cannabisnews.com: Tracking The Supremes on Medical Marijuana 





Tracking The Supremes on Medical Marijuana 
Posted by FoM on March 30, 2001 at 08:56:25 PT
By Alan W. Bock
Source: WorldNetDaily
Based on a couple of days in Washington, D.C., during which I have concentrated on the Supreme Court's oral arguments on medical marijuana in the Oakland Cannabis Buyers' Club case, I believe more firmly than ever that, as Kevin Zeese of Common Sense for Drug Policy, who appeared with me on a panel at the Cato Institute said, "No matter what the Supreme Court does, the medical marijuana movement has won. There is no way the federal government can put this genie back in the bottle." 
I'm also convinced that the Washington establishment (with certain exceptions) will be the last to know that they have lost this particular skirmish in the war on drugs. As an example, in the following day's story on the proceeding in the Washington Post (the newspaper of record, if there is one, for the permanent Washington establishment), the headline writer was impelled to put "Medical Marijuana" inside quotation marks, as if the idea of medicinal uses for marijuana were something of a fanciful notion held by only a few aging hippies. In Charles Lane's story, the following sentence summed up what seems to be conventional wisdom inside the Beltway: "Despite strong support for medical marijuana in certain states, national politicians have opposed the laws rather than deviate from the zero-tolerance drug policy the public generally demands." That is an astounding statement, even presuming that a reporter can know what "the public" demands. It does acknowledge that certain states have passed medical marijuana laws (making it somewhat internally self-contradictory). It does not specify that they have passed in every state where the question has been put to the public or that every national poll on the issue shows 60 to 75 percent in favor of an exception to the drug laws for medical use of marijuana. As I detail in my book, "Waiting to Inhale: The Politics of Medical Marijuana," there has been controversy within the medical marijuana movement over the way to present the issue to the voters, whether there should be a broad, expansive exception for patients subject almost entirely to the judgment of physicians and patients as to quantity or frequency of use, or strict limits as to the amount possessed or the number of plants. But it has turned out that the voters cared little about such esoterica. Wherever the word "medical marijuana" has appeared above an initiative, the voters have approved it, by margins ranging from 56 to 69 percent. The public, while perhaps supportive of or ambivalent about the drug war in general, clearly wants to establish a small "white market" for patients whose physicians believe they could benefit from the use of marijuana or cannabis. That conviction has been expressed every time the public has had the opportunity to make its will known in a formal or semi-formal way, and if anything it is getting stronger. Given that background, it is wondrous indeed to claim that any deviation from "the zero-tolerance policy the public demands" is something that a public that has clearly been saying otherwise simply will not tolerate. I would contend that there is a lot more questioning of the drug war as a larger issue going on among the general public -- indeed, more than I can remember since the 1970s -- than most people in Washington can imagine. But Washington -- based on the eight years I spent here and several visits since -- is an extraordinarily insulated and insular town. My guess is that Washington is about five years behind the public on drug policy. When California voters passed Proposition 36, which mandates treatment and therapy instead of incarceration for people convicted of simple possession of any illicit drug -- a much more sweeping reform than 1996's Prop. 215, though rather modest in my view -- they were clearly trying to tell the authorities that they are not satisfied with the way the drug war has been waged to date. Some may dismiss the vote as a California thing, but I would be surprised if a similar measure wouldn't pass in most states (one failed last fall in Massachusetts because it called for amnesty also, and that was too much for voters). Mr. Lane also mischaracterized the import of the Supreme Court case. He said that "a ruling in favor of the federal government could be a significant setback to the movement by creating doubt about the ability of states to deviate from federal drug law." Perhaps there would be a psychological impact, but from a legal perspective the Supreme Court ruling will have no impact at all on state laws for the simple reason that the validity of the California law created by initiative in 1996 was not before the Supreme Court, so it will have no opportunity to rule on it. In fact, none of the state initiatives have been challenged in court on the grounds that they conflict with federal law. And Justice Ruth Bader Ginsburg, in her questioning, pushed government attorney Barbara Underwood to acknowledge that the California law was not in play during this proceeding, that California officials would simply have to find a way to live with both the federal and the state laws and that she didn't think that would be impossible. One might argue that an adverse Supreme Court ruling in the Oakland case will be a psychological deterrent to future state initiatives or legislative activities. On the other hand, it could push drug reform advocates to redouble their efforts at the state level, since 99 percent of marijuana arrests are made at the state and local level and state laws would therefore protect something like 99 percent of patients unless the feds increase their drug war funding a hundredfold and start going after grandmothers trying to get relief from the nausea induced by chemotherapy. As for the arguments, even though I know the Supreme Court customarily prefers to deal with narrow issues rather than grand constitutional