High court clouds medical marijuana debate

June 27, 2005

Thomas D. Elias (OP/ED), Ventura County Star

So you thought the U.S. Supreme Court would at last bring some clarity to a medical marijuana scene where some district attorneys arrest medipot users and their suppliers and others don't, where federal agents shut down medical marijuana dispensaries and clubs but usually don't fool with users?

Hah! By the time legal scholars and law enforcement officials finished reading the high court's august decision in Gonzales v. Raich, you'd have thought they and the justices all had been smoking or sniffing some kind of hallucinogen.

Start with Justice John Paul Stevens, long one of the court's leading civil libertarians. He wrote the decision that allows federal authorities to clamp down on medipot users, arresting them no matter how bad their physical condition.

His rationale: Allowing growers to plant enough pot to meet the needs of medical users might encourage them to add plants to their plots and begin selling to recreational users.

He also invoked the interstate commerce clause of the Constitution, giving Congress the right to regulate anything traded over state lines. Of course, almost all medipot is grown locally and never crosses a state line. But it might if growers added enough plants to get seriously into street sales. So he and the court majority essentially say because something might be sold over state lines, Congress has the power to ban it regardless of what the states and their citizens say. That was enough to make some folks wonder what his young clerks -- folks just out of law school who certainly wrote at least a draft of the decision -- might have been smoking.

Then there was California Attorney General Bill Lockyer, who immediately opined that 'The ruling does not change the state laws allowing for the legal use of medical marijuana ... state and federal laws are no different today than they were yesterday.'

Of course, yesterday there was utter confusion. Prosecutors in places like Orange and Kern counties routinely throw the book at medipot users and their suppliers, while those in other counties like Mendocino and San Francisco allow them to operate freely.

Since the federal Drug Enforcement Administration lacks the personnel to arrest all the thousands of medipot users in California, chances are most will continue to use without problems. But those who get vocal about it will surely be prosecuted and convicted, as in the past. Unless juries begin to revolt and refuse to convict users regardless of the evidence. And some jurors in past medipot trials have indicated that's exactly what they would have done if they'd been fully informed of the conflicts between state and federal laws.

There were also the users. We already know they're on a hallucinogen. Many use to alleviate pain and other symptoms of AIDS, cancer and other diseases. 'I grow my own plants and I'm going to continue to do so no matter what,' said one Sacramento AIDS patient who claims pot relieves side effects of his prescription drug regimen including nausea and stomach pain. That patient expects to be allowed to continue growing and using. Maybe it will work out that way, maybe not.

There was also the likelihood the court majority was hallucinating when it suggested Congress should resolve the whole mess. Congress has known for nine years -- since Californians passed Proposition 215 with a 56 percent majority in 1996 -- that most citizens want medical marijuana treated like a prescription drug. But it does nothing to change the status of the weed, even though 11 other states followed California. Some of them are 'blue' states that voted Democratic in the last two presidential elections, like Oregon, Washington and Hawaii; others are as Republican 'red' as can be, like Montana, Alaska and Arizona.

Not even senators and congressmen from states that voted for legalizing medipot ever advocate heavily for similar federal action. That includes delegations not just from California, but also from states like Arizona, where a 1996 referendum allowing medipot use with a doctor's recommendation passed with a 65 percent majority.

This is exactly what Proposition 215 mandates for this state, but since former Attorney General John Ashcroft warned several years ago that he would seek to lift the licenses of doctors who make recommendations, few have been willing to do it regardless of how much their patients might benefit.

If all this sounds hopelessly confused, it is. And the Supreme Court apparently has only bollixed things up still more with a decision that says federal law indeed pre-empts anything the states might have on the books, but still does not knock state laws out. Maybe the decision could be better understood if its readers all lit up reefers while considering the matter.

-- Thomas D. Elias, of Santa Monica, is a columnist and author. His e-mail address is tdelias@aol.com.

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