Medical pot users' future in hands of top court

May 28, 2005

Alicia Caldwell , Denver Post

Robert Melamede's guidelines for better living go something like this: eat right, exercise and use a little marijuana.

The biology department chairman at the University of Colorado at Colorado Springs is among the state's 625 registered legal users of marijuana for medical reasons. He says it eases the pain of his spinal arthritis.

Melamede can't imagine living without it. But his fate and that of legal users in Colorado and 10 other states could be affected by a U.S.

Supreme Court case from California that will determine whether a federal ban on the drug trumps state laws allowing medical marijuana.

Their decision - expected in the next month - may redefine the limits of congressional power under the commerce clause of the U.S. Constitution.

Either way, the decision is expected to revive debate about the medicinal legitimacy of marijuana use and the social implications of legalizing what law enforcement officials call a 'gateway' drug.

In Colorado, federal law enforcement authorities said the decision will determine whether they can prosecute medical pot producers.

Bill Leone, Colorado's acting U.S. attorney, declined to say whether his office would pursue medical marijuana growers who have had their plants seized but thus far haven't been charged criminally.

'I can't comment on ongoing cases,' he said. 'We'll follow the law, whatever it is.'

A U.S. Drug Enforcement Administration supervisor based in Denver called medical marijuana a ploy by those who want to legalize the drug. He said his agency does not target sick and dying people but carefully evaluates whether growers are trafficking in the drug.

'This whole medical marijuana thing is a scam,' said Bill Weinman, a U.S. Drug Enforcement Administration supervisor based in Denver. 'You don't smoke your medicine.'

Police contend the medical marijuana exception allowing ill people to have a half-dozen plants has led to outlandish finds.

'There are a couple of instances where we've found people truly abusing the system,' said Sgt. Jerry Peters of the North Metro Task Force. 'They had over a hundred plants, and   they were selling it to people.'

The question before the court is whether the Controlled Substances Act, a comprehensive 1970 federal law regulating a broad range of drugs including marijuana, exceeds Congress' power to regulate commerce.

Government lawyers argue that Congress has the right to regulate medical marijuana because it affects a $10.5 billion illicit market that includes interstate commerce.

Erik Neusch, a Denver lawyer who wrote a law journal article on the constitutional issues raised by medical marijuana laws, said that during the past decade, the Supreme Court has rendered several decisions that have deferred to states' rights.

'What will be interesting is to see whether the Supreme Court continues on this path of broadening states' rights,' he said.

'If they were internally consistent, they would strike down the federal government's attempts to prosecute medical marijuana use in the states,' Neusch said. 'But I don't think that's going to happen.'

If the decision favors states' rights, more states probably will pass measures allowing medical marijuana use, said K.K. DuVivier, an associate law professor at the University of Denver.

'There has been (a movement) since the 1980s,' she said. 'People are trying to get around (federal law). It has now moved toward a state's right issue.'

However, she predicted that if the decision were to favor federal enforcement of a marijuana ban, actual enforcement would vary locally.

'If local agencies say they're not going to put any funding into it and they make it a lower priority, the federal government will come in occasionally to make raids, but they won't have the presence to really enforce it,' DuVivier said.

In 2000, Colorado voters overwhelmingly approved Amendment 20, legalizing the medicinal use of marijuana for those who get a doctor's approval and register with the state.

Melamede, the CU professor, said he suffers from ankylosing spondylitis, a painful, progressive, rheumatic disease that mainly affects the spine but can also affect other joints, tendons and ligaments.

Melamede, who steams his marijuana in a device   called a 'volcano' and then inhales the vapors, said the drug helps him function. He claims that after he inhales the drug, he can go running for 'a few hours.'

Melamede is hopeful that a favorable decision by the U.S. Supreme Court would encourage doctors to be more liberal about prescribing medical marijuana.

However, retired Dr. Frank Sargent, who opposed Colorado's medical marijuana amendment, said synthetic prescription drugs that mimic the effects of marijuana are much safer. Their purity and dosage are controlled more than that of homegrown pot, he said.

Advocates say marijuana helps cancer patients deal with nausea and suppressed appetites. It also is said to reduce intraocular pressure in patients suffering from glaucoma. And in those suffering from multiple sclerosis, it reportedly limits muscle pain and spasticity.

Sargent and others say that a relatively few people can truly be helped by the drug.

And community anti-drug advocate Eleaner Scott, of Westminster, said she hopes the Supreme Court gives the federal government   full authority to pursue medical marijuana producers.

'Kids think that if it's OK to use for medicine, it's OK to use,' Scott said. 'We need some consistency.'

Staff writer Alicia Caldwell can be reached at 303-820-1930 or

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