Pubdate: Wed, 17 Dec 2003
Source: Seattle Post-Intelligencer (WA)
Copyright: 2003 Seattle Post-Intelligencer
Contact:  http://www.seattle-pi.com/
Details: http://www.mapinc.org/media/408
Author: Sam Skolnik, Seattle Post-Intelligencer Reporter

RULING BOLSTERS MEDICAL MARIJUANA LAW

Court Says Those Who Use for Medicinal Reasons Are Exempt

A federal court ruling yesterday that would permit some medical
marijuana use bolsters what proponents say is the clear -- and fair --
judicial trend to allow state medical marijuana laws like Washington's
to stand.

A 9th U.S. Circuit Court of Appeals panel said yesterday that a
congressional act outlawing marijuana may not apply to sick people
with a doctor's recommendation in states that have approved medical
marijuana laws, such as Washington.

And in its wake, a top federal prosecutor in Seattle said his office
likely would continue its policy of not prosecuting those who smoke
pot on their doctor's advice.

Medical marijuana proponents were ecstatic.

"This is one of the best decisions I've seen in a really long time,"
said Lee Newbury, director of the South Puget Sound chapter of the
National Organization for the Reform of Marijuana Laws.

"This is the first step for getting state's rights for patients,"
Newbury said. "When the federal government is trying to supersede the
will of the citizens who have passed these laws, something's wrong."

The federal court panel in San Francisco, ruling 2-1 in a rare
late-afternoon filing, said prosecuting these medical marijuana users
under a 1970 federal law is unconstitutional if the marijuana isn't
sold, transported across state lines or used for non-medicinal purposes.

"The intrastate, non-commercial cultivation, possession and use of
marijuana for personal medical purposes on the advice of a physician
is, in fact, different in kind from drug trafficking," Judge Harry
Pregerson wrote for the majority.

The court added that "this limited use is clearly distinct from the
broader illicit drug market, as well as any broader commercial market
for medical marijuana, insofar as the medical marijuana at issue in
this case is not intended for, nor does it enter, the stream of commerce."

In dissent, Judge C. Arlen Beam said that Congress could regulate
medical marijuana, noting that the Supreme Court has declared that
grain is subject to federal regulation even if the grower never sold
it and used it solely for his family.

Washington voters passed their medical marijuana law in 1998.
Initiative 692, which passed with 59 percent of the vote, gives
doctors the right to recommend -- but not prescribe -- marijuana for
people suffering from cancer, AIDS, multiple sclerosis, glaucoma and
other conditions.

Yesterday's appellate panel decision was a blow to the Justice
Department, which argued that medical marijuana laws in nine states
were trumped by the Controlled Substances Act, which outlawed
marijuana, heroin and other drugs.

Mark Bartlett, first assistant U.S. attorney in Seattle, said he was
surprised by the decision, believing that case law backed the federal
government's position. But he said that the ruling's "impact will be
minimal."

Bartlett said that unlike federal prosecutors in Northern California
and other jurisdictions, he could not recall any cases U.S. attorneys
here have brought against medical marijuana users in the last five to
10 years.

Randy Barnett, a Boston University constitutional law professor, said
the case was precedent-setting. "It's the first time there's been a
ruling that the application of the Controlled Substances Act to the
application of cultivation of medical cannabis is unconstitutional,"
he said.

This wasn't the first pro-medical marijuana ruling recently from the
9th Circuit. A court panel ruled unanimously last October that the
government cannot revoke doctors' prescription licenses for
recommending marijuana to sick patients.

The case that led to yesterday's ruling concerned two seriously ill
California women who sued Attorney General John Ashcroft.

They asked for a court order letting them smoke, grow or obtain
marijuana without fear of federal prosecution.

The case underscores the conflict between federal law and California's
1996 medical marijuana law, which allows people to grow, smoke or
obtain marijuana for medical needs with a doctor's recommendation. A
U.S. District judge tossed the case in March, saying the Controlled
Substances Act barred him from blocking any potential enforcement
action against medical marijuana patients. Yesterday's ruling sends
the case back to the district judge.

Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and
Washington have laws similar to California's, which has been the focus
of federal drug interdiction efforts.
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MAP posted-by: Richard Lake