Quadriplegic man dies while jailed for pot possession
On September 24, 2004, 27-year-old quadriplegic and medical marijuana user Jonathan Magbie died while incarcerated within a Washington, DC, jail. Magbie died from suffocation, the result of being deprived of his breathing ventilator and his usual round-the-clock nursing care.
While the surface-level events are shocking enough, within the details of Magbie's story lie the shocking facts of a tragedy that some are labeling "judicial homicide."
Circumstances of a tragedy
Magbie's troubles began in 1981, when, at the age of four, he was struck by a drunk driver while exiting a school bus. The accident paralyzed Magbie from the neck down, significantly stunting his growth and relegating him to a chin-operated wheelchair for the rest of his life. He required a mechanical ventilator to breathe and professional nursing care 24 hours a day; this was eventually limited to 20 hours per day at the request of Magbie's family.
22 years later, in April 2003, DC police stopped the SUV driven by Bernard Beckett, Magbie's cousin, in which Magbie was a passenger. According to Boniface Cobbina, Magbie's attorney at the time of his sentencing, "The vehicle was stopped because back seat passengers were observed by DC police to be toasting with cognac." Once again, the abuse of alcohol by others resulted in a life-altering event for Magbie.
Found on his person during the search of the vehicle was Magbie's medical marijuana, a loaded 9mm pistol, and four grams of cocaine. According to public court records, Magbie had asked Beckett to place the gun on him.
Seventeen months later, on September 20, 2004, Magbie suffered the ill fate of appearing before DC Superior Court judge Judith Retchin. Retchin has a reputation for administering harsh sentences, especially against those who enter her courtroom on drug charges. A pre-sentence report for the case recommended that Magbie be given probation, to which the US Attorney's office had no objection. According to Cobbina, a sentence of probation for first-time marijuana possession is standard in the DC court system.
Judge Retchin, however ? seemingly insensitive to the fact that Magbie was quadriplegic, a first-time offender, and incapable of operating a weapon ? sentenced him to 10 days incarceration for the possession of marijuana. In an interview with Cannabis Culture, Cobbina called this "an extremely atypical sentence for a first-time marijuana offense in DC." Washington Post staff writer Henri Cauvin also opined that, "The 10-day sentence rendered by Judge Judith E Retchin was unusually punitive for a first-time offender."
Nevertheless, in a transcript of the court proceedings, Retchin informed Magbie, "I'm not giving you straight probation. Although you did not plead guilty to having this gun, it is just unacceptable to be riding around in a car with a loaded gun in this city."
Unusually strict sentence
Retchin gained distinction in the DC legal community after playing a pivotal role in the infamous 1990 prosecution of then-DC Mayor Marion Barry. That case centered on Barry's alleged use of cocaine. At the time, Retchin likened the Barry case to a war, saying, "The General [Barry] was working with the other side."
Although Retchin justified her strict sentence doled out to a quadriplegic first-time offender by referencing the gun found on Magbie, the official charge was for marijuana possession alone; Cobbina had motioned for and was granted by Retchin dismissal of all other charges. "I didn't allow the judge to inquire into those charges because they weren't relevant to the proceeding," Cobbina said.
During his interview, Cobbina remained resolute in his objection to the strictness of Retchin's sentence. "No judge in DC gives a sentence like 10 days to a first-time offender for marijuana possession. It wasn't necessary for the judge to even consider my client's disability; the first time offense alone was enough to fully justify probation," Cobbina said.
Many in the DC civil rights and medical marijuana community agree. According to Philip Fornaci, Executive Director of the DC Prisoners' Legal Services Project, "It certainly seems likely that he wouldn't have died if he hadn't gone to jail." He continued, "Judge Retchin's ill-advised sentence set into motion a series of events that left a highly vulnerable man in the hands of the inept staff of the DC Department of Corrections. Judge Retchin placed Magbie's life in jeopardy, but it was the criminal mismanagement of the Department of Corrections that ultimately killed him."
"We see this as just one additional tragedy in the long line of tragedies in the war on marijuana users in this country," said Steve Fox, Director of Government Relations for the Marijuana Policy Project, a non-profit that lobbies Congress for marijuana legalization and decriminalization.
