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MARIJUANA:
FEDERAL AUTHORITIES CAN'T DISTINGUISH MEDICAL USE FROM RECREATIONAL USE, BUT VOTERS CAN

Professor Gerald F. Uelmen
Santa Clara University School of Law
JURIST Guest Columnist

In their stubborn resistance to the growing tide of public support for medical use of marijuana, federal authorities have labeled the medical marijuana movement a 都talking horse for total legalization of marijuana. Naturally, strong support for permitting medical use does come from proponents of total decriminalization, but public acceptance of medical use has not advanced their cause. On November 5, 2002, Nevada voters defeated Question 9 by a margin of 61-39. The measure would have decriminalized possession of up to three ounces of marijuana for any purpose. Nevada voters gave overwhelming approval to an initiative measure to permit medical use of marijuana two years ago. Arizona voters, who also gave strong support to measures permitting medical use of marijuana, rejected Proposition 203 by a 57-43 margin. The Proposition would have set up a state-run distribution system to provide marijuana to medical patients, but also would have replaced criminal penalties for small amounts of marijuana with a civil fine. Federal Drug Czar John Walters campaigned against both measures, and doubtless reads the election returns as a mandate to continue the D.E.A. rampage against medical marijuana patients, but it would be a serious mistake to construe these results as a weakening in public support for medicinal use.

Where voters are simply asked to voice their approval for medical use of marijuana, without any accompanying weakening of criminal prohibitions for recreational use, they continue to voice overwhelming support. In Massachusetts, a local advisory measure supporting medical marijuana and another endorsing hemp cultivation both passed easily. In Maryland, Congressman Bob Ehrlich, one of 42 cosponsors of the States Rights to Medical Marijuana Act authored by Rep. Barney Frank, was elected Governor, defeating Democrat Kathleen Kennedy, who refused to take a position on medical marijuana. In New York, Independence Party gubernatorial candidate Tom Golisano made his support for medical marijuana the focal point of his campaign. In San Francisco, voters gave 63% approval to Proposition S, authorizing the city government to explore establishing its own program to grow and distribute medical marijuana to seriously ill patients.

Elected politicians are clearly lagging behind popular support for medical marijuana. Their usual excuse, the obsessive fear that election opponents will label them 都oft on drugs, no longer reflects electoral reality. Support for medical use of marijuana by cancer and AIDS patients is being turned into a plus by savvy politicians. The public is sophisticated enough to understand the difference between recreational abuse of a drug and therapeutic use under the care of a physician. We readily make that distinction with cocaine and narcotics, both of which are widely abused, but both of which can be prescribed by a physician.

In California, Attorney General Bill Lockyer was reelected by an overwhelming margin, positioning him for a strong run for the Governor痴 office in 2006. Lockyer is a strong supporter of medical marijuana, and is weighing in against the federal crackdown on California cooperatives which assist patients in growing their medicine. On September 5, thirty DEA agents raided the Wo/Men痴 Alliance for Medical Marijuana in Santa Cruz, California. WAMM functioned as a hospice for 250 patients afflicted with cancer and AIDS, many of whom are terminally ill. The program was strongly supported by local government officials and local law enforcement. After the raid, the entire City Council gathered on the steps of City Hall to demonstrate their solidarity as medical marijuana was distributed to WAMM patients. No criminal charges were filed, but a Motion for Return of the Property seized was argued in federal court in San Jose on November 4th. Attorney General Lockyer wrote a strong letter protesting the WAMM raid to Attorney General John Ashcroft and Drug Czar John Walters, suggesting that the California raids were being run as 菟unitive expeditions with no criminal prosecutions contemplated, and that this was a waste of the scarce government resources available to fight the war on drugs. Lockyer also filed an amicus brief in the case of United States v. Oakland Cannabis Buyers Cooperative currently before the U.S. Court of Appeals for the Ninth Circuit. The case is on remand from the U.S. Supreme Court, which rejected a common law defense of medical necessity last year, but declined to reach the constitutional issues raised by the case. Those issues, including a challenge to Congressional power to overrule state health and safety measures based on its power to regulate interstate commerce, without demonstrating a substantial effect upon interstate commerce, will be decided by the Ninth Circuit this Spring. The case comes in the wake of the same court痴 ruling in Conant v. Walters that California physicians have a right to recommend marijuana use to their patients which is protected by the First Amendment. And in August of this year, the California Supreme Court ruled in People v. Mower that patients who cultivate marijuana for medical use with a physician痴 approval must be treated the same as any other patient who has a prescription for drugs.

Ultimately, the final resolution of the medical marijuana issue will not come until Congress is ready to reclassify marijuana, removing it from Schedule I of the Controlled Substances Act. That痴 not likely to happen in the Congress elected on November 5, 2002. Drug Czar John Walters still insists that there is 渡o evidence of any therapeutic use for marijuana, choosing to ignore the research that led Canada, Great Britain and the Netherlands to establish government medical marijuana programs, and dismissing the experience of thousands of American patients and their physicians who have found relief from nausea, wasting, blindness and intractable pain that no other medication could offer. Federal authorities continue their mantra that providing marijuana to the sick and dying 都ends the wrong message, the same phrase they used in 1992, when the federal 田ompassionate investigative new drug program which provided federally grown marijuana to 82 patients was closed down. Six of those patients still survive, and they are still receiving a monthly shipment of marijuana cigarettes from the United States government.

If the leaders of America痴 drug war think that compassion for the sick and dying is the 努rong message, they are badly confused. If they think that the scarce resources available to fight the war against drugs should be diverted, to send heavily armed D.E.A. Agents into the mountains of California to harass the sick and dying, they are worse than confused. They are demented.


Gerald F. Uelmen is a Professor of Law at Santa Clara University School of Law, where he served as Dean from 1986-1994. He has appeared as counsel in four cases asserting the rights of medical marijuana patients, including United States v. Oakland Cannabis Buyers Cooperative and People v. Mower. He is currently representing the Wo/Men痴 Alliance for Medical Marijuana of Santa Cruz, California.

January 8, 2003

GUEST COLUMNIST

JURIST Guest Columnist Gerald Uelmen is Professor of Law at Santa Clara University School of Law, where he teaches Criminal Law and Procedure. He served as dean at Santa Clara from 1986 to 1994. In 199495, he served on the defense team for the trial of People v. O.J. Simpson.

Professor Uelmen has appeared as counsel in four cases asserting the rights of medical marijuana patients, including United States v. Oakland Cannabis Buyers Cooperative and People v. Mower. He is currently representing the Wo/Men痴 Alliance for Medical Marijuana of Santa Cruz, California.