s sacramental use of marijuana substantially burdens the defendant’s
exercise of religion. Compelling
a party to forego a religious practice imposes a substantial burden on that
party. See, e.g., Hobbie
v. Unemployment Appeals Comm'n, 480 U.S.
136, 140-41 (1987); Horen v. Commonwealth,
479 S.E.2d 533, 558-59 (Va. 1997). "There can be no more
direct burden on free exercise than absolute criminal prohibition."
Michael W. McConnel, Free Exercise Revisionism and
the Smith Decision, 57 U. Chi. L. Rev. 1109, 1125 n.80 (1990).
30
In the Rastafarian religion, no
substitute exists for cannabis; its ingestion or topical application is
necessary for a Rastafarian ceremony to occur.
Because cannabis is regarded as sacred, Rastafarian doctrine does not
permit the substitution of any other plants or materials as sacraments during
Rastafarian ceremonies, and does not permit the substitution of any other
practice for the ingestion or topical application of cannabis.
The sincerity with which the
defendant holds these beliefs cannot be questioned. Indeed, the government may not make
theological judgments about religious truth. See Seeger, supra,
380 U.S. at 184 (“In such an intensely personal area ... the claim of
the registrant that his belief is an essential part of a religious faith must
be given great weight"); see also id. at 185 (noting that "the 'truth' of a belief is not
open to question"); Africa v. Pennsylvania, 662 F.2d 1025,
1030 (3rd Cir.
1981) ("It is inappropriate for a reviewing court to attempt to assess the
truth or falsity of an announced article of faith. Judges are not oracles of
theological verity.")
Therefore, governmental
decision-makers must view
31
cannabis as
central and indispensable to the Rastafarian religious practice. If wine were added to schedule 1 with no
accommodation for religious use, it would be absolutely clear that the free
exercise of Catholicism and Judaism was being substantially burdened. The same is true of cannabis and the
Rastafarian religion.
Therefore,
prohibition of the Rastafarian religion's use of cannabis "substantially
burden[s]" the exercise of the Rastafarian religion, within the meaning of
RFRA, 42
U.S.C. § 2000bb-1(a). See
e.g. United States v. Boyll, 774 F.
Supp. 1333, 1341 (D.N.M. 1991) (“believers who worship at the Native
American Church cannot freely exercise their religious beliefs absent the use
of peyote.” ... “There is no dispute that [the] criminal prohibition of peyote
places a severe burden on the ability of [Defendant] to freely exercise [his]
religion.") (citations omitted); see also
United States v. Warner, 595 F.Supp.
595, 598 (D.N.D. 1984) ("[T]he government concedes that the use of peyote
is
central
to, and the cornerstone of, the religious practices
of
the NAC. Therefore, prosecution for the use of peyote in the bona fide
religious practices of the NAC would create a
32
burden on
the free exercise of the religion of NAC members.")
The
government does not have a compelling interest in criminalizing the use of
cannabis nor has it adopted the latest least restrictive means to secure its
interest. The government may
substantially burden a person's exercise of religion only if it demonstrates
that application of the burden to the person (1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." 42
U.S.C. § 2000-1 (b). "[T]he term 'demonstrates' means going forward
with evidence and persuasion...." 42 U.S.C.§
2000bb-2(3).
Thus, on all issues relating to
whether complete suppression of Rastafarians’ use of cannabis serves a
compelling governmental interest by the least restrictive means, the burden of
going forward and the burden of persuasion rest with the government. Moreover, the compelling-interest test under
RFRA is "the compelling interest test set forth in Sherbert
v. Verner, 374 U.S. 398 (1963) and Wisconsin
v. Yoder, 406 U.S. 205 (1972)...." 42 U.S.C. § 2000b(b)(I).
33
In Yoder, the Court made
it clear that the test, earlier set forth in Sherbert,
is not whether the government has a compelling interest in a general objective
(e.g., an educated citizenry, prevention of drug abuse), but whether it has a
compelling interest in substantially burdening the specific religious practice
of them particular individual or group at issue. The Court rejected "the State's broader
contention that its interest in its system of compulsory education is so
compelling that even the established religious practices of the Amish must give
way." Id. at 221. It stated that, "despite its admitted
validity in the generality of cases, we must searchingly examine the interests
that the State seeks to promote by its requirement for compulsory education to
age 16, and the impediment to those objectives that would flow from recognizing
the claimed Amish exemption." Id.
The
Court held that "it was incumbent on the
State to show with more particularity how its admittedly strong interest in
compulsory education would be adversely affected by granting an exemption to
the Amish." Id. at 236. The Court found that "Wisconsin's
interest in compelling the school
34
attendance of
Amish children to age 16 emerges as somewhat less substantial than requiring
such attendance for children generally.” Id. at
228-29.
Similarly here, it is necessary
to focus on the particular facts relating to Rastafarianism and its use of
cannabis. The government has only one
arguably compelling interest in controlling the use of cannabis in Rastafarian
religious ceremonies, that of protecting the members
of the Rastafarian religion from harm.
However, independent and scientific literature suggests the absence of
harm resulting from the consumption of cannabis. No evidence exists that the use of cannabis
in religious ceremonies is addictive or is otherwise likely to harm the
individuals participating in the ceremonies.
The United States government's own "Compassionate Use
Program," which has for decades supplied cannabis to terminally ill
patients as a medicine to mitigate their suffering, has never received a
complaint from any of its participants involving any medical or other
substantial problem involving their use of the supplied cannabis. The government's own
records attest to this fact.
35
For these reasons, it is clear that
defendant’s use and possession of cannabis as criminally impermissible acts
under the laws of New Jersey substantially burden the defendant Edward
Forchion's (and other Rastafarians) exercise of their religion in a manner that
is not justified by a compelling governmental interest carried out in the least
restrictive manner. Accordingly, since
defendant's rights under RFRA will be violated with a criminal conviction in
this case the indictment must be dismissed with prejudice.
SUBPOINT III
THE STATE OF NEW JERSEY’S
ACTIONS
HAVE VIOLATED DEFENDANT’S FIRST
AMENDMENT RIGHTS
In addition to the above
arguments, the State of New Jersey’s actions, in addition to violating the
RFRA, also violate the First Amendment.
The Free Exercise Clause of the First Amendment reflects the fundamental
importance of religious liberty in American democracy: "Congress shall
make no law ... prohibiting the free exercise" of religion. U.S. Const.
