cannabisnews.com: Feds Show No Compassion in Medicinal Pot Case





Feds Show No Compassion in Medicinal Pot Case
Posted by FoM on June 07, 2001 at 17:35:51 PT
By Sherry F. Colb, FindLaw Columnist
Source: CNN.com
The Supreme Court recently decided in U.S. v. Oakland Cannabis Buyers Cooperative that there is no "medical necessity" exception to the federal law prohibiting the production and distribution of marijuana. The case arose in California, where the law makes possession and cultivation of marijuana illegal but exempted medical uses to help victims of diseases such as cancer and AIDS endure the pain and nausea from illness and treatment. The exemption provision, called the "Compassionate Use Act," was passed by a voter initiative. 
The Oakland Cannabis Buyers Cooperative was formed and operated to dispense marijuana to patients who qualified for the exemption. The people who ran the cooperative -- a medical doctor and a staff of nurses -- took the view that patients who can benefit from the medical use of marijuana ought to have access to the drug. Cooperative defied court:In 1998, the Clinton administration brought a lawsuit to stop the cooperative from cultivating and distributing marijuana. The government claimed an injunction was warranted because federal law prohibits the production and distribution of marijuana, and federal law trumps contrary state law. The district judge granted the injunction, but the people who worked at the cooperative defied the court order and continued to service their sick patients. Their actions were brave, given they could have been criminally prosecuted. When they disobeyed the court's injunction, the government moved for a finding that the cooperative was in contempt of court, and the judge so held. The cooperative ultimately appealed the judge's decision and prevailed in the 9th U.S. Circuit Court of Appeals, which decided there was a medical necessity exception to the federal ban on marijuana. The Supreme Court then granted certiorari and reversed. A misplaced crusade?One could make legal arguments either supporting or opposing the cooperative's position that both federal statutes and common law allow a medical necessity exception, and the parties did. But whatever one thinks of the legal question, one thing is certain: The case need not have come to the Supreme Court. Two separate government branches ensured it would by each deciding to exercise its discretion to press this issue. Assume that federal law did ban marijuana irrespective of medical need. Even so, the executive branch still had the authority to decide whether to pursue enforcement of the law in the context of medical use. It chose to exercise that discretion in favor of enforcement. The Justice Department made a judgment that of all the misconduct subject to federal law that takes place every day, what merited its attention was a medically run nonprofit organization that distributed marijuana to sick people. The Justice Department thus began its crusade against the cooperative at the trial court level and did not stop until it had won in the Supreme Court. Court could have left it alone:Although the executive branch decided to clamp down on the use of marijuana to alleviate suffering, the judicial branch still had other options. It could have, for example, read the common law to provide for medical necessity. The district court opted for a reading of federal law that allowed for no medical necessity exception, although it did recognize "that human suffering could result." Then the 9th Circuit, in a more compassionate ruling, reversed the district judge's decision. The Supreme Court could have left it at that. Remember the Supreme Court grants certiorari in only 1 percent to 2 percent of cases. The decision to take a case thus represents more than the identification of a possible error in the lower courts. Indeed, the court has proclaimed it does not consider itself a "court of error correction," refusing to bend on this point even when possibly meritorious claims of people on death row have been at stake. So even if the court thought the 9th Circuit's reading of the law was erroneous, it could still have turned this case down. Nevertheless, it took the case and ruled -- unanimously -- that the Oakland Cannabis Buyers Cooperative must close. Marijuana's symbolic power:Why did the federal government make a priority of seeking out and obtaining this result, a mission that promised to bring about suffering and maybe death? Why did the court decide to hear a case when, given the justices' views of the merits, choosing to hear it meant perpetuating the pain of terminally ill patients? The answer lies in the symbolic power of marijuana, a power that for many public officials seems to close down the capacity for empathy or "compassionate conservatism." The federal government has declared war on drugs, and marijuana has become a potent symbol in that war. This power holds sway over even those officials who have admitted using marijuana recreationally in the past, among them Associate Justice Clarence Thomas and former President Bill Clinton. But even if drugs are an unadulterated