THE SUPREMES' POT DECISION -- WHO CAN ENFORCE IT?

There were no great surprises in Monday's Supreme Court ruling
allowing the government to shut down organizations that invoked a
medical necessity defense in distributing marijuana. Federal law,
which regards marijuana as a dangerous and medically useless
substance, allows no exceptions other than research.

But the decision doesn't appear to invalidate the medical marijuana
laws, among them California's Proposition 215, which are now on the
books in nine (mostly Western) states, much less close the growing
gap between voters and federal drug policy. It merely shifts the
battle into other arenas.

Justice Clarence Thomas, who wrote the decision, may not believe in
the medical necessity defense, but if any federal prosecutor chooses
to follow him, he may have a hard time finding many sympathetic
juries.

If anything the court decision, combined with the recent nomination
of John Walters, a hard-line conservative, as the nation's new drug
czar, can only intensify the battle between a federal government
committed to a $20 billion "drug war" emphasizing crop eradication
abroad, interdiction at the border and prosecution at home, and
voters who see that war as a costly failure and favor much greater
emphasis on treatment. Call it the left-wing sagebrush rebellion.

The rebellion has been spreading ever since California and Arizona
passed their medical marijuana initiatives back in 1996. Since then,
similar laws have been approved by voters in Washington, Oregon,
Alaska, Nevada, Colorado and Maine and by the Legislature in Hawaii.
All told, one of every five Americans now lives in a place where
state laws allow patients with serious illnesses -- cancer, glaucoma,
AIDS, multiple sclerosis -- to relieve their symptoms or the side
effects of treatment by smoking marijuana.

In addition, drug-law reformers, backed by billionaire financier
George Soros and other deep pockets, have also successfully pushed
through asset forfeiture reforms in Utah and Nevada; bills
authorizing over-the-counter needle sales in a number of other
states; and, perhaps the biggest of them all, California's
Proposition 36, which requires treatment instead of prison for those
convicted of nonviolent possession of all illegal drugs.

But with the Supreme Court's decision Monday, probably the biggest
battlegrounds -- and certainly the most intriguing -- will be the
distribution systems in the states that have enacted those medical
marijuana laws. In Oregon, Alaska and Hawaii, the state operates a
registration system of patients with a certified medical need for
marijuana. A similar bill, SB 187 by Sen. John Vasconcellos, backed
by the state District Attorneys Association and the state Sheriffs
Association, is pending in the California Senate.

In each case the registration and distribution systems reflect
attempts by both drug law reformers and law enforcement to create
order out of what could otherwise be -- and often already is -- a
chaotic legal situation, with state law appearing to allow what
federal law absolutely forbids. Absent congressional action, this
week's Supreme Court decision, though sound on legal grounds, makes
such order still harder to achieve.

In Nevada, the Legislature has been debating a measure that would put
the state itself in the business of growing and distributing the
marijuana. That move, prompted by language in the initiative that
Nevada voters approved last November, is not entirely unprecedented:
In what may be the ultimate irony, the federal government itself
grows pot, and makes it into cigarettes that it distributes to a
residual list of eight patients under its Compassionate IND
(Investigative New Drug) Program.

The program was created to settle a civil suit filed (in 1976) by
Robert Randall, a glaucoma patient who had been prosecuted -- and
acquitted on medical necessity grounds. He argued that the government
left him no choice between a criminal act and the certain prospect of
blindness. Some 34 others were admitted to the program before the
feds, fearing it would get swamped (mostly by a new generation of
AIDS patients) shut it down to new cases. Randall is among the eight
who still survive. Each month, the government sends a tin of 300
marijuana cigarettes to a pharmacy near where each of them lives.

The Randall story is just one episode in a long history of official
ambivalence and hypocrisy about marijuana. Two years ago, the U.S.
Institute of Medicine, following an extensive review of research,
issued an official administration-sponsored report, "Marijuana and
Medicine," that's quoted by both sides in the debate.

"Because of the health risks associated with smoking, smoked
marijuana should generally not be recommended for long-term medical
use," it concluded. "Nonetheless, for certain patients, such as the
terminally ill or those with debilitating symptoms, the long-term
risks are not of great concern." It then defines the conditions under
which marijuana may be medically used.

But in Washington, law enforcement still speaks louder than any
medical approach. This week's court decision, combined with the
appointment of Walters, indicates that despite the current of drug
law reform running through the states, the feds remain almost as
rigid as ever.