questions, I was a bit surprised by the narrowness of the issues the justices pursued in their questioning of attorneys. Almost none of the larger issues I mentioned in my column last week on the 9th and 10th amendments, federalism, the interstate commerce question or the scope of federal authority were even mentioned. Most of the justices' questions revolved around relatively narrow issues: Was the federal Controlled Substances Act of 1970 written so as to set up a system that precludes the possibility of a medical necessity defense? Was the government's decision to file a civil case rather than bringing a criminal action a tactic (as OCBC attorney Gerald Uelmen of Santa Clara University Law School argued) designed to prevent the case going before a jury, and reduce the government's burden of proof? How much "equitable discretion" does a federal district judge have to fashion an injunction that takes public and individual interests into account? Justice John Paul Stevens, the only justice to vote against staying the district court's injunction, asked questions that forced the government to acknowledge that it was requesting the court to rule that no medical necessity defense at all -- under any circumstances -- is possible under federal law. Several justices seemed disturbed by this contention, and Justice Scalia sought to refine the argument. But government attorney Barbara Underwood insisted on sticking to that extreme and possibly untenable position. Justice Ruth Bader Ginsburg asked why the government brief didn't argue that federal law pre-empts state law in this area, and Ms. Underwood acknowledged that the validity of California law was not at issue here. Prop. 215 provides a defense for patients with a physician's recommendation against California law, she says, but not against federal law. California officials are not required to enforce federal law, however, so the court decides patients could be subject to federal prosecution but not to state prosecution. Toward the end, Gerald Uelmen was able to argue that a medical necessity defense is already established under federal law by several lower-court decisions in the 1970s. In response to those decisions, he pointed out, the government set up a Compassionate Investigative New Drug system under which patients are supplied marijuana at taxpayer expense. The program stopped accepting new applicants in 1992 but eight patients are still receiving cannabis from the government. If the program had not been ended, Mr. Uelmen argued, patients would have a realistic alternative to cannabis cooperatives. Since the government ended its own program rooted in medical necessity, however, it must allow private citizens to step in and assume the burden of providing relief in medical necessity cases themselves without government hindrance. Robert Raich, an attorney for the Oakland cooperative who wrote much of the brief but did not argue the case, told me there could be three possible outcomes. First, the court could rule that the Ninth Circuit decided the case correctly and that a medical necessity defense under federal law can be asserted not only by patients but by organizations or support groups acting on their behalf. Such a ruling could apply nationwide, not just in the eight states that have made provision under state law for physician-approved medical use of cannabis. Next, the court could go the other way, ruling that no medical necessity defense is possible under federal law. Patients in states like California would then be protected against prosecution by state authorities, but could be subject to federal prosecution. Finally, there is also the possibility of a tie. Justice Stephen Breyer, whose brother is District Court Judge Charles Breyer, who handled the original case in Oakland, recused himself, so only eight justices heard this case. If there is a tie the Ninth Circuit ruling -- that medical necessity is a legally cognizable defense in federal cannabis possession, cultivation and distribution cases -- would stand, but only in the Ninth Circuit, which includes most of the western states. Based on the questions as I heard them, however, a fourth alternative is also possible: The court might rule that a medical necessity defense is available under federal law but it can only be asserted by an individual patient and decided judicially on a case-by-case basis. A third party like the Oakland Cannabis Buyers Cooperative would not be able to make such determinations on behalf of its clients because that might amount to a "blanket" necessity exemption under the law rather than individual exemptions based on the merits. This was the first time I had listened to a Supreme Court argument as a member of the media, a privileged status in that we were allowed to take notes, as members of the general public can't. We are hidden from the gaze of the public -- whose delicate sensibilities presumably might be offended at the sight of so many unwashed scribblers -- by heavy velvet curtains. I was fascinated and amused by the quasi-religious character of the proceedings. It struck me that the pomp and ceremony allow certain surreal aspects to make their way into the august proceedings. The solemnity and ceremonial aspects of the Supreme Court (repeated on a somewhat less grandiose scale in most courts around the country), combined with the preferred fiction that "the law" is something more sacrosanct than the product of fallible human beings operating under political, special-interest and outright irrational pressures can make for an Alice-in-Wonderland aspect of absurdity. The most obvious example in this case had to do with the rather key question of whether marijuana or cannabis has legitimate medical value. Now anyone who has even dipped into the scientific evidence -- much of it, though not enough, coming from controlled and rigorous scientific studies rather than mere anecdotal stories -- cannot help but know that at least for some people in some circumstances, cannabis is the best available (at least through