COMPASSION AND COMMON SENSE

Proposition 215, the initiative that permits the medical use of marijuana,
is entitled ``The Compassionate Use Act of 1996.''

Indeed, no political issue in America today defines the need for
compassionate politicians better than medical marijuana. Yet this is an
issue on which the voters are ahead of the politicians.

The overwhelming majorities that approved initiative measures to permit
medical use of marijuana in California, Arizona, Alaska, Washington, Oregon
and Nevada reflect deep compassion for those who suffer from debilitating
diseases like AIDS and cancer, and the side effects of their treatment.

Much of that compassion is based on firsthand experience, not medical
studies. Those at the bedside of dying relatives struggling with wretching
nausea, who see them gain relief from marijuana, have no difficulty
distinguishing ``medical'' from ``recreational'' use, and are ready to
accept such legal distinctions.

But in an era of sound-bite politics, it's hard to convince many
politicians that the public is sophisticated enough to accept compassion
for the sick and dying as an exception to a strong anti-drug stance. They
react with the timeless folly of leaders who lose touch with their
followers, by stopping their ears. Even in the face of mounting scientific
evidence confirming that marijuana has legitimate medical benefits, our
federal drug czar views the medical marijuana movement as an insidious threat.

In California, displaying political courage, Attorney General Bill Lockyer
convened representatives of law enforcement, the medical profession, and
patients groups to serve on a task force to implement Prop 215.

Sen. John Vasconcellos and Santa Clara County District Attorney George
Kennedy co-chaired the effort. I was privileged to serve on the task force,
and observed first-hand a convergence of compassion and common sense. A
carefully fashioned proposal to establish a state-wide registry for medical
marijuana users emerged, modeled on the registries established in the
Washington and Oregon initiatives. It would provide police a rapid and
convenient way to confirm whether a claim that marijuana is possessed for
medical use is legitimate, by issuing identification cards to patients who
have their physician's approval.

Does this effort ``flout'' federal authority? Hardly. The federal
government itself set up a program to make marijuana available to medical
patients 20 years ago, after a District of Columbia jury acquitted a
glaucoma patient who claimed ``medical necessity.'' When the program was
overwhelmed with applicants, new enrollments were cut off 10 years ago.

The federal government has never prosecuted a cancer or AIDS patient for
simple possession of marijuana for personal use. Nor will it, because
government officials realize no jury would ever convict in such a case.
While federal authorities have sought a civil injunction against
large-scale Cannabis Clubs, small cooperatives that serve the needs of
local patient groups are operating openly in California. .

Earlier this month, after the Assembly Health Committee approved the task
force's proposal by a vote of 9-3, Gov. Gray Davis's press secretary dumped
cold water on the effort. He announced the governor will probably veto the
measure because it is ``clearly in conflict with federal law.''

The conflict with federal law is far from clear. California police are not
charged with enforcing federal law. State law now declares that patients
afflicted with debilitating diseases have a ``right'' to possess and use
medical marijuana with the recommendation or approval of their physicians.
Thousands of them will do so, regardless of federal law, and federal
authorities are not foolish or reckless enough to seek their prosecution in
federal court.

That leaves local law enforcement officials with an enormous headache. They
don't want to take medicine away from sick people, but have no way to
verify a claim of legitimate medical use. Patients who are willing to
accept the rather minimal risk of federal intervention should not be
deprived of their rights under state law.

A California governor can't hide behind the federal drug czar. He took an
oath to uphold California laws. Ignoring the clear mandate of the people in
Proposition 215 would demonstrate not only a lack of compassion, but a
streak of cowardice.

In one important respect, California law and federal law are identical.
They both require the support of the people for their enforcement. A
California governor ignores at his peril the demand of the people for
compassion in the enforcement of our law.

Gerald F. Uelmen is a professor of law at Santa Clara University School of
Law, and a Scholar of the Markkula Center for Applied Ethics at Santa Clara
University