Amend. I.
36
In Employment Division Dept.
of Human Resources v. Smith, 494 U.S. 872 (1990), the Supreme Court,
distinguishing prior case law, held that if a law is both "neutral"
and "generally applicable," it may be applied to religiously
motivated conduct without compelling justification. Id.
at 872. However, a law that prescribes
or permits individual exceptions is not "generally applicable"; a law
that gives preferred treatment to secular interests as compared with religious
interests or that gives preferred treatment to one religion as compared with
another is not "neutral."
Indeed, the Tenth Circuit has already expressly held that the DEA's NAC
and UDV exemptions in 21 C.F.R. § 1307.31 "unlike the statute in Smith,
is neither neutral nor generally applicable." United States v. Boyll, 774 F.Supp.
at 1341; see also Church of Lukumi Babalu Aye, Inc. v. Hiahleah,
508 U.S. 520, 537-38 (1993); Smith, 494 U.S. at 884; Fraternal
Order of Police, Newark Lodge No. 12 v. City of Newark, 170 F.3d
359, 364-65
(3rd Cir.), cert. denied,
120 S.Ct. 56 (1999); Rader v. Johnston,
924 F.Supp. 1540,
1551-55 (D. Neb. 1996).
When a law that is not
generally applicable or not neutral
37
interferes
with the practice of religion, such interference must be justified by a
compelling governmental interest and must be narrowly tailored (i.e., must
survive "heightened scrutiny"). See Church of Lukumi Babalu Aye, 508 U.S.
at 531-32. Under Smith,
"where the State has in place a system of individual exemptions, it may
not refuse to extend that system to cases of 'religious hardship' without
compelling reason." 494 U.S. at 884.
In 1993, the Supreme Court in
Church of the Lukumi Babalu
Aye applied the Smith framework to local animal-slaughter laws that
were neither generally applicable nor neutral.
The City of Hialeah, Florida, had enacted several ordinances that banned
the ritual sacrifice of animals; these laws directly burdened the religious
practice of local members of the Santeria religion, who challenged the laws in
court. See id. at 525-28. The city sought refuge in Smith, but
its position was undermined by the fact that the ordinances were not generally
applicable, but rather contained express exceptions for animal slaughter for
food and for hunting. See id. at
536-37. The Supreme Court applied Smith
to hold that heightened scrutiny would apply
38
to
the local laws because they were neither generally applicable nor neutral. Id. at 546. A "law burdening religious practice that is not neutral nor of
general application must undergo the most rigorous of scrutiny." Id.
The
import of Smith and Lukumi Bagbalu Aye is that, where a statutory scheme does not
make exceptions from the baseline regulatory of prohibitory regime, it cannot
grant exceptions for secular purposes but deny exceptions for religious
purposes without compelling reasons for the denial. Although the Smith rule states that
religion in general or a particular religion need not be specially favored
under an otherwise generally applicable law, the converse is also true:
religion must not be disfavored when the government grants exceptions to
statutory prohibition.
Two recent cases in the lower federal courts
illustrate the application of this principle.
The first involved a challenge under the Free Exercise Clause to the
Newark, New Jersey's Police Department's prohibition against officers wearing
beards. See Fraternal Order of Police, Newark Lodge No. 12 v. City of
Newark, 170 F.3d. 359, 364-65 (3rd Cir.),
39
cert. denied,
120 S.Ct. 56 (1999) Cir. 1999), cert.
denied, 120 S.Ct. 56
(1999). The plaintiff officers were
Sunni Muslims whose religion imposes on adult males to wear beards. Their request for exemption from the policy
was denied; the department announced a 'zero tolerance policy' for departures
from the ban, except for those officers who received a "medical
clearance" to wear a beard. See id. at
361. The Third Circuit held that,
because exceptions were made for those who needed to wear a beard for a secular
(medical) reason, the compelling-interest test would govern the prohibition's
application to claims for religious exemption. See id. at 366
("[W]hen the government makes a value judgment in favor of secular
motivations, the government's actions must survive heightened scrutiny.").
Because the department offered no compelling reason for the policy, the court
upheld the Free Exercise claim. See id. at
366-67.
Another court applied Smith
similarly to uphold a college student's right to a religious exemption from the
University of Nebraska's mandatory housing policy. See Rader v.
Johnston, 924 F.Supp.
1540 (D. Neb. 1996).
40
The university imposed a rule that all
freshmen live in on-campus dormitories.
The university maintained three categorical exceptions for married
students, older students, and students commuting from their parent's home; it
also allowed for individualized exceptions for secular reasons such as familial
responsibility, medical need, or emotional difficulties. See id. at 1546-47. The
university, however, refused to provide an exemption from the dormitory to
Douglas Rader who sought such exemption on the basis of his fundamentalist
Christian beliefs and lifestyle, which he claimed would be burdened by the
permissive culture of college housing.
The district court found that the university's policy violated Rader's
First Amendment rights, relying on Smith and Lukumi
Babalu Aye and holding that, "[i]f a law or policy provides exemptions for certain
reasons, such as medical treatment, then it should provide similar exemptions
for religious purposes, unless the state can show an overriding compelling interest."
Id. at 1555 (quotation omitted). Finding no compelling interest on the
university's part, the court ruled in Rader's favor. See id. at 1558.
41
It should be pointed out that
the defendant Forchion previously raised both the First Amendment and the RFRA
claim following his arrest due to protests at the Liberty Bill (Independence
National Historic Park -- federal property) in Philadelphia, Pennsylvania. The defendant was found guilty by a federal magistrate
but appealed. In an opinion dated July
22, 2005, the Honorable Stewart Dalzell affirmed the conviction but vacated the
sentence. See http://www.ethipianzioncopticchurch.org/Cases/forchion.aspx (United
States v. Edward Forchion Opinion annexed at Da91-97). The case was also remanded to the Honorable
Arnold C. Rapoport for further proceedings but Judge Rapoport dismissed the case without ruling on the original
issues.
For the foregoing reasons and
authorities cited, the indictment must be dismissed with prejudice.
