Pubdate: Tue, 28 Nov 2000
Source: Washington Post (DC)
Copyright: 2000 The Washington Post Company
Contact:  1150 15th Street Northwest, Washington, DC 20071
Author: William Booth, Washington Post Staff Writer


The Supreme Court agreed yesterday to hear a case brought by the Clinton 
administration to stop a California group from distributing "medical 
marijuana," which some patients say alleviates their suffering but which 
the federal government considers an illegal substance with no therapeutic 

In a separate order, the court agreed to hear an appeal from a condemned 
killer in Texas whose lawyers say he is mentally retarded and should not be 

The case of Johnny Paul Penry may provide the court with a way to clarify 
how much information a jury in a death penalty case must have about a 
defendant's mental capacity. Penry's lawyers maintain that their client has 
an IQ of about 60 and the mental capacity of a 7-year-old. Prosecutors, 
however, contend that Penry is not retarded, but ignorant.

In the marijuana case, the Clinton administration is seeking to stop the 
Oakland Cannabis Buyers Cooperative from selling small bags of marijuana to 
patients, who say the drug helps them with pain and nausea and eases the 
symptoms of illnesses such as glaucoma.

In the last four years, nine states have passed medical-marijuana laws: 
California, Alaska, Arizona, Hawaii, Maine, Oregon, Washington, Nevada and 

California's law, passed by a wide margin of votes, legalizes the 
possession and use of marijuana for medical purposes with a doctor's 
recommendation. Physicians cannot legally prescribe marijuana and the law 
left murky how patients would procure the drug.

The case against the Oakland cannabis cooperative does not directly address 
the constitutionality of the new state medical marijuana laws, but instead 
focuses on a narrower question: Is "medical necessity" a defense against 
violating federal laws that prohibit the distribution of marijuana?

"This case is directed toward that one very specific question," said Gina 
Pesulima of Americans for Medical Rights, which has sponsored most of the 
medical marijuana ballot initiatives. Pesulima said the case does not 
address the legality of patients possessing or using marijuana themselves.

But if the Oakland Cannabis Buyers Cooperative prevails in arguing that 
medical necessity shields distributors from prosecution, Pesulima said her 
group  backed by millions of dollars in support from international 
financier George Soros and his partners  will press for state or municipal 
governments to play a role in the distribution of medical marijuana.

Since the passage of the medical marijuana ballot initiatives, the federal 
government has focused most of its attention not on individual patients 
smoking or ingesting marijuana, but on buyer's clubs and cooperatives, 
which were set up to procure, grow and distribute the drug.

After California passed its medical marijuana initiative in 1996, federal 
prosecutors and drug enforcement agents were shocked to watch as storefront 
operations opened in cities such as San Francisco and brazenly sold 
marijuana cigarettes, baggies of the drug and marijuana-laced cookies to 
patients claiming medical necessity based on everything from cancer to anxiety.

Lawyers with the Justice Department argue that the distribution of medical 
marijuana violates the federal Controlled Substances Act, which includes 
marijuana among the drugs whose manufacture and distribution are prohibited.

The Oakland group said its goal is "to provide seriously ill patients with 
safe access to necessary medicine so that these individuals do not have to 
resort to the streets."

The decision yesterday by the Supreme Court to hear the case follows a 
string of lower court decisions that first barred, then allowed the Oakland 
cooperative to continue distributing marijuana.

The federal government filed a lawsuit against the Oakland cooperative in 
1998 that sought to bar the club from providing marijuana. U.S. District 
Court Judge Charles Breyer in San Francisco, the brother of Supreme Court 
Justice Stephen G. Breyer, ruled for the government.

But the 9th U.S. Circuit Court of Appeals later reversed Breyer's original 
ruling, saying the government had not disproved the club's evidence that 
the drug was "the only effective treatment" for seriously ill patients. The 
appellate court ruled that Breyer had erred in not considering "medical 

In May, Breyer decided that the Oakland club could provide marijuana to 
patients who needed it.

In August, the Supreme Court put the lower court ruling on hold and barred 
the California club from distributing marijuana while the government 
pursued its appeal.

The government originally appealed to the 9th Circuit, which has not yet 
ruled. But the Justice Department took the matter directly to the Supreme 
Court, saying that the 9th Circuit was not expected to change its earlier 

Voters have repeatedly told pollsters in recent years that they generally 
support allowing sick and dying people to use marijuana if it offers relief.

But the medical community, overall, has not embraced marijuana. Many 
physicians believe there are better legal drugs available to do what 
marijuana's advocates claim it can do. Large studies, however, have not 
been undertaken.

The White House drug czar, Gen. Barry McCaffrey, opposes the medical 
marijuana laws, as do groups such as the Partnership for a Drug Free America.

"When it comes to medical marijuana, it is a medical issue that should be 
decided by the medical community," said Howard Simon, assistant director of 
the Partnership for a Drug Free America.

In other action yesterday, the court:

Declined to hear a challenge by South Carolina gambling operators against 
the state's new ban on possession of video gambling machines. The gambling 
operators said the ban, which took effect in July when the state outlawed 
video gambling, amounted to the government's unlawful taking of their 
property without payment.

Heard oral arguments in a case that seeks to determine how to judge when 
race plays too large a role in drawing election districts. The North 
Carolina case is a follow-up to the justices' landmark 1993 ruling that 
election districts drawn to help minorities might violate white voters' rights.
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