September 16, 1999
From The Orange County Register
letters@link.freedom.com
http://www.ocregister.com/
A MARIJUANA PRECEDENT

Whether or not September 13 will one day be seen as the day the federal policy of marijuana prohibition started to crumble,the decision delivered Monday by a three judge panel of the 9th Circuit U.S. Court of Appeals is an important one with lasting effects.The decision is promising for very ill people whose doctors believe they can be helped by using marijuana or cannabis.It doesn't clear away all the federal obstacles to full implementation of Proposition 215, which the voters passed in November 1996,but it eliminates several of the most stubborn evasions and arguments that have delayed a policy of abiding by the voters' decision.

The decision eliminates the justification offered by Gov. Gray Davis for his reluctance to authorize full implementation of California's medical marijuana law because of potential conflicts with federal law. This was a federal court saying that even under federal law exceptions can be made for, as the court put it:
"a class of people with serious medical conditions for whom the use of cannabis is necessary in order to treat or alleviate those conditions or their symptoms; who will suffer serious harm if they are denied cannabis; and for whom there is no legal alternative to cannabis for the effective treatment of their medical conditions because they have tried other alternatives and have found that they are ineffective, or that they result in intolerable side effects."

The concept of medical necessity grows out of the old English Common Law tradition that there can be certain necessities that authorize breaking laws. If you see your child browning in a neighbor's pool, for example, you can rescue him or her without being prosecuted for trespassing.

State and federal courts have previously recognized medical necessity defenses against the strict prohibitory laws regarding marijuana; indeed, the federal government set up - but later suspended a program of distributing marijuana at taxpayer expense to a few patients in response to such a case in the 1970s.

Monday's decision, in effect, invites California Attorney General Bill Lockyer to study the decision, then issue a set of guidelines for law enforcement to recognize the rights of patients who meet certain criteria to have access to marijuana for medical uses. No new legislation is required for him to do this. As Robert Raich, the lead attorney in this case, told us, "the Sword of Damocles hanging over state officials - that the federal government will stymie any efforts to implement Prop. 215 - has been eliminated."

See
Is Lockyer Turning Into Lungren-lite?
Tells Mendocino County Its Plant Limit Is "Excessive." DA Defiant.

The exemption for patients and doctors offered under Monday's federal decision is narrower than what California voters authorized. Under state law any patient with a recommendation from a licensed physician is legally exempt (though not practically so) from prosecution for possession, use or cultivation of marijuana. The 9th Circuit's necessity standard requires that "serious harm" result from denying cannabis and suggests that patients have to have explored alternative therapies first. But it also seems to create an exemption from distribution laws.

It is difficult to exaggerate how important this decision is. It opens up the possibility that federal law - not just in the nine states covered by the 9th Circuit (six of which have passed medical marijuana laws by initiative) but eventually throughout the country - can be applied with a modicum of compassion and common sense rather than as strictly and cruelly as some drug warriors would prefer.

The 9th Circuit decision doesn't address the issue of "rescheduling" marijuana under the 1970 Controlled Substances Act. The Drug Enforcement Administration has kept marijuana on Schedule I under that act, which by law is reserved for drugs with a high potential for abuse, with no currently accepted medical use and a "lack of accepted safety."

As the government's recent Institute of Medicine report makes clear, marijuana doesn't fit that definition. But that's a decision for another day; a petition to reschedule is in play.

There is a chance the 9th Circuit decision could be appealed to the full 9^th Circuit or to the U.S. Supreme Court. Federal lawyers have been silent so far about their intentions on filing an appeal.

For now, though, the court has effectively invited California officials to craft guidelines for the use of medical marijuana that will keep the federal government off their backs. They should accept the invitation immediately.
See
Pending Amendments To Prop 215 Show the Danger Of Appeasing Narks
– Critique from The Orange County Register