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Court Plants Red Cross in the War on Marijuana
By Richard Glen Boire, California Daily Journal, Wed. Dec. 24, 2003

[The Daily Journal is California's largest daily legal newspaper, read by the state's 135,000 lawyers, judges, and legal professionals.]

Last week, the 9th U.S. Circuit Court of Appeals ruled that federal criminal laws against marijuana are unconstitutional when applied to sick people who are using the drug with their doctor's approval in accordance with state law. Raich v. Ashcroft, 2003 U.S.App.LEXIS 25317 (9th Cir. Dec. 16, 2003).

Since 1996, California's Compassionate Use Act has permitted seriously ill people to use marijuana if their doctors approve. Yet the federal government has refused to abide by California's law, saying that all marijuana use is a federal crime. Since Sept. 11, 2001, alone, Drug Enforcement Agency and other federal agents have terrorized over 35 California users or providers of medical marijuana.

Angel McClary Raich, one of the appellants in the 9th Circuit case, is battling an inoperable brain tumor. She lives in chronic pain, constantly nauseated and emaciated. The other appellant, Diane Monson, has a degenerative disease of the spine and suffers chronic muscle spasms.

Both women's doctors approved of their medical use of marijuana. Raich's doctor tried over 35 pharmaceutical medicines before marijuana, but all of them produced intolerable side effects and had to be discontinued. Marijuana not only has provided these women with some degree of relief, but also has been a lifesaver, at least for Raich. Her doctor testified that foregoing marijuana treatment could prove fatal.

Patients like Raich and Monson, who are battling serious illnesses, should not be saddled with the additional burden of battling with their own government. But that's exactly what is happening in the war on drugs.

In conventional wars, like the ongoing war in Iraq, the U.S. government is supposed to recognize certain limits, such as identifying enemy combatants and sparing civilians. The government must remove the sick and the wounded from the battlefield and care for them, even if they are enemy soldiers. The first pictures broadcast after the capture of Saddam Hussein showed him receiving medical care.

But in the war on drugs, a war that the federal government is fighting against our own civilian population, the government recognizes few, if any, limits. This is a war fought indiscriminately, by spraying machine-gun fire at anything that moves, even the sick and wounded.

When civilian atrocities occur during a war, it raises troubling questions about the overall legitimacy of that war. War is never easy on civilians, but it's another matter entirely when the government intentionally targets them.

While the 9th Circuit's opinion is narrowly limited to patients who use marijuana for medical purposes in compliance with state law, it begs the question of why exactly the federal government is hell-bent on waging war against peaceful adults who smoke marijuana for pleasure or relaxation. Wouldn't that money be spent better helping heroin and other drug addicts get treatment, educating our children or providing decent healthcare for older Americans?

The starting salary for a Drug Enforcement Agency agent is $40,000 year, which is almost exactly what a new registered nurse earns. Sick people are served better by nurses than by DEA agents.

Likewise, the average yearly salary for a starting teacher is $30,000, meaning that for every three DEA agents sent to bust medical-marijuana patients, we could have four new teachers.

Marijuana is illegal because many people enjoy its psychological and physical effects. Instead of a glass of wine, they rather would have a joint. But as long as they aren't causing harm, what business is it of the federal government? To justify federal law-enforcement intervention in such cases under the guise of regulating interstate commerce is stretching it, to say the least.

Regardless of what they think about federal marijuana laws in general, the vast majority of Americans believe that if a doctor recommends medical marijuana, then a patient shouldn't be made a federal criminal for following his or her doctor's advice. A Pew Research poll conducted in 2001 found that 73 percent of Americans support permitting doctors to prescribe marijuana for their patients.

Arresting and terrorizing patients like Raich in the name of the war on drugs is like arresting Vicodin-taking cancer patients because other people, like Rush Limbaugh, use it for non-medical purposes. It turns logic on its head.

The 9th Circuit's decision speaks loud and clear: Enough is enough. Like in its decision last year upholding the First Amendment right of doctors to talk about medical marijuana with their patients (Conant v. Walters(9th Cir 2002) 309 F.3d 629, cert denied Oct. 14, 2003), the court in Raich is sending a message to the executive and legislative branches: There are limits on federal power.

Waging war on sick people who are following their doctor's recommendation in accordance with state law is one of those limits. This not only is reasonable, but also is just and compassionate - virtues that the federal government's all-encompassing war on drugs is lamentably lacking.

The federal government is supposed to have only the limited powers granted to it by the Constitution. The federal government's power to create criminal laws is strictly limited to regulating activities that cross state lines or that have a substantial economic affect on interstate commerce.  (United States v. Morrison (2000) 529 U.S. 598.)

Neither Raich nor Monson were engaged in interstate commerce when they smoked marijuana to lessen their suffering. The marijuana that they used came entirely from within California.

In fact, no "commerce" was involved. Raich's marijuana was given to her for free, and Monson grew her own. The cultivation, possession, and use of marijuana for medicinal purposes and not for exchange or distribution is not properly characterized as commercial or economic activity. Lacking sale, exchange or distribution, the activity does not possess the essential elements of commerce. Likewise, their personal medical use of marijuana in no way produced a "substantial effect on interstate commerce."

Although it's shameful to continue harassing Raich and Monson, the Justice Department nonetheless is expected to appeal the 9th Circuit decision. It likely will reach the U.S. Supreme Court next year.

Richard Glen Boire is legal counsel for the Center for Cognitive Liberty & Ethics in Davis, a public education, law and policy center working to defend and promote the rights of the mind.