evil and destructive force, many have demonstrated that the war on drugs is futile and counterproductive. Proponents of the drug war respond that if it were counterproductive to prohibit murder, there nonetheless would be honor in condemning what is morally wrong, regardless of the consequences. Suppose that this argument, too, is valid. Would anyone suggest that people who distribute marijuana to sick people to reduce their pain ought to be condemned? Would anyone propose that the doctor and nurses working at the buyers cooperative behaved in a way that is morally wrong or worthy of punishment? To its credit, the court did not make this argument and neither did the concurring opinion. Forgetting the lessons of Griswold:The argument the concurring opinion did make was an interesting one -- but it did not go far enough. Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, wrote separately to note that this case decides only that those who produce and distribute marijuana for medical use have no defense under federal law. It leaves open -- as "a difficult issue that is not presented here" -- the question whether "the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering." We should excuse patients in need of marijuana for not rejoicing at this news. First, the opinion suggests only they might not have to go to prison if they are caught in possession of marijuana, not that they will not. Second, it is not apparent how patients are supposed to come into possession of marijuana if the law succeeds, as it is presumably meant to do, in preventing anyone from producing and distributing the drug. Starvation and extraordinary suffering may thus turn out to be the only options left to many patients. The court understood this point well in Griswold v. Connecticut, in which it held that distributors of contraceptives must not be prosecuted so that the privacy right to use them in one's home could be vindicated. Yet the concurring justices have apparently forgotten the logic in this case. Even if the right belongs to the individual user (whether of contraceptives or of medical marijuana), the distributor is an essential prerequisite to the exercise of that right, and one who is also well situated to go to court and vindicate it. In this case, it was easier for the cannabis cooperative to go to court than for terminally ill patients to devote their limited energies doing so. But then Griswold was decided in 1965, and it is unclear how the case would come out if presented for the first time today. Perhaps our current Supreme Court would approve of injunctions prohibiting the sale of contraceptives. Perhaps it would find further that police -- who, it recently held, may arrest drivers who fail to wear a seatbelt -- may also rifle through a married couple's bedroom for telltale signs of contraceptive use. Would the "liberal" justices express outrage? Perhaps they would concur instead, and make clear that while distributors of contraceptives can be jailed, a couple using them might have a defense if criminally prosecuted. I often encounter amazement from citizens of other countries at the puritanical nature of the United States. People cite our drug policies and attitudes toward sexuality. It becomes difficult to defend our nation from such critiques given legislative, executive and judicial commitments to stamping out the "evil" of drugs -- even when what is stamped out is the right of our most vulnerable citizens to obtain temporary respite from debilitating, and even terminal, illnesses. Sherry F. Colb, a FindLaw Columnist -- http://findlaw.com/ -- is a professor at Rutgers Law School in Newark, New Jersey.Complete Title: FindLaw Forum: Feds Show No Compassion in Medicinal Pot CaseSource: CNN (US Web)Author: Sherry F. Colb, FindLaw ColumnistPublished: June 7, 2001Copyright: 2001 Cable News Network, Inc.Website: http://www.cnn.com/Feedback: http://cnn.com/feedback/Contact: cnn.feedback cnn.comForum: http://community.cnn.com/OCBC Versus The US Governmenthttp://freedomtoexhale.com/mj.htmCannabisNews Medical Marijuana Archiveshttp://cannabisnews.com/news/list/medical.shtml
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Comment #2 posted by FoM on June 07, 2001 at 19:45:55 PT
You're Very Welcome
Hi cajun01,Thank you very much. The only thing I wish is that I could find and post an article where all of a sudden our political leaders wake up and say enough is enough. We were wrong and the war on Cannabis is over. That's the article I can't wait to post! Until then we keep hoping and writing letters and telling all that will listen. It's only a matter of time.
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Comment #1 posted by cajun01 on June 07, 2001 at 18:09:23 PT:
What an excellent article
I guess not all lawyers are bad. Why can't the Supreme Court Justices practice such logic? At least the word is getting out about the treasonous actions of our justice system. I think if medical mj is ever approved of, the outrageous claims made by our government will finally be shown to be major BS. Keep up the good work FoM. We love you.
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