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RAY SUAREZ: When California passed one of the nation’s first medical marijuana laws in 1996, dozens of cannabis clubs sprang up for the purpose of selling the drug for medicinal use. The Compassionate Use Act, also know as Proposition 215, allows seriously ill people to grow and use marijuana for medical purposes, with a doctor’s recommendation.
The legislation is broadly worded to include the treatment of cancer, anorexia, AIDS, chronic pain, and glaucoma, and any other illness for which marijuana provides relief. Some doctors and patients say the drug helps combat a range of symptoms from those diseases.
CBC EMPLOYEE: These are marijuana edibles. We have rice crispy treats.
RAY SUAREZ: The federal government opposed the California law, saying Prop. 215 undermined federal enforcement of drug laws. The Clinton administration’s drug control policy director expressed his concerns on the NewsHour in December of 1996.
GEN. BARRY McCAFFREY (Ret.): We think this proposition in California and a similar one in Arizona that approved heroin and LSD are simply a disaster. We really don’t see it as a medical issue. It’s the quasi-legalization of drugs.
RAY SUAREZ: The California law didn’t address how patients would get their marijuana.
CBC EMPLOYEE: Oakland CBC.
RAY SUAREZ: Clubs like the Oakland Cannabis Buyers’ Cooperative, which was sanctioned by the state of California, provided patients with a legitimate place to buy marijuana and marijuana plants. In 1998, the Justice Department sued the Oakland cooperative and five other California cannabis clubs for violating federal drug law by distributing, and in some cases, growing marijuana. A federal judge sided with the government and ordered the clubs to stop.
All of them, except the Oakland Club, eventually closed down. Then last year the Ninth U.S. Circuit Court of Appeals ruled medical necessity is a legal defense. Before leaving office, the Clinton administration appealed to the Supreme Court. At a news conference today in Washington, a cancer patient explained why he needs marijuana.
CREIGHTON FROST: All I want is to be left alone to die comfortably. Without cannabis, I can’t eat. It’s just literally… I can’t even go into the kitchen. I can’t even start food cooking. I can’t sleep without it. I can’t take sleep medications. There is a variety of types of medications, not just one or two – entire spectrums — that I can’t touch without cannabis.
RAY SUAREZ: Besides California, eight other states have adopted medical marijuana laws. Today, the U.S. Supreme Court heard arguments over whether medical necessity is a defense against federal drug bans. The high court will not rule directly on the legality of California’s Prop 215 or medical marijuana laws in other states. The ruling is expected by the end of June.
We get more on today’s arguments from NewsHour regular Jan Crawford Greenburg, legal affairs correspondent for The Chicago Tribune. So, what was the court being asked to rule on — not on the efficacy of marijuana as a medicine, right?
JAN CRAWFORD GREENBURG: No. I mean, essentially the government was asking the Justices to rule that a federal law, which bans the distribution and use of marijuana, essentially trumps all of these other state laws, that would permit people who need it for medical reasons to use it.
RAY SUAREZ: So both sides came in today, the Oakland Cannabis Club and the federal government, what did they have to say in court?
JAN CRAWFORD GREENBURG: Well, the government lawyer went first. She maintained that essentially the California law and the federal appeals court ruling had allowed the creation of marijuana pharmacies, and that these pharmacies were would essentially undermine the nation’s drug laws and lead to abuse of drugs, and that her point was this federal law must prevail.
RAY SUAREZ: Did the government make the point that it was thus impossible to have a medical marijuana law or just that California’s was too loosely written and applied?
JAN CRAWFORD GREENBURG: No, and this will not effect — it’s not going to strike any of the laws from the books. States can still pass the laws and the laws would stand for the proposition that we as a state are not going to prosecute you if you use marijuana for medical reasons but the government’s point is that the federal law comes in and the federal government will say, “we believe marijuana is never appropriate even for medical reasons.”
Congress has said as much in the 1970 Controlled Substances Act, which classifies marijuana as a controlled substance and prohibits its sale or distributes and Congress has said in recent years that even for medical purposes marijuana is not acceptable.
RAY SUAREZ: So what did the Oakland Cannabis Club have to say -
JAN CRAWFORD GREENBURG: The club is arguing that there is a medical necessity here for these people to take this drug, and so, therefore, they have a medical reason that should override the law and should come in and that a court in this case should be allowed to recognize someone’s argument that they have a medical reason, a medical necessity to take the drug; and that a lower court when it looked at this issue was correct when it allowed these marijuana clubs to be exempt from the enforcement in the civil lawsuit of the federal law.
