By Daniel Forbes

May 15, 2001

Monday's Supreme Court decision against medical marijuana made one thing crystal clear. At every level -- executive, legislative and judicial -- the U.S. government remains steadfast in its opposition to the demon weed.

Daniel Abrahamson, director of legal affairs for the George Soros-backed Lindesmith-Drug Policy Foundation, a liberal advocacy group, also downplayed the ruling, saying, "I think the decision will have fairly little practical import. Most patients don't use buyers' clubs. Most grow their own or get it elsewhere." Pointing to the fact that use by individual patients was not considered by the court, Keith Stroup, executive director of the National Organization to Reform Marijuana Laws, agreed, saying, "The legal use of medical marijuana by seriously ill patients in states that have legalized its use is neither threatened nor challenged by this decision."

But San Francisco District Attorney Terrence Hallinan, who is a firm supporter of Prop. 215, believes the ruling will have a significant impact. "I'm surprised at the breadth of the decision," he said. "The court seemed to go out of its way to knock out any medical necessity defense." As a result of the ruling, Hallinan expects above-ground buyers' clubs to close down or be closed. "I'm disappointed," he said. "The people of San Franciso, California and the nation feel medical marijuana should be available. It's a backward move." Few marijuana prosecutions are handled at the federal level, but on the infrequent occasions when the government does step in, he expects it to continue its politically safe policy of seeking only civil injunctions against buyers' clubs. However, he thinks the ruling could also result in criminal prosecutions -- and believes that if it comes to that, the feds will find juries to convict.

As these comments indicate, what the court's ruling immediately affects -- perhaps the only thing it affects -- is distribution. Afraid of going after sick people directly, the court concentrated on manufacturing and distribution -- the pushers, if you will. But if the court is also telling individual patients that medical marijuana is acceptable for them, as at least the concurring opinion seems to, then the ruling is not only vague, it's self-contradictory and ultimately morally untenable. What's the point of telling sick people it's OK to smoke pot to relieve the symptoms of AIDS or the agony of chemo, but denying them a legal means of acquiring it? The buyers' clubs came into existence to address this very problem -- but it's the buyers' clubs that will be driven out of business or underground by this ruling.

In the end, the impact may be largely symbolic. In California, ground zero in the medical marijuana fight, there is only one high-profile buyers' club still operating (in Los Angeles), and it has only 860 active members. Activists interviewed were not aware of any other club with, in effect, a shingle hanging over its door, anywhere else in the country. Even the Oakland Cannabis Buyers Cooperative, whose successful distribution led to the case finally before the Supreme Court, only had between 6,000 and 7,000 "certified" members.

But symbolic or not, not surprisingly, many people close to the issue in the state were bitterly disappointed with the ruling. Beverly Hills attorney Alan Isaacman, who has defended medical marijuana defendants, said, "Patients are being treated like criminals, doing something outside the law. The government ought not put sick people in that position." Scott Imler, head of perhaps the highest-profile club in the country still distributing pot, said, "We're tired of the hiding, tired of the shame -- we wanted to move past that. We're not prepared to go back to hiding or to buying on the streets."

Jeff Jones, co-founder and executive director of the Oakland Cannabis Buyers Cooperative named in the case, said, "As the facts stand, we're banned." But he believes today's ruling opens new avenues of litigation involving the right of patients to remain free from harm.

The ruling's effects on states that have passed medical marijuana initiatives remained unclear. In a statement yesterday, California Attorney General Bill Lockyer expressed regret at the decision, saying it was "unfortunate that the court was unable to respect California's historic role as a ... leader in the effort to help sick and dying residents who have no hope for other relief than through medical marijuana." Lockyer promised to review the ruling "before any conclusions are reached or recommendations are made about California law."

