UP IN SMOKE

The U.S. Supreme Court seems poised to close down California's pot buyer's
clubs.

Listening to the Supreme Court talk about doobies is like talking to your
parents about sex -- it's so strangely out of place in the confines of the
hallowed and conservative institution that it makes you cringe. But that's
exactly what the Supreme Court did Wednesday as oral arguments began in the
case of U.S. vs. Oakland Cannabis Buyers' Cooperative, the first medical
marijuana case to reach the high court.

The case is a test of California's Proposition 215, which was passed by
California voters in 1996. Seven other states have also passed measures
OK'ing the use of marijuana for medicinal purposes. But the case presents a
philosophical conundrum for the court, which has in the past favored
states' rights, but now seems poised to overturn the will of California voters.

At issue is a 1999 federal appeals court ruling that holds, in the case of
the California medical marijuana initiative, that a person could flout
federal drug laws if there was a legitimate medical necessity for doing so.
An injunction against the decision was issued when the Supreme Court took
up the case last August. If the justices rule against the medical-necessity
exemption, it will surely result in the closure of California's remaining
cannabis buyers' clubs, and push marijuana distribution back underground.

The arguments before the justices were fairly straightforward. Barbara
Underwood, the U.S. Justice Department attorney arguing on behalf of the
federal government, stated that any ruling in support of medical marijuana
would be tantamount to permitting the "operation of marijuana pharmacies,"
run, in her words, by "charlatans." In other words: Doobies are dubious. In
her arguments, Underwood stated that no federal agency has established the
medical effectiveness of marijuana; instead, they have established that
it's a substance ripe for abuse. She also pointed to synthetic alternatives
to pot that can be used to treat the same conditions -- like chronic pain
and wasting in AIDS patients -- that advocates say can be effectively
treated with cannabis. She cited the example of Marinol, a synthetic
version of marijuana's active ingredient that is available by prescription.
The availability of these alternatives, she argued, undermine the defense's
case that there is no alternative for some patients other than marijuana.

Considerable energy was also expended by the justices on the question of
why the Justice Department had not sought criminal prosecution of buyers'
clubs instead of pursuing a civil injunction against them. The answer is
obvious. As Justice Souter pointed out during the arguments, the popularity
of Proposition 215 would make it very difficult for the government to get a
conviction in any jury trial. In that respect, it made strong sense for the
feds to pursue the current legal track. The case is already challenging
enough for the federal government, since it encroaches on states' rights
territory, and any outcome other than upholding the federal appeals court
decision will be unwelcome in the nation's most populous state. And as a
palpable backlash to the drug war grows, a prosecutorial strategy under
U.S. drug laws would be politically unpopular. That is particularly true in
California, where the Clinton administration's threats to strip the
prescription-writing authority of any doctor caught prescribing medical
marijuana were not well received.

Santa Clara University law professor Gerald Uelmen, appearing on behalf of
the Oakland Cannabis Buyers' Cooperative, argued that denying seriously ill
AIDS patients access to medical marijuana, which has been proven
anecdotally effective in restoring the appetites in AIDS patients suffering
from severe wasting, and also in helping combat chronic pain, would be the
equivalent of killing them. Denying that access, Uelmen argued, would
violate the due-process clause of the Constitution.

In his criticism of the defense's case, Justice Antonin Scalia tried to
separate what he suggested were two separate issues: Whether a patient
should be able to determine medical necessity and whether or not buyers'
clubs should be exempted from federal drug laws in order to distribute
cannabis. The justices seemed very critical of the idea of businesses
distributing marijuana -- with Justice Scalia arguing that a patient rather
than a business would more likely have that right.

"That's a vast expansion beyond any necessity defense I've ever heard of,"
Scalia told the court.

Uelmen attempted to frame the issue more tightly, suggesting that that
medical necessity would apply in life and death situations or in cases
where the patient faced "imminent harm" like going blind (from symptoms of
glaucoma, for example), starving or death. But the justices didn't seem to
buy that argument.

"It doesn't seem that limited to me at all," said Justice Anthony Kennedy.
"That's a huge rewrite of the statute," he said, referring to the federal
Controlled Substances Act. In fact, much of the debate in the oral
arguments swirled around why the justices should overturn a decision by
Congress, which deliberated and concluded that there is no medical value
associated with marijuana before classifying pot in its category of the
worst illicit drugs.

Chief Justice Rehnquist was even more brutal when he stated that Congress
had already ruled out the medical-necessity defense, which has never
previously been used before the Supreme Court.

Since its passage in 1996, Proposition 215 has spurred a rift between
federal and state officials. State officials, wary of upsetting voters,
have avoided prosecutions of both cannabis clubs and medical marijuana
buyers, even as the feds have ratcheted up the pressure. Instead of
pursuing criminal prosecutions, which would almost certainly be struck down
by any civilian jury, the federal government has pursued the case on legal
grounds in civil court. The case that reached the Supreme Court Wednesday
was originally launched by the Clinton administration in 1998 against six
California buyers' clubs. Of those six, only Oakland's is still in business
today.

A U.S. District Court initially ruled in favor of the government's
position. That decision was issued by Charles Breyer, brother of Supreme
Court Justice Stephen Breyer, who recused himself from the current case.
However, Breyer's decision was partially overturned by the 9th U.S. Circuit
Court of Appeals, which proffered the medical necessity exemption.

A decision affirming the medical-necessity exemption is highly unlikely,
given the composition of the current court. Besides, the case is premature.
Regardless what you believe about medical marijuana, there's little
conclusive scientific evidence yet that marijuana offers medicinal
qualities unavailable in synthetic versions or other painkillers. It's
hard, if not outright impossible, to imagine the Supreme Court overruling
Congress, which classified marijuana as a Schedule 1 drug after careful
deliberation. Were the defense able to present substantial scientific
evidence of the medical benefit of pot, then a different outcome would
surely be conceivable. But the current arguments appeared to be too big of
a stretch even for the court's staunchest liberals. And that's bad news for
the medical marijuana movement. If the court issues a broad ruling in the
case affirming the Schedule 1 status of the drug, it could make it
impossible for states to permit use of medical marijuana for years to come.

About the writer Daryl Lindsey is associate editor of Salon News.