The Crimes of Pot Justice

When marijuana arrests might be death sentences.


Last week a man was shivering and vomiting in a cold cell in Auburn, California, at the foot of the Sierra Nevadas in Placer County, his urine bloody, the medicine he needs denied him.

His name is Steve Kubby. He was the Libertarian Party's 1998 gubernatorial candidate, and a major player in the crafting and passing of California's Proposition 215, the 1996 initiative that legalized medical marijuana in the state.

Kubby did not enjoy the protection of the law he helped pass. Prompted by an anonymous tip, police in California's Placer County began surveilling Kubby's home near Lake Tahoe in 1998, including digging through his garbage. Eventually on January 19, 1999, 12 armed officers raided his home and arrested him and his wife, claiming to have found 265 pot plants. (More than half, Kubby insists, were unsexed seedlings, and California law does not have a specific numerical limit on personal use marijuana growth for medical marijuana patients.) The warrant was obtained partially on the basis of claims that a journalist who had been seen visiting the Kubbys' home was in fact a known Jamaican drug smuggler, according to a DEA report later found not to exist; Kubby is certain his prominence in the pro-marijuana movement made him a target.

Kubby is struggling with a rare and usually fatal form of adrenal cancer, pheochromocytoma, which he has suffered from since the late 1960s. A doctor who helped treat him for the condition in the 1970s, Vincent DeQuattro of the University of Southern California, was amazed, upon seeing Kubby's name in California's voter guide during his gubernatorial race, to discover that his old patient was still alive. As High Times reported:

"In some amazing fashion," DeQuattro subsequently advised the judge in Kubby's case, "this medication has not only controlled the symptoms of pheochromocytoma, but in my view, has arrested growth" of the cancer. "Every other patient than Steve, with Steve's condition, has died in the interval of time [that Kubby has had the disease.] Steve was the only survivor."

Kubby insists the only treatment he's taken in a long while for the cancer—whose effects include sudden rushes of adrenalin and noradrenaline, resulting in high blood pressure spikes, headaches, and panic attacks—is marijuana; that it, and only it, had kept him alive this long; and that without it, as he now is in Placer County lockdown, he'll likely die.

Is he right? Even with the grim reports of his vomiting, chills, and bloody urine this past week in jail, it's hard to be sure. He's merely one anecdote, and concerted research into such questions of marijuana's medical efficacy are hamstrung by restrictive federal regulations and supply constraints. But right now his Placer County jailers are conducting a very dangerous experiment to test Kubby's theory. A Canadian doctor, Dr. Joseph M. Connors, chair of the Lymphoma Tumor Group at the British Columbia Cancer Agency, has testified that without his pot, Kubby is at high risk of suffering potentially fatal heart attacks, seizures, or strokes from his cancer's effects.

Kubby was acquitted of the pot charges arising from the raid, but convicted in 2001 for some peyote buttons and a psychedelic mushroom the cops also found. Before serving his term, he and his family left for Canada, where they've spent the past five years. He, his wife Michele, and his two daughters were finally deported back to the U.S. last week. They were met at the San Francisco airport by a gang of officers, Kubby was handcuffed and taken away, avoiding the press and well-wishers awaiting him in the airport, and ended up in Placer County jail.

Kubby has become something of a cause célèbre because of his intimate connections with the libertarian and medical marijuana communities. But he's not the only one suffering in prison because of lack of marijuana. In a similar situation—ill, in prison, denied marijuana that helps them cope or survive their illness—are Joe Fortt (in jail in Fresno, his T-cell count plummeting, he'd been using pot to cope with AIDS while free), Robert Schmidt (currently in Leavenworth, a prison under full "lockdown," denied both medicine and visitors), and many others. Prisons in California may, at their discretion, but are not required under the law, provide inmates with their medical marijuana-and generally don't.

As of this writing, Kubby is being permitted the use of marinol, a pharmaceutical synthetic THC, though not the whole marijuana plant. His blood pressure has stabilized and the blood has left his urine. (When he refused to take standard blood pressure medicine, inappropriate for the spiked variety of high blood pressure his adrenal problems caused, they made him sign a waiver absolving his jailers of all responsibility for what might happen to him.) His pre-trial hearing on a charge of failure to appear for probation is scheduled for February 15.

The Kubby case presents many unresolved controversies; is it really the marijuana that has kept his adrenal cancer from killing him? Did his status as a felony fugitive arise from judicial misconduct? (His conviction was originally for a misdemeanor, raised to a felony level by a judge during his appeals process, which is what made his lack of appearance at a hearing because he was in Canada a crime. Kubby has filed a complaint with California's Commission on Judicial Performance, alleging the judge, who had been earlier recused from his case, was acting illegally.)

Whatever the final resolution of those questions, in Auburn, California, a man is in jail ultimately for growing a plant he believes helps him, suffering from cancer, his vitals erratic, deprived of medication that makes his life bearable. He has harmed no one, and is being harmed for it.