UPDATE: I received an updated version of this article from Ed. He was sentenced to nine months of jail for probation violations. He is temporarily out of jail so he can get his cancer treatments, however will need to return to jail soon.
Friends of Ed (including this author) have started a website to raise some money for Ed. See http://helpnjweedman.com and consider giving a donation.
The National Libertarian Examiner has a story today on Edward Forchion. He has a hearing on Tuesday. It is still unknown whether or not he can make it to our convention as planned. If he is unable to attend I will try to get him to briefly address the attendees via speakerphone. We have received a letter from him from the Burlington County jail last week. Below is part of what he sent us. Hopefully we will be able to hear of his ordeal on Saturday.
In July of 1997 Governor Whitman signed into law a new Omnibus Crime Bill that revamped all of the criminal laws 2C:35-10. The criminal marijuana laws (N.J.S.2C:43-3(1)) described marijuana as a schedule 1 drug - "having no medical value". On 1/18/2010 New Jersey Governor Jon Corzine signed into law the NJ Compassionate Use Act C.24:6I-2. The law, in part, reads:
The Legislature finds and declares that: (a) Modern medical research has discovered a beneficial use for marijuana in treating or alleviating the pain or other symptoms associated with certain debilitating medical conditions……(c) Although federal law currently prohibits the use of marijuana, the laws of 14 states permit the use of marijuana for medical purposes, and in Arizona doctors are permitted to prescribe marijuana. New Jersey joins this effort for the health and welfare of its citizens; ………(e) The purpose of the NJ Compassionate Use Act to protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.
Please think about this - NJ now has two laws saying different things. One law the most current a medical law C.24:6I-2 recognizes marijuana's medical use. To me: wouldn't that render the older 2C:35-10 law that doesn't recognize medical use as outdated, obsolete, flawed at the very least, and outright unconstitutional at best? Shouldn't the state's Title 2C:35-10 marijuana laws be VOIDED for VAGUENESS, and nullified in violation of due process? How is it the state gets to prosecute citizens like myself under 2C:35-10 criminal statutes that falsely, in direct contrast to more recent law, that statutorily classifies marijuana as a schedule 1 drug having “no medical value”. Then simultaneously allowing, under the NJ Compassionate Use Act C.24:6I-2, other citizens to grow, distribute, and use it as a medicine? Equal protection, Due Process?
In American constitutional law, a statute is void for vagueness and unenforceable if it is too vague for the average citizen to understand. There are several ways, senses or reasons a statute might be considered vague. In general, a statute might be called void for vagueness reasons when an average citizen cannot generally determine what persons are regulated, what conduct is prohibited, or what punishment may be imposed. Criminal laws which didn't state explicitly and definitely what conduct is punishable for example are void for vagueness. A statute is also void for vagueness if a legislature's delegation of authority to judges and/or administrators is so extensive that it would lead to arbitrary prosecutions.
Unconstitutional vagueness is a concept that is used to strike down certain laws and judicial actions in United States federal courts. It is derived from the due process doctrine found in the Fifth and Fourteenth Amendments to the United States Constitution. No one must risk criminal prosecution merely because he or she cannot reasonably understand what conduct is prohibited under the law.
Other states such as California dealt with this by making "medical exemptions" to its criminal statutes. New Jersey has a provision (N.J.S. 24:21-3(d)) within the Department of Health to do as well, this statute allows the director to change the schedule but the politics of pot prevents the application of this provision.
d. The director of the State Department of Health 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.
Governor Christie has engaged in obstructionist politics and failed to order the Department of Health to change the state schedule of marijuana. Thus, here in NJ we still have two laws saying the opposite thing(s). If this wasn't about marijuana, lawyers and Judges would acknowledge this as unconstitutional fact but the legal profession and law enforcement need marijuana to stay illegal. For it is clearly the backbone of the lucrative war on drugs and a huge cash cow to these entities. This is clearly unconstitutional. I believe every citizen arrested and prosecuted under the current C.24:6I-2 marijuana criminal statutes since 1/18/2010 were prosecuted unconstitutionally and my pending appeals argues that on behalf of all of them - not just me.
In pre-trial motions to Judge Delahey I argued to dismiss my indictment and the (2C:35-10) charges based on this valid claim of unconstitutionality. Due to the "Politics of Pot" he declined to dismiss or rule that Title 2c laws were now unconstitutional. Thus, I was prosecuted under the (unconstitutional) Title 2c criminal statutes instead of being protected under the Compassionate Use Act. Additionally “amongst other issues” I argued there was a valid Equal Protection constitutional questions to Judge Delahey’s ruling. Now that the state has recognized marijuana medical value how is it the state of New Jersey gets to tell us who is to be medically treated with marijuana, and who shouldn’t be? Under what authority was this? Marijuana is a medicine and should be accessible equally. How does the state get the authority to pick and choose diseases, ailments and conditions acceptable to it? Where does this authority come from for the state to authorize person to use marijuana per medical law C.24:6I-2 , while depriving others with criminal sanctions per 2C:35-10.
14th amendment Equal protection, - No State shall deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Factually - I was arrested on 4/1/2010, three months after the NJ Compassionate Use Act C.24:6I-2 was enacted and signed into law 1/18/2010. I’ve been a marijuana legalization activist for over a decade and was well aware of the New Law and its implications per scheduling – this fact played into “my state of mind and understanding” that the state of New Jersey at the time of my arrest had in fact recognized marijuana’s medical value. “I believed” at the time of my arrest I had the protection of the medical law and criminal statues were voided. Yet in pretrial rulings Judge Delahey refused to allow me to introduce the Compassionate Use Act C.24:6I-2 as part of my defense, or for protection from criminal prosecution, nor would he VIOD it for Vagueness. I wasn’t allowed to present this fact/option to my jury. His ruling actions are to be attacked on my appeal as violations of Procedural “due process. He denied me my Due Process RIGHT: “Opportunity to present reasons why the proposed criminal action should not be taken”.
Full Faith and Credit - I'm a legitimate medical marijuana patient Licensed by the State of California per. I have bone cancer, several doctor recommendations as well as a California issued medical marijuana card. Judge Delehey ruled that it was irrelevant legally and refused me the medical protection. The intent of the NJ Medical Marijuana law was to protect legitimate medical patients from imprisonment. What about citizens such as myself Licensed in one of the “14 states and the district of Columbia who permit the use of marijuana for medical purposes, or as in Arizona doctors are permitted to prescribe marijuana. Hundreds of thousands of US Citizens are now being registered and licensed as medical marijuana patients nationally. Are they to avoid the State of New Jersey because of its archaic marijuana laws? Will they all be subjected to criminal proceedings I’ve been thru since 4/10/2010? Does the State of New Jersey really believe persons with a legitimate condition must switch treatments upon entering into New Jersey for fear of arrest? Why isn’t the Full Faith and Credit Clause respected? If a New Jersey medical marijuana issued card holder was accosted by law enforcement in California they would be treated per Proposition 215, the California Compassionate Use Act of 1996 (11362.5) as medical patients.
The Full Faith and Credit Clause is the familiar name used to refer to Article IV, Section 1 of the United States Constitution, - Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
I originally wrote this from the Burlington County jail – jailed on a possession charge for the Medical marijuana that I bought legally in California, and brought with me on family visit to New Jersey. I positive on appeal Judge Delahey’s rulings will be over turned but there is no way to recover what I’ve lost in time, money, or freedom. I look forward to the rulings and precedents this case will render thanks to Judge Delahey’s short-sightedness.
Edward "NJ Weedman" Forchion
Burlington County Jail #73966