42
POINT
III
N.J.S.A. 2C:35-5A(1)
AND B.10(A)
ARE
UNCONSTITUTIONAL AS THEY VIOLATE
THE
EQUAL PROTECTION CLAUSE OF THE
FOURTEENTH
AMENDMENT TO THE UNITED
STATES
CONSTITUTION SINCE PEYOTE (A
SCHEDULE
I SUBSTANCE) IS A RECOGNIZED
RELIGIOUS
EXEMPTION ALONG WITH ANOTHER
SCHEDULE
I SUBSTANCE (AYAHUASCA TEA); THE
DEFENDANT, A PRACTISING RASTAFARIAN,
MUST
BE AFFORDED THE SAME PROTECTION
Defendant incorporates by reference the
arguments and authorities in Point II and submits that since both peyote
(a Schedule I substance) and sacramental tea (ayahuasca)
(another Schedule I substance) have been provided religious exemptions by the
Supreme Court, the failure to do so for Rastafarians and their religious
sacrament ganja (marijuana) is violative of the equal
protection clause of the Fourteenth Amendment (and Fifth Amendment).
The
Fifth Amendment requires the federal government accord all persons the equal
protection of law; that it treat alike all persons similarly situated. "In
order to assert a viable equal protection claim, plaintiffs must first make a
threshold showing that they were treated differently from others who were
similarly situated to them." Campbell v. Buckley,
203 F.3d 738, 747 (10th Cir.
43
2000). (footnotes, quotations,
and ellipses omitted), cert. denied, 121 S.Ct.
68 (2000). The principle of equal
protection of law forbids selective enforcement bases upon an "unjustifiable
standard such as race, religion, or other arbitrary classification." United
States v. Batchelder, 442 U.S. 114, 125 n.9 (1979).
In the instant case, the State
is selectively enforcing the State marijuana laws based on defendant’s
religious classification. The
Rastafarian religion is similarly situated to both the Native American Church
(“NAC”) and the O Centro Espirita Beneficiente Uniao
Do Vegetal-USA (“UDV-USA”) in all significant respects. All three religions use Schedule 1 substances
as religious sacraments and in all three, ingestion of that substance is
necessary to the proper conduct of religious ceremonies. Neither the NAC nor the UDV-USA hold special qualities or attributes that would justify
defendant's more favorable treatment of them.
Indeed, both the NAC and the UDV-USA have some attributes that would
make each of them a less favorable candidate for permission to use their
Schedule 1 substances in religious ceremonies.
Unlike cannabis, both peyote and DMT are strong mind-altering substances
that are
44
temporarily
debilitating and may require an attendant be present to ensure the health and
safety of the sacrament's recipient.
Cannabis, by contrast, is much milder and is not in any way temporarily
debilitating as both peyote and DMT can often be. See "First Report of the
National Commission on Marihuana and Drug Abuse," pp. 58-61. Newcomers to
the Rastafarian religion are virtually all already familiar to cannabis and
therefore are not likely to confuse the religion with the effects of the
sacrament. Already widespread use of cannabis in all walks of American life
means neophytes to the Rastafarian religion are not likely to be drawn to the
Rastafarian religion as a haven for otherwise illicit drug use as is more
likely with neophytes of the other two above religions.
Defendant seeks to use his
sacrament on-site with no importation, distribution, or transport envisioned
for
his sacrament, unlike at least one of the other religions allowed to use a
Schedule 1 substance as their sacrament.
Therefore,
although the Rastafarian religion and its members are similarly situated to the
NAC and its members and to the UDV-USA and its members, the State of New Jersey
45
has
failed and refused to treat them similarly.
NAC and UDV-USA members may freely exercise their religion and members
of the Rastafarian faith may not. The
Fifth Amendment does not permit such conduct. See United States v.
Armstrong, 517 U.S. 456, 464 (1996) ("One of these constraints
imposed by the equal protection component of the Due Process Clause of the
Fifth Amendment ... is that the decision whether to prosecute may not be based
on 'an unjustifiable standard such as race, religion, or other arbitrary
classification ...')” (citations omitted).
New Jersey refuses to recognize these
laws, in violation of the United States Constitution’s guarantee that each
state will give "full faith and credit" to the laws of other states.
All persons are supposed to be treated equally, yet in New Jersey
persons now identified as falling under the Medical Marijuana Compassionate Use
Act are immune from prosecution for possession of marijuana, while other
persons such as the defendant Forchion are charged with a criminal
violation. This is a clear equal
protection violation (particularly since the defendant Forchion had at the time
of his arrest a valid California marijuana card (annexed at Da12).
46
Since ganja (marijuana) must be
afforded the same exemption to Rastafarians, the failure to do so violates
defendant’s equal protection rights.
The indictment must be dismissed with
prejudice.
47
POINT
IV
THE
MARIJUANA STATUTES ARE UNCONSTITUTIONAL
DUE
TO VAUGENESS, INDEFINITENESS AND OVER-
BREADTH;
THEY ALSO VIOLATE THE UNITED STATES
CONSTITUTION’S PROHIBITION AGAINST BILL OF
ATTAINDERS;
AT THE VERY LEAST, DEFENDANT
SHOULD
BE ALLOWED TO PRESENT EXPERT
TESTIMONY
CONCERNING THIS ISSUE
In State v. Profaci,
56 N.J. 346 (1970), the Court cited the principles concerning whether a
statute is
unconstitutional due to vagueness, indefiniteness or overbreadth:
The concept of vagueness or
indefiniteness rests on the constitutional principle that procedural due
process requires fair notice and proper standards for adjudication. The primary issues involved are whether the
provisions of a penal statute are sufficiently definite to give reasonable
notice of the prohibited conduct to those who wish to avoid its penalties and
to appraise judge and jury of standards for the determination of guilt. If the
statute is so obscure that men of common intelligence must necessarily guess at
its meaning and differ as to its applicability, it is unconstitutional.
The defendant Edward Forchion is a dual
citizen of both New Jersey and California. He is a legal medical/marijuana patient in the
State of California. He operates a medical marijuana (dispensary) Temple in Hollywood
California called the “Liberty Bell Temple II” (5642 Hollywood Blvd., Hollywood
California 90082; www.libertybelltemple.com).
48
The Due Process clause of the Fifth and Fourteenth
Amendments require that criminal laws be drafted in language that is clear
enough for the average person to comprehend.
If a person of ordinary intelligence cannot
determine what persons are regulated, what conduct is prohibited, or what
punishment may be imposed under a particular law, then the law will be deemed
unconstitutionally vague.
