A MESSAGE FROM THE JUDGE -- IS ASHCROFT LISTENING?

At first glance, Judge Alex Kozinski seems miscast in the role of Tom Paine
in the ongoing battle between the federal government and the states over
medical marijuana.

Kozinski, who serves on the 9th U.S. Circuit Court of Appeals and who may
be the smartest member of that court, is a conservative appointed by
President Reagan in 1985. But there he was the other day, writing an
opinion saying that the feds have no business telling California and other
states that they can't allow the medical use of marijuana, despite
voter-enacted laws allowing precisely that.

But then again, Kozinski's opinion seems entirely consistent with
conservative federalism principles and a Supreme Court that's gone in
precisely the same direction.

The opinion was a concurrence in a unanimous three-judge decision ordering
the feds to stop harassing doctors who recommend marijuana to their cancer,
glaucoma and AIDS patients. The other members of the three-judge panel
ruled only that the federal threat to yank the drug prescribing licenses of
marijuana-recommending doctors violated their free-speech rights. Kozinski
agreed, but went much further.

The Supreme Court, Kozinski reminded the Justice Department, has ruled that
"[T]he federal government may neither issue directives requiring the states
to address particular problems, nor command the states' officers, or those
of their political subdivisions, to administer or enforce a federal
regulatory program." That means "that, much as the federal government may
prefer that California keep medical marijuana illegal, it cannot force the
state to do so. Yet, the effect of the federal government's policy is
precisely that: By precluding doctors, on pain of losing their DEA \[Drug
Enforcement Administration\] registration, from making a recommendation
that would legalize the patients' conduct under state law, the federal
policy makes it impossible for the state to exempt the use of medical
marijuana from the operation of its drug laws."

Kozinski also cited a list of major studies, some of them commissioned by
the federal government, concluding that at least for some patients the use
of marijuana may be far more helpful and less dangerous than federal policy
pretends.

That may not be the last legal word on this issue, but it ought to be a
reminder to Attorney General John Ashcroft, who's been determined to bust
every little California pot club in sight, that especially at a time like
this, he ought (at the very least) to have more urgent things to do.

This was supposed to be an administration that was going to get off the
states' backs and that, in light of the nation's obvious vulnerability to
terrorist attacks, ought to be using its agents -- whether it's
prosecutors, DEA agents or FBI investigators -- for higher priority jobs.

Ditto for Ashcroft's campaign to overturn Oregon's assisted suicide law,
first approved by Oregon voters in 1994 and then overwhelmingly reaffirmed
three years later.

In the last six years, drug law reformers, bolstered by the deep pockets of
financier George Soros and others, have won an almost uninterrupted string
of ballot victories in a growing list of states -- California, Oregon,
Washington, Alaska, Arizona, Maine, Colorado. In some they've come with
initiatives legalizing the medical use of marijuana; in others they've come
in laws (as with California's Proposition 36) in laws requiring treatment
rather than incarceration for most drug offenders.

This year, for the first time, that drive hit major bumps. In Ohio, voters
rejected Issue 1, a measure that required treatment, not jail, for drug
offenders. Nevada voters voted against a marijuana decriminalization
proposal; Arizona voters rejected what one advocate called "a kitchen sink"
initiative that covered everything from decriminalization to state
distribution of medical marijuana.

In part those defeats are attributable to overreaching by drug reform
advocates. Some of the measures were too broad and/or too permissive. In
part they reflect a new campaign by federal and state officials to stop the
reforms. In Ohio, Gov. Bob Taft raised an estimated $1 million from his own
contributors to beat Issue 1. Meanwhile, White House drug czar John Walters
was speaking in the affected states -- and the federal government was
running ads -- on the hazards of marijuana.

Nonetheless, voters in Washington, D.C., overwhelmingly approved a
treatment initiative like California's Proposition 36. Voters in 47
Massachusetts towns supported measures calling on legislators to support
decriminalizing the possession of small amounts of marijuana. Voters in San
Francisco, reacting to the federal crackdown on distribution, approved
Proposition S, allowing city officials to explore the idea that the city
grow and distribute its own medical pot.

You might write that off as just another example of Bay Area nuttiness. But
it's consistent with surveys showing that voters favor the medical use of
marijuana and want more treatment and less punishment for hard-drug addicts.

The administration's crackdown on medical marijuana is both cruel and
stupid. It violates Bush's own federalism principles, wastes resources,
fosters contempt and causes still more suffering for sick people.

Somebody should engrave Alex Kozinski's opinion over Ashcroft's door.