MEDICAL MARIJUANA

The Supreme Court Tackles The Medical Marijuana Debate.

Ray Suarez talks about the case with NewsHour regular Jan Crawford
Greenburg of the Chicago Tribune.

SPOKESMAN: The best thing I can do for you I can give you two $3
bags...

RAY SUAREZ: When California passed one of the nation's first medical
marijuana laws in 1996, dozens of cannabis clubs sprang up for the
purpose of selling the drug for medicinal use. The Compassionate Use
Act, also know as Proposition 215, allows seriously ill people to grow
and use marijuana for medical purposes, with a doctor's
recommendation. The legislation is broadly worded to include the
treatment of cancer, anorexia, AIDS, chronic pain, and glaucoma, and
any other illness for which marijuana provides relief. Some doctors
and patients say the drug helps combat a range of symptoms from those
diseases.

SPOKESPERSON: These are marijuana edibles. We have rice crispy
treats.

RAY SUAREZ: The federal government opposed the California law, saying
Prop. 215 undermined federal enforcement of drug laws. The Clinton
administration's drug control policy director expressed his concerns
on the NewsHour in December of 1996.

GEN. BARRY McCAFFREY (Ret.): We think this proposition in California
and a similar one in Arizona that approved LSD. And heroin are simply
a disaster. We really don't see it as a medical issue. It's the
quasi-legalization of drugs.

RAY SUAREZ: The California law didn't address how patients would get
their marijuana.

SPOKESPERSON: Oakland CBC.

RAY SUAREZ: Clubs like the Oakland Cannabis Buyers' Cooperative, which
was sanctioned by the state of California, provided patients with a
legitimate place to buy marijuana and marijuana plants. In 1998, the
Justice Department sued the Oakland cooperative and five other
California cannabis clubs for violating federal drug law by
distributing, and in some cases, growing marijuana. A federal judge
sided with the government and ordered the clubs to stop. All of them,
except the Oakland Club, eventually closed down. Then last year the
Ninth U.S. Circuit Court of Appeals ruled medical necessity is a legal
defense. Before leaving office, the Clinton administration appealed to
the Supreme Court. At a news conference today in Washington, a cancer
patient explained why he needs marijuana.

CREIGHTON FROST: All I want is to be left alone to die comfortably.
Without cannabis, I can't eat. It's just literally... I can't even go
into the kitchen. I can't even start food cooking. I can't sleep
without it. I can't take sleep medications. There is a variety of
types of medications, not just one or two - entire spectrums -- that I
can't touch without cannabis.

RAY SUAREZ: Besides California, eight other states have adopted
medical marijuana laws. Today, the U.S. Supreme Court heard arguments
over whether medical necessity is a defense against federal drug bans.
The high court will not rule directly on the legality of California's
Prop 215 or medical marijuana laws in other states. The ruling is
expected by the end of June. We get more on today's arguments from
NewsHour regular Jan Crawford Greenburg, legal affairs correspondent
for "The Chicago Tribune." So, what was the court being asked to rule
on -- not on the efficacy of marijuana as a medicine, right?

JAN CRAWFORD GREENBURG: No. I mean, essentially the government was
asking the Justices to rule that a federal law, which bans the
distribution and use of marijuana, essentially trumps all of these
other state laws, that would permit people who need it for medical
reasons to use it.

RAY SUAREZ: So both sides came in today, the Oakland Cannabis Club and
the federal government, what did they have to say in court?

JAN CRAWFORD GREENBURG: Well, the government lawyer went first. She
maintained that essentially the California law and the federal appeals
court ruling had allowed the creation of marijuana pharmacies, and
that these pharmacies were would essentially undermine the nation's
drug laws and lead to abuse of drugs, and that her point was this
federal law must prevail.

RAY SUAREZ: Did the government make the point that it was thus
impossible to have a medical marijuana law or just that California's
was too loosely written and applied?

JAN CRAWFORD GREENBURG: No, and this will not effect -- it's not going
to strike any of the laws from the books. States can still pass the
laws and the laws would stand for the proposition that we as a state
are not going to prosecute you if you use marijuana for medical
reasons but the government's point is that the federal law comes in
and the federal government will say, "we believe marijuana is never
appropriate even for medical reasons." Congress has said as much in
the 1970 Controlled Substances Act, which classifies marijuana as a
controlled substance and prohibits its sale or distributes and
Congress has said in recent years that even for medical purposes
marijuana is not acceptable.