The
United States Supreme Court has said that no one may be required at peril of
life, liberty, or property to speculate as to the meaning of a penal law.
Everyone is entitled to know what the government commands or forbids.
The
void for vagueness doctrine advances four underlying policies. First, the doctrine encourages the government
to clearly distinguish conduct that is lawful from that which is unlawful. Under the Due Process Clause, individuals
must be given adequate notice of their legal obligations so they can govern
their behavior accordingly. When individuals are left uncertain by the wording
of an imprecise statute, the law becomes a standardless
trap for the unwary.
49
For
example, vagrancy is a crime that is frequently regulated by lawmakers despite
difficulties that have been encountered in defining it. Vagrancy laws are often drafted in such a way
as to encompass ordinarily innocent activity. In one case the Supreme Court
struck down an ordinance that prohibited "loafing,"
"strolling," or "wandering around from place to place"
because such activity comprises an innocuous part of nearly everyone's life. See
Papachristou v. City of Jacksonville, 405 U.S.
156, 92 S.Ct. 839, 31
L.Ed. 2d 110
(1972). The Papachristou
Court concluded that the ordinance did not provide society with adequate
warning as to what type of conduct might be subject to prosecution.
Second,
the void for vagueness doctrine curbs the arbitrary discriminatory enforcement
of criminal statutes. Penal laws must be understood not only by those persons
who are required to obey them but by those persons who are charged with the
duty of enforcing them. Statutes that do
not
carefully outline detailed procedures by which police officers may perform an
investigation, conduct a search, or
50
make an
arrest confer wide discretion upon each officer to act as he or she sees
fit. Precisely worded statutes are
intended to confine an officer's activities to the letter of the law.
Third, the void for vagueness
doctrine discourages judges from attempting to apply sloppily worded laws. Like the rest of society, judges often labor
without success when interpreting poorly worded legislation. In particular
cases, courts may attempt to narrowly construe a vague statute so that it
applies only to a finite set of circumstances.
For example, some courts will permit prosecution under a vague law if
the government can demonstrate that the defendant acted with a specific intent
to commit an offense, which means that the defendant must have acted willfully,
knowingly, or deliberately. By reading a
specific intent requirement into a vaguely worded law, courts attempt to
insulate innocent behavior from criminal sanction.
On
January 18, 2010, Governor Corzine signed into New
Jersey
law “The New Jersey Medical Marijuana Compassionate Use Act.” This Act clearly recognized Marijuana’s legal
51
medical
use, thereby rendering the State of New Jersey’s Criminal statute seriously
flawed and virtually “worthless” since it is entirely based on the state
criminal position that marijuana is a CDS, a schedule 1 Controlled Substance.
Fourteen
States, including the State of New Jersey have now recognized marijuana has
medical value. The New Jersey State
legislators obviously believe and understand that “marijuana” has medical value,
and are currently working on a plan to safely distribute marijuana to sick
individuals in the state of New Jersey.
The State criminal statute is constitutionally and fatally flawed.
Schedule I controlled substances:
Are a category of drugs not considered legitimate for medical use. Among the substances so classified by the Drug Enforcement Agency are mescaline, lysergic acid diethylamide, heroin, and marijuana. Special licensing procedures must be followed to use these or other Schedule I substances.
All
substances listed as a Schedule 1 drug must have the following prerequisites:
(A) The drug or other substance
have a high potential for abuse.
(B) The drug or other substance has no
currently accepted medical use in treatment in the United States.
52
(C) There is a lack of accepted safety for
use of the drug or other substance under medical supervision.
The
Director of Health
and Human services has failed to accurately reclassify marijuana in
light of the state's explicit acknowledgment that marijuana (on January 18,
2010) is a medicine in direct contrast to the state's current criminal
classification as a schedule 1 drug - having no medical value.
N.J.S.
24:21-3 had provided:
“d.
The State Department of Health shall update and republish the schedules in
sections 5 through 8 on a semiannual basis for 2 years from the effective date
of this act and thereafter on an annual basis.”
The
Legislature
amended that provision in 2007. It now reads:
"d.
The director shall update and republish the schedules in sections 5 through 8.1
of P.L.1970, c. 226, as amended and supplemented (C.24:21-5 through 24:21-8.1)
periodically."
When
Governor Corzine signed this Act into law it told the defendant Edward Forchion
(a licensed medical user in the state of California) that now New Jersey had
also allowed its use. This Act of
legalizing marijuana for medical purposes clearly led the defendant Forchion to
believe that medical marijuana was now legally permissible in New Jersey. Yet, the state has failed to legally
reclassify marijuana.
53
This
failure by the State to reclassify, however, does not in any way diminish the
defendant Forchion’s argument that a reasonable person (in his position) would
have believed he would be entitled to have medical marijuana in his
possession. After the State of New
Jersey passed its medical marijuana law on January 18, 2010, the defendant, a
medical marijuana card carrying person, brought his medical marijuana with him
to New Jersey from California, believing that he would have some legal
protection. As can be seen in the
ProCon.org “Medical Marijuana States and DC Summary Chart,” as to whether New
Jersey “Accepts other states’ registry ID cards?” this is “Unknown.” (Da25) (nearly half of the medical marijuana states do accept other
state’s registry ID cards). As even this
study is unclear as to whether defendant’s registry card would be accepted, the
defendant should not be punished under the law for not knowing whether he was
entitled have medical marijuana in his possession in New Jersey. For these reasons the indictment must be
dismissed with prejudice.
54
POINT V
N.J.S.A.
2C:35-5A.(1) AND 2C:35-5B.
(10)(A) ARE UNCONSTITUTIONAL ON
THE
GROUNDS OF “MEDICAL NECESSITY” OR
THE
DEFENDANT IS EXEMPT FROM
PROSECUTION
DUE TO “MEDICAL NECESSITY”; THE
INDICTMENT MUST BE DISMISSED
WITH PREJUDICE
N.J.S.A.
2C:3-2 (Necessity) provides:
a. Necessity. Conduct which would otherwise
be an offense is justifiable by reason of necessity to the extent permitted by
law and as to which neither the code nor other statutory law defining offense
provides exceptions or defenses dealing with the specific situation involved
and a legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
b. Other justifications in general. Conduct which would otherwise be an offense
is justifiable by reason of any defense of justification provided by law for
which neither the code nor other statutory law defining the offense provides
exceptions or defenses dealing with the specific situation involved and a
legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
The
defendant uses marijuana for medical reasons, and he has a valid California
Medical Marijuana card permitting such medical use. (Da12).