While the Magbie case is tragic, Fox points out that it is not unique. "We're dealing everyday with situations where patients are being denied their medicine, where people are being sent to prison for using a substance less harmful than alcohol. The Magbie case is an extreme example of that. It's incredibly unfortunate, but it's just the tip of the iceberg."
The sentencing in Judge Retchin's courtroom wasn't Magbie's first encounter with a powerful prohibitionist figure. In October 1982, at the age of five, Magbie appeared with President Ronald Reagan and officials of the American Association for Respiratory Therapy in the Oval Office of the White House. A press conference was held in conjunction with National Respiratory Therapy Week, with everyone in attendance grinning exaggerated political smiles for the cameras. Everyone, that is, except for young Magbie, who held a mechanical ventilator tube in his mouth, allowing him to breathe.
Chillingly, Magbie's brief encounter with President Reagan occurred only 3.5 miles from the jail in which he would slowly suffocate and die some 22 years later. Ironically, it was the drug war fanaticism promoted by Ronald Reagan that eventually killed Magbie.
The attention afforded Magbie during his visit to the Oval Office in 1982 contrasts sharply with the neglect he suffered under the DC Department of Corrections as a result of Retchin's unusually strict sentence. The contrast of these two events in Magbie's life aptly illustrates the hypocrisy of a government so sharply focused on its draconian war on drugs that it cannot correctly determine the fair treatment of a seriously ill medical marijuana patient. A patient charged with what, in many states, constitutes not even a minor misdemeanor.
Lest Judge Retchin be unfairly characterized as a vengeful and insensitive prohibitionist despot, consider the following January 14, 2004, courtroom transcript featuring Retchin and Nikki Lotze, Magbie's attorney at the time:
Judge Retchin: Good morning. Where is Mr Magbie?
Attorney Lotze: Your Honor, I wonder if the court would consider waiving his presence; he was hospitalized. He's not hospitalized right now, but he was released earlier in the week having had a bout of pneumonia.
Judge Retchin: No, I would not waive his presence. He needs to be here.
Attorney Lotze: I'll see if I can get him here later in the day, your Honor. But, could we waive his presence just for purposes of scheduling matters and then I'll have him...
Judge Retchin: I'll issue a warrant for his arrest. It will be no bond as to Mr Magbie.
Instead of the flimsy justification of the gun for her strict sentencing, more likely the true reason for Retchin's venomous treatment of this young man was anti-marijuana bias. Despite Retchin's mention of the gun during her sentencing of Magbie, an anti-drug stance is supported by her record.
In May 2004, she suspended the 18-month sentence of a man who pleaded guilty to the charge of Carrying a Pistol Without a License, requiring no jail time of him. The smoking gun in this case was that it involved only that ? a gun ? and no drugs. Two months earlier, Retchin sentenced another DC resident to 30 months in jail following a guilty plea to the charge of Attempted Distribution of Heroin.
These are admittedly isolated sentences, but they build a case for Retchin's lack of objectivity, consistency, and fairness. While she leveraged the gun as justification for her sentence, her true motive more likely was marijuana. More specifically, Retchin was upset at Magbie's honest admission to pre-sentence investigators that he would likely continue to use cannabis because it was the only thing that made him feel better. Magbie added that he didn't believe there was anything wrong with using marijuana. This "lack of remorse" infuriated Judge Retchin.
At sentencing, Judge Retchin incorrectly stated that the DC jail would be able to accommodate Magbie's medical needs. In fact, the jail actually didn't have the respirator Magbie needed to breathe, nor did they have the equipment needed to suction his lungs free of fluid.
After two days, the jail transferred Magbie to the Greater Southeast Community Hospital, which handles inmate hospitalizations. The hospital soon transferred him to the Correctional Treatment Facility (CTF), another corrections department unit near the jail.
Initial media reports claimed that the CTF told the hospital they couldn't meet Magbie's needs, but that the hospital would not take him back. CTF then apparently asked Judge Retchin to order the hospital to take Magbie, but Retchin refused. (Later, hospital administrators denied that the CTF had ever asked them to take Magbie back.)
According to media reports, Magbie's mother and lawyer begged CTF staff to let her bring her son his ventilator, and after two days they were finally told that she could bring it in at 10am. Magbie's mother arrived at 9:30am, and waited 45 minutes before a doctor came to see her. She gave him Magbie's ventilator, and then asked guards if she could visit her son, but was told that she couldn't because she did not have a formal appointment.
