SUPREME COURT WEIGHS DRUG LAW

Medical Marijuana Puts States On The Front Line Of Federal War

SAN FRANCISCO -- It was Friday afternoon, his work was done, and Keith
Vines had made his decision.

The former Air Force captain turned prosecutor, who had prided himself on
being a foot soldier in his country's war on drugs, was leaving his office
and heading downtown to score some pot.

"It was ... awkward," he said, recalling the day in 1993 that he walked
into a quasi-legal cannabis club holding a note from his doctor and walked
out clutching a baggie of marijuana.

Sitting on his couch last week, surrounded by paintings and photographs of
family and friends, Vines, 50, said the choice he made was life-and-death.
"Either try this medicine and save your life or waste away and die," he
said. "I chose the first."

Today, 4 1/2 years after California voters passed a referendum legalizing
the cultivation and possession of marijuana for medical use, Vines pays a
delivery service to bring the medicine to his door.

He smokes when he has to, to stimulate his appetite to help digest up to 20
pills a day to combat AIDS and to stave off the wasting that previously
pulled 50 pounds off his frame in just a few months.

What he does is legal under California law but illegal under federal law.
Vines, who worked as a felony drug prosecutor in the San Francisco district
attorney's office, cringes at his reputation as "pot's poster boy."

He is among thousands of desperately ill patients in California and
elsewhere who believe they live today because their states legalized
medical access to marijuana.

The federal government's studies lend some credence to their claims, but
prosecutors citing federal law and politicians fearful of appearing soft on
drugs are determined to silence them.

This week, the U.S. Supreme Court will make its first foray into the
medical-marijuana debate, hearing arguments in a case the federal
government filed in hopes of shutting down the Oakland Cannabis Cooperative
and five other California marijuana distributors.

At issue is whether patients and their suppliers can claim "medical
necessity" to shield them from prosecution on federal drug charges.

U.S. District Judge Charles Breyer, brother of Supreme Court Justice
Stephen Breyer, originally sided with the government. But the 9th U.S.
Circuit Court of Appeals overruled, forcing him to carve out a narrow
exemption in the law for seriously ill patients who have exhausted other
treatment options.

The government appealed to the Supreme Court, which granted a stay of the
9th U.S. Circuit's decision pending the outcome of the case.

Because of his brother's involvement, Stephen Breyer will not hear the
case. A decision by the other eight justices, expected by July, could help
determine whether federal drug laws should trump medical-marijuana laws
passed in California and nine other states and contemplated in many more.

On one side of the case are government lawyers and drug-war advocates who
say state laws easing marijuana restrictions are based on faulty science
and undermine the nation's fight against drug traffickers. They argue that
smoking marijuana is dangerous and addictive, and that the real goal of the
medical-marijuana movement is legalizing the drug for recreational use.

On the other side are patients such as Vines, their doctors and those who
risk going to prison to provide them with what they consider a safe and
effective drug, as well as drug-war opponents who believe the government
has spent too much money and effort on a losing battle.

Some doctors have embraced marijuana to treat pain and nausea, a
debilitating side effect of chemotherapy and other treatments for cancer
and AIDS. Many also tout its benefits in treating glaucoma and in
stimulating the appetite of people who find it difficult to eat enough.

Spurred by research and patient testimonials, a growing number of state
legislatures have attempted to pass "compassionate use" laws, allowing
access to the drug on a doctor's recommendation. And where legislative
efforts have failed, voters have forced the issue through referendum.

Californians passed Proposition 215, the Compassionate Use Act, in 1996
after then-Gov. Pete Wilson twice vetoed medical-marijuana bills. Voters in
Oregon, Alaska, Washington, Maine, Arizona, Nevada, Colorado, Arkansas and
Washington, D.C., have jumped on board, and last year, Hawaii's state
legislature became the first to pass a medical-marijuana law.

Legislation is pending in many other states, including Texas, where
lawmakers are considering a bill by Rep. Terry Keel, R-Austin, a former
prosecutor.

"If people suffering from cancer, epilepsy or MS are in pain and this could
give them some relief, it's only appropriate that they should have a chance
to talk about it with their doctors and allow their doctors to look
seriously at how marijuana may help improve their health," said Shelton
Green, Keel's legislative aide.

Green said the bill has a realistic chance of passing the Texas House this
session. But the inevitable end-of-session time crunch threatens to prevent
its hearing in the Senate before the May 28 adjournment, putting the issue
off until 2003.

In California, the medical-marijuana movement has found unlikely spokesmen
in Vines and Jeff Jones, a 26-year-old Christian conservative and native of
South Dakota. Jones, who favors navy pinstriped suits and says he does not
smoke marijuana, moved to California and opened the Oakland Cannabis
Cooperative after watching his father die of kidney cancer.

Jones has befriended police and city officials who have embraced his co-op
as a city service provider.