55
Since
the marijuana in question emanates from California (where the medical use is
legal for the defendant), the “medical necessity” defense is applicable here.
In State
v. Tate, 102 N.J. 64 (1986) the defendant, afflicted with
quadriplegia, would sometimes have spasticity so
severe as to render him completely disabled.
Defendant Tate was prepared to present evidence that the use of
marijuana provided relief from the spastic contractions regularly suffered by
the defendant, and that no other prescribable
medication gives him such relief. Id. at 67. The Tate defendant raised the
justification defense of “medical necessity” based on justifiable conduct under
N.J.S.A. 2C:3-2(a). The trial
judge denied the State’s motion to strike that defense, and the Appellate
Division affirmed. A sharply divided New
Jersey Supreme Court, in a 4 to 3 decision, reversed and held that the
defendant could not assert the statutory defense of necessity because his
conduct was not permitted by law. Also,
defendant could not assert the common-law defense of necessity. Id. at
72-73. Justice Handler dissented,
stating: “It is my view that under the Code the defense of justification based
on
56
medical necessity
is available with respect to the use of marijuana in the context of the limited
and special circumstances that are present in this case.”
In U.S.
v. Randall, 104 Daily Wash.L.Rptr. 2249 (D.C.Super. Ct. 1976) the
defendant, charged with possession of marijuana, used marijuana to treat his
glaucoma symptoms. The Court found
medical necessity a defense to possession.
In Washington
v. Diana, 24 Wash.App.
908, 604 P.2d 1312 (1979), the defendant, charged with possession of
marijuana, used it for relief of the disabling spasticity associated with
multiple sclerosis. The court found
medical necessity existed. In both Randall
and Diana the defendant used the drugs based on his own
self-diagnosis—-later confirmed by expert medical testimony.
The
case sub judice is clearly distinguishable
from State
v. McCague, 314 N.J. Super. 254 (App.
Div.), certif. denied, 157 N.J. 542 (1998) where the
“medical necessity”
57
defense
was held to be inapplicable in a prosecution of members of a nonprofit
organization for furnishing or giving a hypodermic needle or syringe to
another. The court reasoned that “There
is no fundamental right to obtain a disinfected needle to inject heroin or any
other prohibited substance.” Id. at 265. McCague, involving hypodermic needles (and, thereby,
heroin use), is clearly distinguishable from Forchion.
For
the foregoing reasons and authorities cited, the indictment must be dismissed
with prejudice.
58
POINT
VI
THE
DEFENDANT SHOULD BE ALLOWED
TO
PRESENT EXPERT TESTIMONY ON
THE
ISSUES RAISED IN THIS BRIEF
At the very least, defendant should be
permitted to present expert testimony by the way of an expert witness or
witnesses on the issues raised in this brief.
Defendant has the burden to demonstrate
that the marijuana laws violate a constitutional provision. See City
of Jersey City v. Farmer, 329 N.J. Super. 27 (App.
Div. 2000). However, a defendant
also has an essential and fundamental right to interpose a defense based on the
invalidity of the legislative act upon which the prosecution is predicated. The notion that he cannot do so in the
criminal proceeding itself constitutes a basic jurisprudential misapprehension.
See Federal Rule R. 2:2-3(a)(2) (recognizes right of a defendant in a criminal
matter to attack by way of defense to the charge the validity of the regulation
upon which the charge is based). See also State v. Hilkevich, (App. Div. Docket No. A-3632-00T3, decided
March 5, 2003, annexed at Da45). In Hilkevich, the Appellate Division reversed the
defendant’s
59
convictions and forty year sentence for child
molestations due to the refusal of the trial judge to permit an expert witness
to testify—-specifically, the defense sought expert defense testimony that
would have supported the defendant’s claim that his responses to accusations
when speaking on the telephone were grounded in his professional training.
(Da50). In finding the preclusion of the
expert testimony reversible error, the Court stated: “The possibility that defendant
might have been convicted because he was improperly prevented from presenting
an exculpatory witness was sufficient to support a reversal of his judgment of
conviction.” (Da53).
The following are defendant Forchion’s
proposed witnesses:
1) Dr. Julien Heicklien – will testify to rebut the anticipated State’s
expert as to the classification of marijuana.
2) Chris Conrad – religious expert.
3) Ali Ras I –
Rastafarian religious expert.
4) New Jersey State Senator Nicholas
Scutari – sponsored current medical marijuana bill.
60
5) New Jersey State Senator Bassano –
sponsored and held state committee meetings explaining medical marijuana. His testimony is necessary to explain the
intent of the bill.
6) New Jersey Assemblyman Reed Gusciora – co-sponsored medical marijuana bills; his
testimony is needed to explain the intent of the bill.
7) Edward E. Alexander, M.D. (California
License A45272)
In the case sub judice defendant must be permitted the opportunity to
present expert witnesses related to religious freedom and equal protection, and
medical necessity.
61
POINT VII
THE
INDICTMENT SHOULD BE DISMISSED WITH
PREJUDICE
IN THE INTEREST OF JUSTICE
Defendant
incorporates by reference the arguments and authorities in this brief, supra.
Congress
never had the authority to enact prohibition or "drug control"
statutes unless they were intended to regulate interstate commerce (Article 1,
Section 8, clause 3). See also
Nigro vs. U.S., 276 U.S. 322
(1926). It took the Eighteenth
Amendment to enact alcohol prohibition in 1920.
It took the Twenty-First Amendment to repeal the Eighteenth Amendment in
1933.
The
1970 Controlled Substances Acts and N.J.S.A. 2C:35-5a(1) and b.10(a)
(hereinafter the acts) comprise a bill of attainder in violation of Article I
Section 9 of the United States Constitution and are equally unconstitutional
for failing to provide a religious exemption for the use of marijuana.
Even
during the alcohol prohibition (“Prohibition”), which began with the enactment
of the Volstead Act (the 1919 law giving federal agents the power to
investigate and prosecute violations of the Eighteenth Amendment), there was a
blanket exception for the manufacture, use, etc., of alcohol for
"sacramental purposes" at Title II, section 3.
