Summer 2005

Little increase in federal prosecutions anticipated

A SIX-TO-THREE DECISION, in re Gonzales v. Raich, by the United States Supreme Court declared that the federal government may prosecute individuals who use marijuana to alleviate pain, even when it has been prescribed by their physicians in states where such use has been deemed legal.

The decision invalidated a 2003 ruling by a federal appeals court which upheld the Compassionate Use Act, passed by California voters nine years ago. Currently, referenda to allow such medical use of marijuana have been passed by voters in 10 states. The Supreme Court ruling, it has been suggested, could have a chilling effect on the passage of medical marijuana referenda in other states.

But Justice John Paul Stevens, who wrote the majority decision, cautioned that Congress could change the law and thus allow the use of marijuana for medical purposes, a move that most commentators on the decision saw as unlikely.

Equally unlikely, in the opinion of many observers, is a significant increase in the number of federal prosecutions of marijuana users, which at present occur only rarely, and then in cases where individuals have been found in possession of amounts that are "substantial" - generally, in excess of 100 pounds.

Drug Enforcement Administration spokesperson Bill Grant said of the ruling, "We have never targeted the sick and dying, but rather criminals engaged in drug trafficking." Former DEA administrator Asa Hutchinson added: "From an enforcement standpoint, the federal government is not going to be crashing into people's homes trying to determine what kind of medicine they're taking. They have historically concentrated on suppliers and people who flaunt the law. There should not be any change from that circumstance."

And yet, under former U.S. Attorney General John Ashcroft, marijuana was seized from individuals and their suppliers following the Supreme Court's first ruling against the medical use of marijuana in 2001. It remains to be seen how the Department of Justice will respond under current Attorney General Alberto Gonzales, who served as plaintiff in the case just decided.

In addition, it is the position of "drug czar" John Walters that "science and research have not determined that smoking a crude plant is safe or effective. We have a responsibility as a civilized society to ensure that the medicine Americans receive from their doctors is effective, safe and free from the pro-drug politics that are being promoted in America under the guise of medicine."

Notably, the Court's ruling had little to say about the issue of whether marijuana had possible medical benefits or about its status as a controlled substance. Rather, the arguments hinged on where authority to regulate interstate commerce resides - with the states themselves or with Congress.

According to the Court, that authority resides firmly within the Congress. In a judicial climate where states' rights have been increasingly reasserted and reaffirmed, the Court's arguments surprised many legal experts - particularly since the California case under review involved plants grown for private use that crossed no state lines.

The original lawsuit that spawned the Court's ruling resulted from a raid by DEA agents on a property in California where Diane Monson, who suffers from a degenerative spinal disease, was cultivating six marijuana plants, allegedly for her own use. A spokesperson for the National Organization for the Reform of Marijuana Law maintained that the federal "benchmark" for prosecution was traditionally about 50 plants, and added that "In no circumstance where voters have the opportunity to weigh in have they said 'no' to medical marijuana."

It was noted that dissenting from the ruling - and thus possibly appearing to endorse the compassionate use of marijuana - were the Court's three most conservative figures: Chief Justice of the United States William Rehnquist and associate justices Antonin Scalia and Clarence Thomas.

The Court's ruling allowing the prosecution of users of marijuana to ease suffering led to some uncharacteristic shifts of opinion in the media. The New York Times, which characterizes itself as a liberal newspaper, applauded the decision as it upheld federal supremacy in matters of interstate commerce even though it expressed sympathy for those whose use of marijuana for medical reasons may lead to prosecution.

On the other hand, syndicated columnist Kathleen Parker, who generally espouses conservative points of view, posed the questions, "Whatever happened to compassionate conservatism" and "Who gets hurt when sick or dying people smoke pot?" She went on to urge passage of a recently introduced, bipartisan bill: The States' Rights to Medical Marijuana Act.