Bay Area Reporter - May 18, 2001
Bob Roehr

"Congress has made a determination that marijuana has no medical benefits worthy of an exception," wrote Justice Clarence Thomas in the majority opinion that denied use of a medical necessity defense when prosecuted. He was joined by four other justices who are held to be the more conservative members of the court.

A minority opinion, written by Justice John Paul Stevens and joined by Justices David Souter and Ruth Bader Ginsburg, tried to carve out a narrower ruling. They argued that medical necessity could not be used as a defense for manufacturing and distribution of marijuana but may be so employed by individual patients "for whom there is no alternative means of avoiding starvation or extraordinary suffering."

Justice Stephen Breyer did not take part in the decision because his brother, U.S. District Judge Charles Breyer, handled the case on the trial court level. The case was the United States v. Oakland Cannabis Buyers Cooperative.

Oakland Cannabis Buyers' Cooperative director Jeff Jones lamented the decision as "heavy-handed and misguided." It will limit their "ability to give direction to patients who are now going to be left to go to the streets to access their medicines in a way that is unsafe and could put them in jeopardy."

Dr. Donald Abrams, a leading researcher in the field of medical use of marijuana at the University of California, San Francisco, criticized both the court and Congress for playing doctor. He chooses to let the doctor and patient decide what is best in each individual situation.

"This is not going to be over until we win," said Dennis Peron, director of Californians for Compassionate Use of Marijuana. Peron led the 1996 ballot fight, Proposition 215, where voters approved medical use of marijuana.

The issue of medical marijuana is likely to be back before the courts on questions concerning individual constitutional rights and states' rights in the context of a federated system of government that divides responsibilities between the federal and state governments.

Local law enforcement officials were reviewing the ruling. But some had already decided that federal law did not affect state law. "If the feds want to prosecute these people they can," said Mendocino County California District Attorney Norm Vroman. "In California, the law has not changed one iota."

Chuck Thomas, spokesman for the Marijuana Policy Project in Washington, D.C., said the court ruling only applies to federal prosecutions. "A state government may still allow its residents to possess, grow, or distribute marijuana." Only about 1 percent of marijuana cases are prosecuted under federal law.

Congressman Barney Frank (D-Massachusetts) has introduced legislation that would reclassify marijuana from a Schedule I to a Schedule II controlled substance. That would ease restrictions on research and medical use, as well as reduce penalties for violating the law. And it would allow physicians to prescribe or recommend marijuana as therapy as applicable under state law.

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