BACKGROUND AND ARGUMENTS:

ASHCROFT v. RAICH

The U.S. Supreme Court ruling in the case called Ashcroft et al v.
Raich et al is likely to determine if and how the federal Controlled
Substances Act applies to more than 100,000 people who use cannabis as
medicine under the law in California and other western states.

The case was argued Nov. 29, 2004. The ruling is expected by June
2005.

A win for patient Angel Raich, her John Doe caregivers, and her
co-defendant Diane Monson, would confer legitimacy on everyone in
their situation. A loss could mean widespread, low-key terror with the
DEA picking off growers, distributors and persons of interest at will.

There is a spectrum of possible outcomes in between the unambiguous
win and loss (See "Robert Raich on the Judgment," this issue.)

The suit started out as Raich et al v. Ashcroft et al. It was filed in
October, 2002, in response to intermittent DEA raids, such as the raid
that closed the 6th Street club in San Francisco, and the destruction
of WAMM's garden north of Santa Cruz.

Angel McClary Raich, 39, was the prime mover. Her life would be at
risk, she contended, if the feds raided the two caregivers who were
growing her year's supply of cannabis (for no charge). Angel sought a
court order enjoining the Justice Department and the Drug Enforcement
Administration from carrying out any more raids.

Although painfully thin due to her afflictions, Angel (which is the
name she chose for herself) has a strong ego and the will to make
history --"for all of us," she says.

She comes from Stockton, from a working-class family. Her parents
divorced when she was four. Angel has disturbing memories of being
molested by a family member. At 12 she was put in a full-body brace to
correct curvature of the spine. She developed asthma and had several
cysts removed while still in high school.

She married her high school sweetheart. They worked as apartment
managers in the Central Valley and had two kids. They divorced. Angel
remarried and worked at a series of blue- and white-collar jobs.

At age 30 she had a serious adverse reaction to the birth-control
pill, resulting in partial paralysis. An inoperable brain tumor was
diagnosed. Confined to a wheelchair, in pain, she was given strong
prescription painkillers --synthetic opiates, methadone and Fentanyl--
which induced nausea, vomiting and other intolerable effects.

She was hospitalized and made a feeble attempt to cut her wrists. A
nurse advised her to try marijuana; Angel wouldn't hear of it because
it could cost her custody of her kids. When desperation ultimately led
her to try the prohibited herb, her pain receded, and in due course
she regained her mobility and found her calling as a
martyr/advocate.

By 2000 Angel had moved from the Central Valley to the Bay Area, made
friends with other patients and activists trying to implement
California's medical marijuana law, and formed a non-profit of her own
called "Angel Wings Outreach."

In the course of helping patients deal with legal problems, Angel met
attorney Robert Raich. "It really became hard to see where he ended
and I began," she recalls. "We became one."

Robert Raich, 48, is a rabbi's son who went to Harvard and then to law
school at the University of Texas. He is almost as thin as Angel, very
soft-spoken and mild-mannered. It was Raich who had the insight, back
in 1998, that section 885(d) of the Controlled Substances Act, which
allows undercover police officers to buy, handle, and sell narcotics,
could apply to a city-authorized cannabis dispensary.

Raich represented the Oakland Cannabis Buyer's Co-op in a federal case
initiated by the Clinton Justice Department in 1998. The U.S. Supreme
Court eventually ruled that the OCBC couldn't claim "medical
necessity" as grounds for violating the Controlled Substances Act.
Whether an individual could claim "medical necessity" was not
addressed in the OCBC case; it is one of the arguments Angel's lawyers
made on her behalf in the present case.

Angel's co-defendants are two anonymous growers ("caregivers" in terms
of California law) and Diane Monson, a 47-year old accountant who has
her doctor's approval to use cannabis to treat disabling back pain and
spasms.

In August, 2002, Monson was growing six outdoor plants in her home
garden in the foothills of Oroville. DEA agents arrived to question
her about a large quantity of marijuana growing elsewhere in Butte
County on property that she and her husband formerly owned and on
which they still held the mortgage (i.e., they were getting monthly
payments from the new owners).

Diane told the law enforcers she'd been unaware of the large grow. The
DEA agents said they were going to confiscate her six plants then and
there. (Ordinarily the feds don't concern themselves with small
quantities of marijuana.) Diane asked the Butte County Sheriff's
deputies who had accompanied the feds to confirm that the plants were
legal under Prop 215.

Federal-State Confrontation

A tense, three-hour standoff ensued during which the Butte County
District Attorney, Mike Ramsey, asked the U.S. Attorney for the
Eastern District of California, John Vincent, to call off the raid.
Ramsey's support is a tribute to his integrity ("He's against medical
marijuana, personally, but he respects and upholds California law,"
says Philip A. Denney, MD, who has an office in Redding.) It's also a
tribute to the standing in the community of Monson and her recently
deceased husband.

The DA of Butte County did not prevail, and as Diane Monson read aloud
the text of Prop 215 ("I thought they needed to hear it," she says),
DEA agents macheteed and hauled away her almost-ready-to-harvest
herbal painkiller.

Angel read about Monson's plight and asked her to become a
co-plaintiff so that a favorable decision by the Court could apply to
patients whose illnesses were not life-threatening. The two women are
represented by San Francisco defense specialist David Michael, and
Randy Barnett, a professor of constitutional law at Boston University
School of Law, an authority on the 9th amendment, in addition to
Robert Raich.

Preliminary Injunction

In requesting an injunction they argued, among other things, that the
federal government has no jurisdiction because the process by which
the plants were grown for and consumed by Raich and Monson did not
affect interstate commerce significantly.

