NO RELIEF FOR MEDICAL MARIJUANA PATIENTS

The first thing to understand about the U.S. Supreme Court's decision
on medical marijuana is that it was an interpretation of federal law.
California's Proposition 215, passed by a 56 percent majority of the
voters in 1996 and now Section 11362.5 of the Health and Safety Code,
remains the law in California. The Supreme Court's decision
specifically acknowledges that it was not ruling on California law.

California officials are obliged by the California constitution to
uphold and enforce California's medical marijuana law unless and until
a federal court rules that it is invalid because it conflicts with
federal law and federal law must reign supreme. That did not happen
Monday and it is unlikely to happen. Despite a plethora of chatter,
nobody in the five-plus years since the initiative passed has filed a
federal action that would bring that issue before a court.

As often as initiatives are challenged in the courts, it is reasonable
to believe that someone would have challenged the Compassionate Use
Act if there were even a glimmer of hope that a court would overturn
it, or one of the similar initiatives passed in other states.

On its own narrow terms, the 8-0 Supreme Court decision against the
Oakland Cannabis Buyers' Cooperative is just barely efensible. The
case came in response to a federal civil injunction against the
cooperative, organized after Prop. 215 passed, against violating the
federal Controlled Substances Act, passed in 1970.

The buyers' cooperative asked the Ninth Circuit federal appellate
court to acknowledge a narrow "medical necessity" defense for a few of
its most seriously ill patients. The Ninth Circuit directed the
district court judge to consider medical necessity as a "legally
cognizable" defense and he amended the injunction with a tight test of
necessity that would cover perhaps 20 of the cooperative's 2,000
active members. The government appealed that change in the injunction.

The U.S. Supreme Court on Monday simply held, on narrow grounds, that
under federal law a medical necessity defense against charges of
manufacturing and distributing marijuana was not available to the
Oakland Cannabis Buyers Cooperative. The court came close to denying
the possibility that any patient could claim medical necessity as a
defense under the Controlled Substances Act, but stopped short of
doing so because it didn't have an individual patient's case before
it.

So the court did not rule, as some news organizations reported, that
federal law "trumps" California law. California law remains in place.
It simply ruled that since Congress had set up a "schedule" system for
certain drugs, had placed marijuana on the most restrictive schedule,
Schedule I, and had taken no action to change marijuana's legal
status, that the court should defer to the legislative body's actions.

The issue of the drug war is now returned to where it probably
belongs, the political arena, and to the jury box. As Kevin Zeese,
director of Common Sense for Drug Policy, put it to us, this decision
will "create conflict and sharpen the issues. Above all, it makes it
crystal-clear that the war on drugs is not about protecting health or
safety, but in fact is designed and enforced in such a way as to deny
a safe and effective medication to thousands of seriously ill Americans."

In strictly legal terms, this decision changes nothing. Federal law is
to be enforced, as it has been, as a strict prohibition with no
exceptions. State law in California and eight other states will be
different. State officials are obligated to enforce state laws.

Federal officials must decide whether to bring criminal charges
against medical marijuana patients or caregivers (they already cannot
harass or punish physicians). Can they get a California jury to
convict a medical marijuana patient?

As Robert Raich, attorney for the Oakland cooperative, told us, this
was only the first round of a long-term struggle still to be played
out in both the political and the judicial arenas.