Pubdate: Tue, 22 May 2001
Source: Bakersfield Californian (CA)
Copyright: 2001, The Bakersfield Californian


It is still technically possible under a 8-0 U.S. Supreme Court ruling for 
seriously ill Californians to defend against charges of possession of small 
amounts of marijuana in superior court for reasons of medical necessity. 
What is doubtful is how wise such a defense is.

At issue is the Compassionate Use Act of 1996, passed by Californians as an 
initiative. It allowed medical necessity as a defense against criminal 
charges of possession of marijuana for alleviating symptoms of such 
diseases and their treatments as cancer, glaucoma, multiple sclerosis, 
lupus and other painful, chronic conditions for which conventional FDA 
approved pain- and nausea-relieving drugs may prove ineffective.

The problem is that federal law bars the manufacture and distribution of 
marijuana, but leaves the crime of possession of small amounts to the 
states for adjudication. The court upheld federal rule that it is illegal 
to manufacture and distribute the substance but did not overturn the 
initiative itself.

Even for people who do not support the use of pot for medicinal purposes, 
the not very enticing result of the ruling is that the distribution process 
- -- which has rules and procedures in many places and is now above board -- 
will be forced underground, where criminal elements may gain with no 

Other than not using marijuana for medicinal purposes, the only way to 
resolve the dispute between federal and state rules is for Congress to 
exempt marijuana from the most strictly enforced class of illicit 
substances for medicinal use. Marijuana qualifies for such so-called 
Schedule I status because there are no FDA recognized studies showing its 
safety, necessity and effectiveness.

The high court noted that Congress had the opportunity to create an 
exemption for marijuana in a 1998 resolution and refused to do so. The 
court also said that a generalized defense of necessity as a rationale for 
an otherwise wrongful act -- for example, shooting someone in self-defense 
- -- does not apply to implied medical necessity, making a common law defense 

Everyone can point to laws they don't like, but most people abide by them. 
That will have to be the case here, especially for a number of prominent 
public officials, including Attorney General Bill Lockyer. He supported the 
initiative and said in the past that he would not recommend prosecution 
under state law. The state law is still intact, but with distribution of 
pot for any reason in any quantity, simply turning a blind eye to the 
activity that could benefit drug lords is not permissible, unless and until 
Congress changes the law.
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MAP posted-by: Beth