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.]
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).
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
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.
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.
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.
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.
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.
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?
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.
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.
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.
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
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.
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
is sending a message to the executive and legislative branches: There are
limits on federal power.
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.
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.)
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."
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.