Smoke Signals

June 08, 2005

Dean Kuipers, Los Angeles City Beat

Across the country on Monday, newspapers and websites described how the U.S.  Supreme Court dealt medical marijuana advocates a 'stinging defeat' ( ), 'a blow' ( Washington Post ), and a 'setback' ( Baltimore Sun ) in the decision handed down in the case Gonzales v.  Raich.  True, Angel Raich and co-defendant Diane Monson, both members of a Santa Cruz medical marijuana co-op that was operating legally under California's 1996 Compassionate Use Act, may now be subject to federal drug charges.   But the reality is: They always were.

In fact, leading pot activists and their legal experts agree that Monday's ruling changes little in the medical marijuana wars, and that the decision written by liberal Justice John Paul Stevens may have even given the movement a tiny boost by both acknowledging the medical benefits of pot and exhorting advocates to redouble their efforts to change the laws in Congress.

'The Raich decision is irrelevant, doesn't overturn [California's Compassionate Use Act] or SB 420 [medical marijuana implementation law] or anything,' says Hilary McQuie of Americans for Safe Access, an advocacy group.  'Attorney General Bill Lockyer has just put out a very strong statement to that effect.  We want to get that out so we don't have local law enforcement going around thinking they can just shut people down and arrest people now.  Because 99 percent of the arrests for marijuana are state and local.  The one percent that is federal is still at risk, as it always was.'

Under the federal Controlled Substances Act, marijuana remains a Schedule I narcotic, meaning it has no medical usage and cannot be prescribed by doctors.  This categorization has been at odds with state and local laws around the country since the early '90s.

'This doesn't do anything to the existing state medical marijuana laws,' says Krissy Oechslin, spokesperson for the Marijuana Policy Project ( MPP ) in Washington, D.C.  'It doesn't impede other states from passing medical marijuana laws.  A week ago, the feds could go in and arrest people for medical marijuana, and they can do it today.  So this ruling doesn't give the feds any extra power; it simply restates the status quo.'

Monson and Raich sued then-U.S.  Attorney General John Ashcroft after federal agents raided Monson's home in Butte County, California in 2002 and destroyed plants used legally under state law by both women.  In a landmark decision on December 16, 2003, the U.S.  9th Circuit Court of Appeals ruled in favor of Raich, with Judge Harry Pregerson writing that 'this limited use is clearly distinct from the broader illicit market,' and that the feds had no authority to police it under the Constitution's Commerce Clause.

For almost 18 months, then, pot patients in California -- indeed, the entire 9th Circuit -- was free from DEA prosecution for the first time since marijuana became illegal nationwide in 1937.  That brief reprieve ended Monday.

The Bush administration, for its part, is claiming victory.  'Smoking illegal drugs may make some people 'feel better'; however, civilized societies and modern-day medical practices differentiate between inebriation and the safe, supervised delivery of proven medicine by legitimate doctors,' said National Drug Control Policy Director John Walters in a statement.  The decision, he said, 'marks the end of medical marijuana as a political issue.'

That, it seems, is wishful thinking.  Rather, this ruling is likely to fuel a flurry of new activity around the issue.  The court's 6-3 ruling, with staunch states' rights advocates Clarence Thomas, Chief Justice William Rehnquist, and Sandra Day O'Connor noting in their dissent that prosecuting these patients represents 'overreaching' by the federal government, was narrowly written to only address arguments regarding the Commerce Clause.  The majority opinion held that Congress had the authority to regulate homegrown bud because even not selling it 'may have a substantial impact on the interstate market for this extraordinarily popular substance.' In the knotted logic of Constitutional law, then, not selling pot made it illegal.

The case brought out such twists on both sides.  While the decision looks like a simple victory for the 'War on Drugs,' the court's liberal bloc -- Justices Stevens, Ruth Bader Ginsberg, Stephen G.  Breyer, and David H.  Souter -- would historically support a broad interpretation of the Commerce Clause as part of expansive federal powers.

The ruling, however, expressly avoided ruling on whether or not there is a medical necessity defense for using pot -- they kicked that one back to the 9th Circuit -- nor did it address due process problems that arise from the federal-state clash.  Raich and her lawyers said in a press conference that she'd push forward with these appeals -- and continue smoking pot.

But there will be fallout from the Supreme Court's decision.  According to Americans for Safe Access, 31 federal cases were on hold awaiting the results of Raich in California alone, and it is unclear exactly how this ruling will affect them.

Bryan Epis, for example, may go back to jail.  Epis was arrested in 1997 by federal agents for growing marijuana in his house in Chico, which he claimed was for him and four other patients with prescriptions that were legal under California's Compassionate Use Act.  He became the first California medical marijuana patient convicted under federal law, and in August 2002, he received a mandatory minimum sentence of 10 years.  He was released pending appeal, however, in August 2004, partly because the Raich ruling in the 9th Circuit made his conviction unconstitutional.

Now, however, his case and others are thrown into doubt.  As to new prosecutions, U.S.  Drug Enforcement Administration head Karen Tandy has said in several interviews that her agents would not target sick pot-smokers now, just because they could.

MPP's Oechslin almost wishes they would.  'Of course, we don't want anyone to be arrested, raided, or prosecuted.  But if they want to use their resources arresting people in wheelchairs, it only helps our side.'

Next week, she points out, there will be another vote on an amendment to the annual Justice Department funding bill, and she hopes Congress will see that only they can address this problem.  Called the Farr-Rohrabacher Amendment for its sponsors Representatives Sam Farr ( D-CA ) and Dana Rohrabacher ( R-CA ), the amendment would prohibit the department from spending federal dollars busting pot patients in states where such prescriptions are legal.  Last year, it was defeated 268 to 148.

'We only need 218 votes to win,' says Oechslin.  'I'd love to see this decision push us over and win that amendment.'

Americans for Safe Access attorney Joe Elford points out that the Supreme Court decision, in both its majority and minority opinions in Raich, is essentially an exhortation to further action by activists and patients.  '[Justice Stevens] starts by actually recognizing that it's a very troubling case, because marijuana does in fact have therapeutic value, and also questions the wisdom of enforcing the marijuana laws under these circumstances,' says Elford.  'He concludes by noting the possibility of democratic change, and he actually mentions 'voices of voters allied with [Raich and Monson] may one day be heard in the halls of Congress,' and having these laws changed.  So I think it's a challenge by the Supreme Court to become more active.'

Elford also notes that one of this country's longstanding constitutional traditions is that such democratic change is made through experimentation in state law, and that this is exactly how Justice O'Connor begins her dissenting opinion.  'So California and the nine other states that have medical marijuana can either prove the wisdom or the foolishness of medical marijuana laws,' Elford adds.  'We feel that the longer they're in place, the more wise they'll prove to be.  In time, the laws will change.'

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