TRACKING THE SUPREMES ON MEDICAL MARIJUANA

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.