Pubdate: Tue, 28 Nov 2000 Source: Washington Post (DC) Copyright: 2000 The Washington Post Company Contact: 1150 15th Street Northwest, Washington, DC 20071 Feedback: http://washingtonpost.com/wp-srv/edit/letters/letterform.htm Website: http://www.washingtonpost.com/ Author: William Booth, Washington Post Staff Writer HIGH COURT TO HEAR MEDICAL MARIJUANA CASE 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 value. 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 executed. 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 Colorado. 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 necessity." 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 decision. 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. - --- MAP posted-by: Jo-D