The back room of the co-op, across the street from Leo's Pharmacy and down
the way from the Christian Science Reading Room in downtown Oakland,
resembles a small driver's-license bureau where potential patients show
letters from their doctors, fill out paperwork and pose for photos.
Twenty-five dollars buys them a membership and an ID card that will help
police distinguish them from recreational pot users.

Until its recent legal troubles, the co-op distributed marijuana to more
than 5,000 members. Now it offers classes to teach patients where to safely
purchase the plant or how to grow their own.

Out front in the hemp store, clerks instruct patients on the use of rolling
papers and marijuana pipes as shoppers wander in from the street to browse
through racks of hemp clothing, marijuana cookbooks, vegan hemp lip balm,
sun catchers with pot-leaf motifs and "While you were out getting stoned
... " message pads.

Jones, whose database contains the names of more than 1,000 doctors who
have recommended marijuana for their patients, said neither he nor they
intended to break the law.

"But I will keep doing this until they jail me," he said. "State law says
we can do this. We just need a little bit of tolerance (in the federal law)
so we can get this medicine to people who really need it. I am devastated
that our government is so strung up on the political issue while people are
suffering and dying."

Under the 1970 federal Controlled Substances Act, drugs are classified on
one of five "schedules." Congress has designated marijuana as Schedule I,
the most restrictive category, indicating that it has a high potential for
abuse, has no currently accepted medical use and is unsafe.

No one may distribute a Schedule I drug except as part of a research
project registered with the Drug Enforcement Administration and approved by
the Food and Drug Administration. The federal government currently operates
one such project, the Compassionate Investigative New Drug program, which
has supplied marijuana to eight test patients for years.

The results of that program prompted the DEA's chief administrative-law
judge, Francis Young, to rule in 1988 that marijuana is "one of the safest
therapeutically active substances known." Urging that marijuana be
reclassified to Schedule II, the same as prescription painkillers like
codeine or morphine, Young said it would be "unreasonable, arbitrary and
capricious for DEA to continue to stand between those sufferers and the
benefits of (marijuana)."

Medical-marijuana proponents also point to a 1999 government-commissioned
study by the Institute of Medicine, which concluded that marijuana can help
ease pain and nausea, with few side effects.

Federal prosecutors aren't impressed. U.S. Solicitor General Seth Waxman
argues in his Supreme Court brief that any erosion of the law
"significantly undermines the effectiveness of the CSA (Controlled
Substances Act) and threatens the government's ability to enforce an Act of
Congress that is central to combating illicit drug trafficking."

President Bush, who says he is a strong advocate of states' rights, has
remained quiet on the issue.

But government lawyers and their supporters insist marijuana is not good
medicine.

David Evans, a New Jersey attorney who wrote a friend-of-the-court brief
for Drug Free America's Institute on Global Drug Policy, argues that
marijuana advocates should not be allowed to bypass a federal drug-approval
process that has worked to keep patients safe for more than 100 years.

"A referendum is good. It expresses the will of the people; it's democracy
in action and all that stuff," he said. "But suppose a pharmaceutical
company wanted to sell a drug like thalidomide," which was taken off the
market after pregnant women taking the drug gave birth to severely deformed
children.

"What if, instead of going through our drug-approval process, they said,
`Let's go get some pregnant women and put them on TV, launch a
multimillion-dollar ad campaign.' Suppose we set our medical approval
process on that," Evans said. "Would you feel very confident if you went
into a pharmacy to buy some medicine?"

Evans and lawyers with the Family Research Council, which also filed a
brief supporting the government, suggest that rather than smoking illegal
marijuana, patients should try marinol, a pill available by prescription
that is made from THC, the main active ingredient in marijuana.

But many doctors and pharmaceutical researchers side with the patients,
saying smoked marijuana, while it has its risks, is more effective than
marinol, working faster and better and in many cases requiring a smaller dose.

Vines tried marinol first but found that it left him feeling stoned or
sleepy, preventing him from concentrating, while doing nothing to increase
his appetite.

"With just one or two puffs of smoked marijuana, I can eat," he said. "The
effect is immediate, and I don't have the side effects. I'm not doing this
for recreation. I'm doing it so I can stay alive."

Vines points out that unlike aspirin, which is considered relatively benign
and is available over the counter, marijuana is not known to have caused a
single death by overdose. He contends that the latest research funded by
the government indicates that the drug is not addictive. Nor is it any
longer considered a "gateway" to serious drug abuse.

Daniel Abrahamson, a California lawyer with the Lindesmith Center who filed
a friend-of-the-court brief for the American Public Health Association in
support of the cannabis clubs, calls the "slippery slope toward
legalization" argument "simply absurd."

"Morphine can be prescribed legally by a doctor, and nobody is arguing that
that will lead to the legalization of heroin," he said. "We're talking
about doctors who are trusted with some of the most dangerous medications
in the world. They should also be trusted to recommend marijuana."