the black market) medicine. DEA administrative law judge Francis Young's decision and recommendation in 1988 -- that it would be capricious and arbitrary and cause untold suffering to numerous patients to keep marijuana on Schedule I, where patients and doctors are denied legal access -- is well-supported by both scientific and legal evidence and reasoning. Since then, as the 1999 Institute of Medicine report ordered by then-drug czar Gen. Barry McCaffrey in the wake of the passage of Prop. 215 in California noted, scientists have discovered specific cannabinoid receptors in the human brain -- sites waiting to be unblocked by specific chemicals so the brain can use them. The IOM report was conservative in its statements but acknowledged that cannabis has numerous medical applications and other possible uses that virtually cry out for further scientific exploration. In the real world of science and medicine (as well as the experience of thousands of patients and doctors), then, cannabis undoubtedly has medical and therapeutic applications. To deny it is to ignore, perhaps to be invincibly ignorant of, a considerable body of reliable and undisputed scientific evidence. Yet in the atmosphere of the Supreme Court, and bolstered by the sometimes religious mystique of the law, Barbara Underwood was able to assert that it was the position of the U.S. government in all its majesty that cannabis has no known medical uses, that it involves a severe danger of abuse, and that it cannot be used safely under medical supervision. Why? Because those are the criteria for placing a substance on Schedule I under the Controlled Substances Act, and Congress had placed marijuana on Schedule I when it passed the Act (never mind that it was seen as a temporary holding action at the time pending more scientific inquiry) and neither Congress nor the DEA had taken action to remove it from Schedule I. Therefore it fit the criteria. Ignore those pesky scientists and doctors who say otherwise. Congress, a body notably devoid of much scientific expertise, had decided. That settles the matter. Several of the justices in essence ignored the absurdity and called marijuana a "medicine." But because of a law involving some snap judgments passed in 1970 none would say that it is a cruel absurdity, and probably illegal, for the government to keep marijuana on Schedule I when it clearly doesn't meet the criteria established by law for placement on that schedule. Nor is the court likely to consider or discuss the surreality involved. You won't get a prediction from me as to how the high court will rule, except that it is likely to be narrow in scope. I don't expect the Supreme Court to rule that the entire drug war on the federal level is unconstitutional and the feds should get out of the game and leave regulation of health and safety matters to the states, where it clearly belongs in our constitutional scheme. Whatever the ruling, however, the medical marijuana aspect of the drug war has already been won by the reformers. The mopping up may take several years, but the battle is over -- which may account for the desperation and overwrought rhetoric evident in congressional hearings called by Bob Barr the day before the court's arguments and the shrill rudeness on display from the often government-subsidized mothers against marijuana groups that made the media circus on the court steps after the argument even more of a circus than usual. Alan Bock is author of "Ambush at Ruby Ridge" and "Waiting to Inhale: The Politics of Medical Marijuana." Senior editorial writer and columnist at the Orange County Register, he is also senior contributing editor at the National Educator and a contributing editor at Liberty magazine. Source: WorldNetDaily (US Web)Author: Alan W. BockPublished: March 30, 2001Copyright: 2001, WorldNetDaily.com, Inc.Address: PO Box 409, Cave Junction, OR 97523-0409Contact: letters worldnetdaily.comWebsite: http://www.worldnetdaily.com/Related Article & Web Sites:Cato Institutehttp://www.cato.org/Common Sense For Drug Policyhttp://www.csdp.org/Oakland Cannabis Buyers' Cooperativehttp://www.rxcbc.org/Justices Consider Medical Marijuana http://cannabisnews.com/news/thread9205.shtml
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Comment #4 posted by MDG on March 30, 2001 at 20:41:43 PT
A picture in mind of Joyce Nalepka...
...popped into my head reading you guys' comments. It was the episode of The Simpsons where Marge was trying to shut down Itchy and Scratchy, and the animators put a whining, do-goodie weasel/rodent of some sort with blue hair into an episode, to mock her. That weasel was actually Joyce Nalepka.Mike...
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Comment #3 posted by kaptinemo on March 30, 2001 at 18:16:04 PT:
LOL! Big Ab, you're deadly!
Gallows humor, maybe, but definitely necessary. The way this week has been going, we could use some laughs.
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Comment #2 posted by Big Ab on March 30, 2001 at 13:14:42 PT:
Shrill Rudeness
  Yeah, you go girl !! To bloody hell with the sick and dying ! Into the toilet with those damn cancer patients !!Get a noose for the ones with AIDS ...Let the Glaucoma sufferers go blind ! Easier to catch and jail.. God protect me from those who call theirselves Christians !I still don't understand what difference it is to anyone what the hell a dying person does .... bunch of damn NAZIs
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Comment #1 posted by observer on March 30, 2001 at 10:28:04 PT
Shrill Rudeness: Joyce Nalepka
. . .the shrill rudeness on display from the often government-subsidized mothers against marijuana groupsCarrie Nation! You got another mention, baby! Oh yeah. You're doing fine, Mrs Nalepka, really fine. Keep up your efforts, Joyce: you're helping us out more than you are able to realize. The shriller, the better.Shrill and Rude Mothers-Against-Marijuana group mentioned:http://www.ourdrugfreekids.org 
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