MEDICAL MARIJUANA ON TRIAL

State's Rights Issue May Decide Future Of Oakland Club

The fate of Oakland's medical marijuana dispensary, to be argued this week
in the U.S. Supreme Court, will probably hinge just as much on states'
rights as on drug policy.

A court that has regularly elevated state prerogatives over federal
authority is being asked to harmonize the national "war on drugs" with a
state's decision to let gravely ill residents use drugs that the federal
government has not approved.

As a result, the court's answer will shape the medical marijuana laws that
nine states have passed in the last five years and others are considering.

Tomorrow's hourlong arguments will focus on whether the federal law against
marijuana allows an exception for "medical necessity," which would allow
distribution of the drug to patients who can't benefit from legal medicines.

The ruling, due by the end of June, will determine the future of the
Oakland Cannabis Buyers' Cooperative, which was shut down in October 1998
for violating a federal judge's order not to distribute marijuana. It now
operates as a hemp distribution store and patient resource center.

An unfavorable ruling would also likely drive distribution of medical
marijuana in much of California underground to avoid the risk of federal
prosecution.

In eight other states with medical marijuana laws, most patients grow their
own pot or get it from clandestine sources, advocates say -- in contrast to
the Oakland club, which has official city sponsorship, and to San Francisco
dispensaries that accept ID cards issued by the city.

Tens of thousands of people with cancer, AIDS, glaucoma and other diseases
are smoking marijuana with the blessing of states that followed
California's pioneering Proposition 215 in 1996. The measure allows
patients to grow, possess and use marijuana, based on their doctor's
recommendation, without state prosecution.

Similar laws have been introduced in legislatures in 14 other states.

No one will be following the case more closely than Dr. Michael Alcalay,
medical director of the Oakland cooperative and an AIDS patient who says
marijuana has helped to keep him alive.

"I should have died six years ago (from an infection)," said Alcalay, 59.
"I was like a skeleton. . . . It was medical marijuana that kept my
appetite and my spirits up," and still helps him digest life-sustaining pills.

"I think for people like myself, living with either chronic or terminal
illnesses, living with pain, they don't have to feel they're in the closet"
when they can obtain marijuana from a legal dispensary, Alcalay said.

The federal government, however, takes a dim view, maintaining that
marijuana is a dangerous drug with no legitimate medical use. A few medical
organizations, including the American Public Health Association and the
California Nurses Association, have entered the case to support patients'
right to use the drug in cases of medical necessity, but the giant American
Medical Association is staying on the sidelines.

The validity of Prop. 215 will not likely be at issue before the Supreme
Court because there's little doubt that federal laws override conflicting
state laws.

But the justices' views of the state-federal relationship may affect their
resolution of a crucial question: whether the federal ban on marijuana is
so absolute that it leaves no room for exceptions in individual cases of
dire need in a state that has recognized the drug as a medicine.

The court's most conservative justices, who normally side with the
prosecution, are also its leading states'-rights advocates, a fact not lost
on Oakland's cannabis club and its allies.

"This intrusion by the federal government into state sovereignty threatens
to upset the balance of federalism," said state Attorney General Bill
Lockyer's office in written arguments.

Lockyer tried to persuade the Clinton administration to give California
some leeway in implementing the measure.

But after unsuccessfully trying to punish California doctors who
recommended marijuana to their patients, Clinton's Justice Department filed
civil suits in January 1998 against the Oakland club and five other
Northern California dispensaries for violating federal drug laws.

The Supreme Court is hearing the government's appeal of a ruling by the U.S.

Court of Appeals in San Francisco -- the first appellate court to recognize
a defense of medical necessity in a federal drug case.

The necessity defense dates back centuries and allows defendants to show
they broke the law to prevent a more serious harm.

The defense rarely succeeds in criminal cases because of the difficulty of
showing that breaking the law was the defendant's only recourse. But the
appeals court said the defense could likely be used by some users of
medical marijuana -- those who showed they needed the drug to ward off
severe pain or death, and had no legal alternative -- and by the Oakland
club as their supplier.

The Justice Department argues that a necessity defense was barred by the
1970 Controlled Substances Act, which classified marijuana as a substance
with "no currently accepted medical use."

"Congress . . . expressly has considered the possibility of the use of
marijuana for medical purposes and has specifically rejected it," leaving
no room for findings of necessity by judges or juries, government lawyers
said in written arguments.

The club's legal team countered that in decades of lawmaking about
marijuana, Congress has never said a word about judges' traditional power
to intervene when strict enforcement would subject individuals to severe
hardships.

"The necessity defense functions as a safety valve, to prevent rigid
application of the law despite unusual circumstances (Congress) did not
contemplate," the lawyers wrote.

U.S. District Judge Charles Breyer's order last July would have allowed the
Oakland cooperative to reopen its dispensary for patients with a medical
necessity. But the club was still screening its 2,000-plus members when the
Supreme Court granted the government's request for a stay.

The case will be heard by only eight justices because Justice Stephen
Breyer, Charles' brother, has disqualified himself. A tie vote would
reinstate the appeals court ruling in favor of the Oakland cooperative.

Chronology of Medical Marijuana Case

Key events in the Oakland Cannabis Buyers' Cooperative Case, to be heard
Wednesday by the U.S. Supreme Court:

November 1996: California voters pass Proposition 215, allowing patients to
grow, possess and use marijuana with their doctor's recommendation.

January 1998: U.S. Justice Department files civil suits against the Oakland
cooperative and five other Northern California marijuana dispensaries,
accusing them of violating federal drug laws.

May 1998: U.S. District Judge Charles Breyer issues injunction prohibiting
the clubs from distributing marijuana.

October 1998: Breyer finds the Oakland cooperative in contempt of court for
violating the injunction and orders it closed.

September 1999: U.S. Court of Appeals orders Breyer to consider modifying
his injunction to allow distribution to a patient who can show a "medical
nececessity" to prevent death or severe harm that cannot be prevented by
legal medicines.

July 2000: Breyer issues a modified injunction allowing the Oakland
cooperative to distribute marijuana in cases of medical necessity.

August 2000: Supreme Court suspends Breyer's injunction.