CANNABIS QUESTION HAS ITS DAY IN COURT

ARGUING a case before the U.S. Supreme Court is viewed by many as a
pinnacle in a lawyer's career. I vividly recall the reverential awe I felt
as a law student in 1964, watching a case argued and hoping some day I
would get a turn.

It finally came when Chief Justice Rehnquist called the case of U.S. v.
Oakland Cannabis Buyers' Cooperative.

As a law professor, I was able to combine the preparation of this case with
an intense educational experience for 12 law students at Santa Clara
University. The students helped research and write the brief. When the big
day came, my students flew back to Washington and had front row seats to
watch the action.

As I sat down to re-read the cases we were relying upon. I came across
several I first read as a beginning law student. Among them was The Queen
v. Dudley, a 19th-century British case used to illustrate the ``necessity''
defense in criminal law casebooks. It involved three sailors stranded in a
lifeboat who survived by killing and eating a companion. The ``necessity''
defense is what our case was all about, but my current worry was that the
justices would make a meal of me.

The court was reviewing a decision of the 9th Circuit Court of Appeals. It
ruled that an injunction closing down the Oakland club could be modified to
allow distribution to a small group of patients who could demonstrate that
they had serious medical conditions that could only be relieved by
cannabis. Thus, there was no reasonable alternative available to them
except to violate the controlled substances act.

After granting a hearing, the Supreme Court granted the government's
request for a stay of the modification to the injunction by a 7-1 vote, so
we knew going in we were facing an uphill battle.

There was one consolation, though. Even though I had been taught one needs
to count to five to win in the Supreme Court, our case would only require
us to convince four. Justice Stephen Breyer recused himself because his
brother was the judge who issued the injunction. If the court is evenly
divided, the lower court decision is upheld.

The government argued that the Controlled Substances Act allowed no
exceptions whatsoever; since cannabis was placed on Schedule I of the act,
Congress had concluded there was no medical use and it could not be
prescribed. Our response was that ``necessity'' should allow use without a
prescription for patients who have no other alternative.

I thought our strongest argument was that the government itself had
permitted exceptions by setting up a ``Compassionate Investigative New
Drug'' program to supply cannabis to seriously ill patients on an
individual basis. In the early '80s, they were supplying 79 patients with
cannabis cigarettes on a daily basis. Testimony before Congress clearly
demonstrated that this was, in fact, a ``medical necessity'' program. In
1992, however, the program was shut down. No new applications have been
accepted since then, although the government continues to supply eight
patients who still survive. The decision to close the program was a cynical
response to a flood of new applications coming from AIDS patients.

In our brief, we traced the history of the Compassionate IND program, and
asked, ``if the government can respond to medical necessity, why should the
Controlled Substances Act be construed to prevent us from doing the same?''

Four of the patients still being served by the government program signed a
``friend of the court'' brief.

In its reply, the government responded in an arrogant fashion. In effect,
it said, ``we can do it because we're the federal government; you can't,
because you're a private party.''

I decided that if I did nothing else in my oral argument, I wanted to
respond to that display of government arrogance. An oral argument before
the Supreme Court, however, lets the justices set the agenda. One must
respond to the questions raised by the justices, and you are strictly
limited to a half hour.

At Wednesday's argument, I was peppered with questions. When the white
light flashed on, signaling that I had five minutes left, I felt a cold
grip of panic. I had not yet said a word about the ``Compassionate IND''
program. A brief lull in the questions gave me the opportunity I needed. I
raised my voice, and launched into a passionate analysis of why the program
was itself a government admission that medical necessity can be an
exception. The defense requires that the defendant have no reasonable
alternative. As long as the government program existed, it provided a
reasonable alternative. When the government shut off the safety valve,
patients were left with no reasonable alternative, hence had a valid
necessity defense. Thus, as private parties we could now do what the
government was refusing to do: respond to the medical needs of patients who
faced life-threatening illness, and had no other alternative for relief.

It was a strong ending. Now we wait for the justices to sort it all out.

After the argument, one of the patients in the ``Compassionate IND''
program introduced himself. His name is Irvin Henry Rosenfeld, and he was
diagnosed at 10 with a disease causing the continuous growth of bone
tumors. He was treated with opioids, muscle relaxants and anti-inflammatory
medications, which helped little and produced debilitating side effects.
His physicians recommended cannabis. He was admitted to the program in
1982, and for 19 years the government has provided him with 12 marijuana
cigarettes each day. He is a successful stockbroker handling
multi-million-dollar accounts.

I thanked him for his courage in signing on to the brief, so other patients
could receive the benefit he has gained by getting access to the medication
he needed. It was a moving reminder of what the case was all about.

Gerald F. Uelmen is a law professor at Santa Clara University.