Pubdate: Wed, 08 Dec 2004
Source: Metro Santa Cruz (CA)
Copyright: 2004, Metro Publishing Inc.
Author: Sarah Phelan
Cited: Wo/Men's Alliance for Medical Marijuana ( )
Cited: Raich v. Ashcroft ( )
Cited: Marijuana Policy Project ( )
Cited: Drug Enforcement Administration ( )
Bookmark: (Cannabis - Medicinal)
Bookmark: (Cannabis - California)


It's not looking good for medical marijuana advocates in the landmark
case currently before the Supreme Court. As they watch with a mixture
of hope and horror at justices arguing about wheat production rather
than the medical and humanitarian importance of the case, they're
already asking the toughest question of all: 'What happens if we lose?'

"WAMM is a club you literally have to be dying to get into," says Val
Corral, co-founder of the Wo/Men's Alliance for Medical Marijuana.

As if to illustrate her point, the photos of 140 WAMM members who've
died cover "The Wall of the Dead" in the collective's West Side
office. They are only barely outnumbered by the group's 175 surviving
members, including spiritual luminary Ram Dass and novelist Robert
Anton Wilson, whose access to pot's pain-relieving, nausea-inhibiting
properties hangs in the balance on the opposite coast.

And yet, the value of medical marijuana itself will hardly be
considered in the landmark medical marijuana case currently before the
Supreme Court. Recently, Supreme Court justices heard Raich v.
Ashcroft, a case centered on two chronically ill California women, who
want the feds to stop interfering in their medical marijuana use.

Though 11 states (Montana is the most recent) allow some medical
marijuana use, the federal government continues not to recognize
marijuana's medical usefulness, nor to address the question of
legalizing it across the board.

Instead, the Supreme Court debate on the case, Raich v. Ashcroft, has
been framed in terms of interstate commerce. Bruce Mirken of the
Marijuana Policy Project has been dumbfounded to hear the justices
invoking Wickard v. Filburn, a 62-year-old Supreme Court decision used
to uphold Congress' efforts to support grain prices by controlling
wheat production. But he holds out some hope for a medical marijuana

"Certainly some previous decisions suggest some justices have respect
for states' rights and the commerce clause," says Mirken.
"Theoretically, the feds' ability to ban illicit drugs comes from its
ability to regulate interstate commerce. But the feds arguing that two
women in California, using their own soil and equipment, and not
selling anything, are engaging in interstate commerce--I'm sorry, but
that's crazy!"

Crazy like a radical right-wing activist judge.

"It looks like Wickard to me," said Justice Antonin Scalia on hearing
preliminary arguments on Nov. 29, including those from attorneys for
Angel Raich and Diane Monson, who argued that the pot their clients
use is not grown for money and never crosses state lines.

Said Scalia of marijuana cultivation, "Why is this not economic
activity? This marijuana that's grown is like wheat. Since it's grown,
it doesn't have to be bought elsewhere."

Waves of Grain

The Supreme Court's ruling is expected by spring 2005, and will
quickly reverberate across California, since Raich, who lives in
Oakland, has the exact same thing at stake as WAMM: protection from
the feds.

Raich, who uses cannabis to treat scoliosis, endometriosis, severe
headaches, chronic nausea, seizures, uterine fibroid tumors and a
brain tumor, first joined forces with Diane Monson, who grows and uses
pot to treat severe back spasms, two years ago. Their alliance began
after DEA agents raided Monson's garden in Oroville, in Butte County.
After a three-hour standoff with local law enforcement, the federal
agents seized and destroyed Monson's six pot plants. Outraged, Raich
and Monson petitioned a federal district court in California to force
the DEA to butt out of their doctor-prescribed medical marijuana use.
Though that court refused to grant their request, the 9th Circuit
Court of Appeals subsequently ordered the lower court to issue a
preliminary injunction.

WAMM, whose garden of 167 plants was raided a month after the Monson
bust, subsequently won a similar injunction against the feds. Until it
was issued, the Corrals--who were arrested during the 2002 raid, but
released the same day--were living in legal limbo, thanks to a clause
in the Controlled Substances Act that allows the feds to forfeit
people's property up to five years after a bust.

Their federal fears temporarily assuaged, the Corrals began growing
another pot garden, including a monster named Victoria which WAMM
cheekily billed as "Our country's first federally protected marijuana

The U.S. Justice Department, however, immediately appealed the Raich
injunction to the Supreme Court, hence the Nov. 29 hearing. Should the
justices rule against Raich, the Corrals would reopen themselves to
the possibility of forfeiture if WAMM grows another garden next spring.