62
There
has never been a Constitutional Amendment to outlaw drugs and there is nothing
in the Constitution that would give our Federal or State governments the power
to do so. The Ninth Amendment states
that the enumeration of particular Constitutional rights "shall not be
construed to deny or disparage others retained by the people" and the
Tenth Amendment where all powers that are not delegated in the document are
reserved to the states "or to the people." In Griswold v. Connecticut, 381 U.S.
479 (1965) (see Justice Goldberg's concurring opinion) it is established that
the Ninth Amendment of the Bill of Rights secures our unwritten common law
rights.
In
West Virginia State Board of Education v. Barnette,
319 U.S. 624 (1942) the Supreme Court held that Constitutional Rights
cannot be voted on.
Fifteen
states (and the District of Columbia) have now legalized marijuana for medical
use and on Jan 18th, 2010, New Jersey also recognized marijuana
medical use. (Da14-15). The acts, in several instances, violate the
right of all persons to equal protection of the laws. See Article
63
XIV
Section 1 of the Bill of Rights. The acts enshrine into federal law the
opinions of licensed professionals, i.e., the medical community, and whereas
the Constitution says nothing about licenses said federal laws are invalid. It
is said to be unlawful and mala prohibita
to possess, manufacture, dispense or even abandon said controlled substances
except in the course of recognized and professional medical or research
practice (as determined by the Secretary of Health and Human Services on the
basis of the consensus of views of the American medical community - 21 USC
801a, 802(8), 841, 844). This office
(formerly Health, Education and Welfare) is also authorized to make grants, and
enter in to contracts, for the collection and dissemination of drug abuse
education material, and develop and evaluate such programs, and, acting through
the National Institute of Mental Health, to serve as a focal point for the
collection and dissemination of information relating to drug abuse - US PL
91-513.
This
substantially prejudices law enforcement philosophy, jurisprudence and legislation.
The presumption of innocence until
proven guilty is set aside in cases of drug possession by placing the burden of
proof upon the defendant who must demonstrate medical permission - 21 U.S.C.
§ 885.
64
Criminal
legislation in the field of medicine should apply only to specific instances of
individual danger, and then only at the state level. The acts, on the other hand, make the subject
of criminal legislation differences of opinion with the consensus of opinion of
with the American medical community. The
acts authorize conviction irrespective of conduct, loss of self-control or
finding of science endangering or threatening to the public health, safety or
morals, and welfare.
Another
violation of the right to equal protection is the legal standing of people
charged with breaking the laws that regulate alcohol and tobacco products. Those whose charges involve Controlled
Substances, cultivation of marijuana for personal use, or sale between
consenting adults without complainants, for example, are dealt with much more
harshly and severely than merchants who illegally sell tobacco (the number one
killer drug) to minors, and alcohol related violations of motor vehicle law.
The
acts also violate equal protection since the acts, as applied, are racist. For thousands of years Africans have used the
“herb” marijuana as a medicine and as a sacrament in numerous religions.
65
Through
the institution of slavery (1619-1865) and in spite of the First Amendment,
this country was founded on Africans were forced to abandon their native
religions and accept Christianity (the faith of the enslavers). Christianity does not recognize marijuana as
a sacrament and in fact banned its use.
In 1484, Pope Innocent the VII banned the use of “cannabis” and decreed "cannabis" an unholy
herb, Satan’s weed, the herb of heathens, weed of the satanic
masses, etc.
Slavery
ended over 147 years ago, yet many African-Americans who reject Christianity as
their faith (as does this defendant), find laws such as the 1970 Controlled
Substance Act (“CSA”) and N.J.S.A. 2C:35-5a(1) and b.10(a) prohibit them
from freely exercising African based faiths by banning their religion’s
sacrament (marijuana).
The
CSA and State marijuana laws also violate title VII of the Civil Rights Act of
1964 (42 U.S.C. §2000(e)),
which prohibits discrimination based on race, color, religion, sex and
national origin.
66
Many
of our common law rights extend back to the Bible. In Genesis 1:29, God grants us every herb
bearing seed (which “marijuana” is).
Genesis 1:11 states: "And God said, Behold, Let the earth bring
forth grass, the herb yielding seed, and the fruit tree yielding
fruit after his kind, whose seed is in itself, upon the earth: and it was
so.” Genesis 1:12 says, “And the earth
brought forth grass, and herb yielding seed after his kind, and the tree yielding
fruit, whose seed was in itself, after his kind: and God saw that it was
good”. For defendants such as Forchion,
following the Bible can put a citizen in criminal jeopardy.
Provisions
for the protection of human rights are also made in the Charter of the United
Nations; the Chapter I Article 1 (1) respects "the principle of equal
rights and self-determination of peoples..." Article 1 (3) promotes the fundamental
freedoms for all without distinction as to race, sex, language or
religion." Article 19 promotes the
free exchange of ideas and information.
Further, the United Nations Universal Declaration of Human Rights
declares that participation in the cultural life of the community is a right.
67
Drug
control treaties cannot compel the United States or New Jersey to violate the
Constitution. See Reid v. Covert,
354 U.S. 1, 17 (1956) (Supreme Court has uniformly recognized supremacy
of the Constitution over a treaty).
While
it is clear to some people that the “War on Drugs” violates Constitutional and
human rights, the view of those who are vested in law enforcement (or with the
power to make laws and interpret rights) consider it a foregone conclusion that
the drug laws are constitutional. To
even bring up the topic of rights may harden the resolve of lawmakers and
judges because it implies that they have failed to understand the true meaning
of the Constitution.
In
fact, this defendant has been persecuted by the State of New Jersey in the past
for publicly holding this stance, and the very prosecution before this court is
another instance of this stance.
The
defendant Forchion was jailed here in the Burlington County Jail for 5 months
for publicly questioning the drug laws. Forchion v. ISP,
et al. 240 F.Supp.2d 302 (D.N.J. 2003) (Da98-107).
In
another instance in November of 1998, the Burlington County Family Court in Forchion
v. Judge Maria
68
Bell,
(Superior Court, Appellate Division Docket Number A-006005-02T2), took parental
rights from Forchion for publicly declaring his choice in religions and his avocation
of legalization of the sacrament marijuana.
