A MARIJUANA PRECEDENT

Whether or not September 13 will one day be seen as the day the federal
policy of marijuana prohibition started to crumble,the decision delivered
Monday by a three judge panel of the 9th Circuit U.S. Court of Appeals is an
important one with lasting effects. The decision is promising for very ill
people whose doctors believe they can be helped by using marijuana or
cannabis. It doesn't clear away all the federal obstacles to full
implementation of Proposition 215, which the voters passed in November
1996, but it eliminates several of the most stubborn evasions and arguments
that have delayed a policy of abiding by the voters' decision.

Specifically, the decision ( http://www.ce9.uscourts.gov/web/newopinions.nsf ,then
click on "Opinions by Date," then on USA v. Cannabis) directs the federal
judge who ordered the closure of the Oakland Cannabis Buyers Club and other
Northern California clubs to consider modifying his order to take "medical
necessity" into account. The practical result is likely to be a reopening of
those clubs, operating under a narrow scope than is authorized by Sec.
11362.5 of the California Health and Safety Code, which Prop.215 now is, but
protected from federal prosecution.

The decision eliminates the justification offered by Gov. Gray Davis for his
reluctance to authorize full implementation of California's medical
marijuana law because of potential conflicts with federal law. This was a
federal court saying that even under federal law exceptions can be made for,
as the court put it:

"a class of people with serious medical conditions for whom the use of
cannabis is necessary in order to treat or alleviate those conditions or
their symptoms; who will suffer serious harm if they are denied cannabis;
and for whom there is no legal alternative to cannabis for the effective
treatment of their medical conditions because they have tried other
alternatives and have found that they are ineffective, or that they result
in intolerable side effects."

The concept of medical necessity grows out of the old English Common Law
tradition that there can be certain necessities that authorize breaking
laws. If you see your child drowning in a neighbor's pool, for example, you
can rescue him or her without being prosecuted for trespassing.

State and federal courts have previously recognized medical necessity
defenses against the strict prohibitory laws regarding marijuana; indeed,
the federal government set up - but later suspended - a program of
distributing marijuana at taxpayer expense to a few patients in response to
such a case in the 1970s.

Monday's decision, in effect, invites California Attorney General Bill
Lockyer to study the decision, then issue a set of guidelines for law
enforcement to recognize the rights of patients who meet certain criteria to
have access to marijuana for medical uses. No new legislation is required
for him to do this. As Robert Raich, the lead attorney in this case, told
us, "the Sword of Damocles hanging over state officials - that the federal
government will stymie any efforts to implement Prop. 215 - has been
eliminated."

The exemption for patients and doctors offered under Monday's federal
decision is narrower than what California voters authorized. Under state law
any patient with a recommendation from a licensed physician is legally
exempt (though not practically so) from prosecution for possession, use or
cultivation of marijuana. The 9th Circuit's necessity standard requires that
"serious harm" result from denying cannabis and suggests that patients have
to have explored alternative therapies first. But it also seems to create an
exemption from distribution laws.

It is difficult to exaggerate how important this decision is. It opens up
the possibility that federal law - not just in the nine states covered by
the 9th Circuit (six of which have passed medical marijuana laws by
initiative) but eventually throughout the country - can be applied with a
modicum of compassion and common sense rather than as strictly and cruelly
as some drug warriors would prefer.

The 9th Circuit decision doesn't address the issue of "rescheduling"
marijuana under the 1970 Controlled Substances Act. The Drug Enforcement
Administration has kept marijuana on Schedule I under that act, which by law
is reserved for drugs with a high potential for abuse, with no currently
accepted medical use and a "lack of accepted safety."

As the government's recent Institute of Medicine report makes clear,
marijuana doesn't fit that definition. But that's a decision for another
day; a petition to reschedule is in play.

There is a chance the 9th Circuit decision could be appealed to the full 9th
Circuit or to the U.S. Supreme Court. Federal lawyers have been silent so
far about their intentions on filing an appeal.

For now, though, the court has effectively invited California officials to
craft guidelines for the use of medical marijuana that will keep the federal
government off their backs. They should accept the invitation immediately.