Eight other states that have passed medical marijuana laws -- Arizona, Alaska, Colorado, Maine, Nevada, Oregon, Washington and Hawaii -- could be affected as well, should the feds decide to act against them. In Oregon, Leland Berger, legal counsel to the political action committee Voter Power, says that his state's legislation was written so narrowly, with definite limits as to weight and the number of plants, that the ruling will have essentially "no effect on the Oregon medical marijuana act." Berger adds that the federal acting solicitor general arguing the government's case before the high court admitted that any ruling will not impact state statutes: "States can pass laws independent of the federal government and independent of the federal Controlled Substance Act," in Berger's words.

As to the specific legal fallout from the ruling, few expect the federal prisons to suddenly swell with buyers' club operators serving hard time. (Patients are even less likely to be prosecuted: As Dave Fratello says, the federal government is "terrified of the horrible PR" of a criminal prosecution of patients.) The federal government finds itself boxed in: If it opts to criminally prosecute the clubs, it can't expect many victories -- Hallinan's claims notwithstanding, it seems unlikely that many juries are prepared to send people to jail for distributing medical marijuana. And a civil injunction, once it moves to the contempt stage, involves a jury as well. Still, should some unlucky patient or buyers' club employee fall under federal jurisdiction, given federal mandatory minimums, the penalties are far harsher.

In the end, responsibility to break out of the current situation rests with Congress -- whose ancient classification of marijuana as a dangerous drug on a par with heroin allowed the court to maintain the dysfunctional status quo. Rep. Barney Frank (D-Mass.) has introduced a bill in Congress that would reclassify marijuana as a Schedule II drug, meaning doctors could prescribe it, with restrictions. But action on the part of Congress, now or in the foreseeable future, is unlikely. Unwilling to appear "soft on drugs," afraid to allow scientific studies or even hearings, Congress has simply buried its head in the sand. Medical marijuana advocate Fratello said, "There's been no electoral consequences for Congress's cruelty for supporting the ban on medical marijuana. They just refuse to take on the issue. They won't even hold hearings, because they don't want to be confronted by patients." Public pressure on Congress hasn't materialized. While three-quarters of the public supports medical use, said Fratello, it isn't a pocketbook issue. Only when a family member has cancer or AIDS does the issue hit home -- and then people of all political stripes, from the most liberal to the most conservative, support medical use, he says.

With no action expected on the part of Congress, the arena moves to the states. It will be interesting to see if state legislatures move to legalize medical use in the face of today's ruling. Fratello notes that two states that have legalized medical pot, Maine and Nevada, now have bills active in the legislature to provide for some form of state-authorized distribution -- which might be legal under the court's narrow ruling. Fratello feels the two bills have an "excellent chance" of passage.

There is also considerable wiggle room for ingenious distributors to get around the court's ruling. Advocate Kevin Zeese notes that advocates have been selling marijuana clones aggressively, and that it would also be hard to forestall cooperatives sending out "consulting gardners." Moreover, it's possible for marijuana-growing establishments to rent out space (and expertise) to individuals to grow a single plant or three, which might thwart a ruling based on distribution.

But all grow-it-yourself alternatives have a serious problem. As buyers' club operator Scott Imler points out, "Starting chemotherapy, you only get a few days notice. You can't wait the five months it takes to harvest a plant."

As for how patients will react to the ruling, most will probably keep their heads down and continue trying to obtain their medicine as best they can. San Francisco District Attorney Hallinan does not anticipate civil disobedience or people seeking arrest. Lindesmith lawyer Daniel Abrahamson said, "There'll be a few demonstrations. But most patients want to get on with their lives discreetly. They don't want to wave a flag to the feds. If you have too high a profile, that invites federal prosecution."

But advocate Fratello thinks a more confrontational road may lie ahead. "This case came out of open defiance of federal courts, and you may see more," he said. One activist, who asked not to be identified, noted there are already plans circulating on the Internet calling for "rash disobedience." Some activists may descend on the federal growing operation at the University of Mississippi to highlight the hypocrisy of the federal government's growing pot but forbidding others to do so.

The court's ruling, it's clear, is far from the last salvo in this struggle.

Source: Salon.com