At the time the defendant had not been found guilty of any crime and had
never been accused of supplying “marijuana” to his child; it was simply for
expressing his religious belief that this sacrament should be legal. These beliefs became public when Forchion ran
for a seat in the
It
is apparent that the defendant Edward Forchion has been persecuted for long
enough due to his positions on the marijuana laws. For these reasons (and the grounds raised in
this brief), the indictment must be dismissed with prejudice.
69
POINT
VIII
INTERNATIONAL
LAW AND TREATIES
PROHIBIT
THE INTERFERENCE WITH
DEFENDANT’S
RELIGIOUS USE OF CANNABIS
International law and treaties
prohibit the interference with defendant's religious use of cannabis for
sacramental purposes. The international
law doctrine of comity requires that United States tribunals give consideration
in areas that implicate international interests. See Hilton v. Guyot, 159 U.S. 113, 163-64 (1895). The application of the principle of comity is
strengthened in the area of religious practice by Congress' recent actions of
ratifying a treaty and enacting a statute to advance international reciprocity
in the protection of religious freedom.
In the oft-quoted definition the Supreme Court provided over a century ago,
comity is "the recognition which one nation allows within its territory to
the legislative, executive or judicial acts of another nation." Hilton, supra, 159 U.S. at 163-64. The comity doctrine "refers to the
spirit of cooperation in which a domestic tribunal approaches the resolution of
cases touching the laws and interests of other sovereign states." Societe Nationale Industrielle
Aerospatiale v. United
70
States District Court,
482 U.S. 522, 544 n. 27 (1987); see also id. at 555 (Blackmun, J., concurring in part and dissenting in
part) (comity is "a principle under which judicial decisions reflect the
systematic value of reciprocal tolerance and goodwill"). The defense to foreign legal and political
judgments embodied in the comity principle "fosters international
cooperation and encourages reciprocity, thereby promoting predictability and
stability through satisfaction of mutual expectations". Spatola
v. United States, 925 F.2d 615, 618 (2d Cir. 1991).
Although comity is often invoked in resolving
differences between judicial tribunals at home and abroad, the principal
applies equally to "legislative" and "executive" acts of
foreign governments. See Hilton; see also Phila. Gear Corp. v. Phila. Gear de Mexico, S.A., 44 F.3d 187,
191 (3d Cir. 1994) ("Under the principle of international comity, a
domestic court normally will give effect to executive, legislative and judicial
acts of a foreign nation.") (quotations omitted).
One way in which courts and
administrative agencies frequently apply comity is through the canon of
statutory construction that, where reasonably possible, statutes
71
should be
construed and applied so as not to offend the norms of international law,
including the principle of comity. See Hilton 159 U.S. at
164-66; see also United States v. Aluminum Co. of Am., 148
F.2d 416, 443 (2d Cir. 1945) (L. Hand, J.) (describing
comity as a "limitation[] customarily observed by nations upon the
exercise of their powers" and holding that "we are not to read
general words [in a statute] without regard" to such norms). Such international law is "part of our
law." Hilton, 159 U.S. at 163. As Chief Justice Marshall explained long ago,
a statute "ought never to be construed to violate the law of nations if
any other construction remains." Murray v. Schooner Charming Betsy,
6 U.S. (2 Cranch) 64, 118 (1804); see also
Grunfeder v. Heckler, 748 F.2d
503, 509 (9th Cir.
1984) (en banc) ("Absent an expression of congressional intent to the
contrary, considerations of courtesy and mutuality require our courts to
construe domestic legislation in a way that minimizes interference with the
purpose of effect of foreign law."); Restatement (Third) of Foreign
Relations Law § 114 (“Where fairly possible, a United States statute is to be
construed as to not conflict with international law or with an international
agreement
72
of
the United States."). Adding
support to this argument, in 1992, the United States Congress ratified the
United Nations International Covenant on Civil and Political Rights
("ICCPR"). See 138 Congo Rec. S4781-84 (1992). Article 18(1) of that treaty provides:
Everyone shall have the right to freedom of
thought, conscience, and religion. This right shall include freedom to have or
adopt a religion or belief of his choice, and freedom, either individually or
in the community of others and in public or private, to manifest his religion
or belief in
worship,
observance, practice, and teaching.
U.N. International Covenant of Civil and Political Rights, Dec. 16, 1996.
This
congressional action strengthens the applicability of the general doctrine of
comity in a case such as this involving religious freedom.
A
similar affirmation of the primacy of religious belief is embodied in Article
18 of the Universal Declaration of Human Rights, which the United States
endorsed as a member of the United Nations in 1948. See U.N. Universal
Declaration of Human Rights, Ga. Res. 217A, Dec. 10,
1948. The ICCPR and the Universal
Declaration protect
73
not
just "belief' in the abstract, but the right to "manifest" that
belief through practice. As the United
Nations Human Rights Committee, the principal international body that oversees
implementation of the ICCPR, has explained, "[t]he freedom to manifest
religion ... in worship, observance, practice and teaching encompasses a broad
range of acts" including "ceremonial acts" and
"participation in rituals." See U.N. Hum. Rts. Comm., General comment No. 22,
at 4 (1993).
The
Rastafarian ceremonial use of cannabis falls squarely within this concept of
"manifesting" religious belief, and so precisely the type of practice
that Congress intended to protect worldwide by ratifying the ICCPR and,
earlier, the Universal declaration. The
obligations under these documents are not merely ones of neutral noninterference. By
ratifying the ICCPR, the United States agreed "to take the necessary
steps...to adopt legislative or other measures as may be necessary to give
effect to the rights recognized in the present covenant." A prosecution of a member of the Rastafarian
religion for his use of cannabis in his religious ceremony is just such a
"measure"
74
that is
"necessary to give effect to" the rights enshrined in the ICCPR and
the Universal Declaration. These treaty
obligations reinforce the government's duty to permit the free exercise of
religion that the Free Exercise Clause and the RFRA already impose.
Congress' recent enactment of the International Religious
Freedom Act ("IRPA"), Pub. L. No. 105-292, 112 Stat. 2788
(1998) (codified at 22 U.S.C. §§ 6401-6481 (Supp. IV 1998)), further reflects
its commitment to enhancing religious freedom across national boundaries, and
further supports the comity rationale for permitting the Rastafarian religion
to make sacramental use of cannabis in the United States. In the RFRA, Congress described religious freedom
as "a fundamental right" and a "pillar of our Nation," and
noted that the United States has "honored this heritage by standing for
religious freedom and offering refuge" to those from abroad who sought to
practice their religion in the United States. 22 U.S.C. §
6401(a).