The request for a preliminary injunction was denied in March 2003 by
U.S. District Court Judge Martin Jenkins. Raich et al appealed to the
9th Circuit, and in October '03, made their arguments to a three-judge
panel (Pregerson, Paez and Beam, on loan from the 8th Circuit). In
December '03 the 9th Circuit panel (with Beam dissenting) directed the
District Court Judge to issue the preliminary injunction. Jenkins did
so in May 2004. It reads:

"Defendants, and their agents and officers, and any person acting in
consort with them, are hereby enjoined from arresting or prosecuting
Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical
cannabis, forfeiting their property, or seeking civil or
administrative sanctions against them with respect to the intrastate,
noncommercial cultivation, possession, use, and obtaining without
charge of cannabis for personal medical purposes on the advice of a
physician and in accordance with state law, and which is not used for
distribution, sale or exchange."

The above injunction --which the Bush Administration wants the Supreme
Court to quash-- is what made the summer of 2004 relatively
stress-free for many Californians who were growing for or distributing
cannabis to patients whose doctors had approved its use.

The Key Arguments

Before appearing in Court, each side makes its arguments in written
briefs, which are supplemented by "amici" (friend of the court) briefs
from interested parties.

The Justice Department brief, submitted by Acting Solicitor General
Paul Clement, argues that Congress had a valid goal in passing the
Controlled Substances Act to regulate interstate commerce in licit and
illicit drugs. "Medical" users growing their own would undermine that
goal. Interstate commerce, although not affected by a few instances of
medical users growing their own cannabis in California, is inevitably
affected when all such instances are considered in aggregate. All
marijuana-related activity is inherently economic because marijuana is
a "fungible" substance --it can be bought and sold in commerce. All
marijuana is essentially the same, and if the parties in this case
didn't have marijuana grown for them, they'd be buying it on the market.

Among the feds' arguments is one usually left unspoken: prohibition
serves the interests of the pharmaceutical corporations. As expressed
in the DOJ brief, "Excepting drug activity for personal use or free
distribution from the sweep of the CSA would discourage the
consumption of lawful controlled substances." It would also undercut
"the incentives for research and development into new legitimate
drugs." That's as close as the government has come to acknowledging
that wider cannabis use would jeopardize drug-company profits.

The U.S. Supreme Court overturns three out of four cases it chooses to
review. The absence of Chief Justice Rehnquist (undergoing treatments
for cancer) would work to Raich's advantage. As a young lawyer in the
Nixon Justice Department, Rehnquist helped write the Controlled
Substances Act. His questions during the Oakland Cannabis Buyers'
Co-op oral argument in 2001 were overtly hostile. And he's considered
results-oriented (fight the war on drugs) rather than principled
(curtail the overreaching Commerce Clause). Rehnquist could still read
the transcript and vote on the Raich case, even though he did not
attend the oral argument. He is expected to write an opinion (or have
his law clerks do so)... If there's a 4-4 tie, the opinion of the 9th
Circuit stands, but doesn't become binding authority on the rest of
the country.

States' Rights

Most of the amici briefs focus on states' rights. For those of us who
remember the battles to end segregation in public schools in the
South, there is obvious irony in our side calling for "states'
rights." It was in the name of states' rights that governors Orville
Faubus and Ross Barnett barred the schoolhouse doors in Arkansas and
Mississippi, while up north we were singing "The ink is black, the
page is white, together we learn to read and write, to read and write.
And now a child can understand this is the law of all the land -all
the land!"

Another inversion involves the question of individual rights, to which
so-called conservatives always pay lip service. The right to
self-medicate is an individual right if ever there was one --but the
conservatives are suddenly all about "public health," like a bunch of
bleeding-heart liberals!

The marijuana prohibition takes us through-the-looking glass because
it's based on the Mad Hatter's premise that the drug is always
harmful, never helpful. The feds and their amici refer to marijuana as
only "purportedly," "assertedly," "allegedly" medical. But the record
established at the district court level --which is supposedly all the
Supreme Court goes on-- consists of four declarations by the two
patients and their physicians showing that cannabis does indeed have
medical benefits. The government submitted no evidence to the
contrary. They contend it's just a question of law.

Precedent Case

The key precedent is a 1942 case, Wickard v. Filburn, which
established that impact on interstate commerce is not a function of
individual transactions (such as caregivers growing cannabis for Angel
Raich) but of all such transactions, in aggregate (all medical users
growing their own or having it grown for them within
California).

Filburn was an Ohio farmer who grew more wheat than he was allowed to
under the Agricultural Adjustment Act, which was intended to keep
prices up by limiting production. That Act was clearly trying to
regulate economic activity. The Court ruled that Congress could
regulate consumption of Filburn's wheat on his own farm because if all
farmers acted likewise, Congress's scheme to regulate the price would
be undermined.

Raich-Monson argue that Wickard v. Filburn is a bad analogy because
Filburn sold some of the wheat he raised, and much more of it was
being consumed by his cows (from which he derived milk, and which he
sold occasionally) than by his family. He also raised and sold
chickens and he sold eggs, i.e., he was using his wheat in running a
commercial farm. Moreover, the Agricultural Adjustment Act didn't
apply to farmers growing small quantities for family use. And the
principle of "aggregation" established in Wickard did not apply in the
two cases --Lopez (1995) and Morrison (2000)-- by which the Rehnquist
court has limited Congress's power under the Commerce Clause.

Raich-Monson's arguments are designed to appeal to "conservatives." By
ruling against them, the Court would significantly extend federal
power under the Commerce Clause --the last thing "conservatives"
supposedly want to do. "If the Court upholds Petitioners' claim of
federal power," the Raich-Monson brief points out, "this case will
supplant Wickard to become the most expansive interpretation of the
commerce clause since the Founding, and this Court's landmark
decisions in Lopez and Morrison will become dead letters."