And so far, the case does not appear to be going in their favor.
Supreme Court justices met the Raich/Monson states' rights defense
with more than a little skepticism. Acting Solicitor General Paul D.
Clement argued that it would be impossible to allow medical use of
marijuana while banning recreational use. And the U.S. Justice
Department maintains there is no separation between private marijuana
use and interstate commerce, insisting that homegrown pot stimulates
the illicit drug market by increasing the amount of marijuana
available in the nation.

Bench Press

As Santa Cruz attorney Ben Rice, who represents WAMM, explains, "The
feds believe that if you let marijuana be grown like this, prices will
come down and it will be easier for people to use more of it. And then
there's the fact that people believe that if you want to stomp on the
left, keep going after marijuana, because they're the folks most
likely to be caught with it."

Rice, who attended the Nov. 29 Supreme Court hearing in person, admits
that it was not what he was hoping for. He says the two justices
who've already had cancer, Sandra Day O'Connor and Ruth Bader
Ginsberg, both seemed sympathetic to Raich and Monson's case. Since
Clarence Thomas, who didn't say anything that day, and Rehnquist, who
was not in court because of ill-health, are big on states' rights, he
thinks the case could go WAMM's way.

But he says that once Randy Barnett, a Boston University Law School
professor who's representing the two women, got up, "the knives came

"There was no sympathy from Justices Antonin Scalia and Anthony
Kennedy," says Rice. Justice Stephen Breyer, who told Barnett that his
clients should ask the FDA to reclassify marijuana as appropriate for
medical use, was "really unsympathetic," says Rice.

In the end, framing the debate as a states' rights argument, rather
than emphasizing compassion for the sick and dying, is a strategic
decision by Raich and Monson's attorneys that Rice says may or may not

"It's easy to say in hindsight, 'Oh, they goofed in taking that tack',
but we usually always also argue the right to ameliorate pain when
someone is close to death," he says.

If the court rules against Raich and Monson, Rice says the Corrals
likely wouldn't be in danger if they cease to operate WAMM, "but if
they continue to do so, they definitely risk being arrested and having
their property forfeited."

As for where a loss in the Supreme Court would leave the rest of
California's medical pot users in general, Rice believes individual
patients aren't going to be at risk, given the state's medical pot
initiative and the county's 3-pound limit, but cannabis clubs, coops
and dispensaries could be in danger.

"The alarming part of all this is that patients who aren't able to
grow their own medicine, or grow with others, will be back to buying
on the black market, a situation in which they'll have no control over
the quality of the pot they buy, including whether it was grown
organically or with pesticides," he says.

With Santa Cruz County Sheriff Mark Tracy having resigned Dec. 1, Rice
hopes that Chief Deputy Steve Robbins, who'll take over until the next
election, will continue to treat marijuana as a community health issue.

"The 3-pound limit is not that much if you're really sick," says Rice,
noting that someone who smokes a pack a day consumes 5 pounds of
tobacco annually. But whatever happens in the Supreme Court, Rice says
the justices' decision won't gut California's medical marijuana laws.

"It's just gonna make it more difficult to produce pot," he says,
noting that the Supreme Court has also left the Conant decision
intact, thereby protecting doctors' rights to discuss and prescribe

The Big Picture

Meanwhile, MPP's Bruce Mirken says whatever happens in Raich v.
Ashcroft, time will show that Bush was on the wrong side of history.

"In Montana's 2004 election, medical marijuana outpolled Bush by three
points, " says Mirken. This despite the fact that Montana was a "red
state" in which Bush clobbered Kerry with a 59 percent win--medical
marijuana did even better, winning in a 62 percent landslide.

He also notes that support for the two women's case currently before
the Supreme Court has come from some conservative quarters, including
the states of Alabama, Louisiana and Missouri, which take a hard line
on drugs and punish first-time users with prison sentences as long as
10 years.

"These three states aren't exactly a den of pot-smoking hippies the
last time I looked," Mirken says. "Their support is more about
preserving states' rights, than promoting medical marijuana use."

So, while Mirken feels it would be a tragedy if the women don't
prevail in Raich v. Ashcroft, "The fact is that the train has already
left the station."

"Thirty years from now, we'll look back at the current federal policy
of jailing medical marijuana growers as every bit as incomprehensible
as the burning of witches," he says. "Ultimately, we will win.
Whatever the Supreme Court rules, it cannot overturn Prop. 215, and
the protections of patients in California and other states with
medical marijuana initiatives."

WAMM, of course, is also contemplating what it will do in the unhappy
event that the Raich case goes south.

"To quit at this point is to lose every step forward we've taken,"
says Corral, sitting in WAMM's West Side office that in spite of the
current stressful situation has a peaceful ambience, thanks to a
healthy dose of wind chimes, prayer flags and statues of the Buddha.
"The real question is how to succeed in a way that not only saves
lives but our own work, too ...other than writing a book from jail."

