HIGH COURT TO HEAR MEDICAL MARIJUANA CASE

The Supreme Court agreed yesterday to hear a case brought by the Clinton
administration to stop a California group from distributing "medical
marijuana," which some patients say alleviates their suffering but which
the federal government considers an illegal substance with no therapeutic
value.

In a separate order, the court agreed to hear an appeal from a condemned
killer in Texas whose lawyers say he is mentally retarded and should not be
executed.

The case of Johnny Paul Penry may provide the court with a way to clarify
how much information a jury in a death penalty case must have about a
defendant's mental capacity. Penry's lawyers maintain that their client has
an IQ of about 60 and the mental capacity of a 7-year-old. Prosecutors,
however, contend that Penry is not retarded, but ignorant.

In the marijuana case, the Clinton administration is seeking to stop the
Oakland Cannabis Buyers Cooperative from selling small bags of marijuana to
patients, who say the drug helps them with pain and nausea and eases the
symptoms of illnesses such as glaucoma.

In the last four years, nine states have passed medical-marijuana laws:
California, Alaska, Arizona, Hawaii, Maine, Oregon, Washington, Nevada and
Colorado.

California's law, passed by a wide margin of votes, legalizes the
possession and use of marijuana for medical purposes with a doctor's
recommendation. Physicians cannot legally prescribe marijuana and the law
left murky how patients would procure the drug.

The case against the Oakland cannabis cooperative does not directly address
the constitutionality of the new state medical marijuana laws, but instead
focuses on a narrower question: Is "medical necessity" a defense against
violating federal laws that prohibit the distribution of marijuana?

"This case is directed toward that one very specific question," said Gina
Pesulima of Americans for Medical Rights, which has sponsored most of the
medical marijuana ballot initiatives. Pesulima said the case does not
address the legality of patients possessing or using marijuana themselves.

But if the Oakland Cannabis Buyers Cooperative prevails in arguing that
medical necessity shields distributors from prosecution, Pesulima said her
group ­ backed by millions of dollars in support from international
financier George Soros and his partners ­ will press for state or municipal
governments to play a role in the distribution of medical marijuana.

Since the passage of the medical marijuana ballot initiatives, the federal
government has focused most of its attention not on individual patients
smoking or ingesting marijuana, but on buyer's clubs and cooperatives,
which were set up to procure, grow and distribute the drug.

After California passed its medical marijuana initiative in 1996, federal
prosecutors and drug enforcement agents were shocked to watch as storefront
operations opened in cities such as San Francisco and brazenly sold
marijuana cigarettes, baggies of the drug and marijuana-laced cookies to
patients claiming medical necessity based on everything from cancer to anxiety.

Lawyers with the Justice Department argue that the distribution of medical
marijuana violates the federal Controlled Substances Act, which includes
marijuana among the drugs whose manufacture and distribution are prohibited.

The Oakland group said its goal is "to provide seriously ill patients with
safe access to necessary medicine so that these individuals do not have to
resort to the streets."

The decision yesterday by the Supreme Court to hear the case follows a
string of lower court decisions that first barred, then allowed the Oakland
cooperative to continue distributing marijuana.

The federal government filed a lawsuit against the Oakland cooperative in
1998 that sought to bar the club from providing marijuana. U.S. District
Court Judge Charles Breyer in San Francisco, the brother of Supreme Court
Justice Stephen G. Breyer, ruled for the government.

But the 9th U.S. Circuit Court of Appeals later reversed Breyer's original
ruling, saying the government had not disproved the club's evidence that
the drug was "the only effective treatment" for seriously ill patients. The
appellate court ruled that Breyer had erred in not considering "medical
necessity."

In May, Breyer decided that the Oakland club could provide marijuana to
patients who needed it.

In August, the Supreme Court put the lower court ruling on hold and barred
the California club from distributing marijuana while the government
pursued its appeal.

The government originally appealed to the 9th Circuit, which has not yet
ruled. But the Justice Department took the matter directly to the Supreme
Court, saying that the 9th Circuit was not expected to change its earlier
decision.

Voters have repeatedly told pollsters in recent years that they generally
support allowing sick and dying people to use marijuana if it offers relief.

But the medical community, overall, has not embraced marijuana. Many
physicians believe there are better legal drugs available to do what
marijuana's advocates claim it can do. Large studies, however, have not
been undertaken.

The White House drug czar, Gen. Barry McCaffrey, opposes the medical
marijuana laws, as do groups such as the Partnership for a Drug Free America.

"When it comes to medical marijuana, it is a medical issue that should be
decided by the medical community," said Howard Simon, assistant director of
the Partnership for a Drug Free America.

In other action yesterday, the court:

Declined to hear a challenge by South Carolina gambling operators against
the state's new ban on possession of video gambling machines. The gambling
operators said the ban, which took effect in July when the state outlawed
video gambling, amounted to the government's unlawful taking of their
property without payment.

Heard oral arguments in a case that seeks to determine how to judge when
race plays too large a role in drawing election districts. The North
Carolina case is a follow-up to the justices' landmark 1993 ruling that
election districts drawn to help minorities might violate white voters' rights.