MEDICAL MARIJUANA - SUPREME COURT A BUMP IN MEDICAL MARIJUANA'S PATH

From a legal standpoint, the U.S. Supreme Court's decision last week
denying the Oakland Cannabis Buyers Cooperative a "medical necessity"
defense for certain patients against federal laws prohibiting the
manufacture and distribution of cannabis didn't change anything.

Before the ruling, federal authorities treated the federal law as enforcing
strict prohibition with no exceptions. California authorities, meanwhile,
were sworn to uphold California law, which specifies that laws against
possession, use and cultivation of cannabis or marijuana shall not apply to
patients with a recommendation from a licensed physician. After the ruling,
the legal situation at both the federal and state levels remains
substantially the same.

The U.S. Supreme Court did not invalidate California's medical marijuana
law or rule that federal law "trumps" state law (as some news organizations
reported), for the simple reason that it did not have a case involving
state law before it. In fact, neither the California law nor the medical
marijuana laws in eight other states have been challenged in court for
being in conflict with federal law. Considering how many initiatives are
routinely taken to court, that's rather remarkable.

The Oakland case arose from a civil injunction (not a criminal filing)
under federal law. The U.S. Court of Appeals for the Ninth Circuit ruled
that the U.S. District Court should have considered medical necessity as
"legally cognizable defense" under federal law. The U.S. Supreme Court said
the appellate court was mistaken, that the Controlled Substances Act as
written permitted no such defense or exception.

Psychologically and politically, the ruling could make quite a difference.
But it is still unclear what direction the changes might take.

Jeff Jones, OCBC's director, told me he expects some federal crackdown
against other clubs sometime in the near future (his is still obeying the
injunction, which means it is not dispensing cannabis, and considering its
next legal moves). But federal authorities who want to close cannabis
dispensaries might face a dilemma.

Do they use a civil injunction as in the OCBC case instead of a criminal
filing? That decision brought serious questions from several justices
during oral arguments and the outright assertion from OCBC attorney and
Santa Clara University Law School Professor Gerald Uelmen that the federal
government was afraid to face a California jury in a medical marijuana
case. But with the top drug policy posts in the Bush administration filled
with punishment-oriented drug war hawks, we can expect a certain amount of
pressure to get tough with the egregious California lawbreakers.

The response from most cannabis cooperatives I contacted is likely to be a
de-emphasis on or an end to distribution, and renewed emphasis on teaching
patients to grow their own cannabis. That is clearly authorized under
California law, and while any prediction is risky, it seems unlikely that
the federal government, which up to now has concentrated on large-scale
cultivation and distribution cases, will start arresting individual patients.

The saddest aspect of the Supreme Court's decision is the extent to which
it reinforces Congress's proclivity to try to repeal reality. Justice
Clarence Thomas wrote that "for purposes of the Controlled Substances Act,
marijuana 'has no currently accepted medical use' at all," and backed the
statement with a description of the five schedules the act sets up, with
Schedule I being the most restrictive. In a footnote he emphasizes that
"because federal courts interpret, rather than author, the federal criminal
code, we are not at liberty to rewrite it."

In many circumstances such restraint might be admirable. But the continued
placement of marijuana on Schedule I is clearly at odds with the extant
scientific and medical knowledge, as the Institute of Medicine report
commissioned by then "drug-czar" Barry McCaffrey in the wake of the passage
of Prop. 215 explained in admirable detail. The refusal by the politically
appointed head of the Drug Enforcement Administration to consider several
petitions to "reschedule" marijuana has each time ignored the scientific
evidence developed during the proceedings.

There's a strong case, then, that keeping marijuana on Schedule I not only
violates common sense and the scientific evidence, but federal law. Where
is the judicial remedy for that bit of lawbreaking?

Perhaps it is appropriate that this issue will be played out in the
political arena rather than decided by judicial decree. But it is
exasperating when federal officials charged with enforcing laws violate
them instead.