MEDICAL MARIJUANA DETOUR

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.