U.S. Medical Pot Ban OK'd

June 06, 2005

David Whitney and Claire Cooper , Sacramento Bee

A medical recommendation is not a ticket to legal marijuana in California, the U.S. Supreme Court said Monday in a closely watched case in which the justices nonetheless expressed sympathy for those whose illnesses have been alleviated by the use of cannabis.

In its 6-3 decision, the court held that laws in California and nine other states permitting people with a doctor's recommendation to cultivate, possess and use marijuana didn't trump the federal government's authority to prosecute pot users - even the ill - on federal drug charges.

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The case before the court was brought by two Californians - Angel McClary Raich of Oakland and Diane Monson of rural Butte County - who said they would suffer irreparable harm if their supply of legal marijuana dried up because of the ruling.

Their appeal to the high court challenged the power of Congress to prohibit personal use of non-commercial pot under the guise of regulating interstate commerce. The area of commerce regulation had been developing in recent years along the lines of enhancing states rights and, in a previous opinion, several justices had all but invited arguments that it applied to medical pot.

Though the majority opinion, written by Justice John Paul Stevens, stopped short of overturning California's laws, it disappointed medical marijuana advocates who had hoped the high court would recognize the rights of states to authorize medical pot use.

'We're not going away,' Raich said Monday. 'Just because we did not win this battle does not mean we will not win this war.'

Raich, who has a brain tumor and has credited marijuana with relieving her misery to the point that she no longer requires use of a wheelchair, urged supporters to turn to Congress for protection of medical pot users.

She and plaintiffs' lawyer Randy Barnett of Boston University said they'll move forward on two fronts:

* Pushing for a budget amendment barring the Department of Justice from using federal money to interfere with state marijuana laws

* Asking the 9th U.S. Circuit Court of Appeals to take another look at two issues in their case - medical necessity and the fundamental right of individuals to run their private lives without government interference - that the circuit court didn't address and subsequently were not included in the Supreme Court's review.

Raich obtains marijuana from caregivers who raise it for her. Monson, however, grows her own, and after Drug Enforcement Administration agents raided her home on Aug. 15, 2002, they destroyed her six plants even though county sheriff's deputies argued her use of the drug was legal under state law.

The women filed a lawsuit for an injunction barring federal drug agents from enforcing the federal drug laws against those who grow, possess or use medical marijuana.

The ruling appeared unlikely to have major practical consequence, at least not immediately. Most marijuana cases are brought by the states, and there's nothing in the ruling that compels states to act differently now.

While it doesn't overturn California's 1996 Compassionate Use Act, the Supreme Court decision rejects what advocates thought was thought their best argument - that state-authorized personal medical use of home-grown pot is beyond the reach of federal regulation.

The justices said the California women's claims of suffering made their decision difficult, but said state exemptions for medical marijuana were certain to add to the street supply of pot.

'In contrast to most prescriptions for legal drugs, which limit dosage and duration of the usage, under California's law the doctor's permission to recommend marijuana is open-ended,' the majority said.

The dissenters from the majority opinion - Chief Justice William Rehnquist and Justice Clarence Thomas, both conservatives, and Justice Sandra Day O'Connor, a moderate - complained the ruling marked an unconstitutional infringement of states' rights and warned that it handed Congress broad powers to meddle in state issues.

'Diane Monson and Angel Raich use marijuana that has never been bought or sold, that has never crossed state lines, and that has had no demonstrable effect on the national market for marijuana,' Thomas wrote in a separate dissent.

'If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything and the federal government is no longer one of limited and enumerated powers,' he said.

California Attorney General Bill Lockyer said he was 'disappointed but not surprised.' He said his office will advise law enforcement in California 'the same thing we've advised them all along ... that state law provides for use of medical marijuana and the identity card system ... but it conflicts with federal statutes.'

On the federal side, Gordon Taylor, special agent in charge of the Sacramento branch of the Drug Enforcement Agency, said he will sit down with the U.S. attorney for the Eastern District of California, McGregor Scott, to determine which cases of medical marijuana trafficking to pursue. He said cannabis clubs and other forms of medical marijuana distribution violate federal drug laws.

'In terms of DEA enforcement, we don't target the sick and dying; rather we target those people cultivating and trafficking in marijuana,' he said.

Scott said his office's prosecutions focus on large-scale drug trafficking and that won't change because of Monday's high court ruling.

Scott said he could count the cases on one hand in which medical marijuana is a factor. Those cases, he said, involve people claiming that hundreds of marijuana plants they were growing were for medical purposes.

'Now that fig leaf is gone, so we can go forward on those cases without any concern,' Scott said.

John Walters, President Bush's director of national drug control policy, was more expansive, asserting that the ruling would put an end to medical marijuana as a political issue.

'Smoking illegal drugs may make some people 'feel better,' ' he said. 'However, civilized societies and modern-day medical practices differentiate between inebriation and the safe, supervised delivery of proven medicine by legitimate doctors.'

Even in the majority opinion, however, the high court suggested that the question of medically permissible marijuana belonged in the political arena.

'Perhaps even more important than these legal avenues is the democratic process in which the voices of voters allied with these (women) may one day be heard in the halls of Congress,' the court's ruling said.

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