« Paradigm Shifting can be Lonely Work | Main | A Psychiatrist's Analysis of George W. Bush »

February 26, 2007

A Plea that Failed

This  letter was written at the invitation of Dustin Costa's federal defender; I don't know if the judge ever read it; certainly, he gave no sign of recognition while listening impassively to a much shorter oral version delivered in Court on the day after the Super Bowl. There were several other pleas for mercy before the judge launched into a wandering dissertation that confirmed his entirely different interpretation of the case he'd just presided over. I don't remember any of those remarks; only that they fully prepared me for the gross miscarriage of justice they led up to: fifteen years in a federal prison

Dear Judge Ishii,

 I am indeed grateful for this opportunity to address the Court before sentence is passed on my friend and colleague, Dustin Costa, because I see it as an opportunity to call attention to information which was not brought out at his trial and also justifies a very specific request: that he be sentenced to time already served in the Fresno County Jail.

It has been a matter of great regret that although I was called as a witness at his November 2006 trial, I had no opportunity to disclose to the jury material which will be presented in this letter; material which, with one important exception, I would also have been prepared to give as testimony in a trial held under the jurisdiction in which Mr. Costa was originally charged, Superior Court of the State of California. The ‘important exception’ referred to above was the precipitous and unprecedented change in jurisdiction signaled by six California peace officers serving a federal arrest warrant at gunpoint on August 10, 2005.

The federal jury that convicted him was not only prevented from learning of that abrupt, secret, and fundamentally unfair change in jurisdiction; the event itself prevented them from hearing other important pieces of evidence which might have been exculpatory under a California law (The Compassionate Use Act), which has survived multiple reviews by both the California and US Supreme Courts since its passage in1996.

I met Mr. Costa when he saw me as a patient on October 31, 2002, and then again in December 2003, for renewal of the physician’s recommendation to use cannabis required by the Compassionate Use Act. Mr. Costa’s previous recommendations had been provided by Doctor Eugene Schoenfeld of Sausalito, one of the few California physicians then willing to discuss use of cannabis with patients. Mr. Costa came to me after I began providing the same services in Oakland; only because my location was considerably closer to his Central Valley home.

In terms of his medical history, Mr. Costa, who suffers from both diabetes and psoriasis, easily qualified as a medical user. In addition, he had also been a significant long-term abuser of alcohol and had learned from Dr. Schoenfeld that cannabis could help him control his problem drinking. In fact, Mr. Costa, who weighed well over 300 pounds when he first saw Schoenfeld, credits that advice with saving is life.

At the time of our first consultation, I had been screening a steady stream of cannabis applicants for nearly a year and was beginning to recognize the first of several commonly held misconceptions which the unique opportunity to study a large population of admitted long term users was beginning to disclose.

Those early realizations have since been pursued in an ongoing clinical research project. One of several subsequent disclosures has been that Mr. Costa’s age, family experiences and adult history mark him as an archetypal early cannabis user of the type that ultimately gave rise to the enormous, and still growing, illegal market that exists today.

That market, first enabled by the Marijuana Tax Act of 1937, did not begin growing until a critical development took place in the mid-Sixties: hundreds of thousands of adolescents and young adults of Mr. Costa’s generation had to unwittingly discover the anxiolytic properties of inhaled cannabis. The suddenly developing popularity of ‘marijuana’ among youthful users over a decade of tumultuous social change soon generated a powerful response: the Controlled Substances Act of 1970, which has since sustained an increasingly rigorous policy of cannabis prohibition as the mainstay of a ‘war’ on drugs.  According to policy advocates, the still-growing numbers of chronic cannabis users should be considered either addicts or willful hedonists deserving of harsh punishment for continued use.

What my research suggests, however, is a quite different interpretation: the stubborn popularity of cannabis among youthful initiates is related to its efficacy in relieving symptoms of juvenile angst for which alcohol and tobacco had long been the entry-level self-medications of choice. Not only does cannabis relieve those symptoms more safely and effectively, it diminishes subsequent use of the other two agents, particularly alcohol. Also, the persistence of symptoms in an unknown fraction of those youthful initiates is almost certainly what has sustained the still-growing illegal market among otherwise law-abiding adults.

In other words, rather than a gateway into ‘hard’ drugs, cannabis has been quietly functioning as a healthier alternative to alcohol, tobacco, and other drugs for vulnerable adolescents. Without question, Mr. Costa has been unique among the medically untrained people I know in his ability to grasp the significance of those findings and how they might be applied. Following his arrest by local authorities in Merced, our mutual needs led us to cooperate in developing those concepts from the early summer of 2004 onward.

At this point it may be appropriate to interject that rather than something to be frustrated, constrained, or thwarted by the existing power structure, a more positive response to the passage of Proposition 215 would have been to regard it as an opportunity to learn precisely why a vexing illegal market had been prospering for over three decades in the face of repressive federal and state efforts to destroy it.

 Mr. Costa’s need to defend himself had already led him to start a cooperative (The Merced Patient Group) as a model that might ultimately qualify for legal distribution of cannabis under the Compassionate Use Act. He was also working on community service projects that could take advantage of the powerful rehabilitative potential of cannabis identified by our data.

My own needs, generated by constantly changing political pressures on cannabis retail outlets, were for a continuing flow of patients in a venue where they could be seen at fees they could afford. Our mutual needs led us to conduct a series of clinics in Merced from August 2004 until his incarceration in August 2005. Since then, he has contributed several valuable (anonymous) histories gathered from fellow prisoners which have enhanced my own understanding of the impact of drug use on behavior, as well as how a more enlightened policy might help solve those problems.

Some findings of this five year experience with chronic cannabis users are summarized in a blog and on other web sites. It is to be emphasized that while neither final nor definitive, this work strongly suggests that federal drug policy is both grievously mistaken and unnecessarily destructive; primarily because it is being enforced in the absence of any unbiased evaluation of its results. In that context, I can only see the federal trial and conviction of Mr. Costa as profoundly unjust.

Thank you for allowing me to offer this statement on the occasion of his sentencing.


This gross injustice is, sadly, only one out of the many now competing for space in our media, which is the main reason I'm chronicling it here today. At some point, it will have to stop, but experience also teaches that we have no way of knowing how or when that will finally happen.

Doctor Tom

Posted by tjeffo at February 26, 2007 04:37 PM