What the doctor and guards didn't tell Magbie's mother was that her son wasn't even in the prison at the time. Hours before his mother's arrival, Magbie had a medical emergency and had been transported to the hospital by ambulance. The doctor and guards all knew, but chose not to tell his mother. "If I had known, I could have told them what might have been wrong with him, and how they could help him," she said later.
It wasn't until later that night that Magbie's mother received a phone call saying that her son had been hospitalized, and was now dead.
Only one week later, Chief Judge Rufus King III told the media that the investigation of Magbie's death was closed. King added that he would be meeting with corrections officials to review their ability to deal with medical conditions in jail, and perhaps institute more training for judges.
Magbie's death produced some scathing editorials in the Washington Post, but received virtually no national coverage.
The only formal protest against Magbie's death was an eight-day vigil put on by Loretta Nall, leader of the US Marijuana Party. On October 5, Nall and three others stood across from the courthouse, unfurled a banner reading "Judge Retchin guilty of judicial homicide," and began handing out leaflets to passers-by.
Showing their lack of respect for her First Amendment rights to free speech, DC prosecutors outside the courthouse threatened to arrest Nall for libel, but never carried out their act of intimidation.
"After about 15 minutes of discussion with the prosecutors about whether it was right or wrong to say Judge Retchin was responsible for Magbie's death, one of them said, 'We will arrest you by the end of the day for slander and libel.'" explained Nall. "I simply sat down, continued protesting, and waited to be arrested. I was quite disappointed when the day came to a close and they had not made good on their threat."
One of the most interesting encounters was with a federal marshal who walked up to Nall and said hello. "I returned his greeting," reported Nall, "all the while wondering what was about to happen and bracing for a head-cracking or some such brutality. Shockingly though, he began to tell me that he was the marshal who had been in charge of transporting Jonathan Magbie to the jail."
Nall talked to the marshal for some time. "He said when he saw Magbie and his condition he was shocked and upset that a person like that could be sent to jail. He said he felt like the lowest piece of scum on earth for having to drive him to jail and that he felt deep down that something horrible might happen. He told me when he read the story in the Washington Post a few days later he broke down and cried like a baby. He said he felt responsible to a degree but that as a federal marshal he had to do what he was told."
"I thanked him mightily for coming over and talking to me," added Nall. "I told him how he had redeemed his fellow officers by taking a few minutes to share his part of the Magbie story with me, and by being respectful and having the courage to stand in front of that courthouse in full uniform and say the things he said. He smiled, thanked me for having the courage to speak out and said with a wink, 'If anyone asks I told you to move on.'"
Nall is not only dissatisfied with the lack of national media attention given to the Magbie tragedy, she's also frustrated by the lack of turnout on the part of activists. "Aside from Marc Emery, who funded my trip, and a few dedicated people from the Cannabis Culture forums who made the trip here, no one here gives a damn about what happened. The only people who were brave enough to come and talk to us and show any support were the black defendants going in and out of the courthouse."
Power and racism
The Washington Post editorialized that it was Magbie's lack of connection to "this town's rich, famous or influential," that resulted in his stiff sentence. Nall was far more blunt, claiming that racism played a major role in the treatment Magbie received.
Magbie was black, and according to Nall, "All Judge Retchin saw when she looked at Jonathan was another 'dope smoking nigger.' She did not see a helpless, vulnerable, completely dependent human being whose life was already hard enough. The drug war mentality has turned her into a monster. Her and many others."
Washington DC is known for racist tendencies in its justice system, especially towards drug offenses. Half of the black men between the ages of 20 and 29 in Washington DC are under the jurisdiction of the criminal justice system, mostly for minor drug crimes. (That is higher than the still shocking national average of one in three.)
In a Pot-TV interview during her October courthouse protest, Nall said, "What happened to Mr Magbie should outrage everyone, whether they use cannabis or not. There should be 10,000 people in front of that courthouse every day, chanting and demanding that Judge Retchin step down and that the newspapers and television stations come out and cover this. This has to stop right here, where it started, in Washington, DC!"
? Loretta Nall and the US Marijuana Party: tel 404-806-5303; firstname.lastname@example.org; www.usmjparty.com
? Nall's vigil on Pot-TV: www.pot-tv.net/shows/3113.html
? Media reports on Jonathan Magbie: www.mapinc.org/people/jonathan magbie