cannabisnews.com: Medical Marijuana Detour





Medical Marijuana Detour
Posted by FoM on May 18, 2001 at 08:25:57 PT
By Alan W. Bock
Source: WorldNetDaily
The most disappointing aspect of the U.S. Supreme Court's 8-0 decision to deny the Oakland Cannabis Buyers Cooperative a "medical necessity" defense against marijuana production and distribution charges under federal law is that it was written by Justice Clarence Thomas. Justice Thomas is the justice I am most inclined to admire, for his sometime independence of thought and his keen awareness of the possibility of oppression by federal agencies. He is also the only justice to have publicly acknowledged smoking marijuana himself, while a student at Yale Law School. 
He really should know better. On its own narrow terms Justice Thomas' opinion is just barely defensible if you limit yourself to the artificial reality created by a statute and ignore the real world outside the confines of that abstract construct. He notes that when Congress wrote the Controlled Substances Act in 1970 (before almost all of the modern studies of marijuana's medical efficacy or potential, but we'll let that one pass) it established five progressively more restrictive "schedules" and placed marijuana on Schedule I, which prohibits any manufacture, distribution or use. (We'll also let it pass that the legislative history clearly shows that this was intended as a holding action until the Shafer Commission report was issued and that after that report Congress ignored its findings.) Anyway, Justice Thomas reasoned, Congress has had ample opportunity to place marijuana on a different schedule and has declined to do so. Several attempts have been made to use the administrative procedure the act also set up to reschedule cannabis and those have not succeeded. Therefore, Justice Thomas wrote, by the definition of the scheduling criteria, "for purposes of the Controlled Substances Act, marijuana 'has no currently accepted medical use' at all." In a footnote he emphasizes that "Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it." In many circumstances such judicial restraint would be admirable. But it is difficult to believe that at some level Justice Thomas was not aware that he was not only encouraging the most repressive instincts of the federal government, but he was perpetrating a lie. I'll give Justice Thomas the benefit of the doubt and stipulate that perhaps he really believes that cannabis "has no currently accepted medical use in treatment in the United States," even though the Institute of Medicine report that then-drug czar Gen. Barry McCaffrey commissioned after California passed Prop. 215 in 1996 acknowledged a number of widely accepted medical uses for cannabis and waxed enthusiastic about the potential for further research. But that is only one of the criteria for placing a drug or other substance on Schedule I that, according to the law must be met to place or keep a drug there. He has to know from his own experience that marijuana doesn't meet either of the other criteria. The Controlled Substances Act also requires that to be placed on Schedule I "the drug or other substance has a high potential for abuse," and also that "there is a lack of accepted safety for use of the drug or other substance under medical supervision." Marijuana does not meet either of these criteria, and Justice Thomas, who did not become addicted, shows no signs of having abused marijuana and did not subsequently become addicted to any other drug, simply has to know it from his own personal experience. There is also the IOM report ("Marijuana and Medicine: Assessing the Science Base," published in 1999 by the National Academy Press, available for purchase or download). It concludes that "although few marijuana users develop dependence [a slippery concept, not the same as addiction] some do. But they appear to be less likely to do so than users of other drugs (including alcohol and nicotine), and marijuana dependence appears to be less severe than dependence on other drugs." The report later notes that, "Some controlled substances that are approved medications produce dependence after long-term use; this, however, is a normal part of patient management and does not generally present undue risk to the patient." There is another aspect of Judge Thomas' opinion that is particularly disappointing. During oral arguments, Gerald Uelmen, the OCBC attorney who is former dean and currently professor at Santa Clara University law school, made a strong case that by its actions the government itself had already recognized the concept of medical necessity. Back in 1979 -- as I describe in my book, "Waiting to Inhale," and Mr. Uelmen told the Supreme Court -- Robert Randall, a glaucoma patient, got a federal court to acknowledge a medical necessity for him to use cannabis, since the alternative, in his experience and according to his physician, was blindness. The government's response was to establish a Compassionate Independent New Drug program, as authorized both under the federal food and drug laws and the Controlled Substances Act, under which it provided Mr. Randall marijuana at the taxpayers' expense. Through the 1980s as many as two dozen patients subsequently qualified for inclusion in the program and were given -- your tax dollars at work -- about seven pounds of marijuana a year from the government marijuana plantation in Mississippi. During the first Bush administration, after hundreds of AIDS patients applied, the government simply ended new applications for this program. But it kept all those who had previously qualified on, and to this day it provides taxpayer-paid marijuana to eight patients. Mr. Uelmen argued that by establishing this program and by continuing to provide marijuana to some patients, the government had explicitly acknowledged that marijuana is a medical necessity for at least some seriously ill patients. By ending the program it eliminated the only viable legitimate source of medical marijuana. But since it had acknowledged and continued to acknowledge the concept of medical necessity for some cannabis patients, it had forfeited the right to prevent private citizens from providing for the necessity it had declined to continue to provide. It was a compelling argument, both from a legal and a common-sense perspective. Given that history, how could the government deny even the possibility of a medical necessity defense? So how did Justice Thomas handle it? By ignoring it completely. There was not a word in his opinion about the Compassionate IND program or what implications it might have for recognizing the concept of medical necessity. To me, that was a prime example of intellectual cowardice, dishonesty and irresponsibility. In both practical and legal terms, Monday's decision, while disappointing, changes almost nothing about the legal status of medical marijuana. Before Monday's decision federal authorities viewed the federal law as mandating complete prohibition with no legally allowable exceptions. In California and eight other states the laws on medical marijuana were different, and while federal