RAY SUAREZ: Was the Oakland Cannabis Club able to site any precedent where medical necessity was used as an overturning exception to existing law?
JAN CRAWFORD GREENBURG: Not to the degree that they are arguing here. And several of the Justices, for example, the Chief Justice seemed very concerned that what the club was arguing in this case would dramatically expand the so-called defense of necessity. Justice Scalia said normally these kinds of defenses would be brought by a patient and not by the club that is distributing the drugs. So there was a lot of concern by the Justices that this was an extraordinary new step in creating a new defense of necessity.
RAY SUAREZ: And did they direct a lot of their questions to the standards, to the ways that these dispensaries administered – how people got marijuana?
JAN CRAWFORD GREENBURG: Sure, Justice Kennedy expressed concern that there weren’t a lot of controls or regulations that some of the marijuana farms, the government argued, and some of the argument focused on the very kind of technical legal issue of whether the lower court judge in this case had this discretion to allow people to get marijuana for medical reasons, for the medical necessity. It’s an interesting issue the way this whole dispute even came about.
The Clinton administration opted to sue the clubs in a civil lawsuit instead of prosecuting them under the criminal laws. And it asked a lower court judge to issue an injunction to stop the clubs from distributing the marijuana, the lower court judge, who incidentally is Justice Breyer’s brother, agreed to issue this injunction.
That went up to the federal appeals court and the federal appeals court said no, you have discretion as a lower court judge in this situation, a civil lawsuit, to craft an injunction that might carve out are carve out and exception and would allow the defense of medical necessity to be raised.
So there was much focus on that today in court, and some of the Justices seem concerned that the government should have just charged these clubs for criminally instead of bringing a civil lawsuit and that perhaps that might run afoul of separation of powers concerns, that was a concern of Justice Kennedy. He said that the government’s action here by filing the civil lawsuit essentially turned the lower court judge into a prosecutor.
Now the lawyer for the club also attacked the government’s decision to file a civil lawsuit to try and get an injunction in this case, and he said that was basically really unfair because it meant that the clubs weren’t entitled to trial by jury, proven beyond a reasonable doubt so it made it easier for the government to come in and stop the clubs from doing this.
RAY SUAREZ: A lot of times that you’ve come in here the past couple of years it’s to talk about cases where states are arguing that they should be able to apply their own laws in side their own boundaries and not be trumped by federal law. I’m surprised that it got to all these levels of technicality when there was a states’ right argument here.
JAN CRAWFORD GREENBURG: I think the government’s response to that – and that came up somewhat in the questioning that Justice Ginsburg had with the government areas attorney. The government’s response was we are not telling the states that it can’t pass these laws. States can pass the laws and states can say we are not going to prosecutor people but the federal government is different and Congress has said that marijuana is an illegal substance with no exceptions other than very narrow research projects that are approved by the FDA. And that is a just a different story and courts can’t ignore the Congressional judgment, and if states and people in the states have a problem with that, then they should go to Congress and ask Congress to change the law.
RAY SUAREZ: Now quickly in the politics, for instance when Proposition 215 was on the ballot, sick people were a large part of the story. I wonder if when this came to court whether in the same way, the fact that many of the users are terminally ill entered into the argument.
JAN CRAWFORD GREENBURG: You know, as I think the conversation has shown, it was focused a lot on the narrow technical legal issues but I don’t think the emotional tone of the debate was pitted as you said, terminally ill against law enforcement. I don’t think that was lost on the Justices.
Justice Ginsburg, for instance, referred to a very vivid example after man recounted in one of the briefs who could only ease his constant vomiting by using marijuana asking the government’s lawyer, isn’t that kind of a common experience? So I mean there was a recognition that this drug many people believe does ease their suffering. But many of the Justices seemed to so strongly suggest that the federal law still must prevail.
RAY SUAREZ: Before I let you go, Justice Breyer had to recuse himself because this was his brother’s decision.
JAN CRAWFORD GREENBURG: That’s right.
RAY SUAREZ: What happens if is there a 4-4 tie?
JAN CRAWFORD GREENBURG: The lower court ruling will stand but that seemed unlikely on the arguments today that it will be that close. But we’ll see.
RAY SUAREZ: Jan Crawford Greenburg, thanks a lot.
JAN CRAWFORD GREENBURG: Thank you.