On the Right - The Legal Jam.(Brief Article)(Column)

NEW YORK, MAY 15

It is a big confusing sprawl of a system, but there are those who love it, and it takes lifelong love for our system, after weighing the Supreme Court's decision. The anomalies knock you down, but there is still light . . .

We have, in California, the principal exfoliate of United States v. Oakland Cannabis Buyers' Cooperative, No 00-151. It is this. If you grow marijuana in California, you can't be arrested by state troopers, but you can be arrested by federal agents.

Proposition 215, which carried California by plebiscitary vote in 1996, authorized marijuana under medical prescription. The Ninth Circuit Court then handed down a decision denying the right to prosecutors to pull in marijuana distributors whose clients were patients of doctors who authorized marijuana. Last June, Peter McWilliams, the young author, poet, libertine/libertarian, died in medical duress. He had AIDS, and found relief in marijuana; the feds brought him in, stuck him in jail, released him on bail-with-urine-tests to verify that he was not taking marijuana, the only palliative that gave him relief from pain; and he died. One doesn't die from not taking marijuana, any more than one dies from taking it. But what creeps into the case, of course, is the concept of medical necessity.

Justice Clarence Thomas wrote the majority opinion, which wasn't endorsed by three of the justices, who wrote their own concurring opinion. The reason for their disagreement was Justice Thomas's insistence that marijuana has no unique medical purpose. This statement is dumbfoundingly outrageous to anyone who knows from personal experience that the drug gives unique relief to some sufferers.

What Mr. Thomas, and others, correctly did was to acknowledge the authority of Congress as exercised in its Controlled Substances Act of 1970. This Act decreed that marijuana was a Schedule 1 substance, and therefore forbidden for use. The Court's indulgent handling of Congress is a welcome deviation. Yes, Congress said it; yes, Congress has the authority to rule on drugs; no, California distributors may not legally sell the drugs. So where do we go now?

That question is politically and constitutionally interesting to residents of Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon, and Washington, which have passed laws permissive in orientation on the question of marijuana. And it is of intense medical interest to people suffering from debilitating symptoms of AIDS, epilepsy, glaucoma, multiple ...