In the Commonwealth vs. Woody Harrrelson, the actor scored an important victory yesterday.
An Eastern Kentucky judge presiding over a case involving Harrelson ruled that a portion of a state law that lumps industrial hemp with marijuana is unconstitutional.
The ruling could be the first step toward making hemp a legitimate crop for farmers, an idea endorsed by the Kentucky Farm Bureau and others, but opposed by law enforcement.
But the prosecutor in the case could still be tried and convicted. Harrelson, who stars in The People vs. Larry Flynt, was in Lexington in May for an international conference on industrial hemp and made a side trip to Lee County to plant what he said were four hemp seeds.
The planting was a calculated challenge to the state law that makes no distinction between marijuana and hemp.
Industrial hemp is a cousin of marijuana that has little of the chemical that produces a high in users. Industrial hemp has .3 percent or less of tetrahydrocannabinol, or THC, the psychoactive ingredient that produces a high. Potent marijuana can have 10 percent or more THC.
In the ruling filed yesterday, Lee District Judge Ralph McClanahan II said there should be a distinction between parts of the plant that have THC and parts that don't. The definition of marijuana under which Harrelson was charged "is constitutionally defective due to its overbroad application by including non-hallucinogenic plant parts," the judge said.
"There's a judge with vision," Harrelson said yesterday in a telephone interview from Los Angeles. "I couldn't be happier. This is a great day."
But Lee County Attorney Tom Jones said he intends to appeal McClanahan's ruling to Lee Circuit Court and continue with Harrelson's prosecution. If convicted, the actor faces up to a year in jail and a $500 fine.
Jones said his reading of the judge's ruling is that seeds with any THC are illegal, and that Harrelson has admitted under oath that the seeds he planted had a small amount. Experts say that no hemp seeds are devoid of THC.
An appeal had been expected no matter which side prevailed in the constitutional question.
Charles Beale, one of Harrelson's Lexington attorneys, said the case probably will go at least to the Kentucky Court of Appeals. At that level, a ruling has statewide impact.
Hemp's supporters tout the plant as a source of everything from paper to fabric to lip balm and say it could help Kentucky's beleaguered tobacco farmers. Environmentalists like it because it doesn't need herbicides or pesticides and can save trees.
But police say it would just cause marijuana enforcement problems.
At a hearing in the Harrelson case, Kentucky State Police Sgt. James A. Tipton, a member of the Governor's Marijuana Strike Force, testified that if hemp were legal, farmers in a financial bind might try to sneak a few marijuana plants among the hemp stalks.
Hemp advocates say that would be unlikely because the plants are cultivated quite differently and because the hemp would lower the THC content of the marijuana, making it less valuable.
How much does Lee District Judge Ralph McClanahan II dislike marijuana? Almost exactly as much as King James I disliked tobacco. In declaring unconstitutional part of a state law that equates industrial hemp with marijuana yesterday, the judge wanted to make it clear that he was in no way endorsing marijuana.
To help do so, he lifted some of the words penned by the English king in his 1604 "Counterblaste to Tobacco."
Here's how the king described smoking tobacco 393 years ago: "A custom loathsome to the eye, harmful to the brain, dangerous to the lungs, and in the black stinking fume thereof, nearest resembling the horrible Stygian smoke of the pit that is bottomless."
Here's how the judge described marijuana yesterday: "The use of the hallucinogenic properties of marijuana is an act loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs, and in the stinking fumes thereof leads to the pit that has no bottom by the association of the consumer to the source of such controlled substance."
The judge said through a spokesman yesterday that it would be improper for him to discuss any aspect of his decision because the case still is pending.
The king is most often associated with another widely quoted work, the King James Version of the Bible.
Pro-hemp forces win early round as judge throws out state law
By Allen G. Breed
Associated Press
A district court ruling that called a state law outlawing marijuana unconstitutionally vague and overly broad was a small victory for actor and hemp-activist Woody Harrelson.
Lee District Judge Ralph McClanahan II ruled yesterday that state law don't differentiate between hemp and marijuana, hemp's psychoactive cousin. The ruling is law only in that Eastern Kentucky county, but Harrelson said it's a start.
"I definitely see it as a victory," he said in a telephone interview from Los Angeles. "We'll start with the county, and it'll spread to the state. There's no question it's a happy day for all of us in the hemp movement."
Harrleson was arrested June 1 after planting four industrial hemp seeds on a small plot of land he bought for the purpose. The actor, partner in a California company that makes clothes and other products from imported hemp, was charged with misdemeanor possession of marijuana and faced 12 months in jail.
McClanahan didn't let Harrelson completely off the hook. He said a trial must be held on whether the seeds were capable of producing plants that contain THC.
Harrelson argued that hemp would be a viable alternative for Kentucky farmers facing hard times with proposed restrictions on tobacco and would be better than cutting down trees for paper. Prosecutors said legalizing industrial hemp would worsen problems involving psychoactive varieties of the plant.
McClanahan sympathized with law enforcement but said the state went about things the wrong way.
"The use of the hallucinogenic properties of marijuana is an act loathsome to the eye, hateful to the nose, harmful to the brain, dangerous to the lungs and in the stinking fumes thereof leads to the pit that has no bottom," McClanahan wrote. He said regulating the drug is a legitimate concern.
"Unfortunately, the Commonwealth has impermissibly regulated an otherwise legal substance to reach this end," he wrote.
Federal bans are aimed at plant parts that contain psychoactive THC, the judge said, not parts useful in making fiber and other products. He noted the state changed its legal definition of marijuana in 1992 from the federal one without explaining why.
Hemp was widely used during World War II in the manufacture of rope, cloth, paper, oils, cosmetics and other products, and Kentucky once led the nation in hemp production. The plant is legally grown in Europe, Canada and China.
Lee County Attorney Tom Jones, who prosecuted the case, said he intends to appeal, even though it means setting the stage for a statewide precedent.
"If I don't take it up, then they'll do it in another county," he said. "And we have about as strong a case as we could put on ... so we might as well meet the enemy head on and conquer them here."
Harrelson said he will take the case as far as necessary.
Defense lawyer Burl McCoy of Lexington said the ruling already has precedent value.
"What would happen is the next person who is charged in Lee County or Pike County will pull this judgment out", he said. "And then it would be up to the judge to decide what he wanted to do."
But farmers shouldn't go out and start planting hemp seeds, said Andy Graves, president of the Kentucky Hemp Growers Cooperative.
"I think that the federal government is the ultimate power here through the DEA," he said. "And when we have the OKs from those folks, then I believe that I will encourage farmers to step up to the field and start growing."