RAY SUAREZ: So what did the Oakland Cannabis Club have to say
- -

JAN CRAWFORD GREENBURG: The club is arguing that there is a medical
necessity here for these people to take this drug, and so, therefore,
they have a medical reason that should override the law and should
come in and that a court in this case should be allowed to recognize
someone's argument that they have a medical reason, a medical
necessity to take the drug; and that a lower court when it looked at
this issue was correct when it allowed these marijuana clubs to be
exempt from the enforcement in the civil lawsuit of the federal law.

RAY SUAREZ: Was the Oakland Cannabis Club able to site any precedent
where medical necessity was used as an overturning exception to
existing law?

JAN CRAWFORD GREENBURG: Not to the degree that they are arguing here.
And several of the Justices, for example, the Chief Justice seemed
very concerned that what the club was arguing in this case would
dramatically expand the so-called defense of necessity. Justice Scalia
said normally these kinds of defenses would be brought by a patient
and not by the club that is distributing the drugs. So there was a lot
of concern by the Justices that this was an extraordinary new step in
creating a new defense of necessity.

RAY SUAREZ: And did they direct a lot of their questions to the
standards, to the ways that these dispensaries administered - how
people got marijuana?

JAN CRAWFORD GREENBURG: Sure, Justice Kennedy expressed concern that
there weren't a lot of controls or regulations that some of the
marijuana farms, the government argued, and some of the argument
focused on the very kind of technical legal issue of whether the lower
court judge in this case had this discretion to allow people to get
marijuana for medical reasons, for the medical necessity. It's an
interesting issue the way this whole dispute even came about. The
Clinton administration opted to sue the clubs in a civil lawsuit
instead of prosecuting them under the criminal laws. And it asked a
lower court judge to issue an injunction to stop the clubs from
distributing the marijuana, the lower court judge, who incidentally is
Justice Breyer's brother, agreed to issue this injunction. That went
up to the federal appeals court and the federal appeals court said no,
you have discretion as a lower court judge in this situation, a civil
lawsuit, to craft an injunction that might carve out are carve out and
exception and would allow the defense of medical necessity to be
raised. So there was much focus on that today in court, and some of
the Justices seem concerned that the government should have just
charged these clubs for criminally instead of bringing a civil lawsuit
and that perhaps that might run afoul of separation of powers
concerns, that was a concern of Justice Kennedy. He said that the
government's action here by filing the civil lawsuit essentially
turned the lower court judge into a prosecutor. Now the lawyer for the
club also attacked the government's decision to file a civil lawsuit
to try and get an injunction in this case, and he said that was
basically really unfair because it meant that the clubs weren't
entitled to trial by jury, proven beyond a reasonable doubt so it made
it easier for the government to come in and stop the clubs from doing
this.

RAY SUAREZ: A lot of times that you've come in here the past couple of
years it's to talk about cases where states are arguing that they
should be able to apply their own laws in side their own boundaries
and not be trumped by federal law. I'm surprised that it got to all
these levels of technicality when there was a states' right argument
here.

JAN CRAWFORD GREENBURG: I think the government's response to that -
and that came up somewhat in the questioning that Justice Ginsburg had
with the government areas attorney. The government's response was we
are not telling the states that it can't pass these laws. States can
pass the laws and states can say we are not going to prosecutor people
but the federal government is different and Congress has said that
marijuana is an illegal substance with no exceptions other than very
narrow research projects that are approved by the FDA. And that is a
just a different story and courts can't ignore the Congressional
judgment, and if states and people in the states have a problem with
that, then they should go to Congress and ask Congress to change the
law.

RAY SUAREZ: Now quickly in the politics, for instance when Proposition
215 was on the ballot, sick people were a large part of the story. I
wonder if when this came to court whether in the same way, the fact
that many of the users are terminally ill entered into the argument.

JAN CRAWFORD GREENBURG: You know, as I think the conversation has
shown, it was focused a lot on the narrow technical legal issues but I
don't think the emotional tone of the debate was pitted as you said,
terminally ill against law enforcement. I don't think that was lost on
the Justices. Justice Ginsburg, for instance, referred to a very vivid
example after man recounted in one of the briefs who could only ease
his constant vomiting by using marijuana asking the government's
lawyer, isn't that kind of a common experience? So I mean there was a
recognition that this drug many people believe does ease their
suffering. But many of the Justices seemed to so strongly suggest that
the federal law still must prevail.

RAY SUAREZ: Before I let you go, Justice Breyer had to recuse himself
because this was his brother's decision.

JAN CRAWFORD GREENBURG: That's right.

RAY SUAREZ: What happens if is there a 4-4 tie?

JAN CRAWFORD GREENBURG: The lower court ruling will stand but that
seemed unlikely on the arguments today that it will be that close. But
we'll see.

RAY SUAREZ: Jan Crawford Greenburg, thanks a lot.

JAN CRAWFORD GREENBURG: Thank you.