POT LUCK

Following A Raid In Santa Cruz, Medical Marijuana Supporters Trot Out An
Unlikely Argument: States' Rights.

SAN FRANCISCO -- Early in the morning of Sept. 5, Drug Enforcement
Administration officials raided a small farm near Santa Cruz, Calif., that
had provided marijuana for sick and dying patients under California's 1996
medical-marijuana law, Proposition 215. According to the DEA, the 100 to
200 plants seized at the farm confirmed that large-scale production,
distribution and sale of marijuana was taking place, a charge that owners
Valerie and Michael Corral deny. The Corrals -- who lead the Wo/men's
Association for Medical Marijuana (WAMM) and helped craft a 1992 local
ordinance in Santa Cruz that foreshadowed Proposition 215 -- were arrested
following the raid and later released without being charged.

The incident has set off a bitter feud between law-enforcement officials in
California and the Department of Justice in Washington. Moreover, it's
placed some California liberals in the unusual position of defending
states' rights against federal authority. Indeed, the most recent
California episode is more than a rehashing of the age-old confrontation
that pits Reefer Madness conservatives against pot-loving hippies.

At its core is a debate about the federal government's right to veto the
judgment of local law enforcement and override a state law approved by 56
percent of voters.

Though the U.S. Supreme Court ruled on the issue of medical marijuana as
recently as May 2001 -- finding 8-to-0 in United States v. Oakland Cannabis
Buyers Club that medical use is an unacceptable defense in federal trials
for distribution -- the courts have yet to contend with the more
controversial issue of states' rights and federal jurisdiction raised by
the California law (and similar legislation in seven other states).

Following the September raid, California Attorney General Bill Lockyer
lashed out at the DEA, calling the seizures "punitive expeditions." U.S.
Rep. Sam Farr (D-Calif.) denounced the raid as "outrageous." And Santa Cruz
Mayor Christopher Krohn made national headlines, prime-time news and the
op-ed page of The New York Times after he led the Santa Cruz City Council
in presiding over a symbolic handout of marijuana to patients who would
otherwise have received their drugs from the WAMM collective. All the
while, the DEA has maintained the official line that "marijuana is a
dangerous drug" with "no accepted medical use."

Richard Meyer, spokesman for the DEA's San Francisco office, insists that
the agency was simply doing its job and enforcing the federal law that
prohibits consumption and distribution of drugs classified as Schedule 1
narcotics -- a grouping that places marijuana alongside such substances as
heroin and cocaine. "We don't intend to negate their sovereignty," Meyer
says of California voters. "We're here to protect the community against
dangerous drugs."

But by his own admission the Bay Area is plagued by numerous other drugs
such as ecstasy, LSD, heroin and a wave of meta-amphetamines. As a result,
Santa Cruz's Krohn is at a loss when it comes to the DEA's motives. "We
need the DEA to help us where they have in the past," he says, citing the
recent arrival of meta-amphetamine dealing in the Santa Cruz area. "The
resources are misplaced.

I'm sure the DEA has priorities but I'm not sure why this is a priority.

It doesn't make sense to be going after sick folks when there is so much
drug abuse plaguing communities across the country."

Carr was similarly peeved noting that WAMM has long been an innocuous
presence in the area. "It's known for helping sick people to ease their
pain. It does not sell marijuana to the public.

It only grows marijuana for members, and they must have a doctor's
prescription," he said the day after the raid. "It is truly disturbing that
the administration would waste precious resources punishing those who pose
no threat at all to our society." But the harshest words come from the
state's top cop: Lockyer is adamant that Washington respect the will of
California voters when it comes to medical marijuana. "The attorney
general's concern is that the federal government is wasting precious
resources that should be directed toward fighting criminal enterprises,"
Lockyer spokeswoman Hallie Jordan says. Like Krohn, the attorney general
believes that going after Mexican narcotics rings, domestic
meta-amphetamine producers and large-scale marijuana growers is far more
important than targeting groups such as WAMM. Indeed, Lockyer sees the
Corrals' farm as a "successful program" where local law-enforcement
officers and medical professionals worked with the group.

"We'd rather defer to law-enforcement officers who have responsibility in
that jurisdiction," Jordan says. Yet in the case of the Sept. 5 raid, the
DEA did not even notify the local police department. Lockyer issued a
critical statement questioning whether the raid served any law-enforcement
purpose given that no charges were pressed.

He also requested a meeting with U.S. Attorney General John Ashcroft.
Lockyer received a reply in early October from drug czar Asa Hutchinson
granting the request but reaffirming the DEA's intention to enforce federal
law.

Given the Supreme Court's unanimous decision on medical marijuana last
year, it may seem that the courts are not the best place for Californians
to seek salvation.

Dale Gieringer of the National Organization for the Reform of Marijuana
Laws (NORML) sees hope, however. Gieringer acknowledges that some of the
so-called marijuana clubs that have appeared since the 1996 law passed are
"sketchy." But in the case of WAMM, says Gieringer, "Everyone was a
terminally ill patient. It was a model collective. A lot of us thought that
would be the last place they'd raid." As a result, he contends, "In going
after [the Corrals], the federal government may in fact open the case for a
federal law regarding medical marijuana." But a quick look at the House and
Senate reveals few strong proponents of such a measure apart from U.S. Rep.
Barney Frank (D-Mass.), some California Democrats and a handful of
libertarian-leaning Republicans. Still, NORML insists, "The federal
government has stepped way over the line of what the Constitution allows
it. This is not interstate commerce."

Santa Clara University law professor Gerald Uelmen agrees.

Uelmen, who represented the Oakland Cannabis Buyers Club before the U.S.
Supreme Court, notes that the 2001 decision "was not a constitutional
ruling." When Congress passed the Federal Controlled Substances Act in
1970, says Uelmen, its only authority was the interstate-commerce clause.
But according to Uelmen, interstate commerce was not an issue in any of the
California cases because they were small-scale local operations permitted
by state law. "In Santa Cruz, that argument is particularly strong since
they're not even selling [the drug]," he says. And a slew of pending
lawsuits is keeping medical-marijuana issues on the federal docket.

Uelmen has filed for return of property in the Santa Cruz case and is
awaiting a ruling from the 9th U.S. Circuit Court of Appeals on Conant v.
McCaffrey, a case in which he is defending the right of California doctors
to prescribe marijuana.

The question of whether the federal government has the power to seize or
prohibit medicine that is legal under state law has yet to be addressed. It
may be several years before Californians feel free to grow marijuana for
medicinal purposes without fear of DEA raids.

But if any cases raising constitutional questions work their way to the
Supreme Court, advocates for medical marijuana believe that they will at
least have states' rights arguments on their side.

"The Supreme Court has been quite serious in looking at the limits of
Congress' commerce power and has been more sympathetic to arguments of
states' rights and federalism," Uelmen says. "I'm frankly not optimistic
that we're going to see any change from Congress. Certainly, the avenue
with the greatest prospect of success is the courts."