norml17 - Page 17
Return to Index
eighth arnendrnent. 6_ This would seem ripe for arguing in the matter of
medical marijuana, since denial of the drug for therapeutic reasons is not
"unusual," but is arguably "cruel°"
The legal wall confronting this attack is in the word "purdshn_nt." The
term has been held to apply only to a sentence or fine. Even a person who
received a suspended life sentence had ao standdng to raise the constitutional
issue of the "cruelty,." of the sentence until the suspended sentence was
revoked and the fife sentence imposed. 63
Likewise, the seizare and forfeiture of property under the drug laws is
considered a civil, not criminal, proceeding, with the state needing to show
only by civil law standards (preponderance of the evidence) that the real or
personal property seized was intended to be used in il]_egal drug-related
acfivit-yA 4 The Washington Supreme Court held that "forfeiture is strictly a
civil proceeding in rein," and the "proceedings are quasi-criminal ha nature
only with respect to the need to protect certain Fourth and Fifth Amendment
rights. TM Thus, civil foffeitexe does not merit consideration as "punishment,"
cruel or otherwise.
In 1980, the Supreme Court of Washington held that the statutory
sentences for possession of marijuana did not rise to the level of cruel and
unusual ptnfishmento °_ Justice James Dolfiver wrote a 14-page dissent,
contending that a sentence of five years in prison and a $10,000 fine, and loss
of civil fights as a felon, for mere possession of more than 40 grams of
marijuana, does violate both the eighth amendment and article 1, § 14.67 (He
did not analyze the greater protection of the state constitution.) Two other
justices concurred. It seems likely, even probable_ that by enhancing Justice
Dolfiver's carefully presented logic with the additional irrationality of
prohibiting therapeutic use to prevent suffering (bolstered with scientific data
62 S_tate__x. FAdu, 94 Wn.2d 387, 617 P.2d 720 (1980).
63 State v. Lan_laad_ 42 Wn. App. 287, 711 P. 2d 1039 (1985).
64 RCW 69.50.505.
65 _, 116 Wn.2d 342, 35I, 804 P.2d 24 (1991). The colin ao_xi that Ro_aer'_ claims to
greater protection under the state cor_stitution were Dot properly briefed under the Gunwall factors, but
would not prevail iri any case because the express purpose of the law in question wa,s to provide
aniformity with the federal law, and in any event, state and federal due process clauses ate exactly the
same. 116 Wno2d at 352.
66 _, 93 Wn.2d 329, 610 P.2d 869 (1980)
67 r_ 93 Wn.2d at 354-367.
Return to Index