The
IFRA was needed, Congress found, because over half the world's population lives
under governments that "restrict or prohibit the freedom . . . to . . .
believe,
75
observe
and freely practice the religious faith of their choice." Id. Congress established "the policy of the
United States" to "promote...freedom of religion," and to
"work with foreign governments that affirm and promote religious freedom,
in order to develop multilateral ... initiatives to ... promote the right to
religious freedom abroad." 22 U.S.C. § 6401(b).
Although the IRFA was aimed at
abuses of religious freedom occurring outside the United States, through IRFA
Congress has expressed a strong view of the necessity of international
tolerance of religious practice. In
enacting the IR.FA and establishing the position of Ambassador at Large for
International Religious Freedom, see 22 U.S.C. § 6411(a), Congress was acutely
concerned about the way other nations treated religious practices of Americans
abroad, and about their treatment of foreign adherents of religions that are
important to Americans. A representative
of American missionaries told a Senate committee that "over 170,000
Americans, representing over 800 denominational and nondenominational agencies,
are involved in some type of religious work overseas" and that these
individuals "have
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an
enormous stake in" the IRFA because of obstacles they face abroad. See
International Religious Freedom Act of 1998, Hearings on S-1868 Before Senate
Foreign Relations Comm., 105th Cong., 2d Sess., 1998 WL 375933
(F.D.C.H.) (statement of Rev. John Akers) [hereinafter "IFRA
Hearings"]. Clearly, the IFRA
represents Congress's strong statement that other nations should permit free
exercise of all religions within their borders.
Any other position by the United States government would undermine its
moral authority to urge, and thus its practical ability to persuade, other
nations to respect non-indigenous religions within their own borders.
For the State of New Jersey (an American State) to ignore the
religious practices of this defendant, or other similarly situated
Rastafarians, will make America appear hypocritical when it criticizes China
for its persecution of the Falun Gong religious sect, or of Saudi Arabia, Iran
and Pakistan’s treatment of Christians.
In America today “religious herb users” (Rastafarians in particular) are
hunted down like the witches of Salem witch trials but on a much larger scale
(with 858,408 arrested nationally in
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2009; about 96.9 per hour). Rastafarians convicted of marijuana offenses
are forced to go to “drug programs”, i.e., NA, AA, etc. in which the New Jersey
State Correctional department forces upon all inmates (including those whose
religions believe that the God-grown herb Ganja is good). Prison drug programs are mandated/forced
through the I-override system. The I-override system is a prison administrative mechanism
for blocking an inmate’s release. If a
person has an I-override he is not eligible for “minimum status” or for
parole/release or programs until the I-override is removed. The Department of Corrections requires all
persons convicted of a drug crime to attend and complete a drug program while
in prison; if a prisoner refuses or fails the drug program an I-override is
placed on him and he cannot be released.
When incarcerated the defendant had refused the drug program and an
I-override was placed on him to try to force him to accept that Ganja is bad,
sinful, ungodly and/or worst “a drug.”
The defendant wrote to Federal Judge Irenas
(who had ordered defendant back in the State ISP Program) complaining about the
I-override and Judge Irenas agreed and the I-override
was removed.
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Rastafarians in New Jersey feel
as persecuted in America as a Falun Gong member forced by the Chinese
government into “education programs” to correct their beliefs.
As
stated, this very defendant was forced into such a re-education program called
“The Bridge Program” at Riverfront State Prison in 2001 in which a “higher
power” other than “Jah Rastafari”
(the one defendant adheres to) resulted in an I-Override. The defendant fears that another conviction
would again subject him to the blatant religious indoctrination that his state
engages in through its prison system; under the guise of and in the name of its
drug war. There is no doubt in the
defendant Edward R. Forchion’s mind that the enlightened ones of the future
will look back with ridicule and compare today’s Christian Inspired
“persecution of herb users” (with marijuana arrests, unemployment and child
custody) to the witch trials of Salem.
Today most Americans view the Salem Witch trials as past aberrations of
Christianity without accepting that our current marijuana laws are equally
based on Christian superstition.
Defendant acknowledges that in
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the past he could have been burned at the
stake and beheaded; while happy not to face such a fate as burned and beheaded
he equally does not want to be imprisoned again for his belief that marijuana
is a sacred herb.See http://www.youtube.com/watch?v=jE8qxB8vK9M.
Significantly,
the State of New Jersey was previously found to have violated the defendant
Forchion’s rights by incarcerating him for the exercise of his First Amendment
right to advocate a change in the marijuana laws. See Forchion v. Intensive Supervised
Parole, 240 F.Supp.
302 (D.N.J. 2003; annexed at Da98-107; see Opinion online at http://www/aele.org/law/2003JBJUN/fvi.html).
Defendant
has previously attempted to raise the issue of religious freedom. On March 16, 2000, at the New Jersey
Statehouse, following a Christian prayer by the speaker of the State Assembly,
the defendant said a Rastafarian prayer and ingested marijuana. The defendant was charged in a summons and
attempted to raise the religious defense in the Trenton Municipal Court where
the case was heard. Rather than
litigating the issue, the State dismissed the case. See articles describing
this at
www.njweedman.com/state_house_protest.html.
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On
June 5, 2000, at the front door of the Burlington Country Courthouse (this very
same courthouse) the defendant said a Rastafarian prayer and smoked marijuana
with the purpose of receiving a ruling on the religious freedom issue. He was again arrested and issued a summons by
the Burlington County Sheriff’s Department.
Again, the State avoided the religious freedom issue and dismissed the
case. See www.njweedman.com/times-06-09-00.html.
For these reasons, the
indictment against the defendant must be dismissed with prejudice.
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CONCLUSION
For
the foregoing reasons and the authorities cited, the defendant Edward R.
Forchion respectfully submits that the indictment must be dismissed with
prejudice. At the very least, the
defendant must be afforded the opportunity to present an expert witness(es) to support his
positions.
Respectfully
submitted,
____________________________
JOHN VINCENT
SAYKANIC, ESQ.
Dated: April 20, 2011 ____________________________
EDWARD R.
FORCHION, PRO SE
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