One Toke Over the Line

Mired in what is, by the year 2001, painfully redundant reefer madness, the Supreme Court on May 14 handed down its decision in the case of United States vs. Oakland Cannabis Buyers’ Cooperative. The be-robed ones denied a medical-necessity defense for manufacturing and distributing marijuana, and consequently denied the Oakland cannabis club the right to reopen. The court’s reason: the Controlled Substances Act of 1970, which prohibits marijuana use for any reason other than government-approved research projects, which one can count using the fingers on one hand — including the middle one.

The justices are not alone, of course; the medical experts who make up the Congress of the United States haven’t bothered to pass any new or different acts now for 31 years. Which means, when you boil it down, that in spite of the fact that marijuana is nonaddictive, has never killed anyone and has an array of proven medicinal applications, the wind-up monkeys who grossly mischaracterize pot as a dangerous narcotic and a threat to the American Way continue to slap the cymbals of stupidity. For those who smoke it so they can get through chemotherapy, the endless battle reveals the mean heart of a nation founded by Puritans and control freaks. For those who smoke weed for any reason, this show is simply old.

And yet, there is change in the wind. Canada, Jamaica and much of Western Europe have either implemented or are considering medicalization and decriminalization. And despite the analyses printed in myriad media outlets, attempts to achieve these goals in Bush-league America may be closer than some believe. Only here these changes are primarily growing from the grassroots, if you will, as opposed to resulting from top-down leadership.

To be fair, the high court was not presented with the best possible test case for medical marijuana. The Oakland club was one of six in California sued in civil proceedings by the Clinton administration in 1998 for distributing marijuana. Oakland and the others slipped up by allowing, through careless intake procedures, a DEA agent with a fake identity and doctor’s recommendation to join their centers. The narc procured cannabis, and the jig was up.

The non-patient status of co-op director Jeff Jones further devalued Oakland’s credibility. Traditionally, a necessity defense is available to an individual when, as Justice Clarence Thomas noted in his written opinion, “Physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” In this case, the primary “actor” named in the suit — Jones — was neither sick nor facing imminent harm, diminishing the legal “necessity.”

Nonetheless, the 8-0 decision (Justice Stephen Breyer recused himself because his brother is the judge in the original suit against the OCBC) can only be regarded as a setback. The so-called liberal justices, Stevens, Souter and Ginsburg, filed a concurring opinion, which means that while they agreed with their conservative colleagues, they also noted that this is a narrow opinion leaving unaddressed issues such as medical necessity for individual seriously ill patients, as well as questions of states’ rights vs. federal supremacy.

In fact, in spite of some media and law-enforcement confusion, the Supremes neither overturned Proposition 215 nor declared it unconstitutional. Nor did they invalidate a medical-necessity defense for qualified patients. California, Colorado, Nevada and other states are continuing to implement medical-marijuana laws based on voter initiatives — whether their political leaders like it or not. The governor and attorney general of Colorado, bound by their allegiance to the state’s constitution but adamantly against medical marijuana, recently asked the feds to come in and stop their own program. But they were informed by the local U.S. attorney that Colorado law was their problem, not the Bush administration’s. This answer from the feds suggests that when it comes to pot, Bush may adhere to states’ rights and practice a hands-off attitude.

There can be little doubt that therapeutic marijuana will remain legally controversial until Congress removes it from its current Schedule I status (high abuse potential, no medical use) to Schedule II (some medical use). Categorizing marijuana with other Schedule II drugs such as morphine and cocaine is absurd, but many patients would be relieved just to get their medicine from a pharmacy and stop debating the issue. To this end, Congressman Barney Frank (D-Massachusetts) has introduced HR 1344, which would reclassify cannabis from I to II and would allow for prescriptive access. But while the Bush administration may be inclined to allow sovereign states their eccentricities, it’s a stretch to imagine a president in political debt to Drug War dinosaurs caving in federally.

In California, adherence to Proposition 215 by law enforcement has been erratic. Patients in rural counties have been particularly susceptible to cowboy cops who don’t give a damn what Californians have voted into law. State Senators John Vasconcellos (D–San Jose) and Maurice Johannessen (R-Redding) have jointly authored SB 187, which would establish a voluntary statewide registration-and-identification program, to be overseen by county health departments. The bill, which enjoys the support of the associations of chiefs of police and district attorneys in California, also authorizes the state Department of Health Services to issue guidelines for possession and cultivation, and would permit qualified patients to associate “in order to collectively or cooperatively . . . cultivate marijuana for medical purposes.”