officials were sworn to enforce federal law, state officials were obliged to enforce state law rather than federal law. After Monday's decision the legal situation is substantially the same. The Supreme Court did not invalidate California's medical marijuana laws or the similar laws in others states, nor did it declare that federal law "trumps" state law, as several news organizations are still reporting. Justice Thomas's opinion explicitly acknowledges that the California law is still in place. The reason is simple. The case before it was brought under federal law, not state law, so it had no power to make a ruling or statement about state law. In fact, although a good deal of rhetoric has been spent, none of the state medical marijuana laws have been challenged on the ground that they conflict with federal law. Given the frequency with which initiatives are challenged in court, this is fairly remarkable. You can be sure that if federal officials thought they had a ghost of a chance of prevailing in such an action they would have filed a court action immediately. But they didn't. It is possible, especially considering that enthusiastic punitive drug warriors now occupy most of the top drug policy positions in the Bush administration, that other cannabis cooperatives in California will face federal enforcement action. But the feds may face a dilemma. Both Mr. Uelmen and several justices noted that it was likely that the federal government asked for a civil injunction against the Oakland cooperative because it was afraid to face a California jury, which it would have had to do if it had filed a criminal case. Will the government take that chicken route against other cannabis dispensaries? If one of them defies the order and is declared in contempt of court, it would then be entitled to a jury trial. Does the government want to risk that? Already a program is underway to inform California jurors and potential jurors that they have the power to vote "not guilty" in any medical marijuana case and thus stymie the federal government. They are further advised -- since the judges in the Peter McWilliams and Todd McCormick cases prevented the juries from being informed of any medical aspects of their situations -- that the wise thing would be to vote against conviction in any marijuana case brought under federal law. Better that a drug dealer should go free than that a seriously ill person should be sent to prison for using medicine. The medical marijuana movement may be disappointed but is hardly about to go away. And as Kevin Zeese, president of Common Sense for Drug Policy, told me, this decision "will create conflict and sharpen the issues. Above all, it makes it crystal-clear that the war on drugs is not about protecting health or safety, but in fact is designed and enforced in such a way as to deny a safe and effective medication to thousands of seriously ill Americans." As the realization of that fact spreads, support for the war on drugs, already shaky and ambivalent, is sure to decline drastically. 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 BockPublished: May 18, 2001Copyright: 2001, WorldNetDaily.com, Inc.Contact: letters worldnetdaily.comWebsite: http://www.worldnetdaily.com/Related Articles & Web Sites:Common Sense For Drug Policyhttp://www.csdp.org/Ready To Inhalehttp://cannabisnews.com/news/thread9518.shtmlO.C.B.C. Versus The U.S. Government News http://www.freedomtoexhale.com/mj.htmPeter McWilliam's Memorial Pagehttp://www.freedomtoexhale.com/Peterm.htmCannabisNews Medical Marijuana Archiveshttp://cannabisnews.com/news/list/medical.shtml 
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Comment #2 posted by Ethan Russo, MD on May 18, 2001 at 12:11:34 PT:
Inconsistencies Ignored
You may recall that I have a signed letter from Clarence Thomas acknowledging receipt of the charter issue of Journal of Cannabis Therapeutics and thanking me for sending it. All the other justices received one, too.Did he read it? I don't know. However, he had to know that it existed, and that it was a thick little tome on a particular subject. If there is a journal devoted to the subject of cannabis therapeutics, there must be some material to publish that supports the concept of its existence, if only one chooses to look. Congress can declare the world flat, if it wishes, but it will not be true. They can even declare black people to be slaves counted as 60% of a real Amerikan white male, like in the "good old days." We have an amendment against that now, but it is all subject to judicial interpretation, isn't it?As to the Compassionate Use IND patients, we will have some definite publicity on that subject about January 2002. Fasten your seatbelts, folks, it's gonna be an interesting ride. 
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Comment #1 posted by kaptinemo on May 18, 2001 at 09:57:48 PT:
To paraphrase a famous naval figure
We have not yet begun to fight.As Mr. Zeese has so succinctly put it:"this decision "will create conflict and sharpen the issues. Above all, it makes it crystal-clear that the war on drugs is not about protecting health or safety, but in fact is designed and enforced in such a way as to deny a safe and effective medication to thousands of seriously ill Americans."In any conflict, there are those who were sounding warnings early on about the peril of ignoring an increasingly dangerous situation.Rarely are they listened to at the time they make those warnings. All too often, most people will ignore a warning, a threat, whatever, until the situation is upon them and the time for sitting on fences is at an end. They have to choose. Matters that could have been defused with minimal effort by applying common sense are left to increase in their potential for destructiveness until it becomes so great that it threatens more than those who were immediately affected.The War on Some Drugs is the perfect example of what happens when a festering political and social boil is allowed to spread its' contagion. What was once used as a legal means of oppressing only minorities within our society has grown to threaten every member of it.But one nice thing about such polarization; it makes it a lot easier to know who your opponents are. And in the case of anti pols, it practically paints a big bull's-eye in International Orange on their backs. They either favor their sick and dying constituents - or kiss the arse of the Feds. They can't have it both ways, anymore. No more 'selective' adherence to the Constitution and the Bill of Rights; they are either supportive of the 10th Amendment ...or they aren't. And I, as one of tens of millions of furiously angry tax-paying, otherwise law-abiding citizens of this great country, would very much like to hear why.We may some day thank the SC for it's typically gutless decision; it just might be the catalyst that brings down the DrugWar for good and all. Simply by making people realize that the antis have indeed declared war upon us...and it's long past time that we showed them who has the superior numbers - and will to win.
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