Corral hasn't forgotten that the city and the county of Santa Cruz
have put their necks on the line here, too, thanks to staged medical
pot giveaways on the steps of City Hall following WAMM's 2002 bust,
and the county's recent OKing of a 3-pound-per-person limit for
medical marijuana users and the introduction of a medical cannabis
voluntary ID card. She realizes there's a lot at stake in this case
for a lot of people.

"I don't for one moment want to deny the importance of what has
already happened, " says Corral. "We grew the only legal medical
marijuana garden in the nation that didn't belong to the

But she has to be realistic about the possibility that whatever
protections WAMM has now could quickly be lost, and yet the group's
work must somehow continue.

"The feds' actions have not stopped the suffering of our patients.
They haven't cured anyone with their policies. There is no cure for
AIDS. Not one paraplegic is up and running. All they offer is
suffering, so for us to stand down in face of that would be an
absurdity," she says. "There's always something else we can do."

That something else, says Corral, could take the form of small
collectives that maintain a low profile and work together to share
their knowledge of growing cannabis.

Meet the New AG, Same As the Old AG

Still, even she admits that the collective is currently facing what
potentially could be a very frightening and painful immediate future.
And her fears certainly weren't eased by the news that Alberto
Gonzales, Bush's former White House Counsel, will likely replace John
Ashcroft as U.S. Attorney General.

"You mean the guy who called the Geneva Convention 'quaint and
outdated'? I can't imagine anyone in Bush's back pocket would have any
sense of compassion. Why would anyone want to be Bush's attorney
general if they did? The only news that I think could be good at this
point would be that Bush is no longer president," says Corral. "It's
such a criminal element that's operating it, there's a focus on
overtaking the world through economics."

Weirdly enough, though, all of the current obstacles have made her
even more resolute.

"We cannot continue to close hospitals and kick people out of vets'
homes here, and destroy people's medicine, while blowing up other
people's countries," she says. "It's suffering that makes people say
'No more!' and which inspires WAMM to carry on, no matter what. You
cook it down and it's as simple as that."

Many people are under the impression that a negative Supreme Court
ruling would make medical marijuana illegal, and Andrea Tischler of
the medical pot-friendly Compassion Flower Inn in downtown Santa Cruz
realizes that. But she wants people to remember that individuals with
a medical marijuana prescription will still be protected by
Proposition 215.

Tischler does, however, note that there continues to be a Catch
22--people who have medical pot recommendations but can't grow their
own can't get their medicine, since there currently aren't any
dispensaries in the county.

"Maybe we'll have to go underground on the growing front, and take
care of it in our own community. WAMM is very visible, very public.
So, maybe we will need to form smaller groups, with 20 people in each
cell, until this difficult period passes, which hopefully will be over
in four more years, with impeachment always being an option."

Tischler says that with an estimated 1,500 medical pot patients in the
city, and 4,000 patients countywide, most have to hop on a bus to
Oakland or San Francisco to buy an eighth to last a week or two.

Which is why Tischler's been in communication with the Santa Cruz City
Council, asking if they're in favor of a city ordinance allowing
medicinal users 3 pounds of dry mature cannabis buds, 100 square feet
of garden canopy--and a greater amount with a doctor's approval.

She'd also like the city to pass a resolution making cannabis
possession a low law enforcement priority, and see a task force
recommend where dispensaries and cooperatives can operate in the city.

The Devil in the Details

Santa Cruz Mayor Mike Rotkin says he supports the idea of a citywide
ordinance, though he thinks we're already covered by the county
ordinance. He says the SCPD already makes a low priority of
enforcement against people for private use.

Rotkin is not however a fan of the task force idea, preferring to
amend current ordinances to allow dispensaries in locations that seem
appropriate--namely ones not close to schools, residential zones or
downtown in the commercial area. That leaves the city's large
industrial zones--an idea that seems to fit those of Capitola Police
Chief Rick Ehle, who concluded, after 25 years in Oakland, that most
major turf battles were about selling pot.

"I'm not taking a position against medical marijuana," says Ehle, "
but if we had community or commercial grows with guards, that would be
great from a public safety point of view. Three pounds of pot, or six
if there's two patients growing together, in a house is too much, when
you can have your throat slit for $500 or less."

A Capitola resident recently did in fact have his throat slit, in an
incident that illustrates the safety issue that often gets left out of
the medical marijuana debate. Gang affiliates from Southern California
violently burglarized a home in Capitola where the occupant was
growing large quantities of bud. Though the victim survived being
stabbed and shot multiple times, Ehle worries about what it means for
the safety of residential communities to have large medical marijuana
gardens in their midst.

WAMM member Suzanne Pfeil, who grows her own marijuana to ease the
pain of post-polio syndrome and previously has been robbed, says she
somewhat solved the problem this year by installing a $70
closed-circuit camera. This allowed her to capture images of the
thief, thus helping the police track down the perpetrator, who was
charged with felony burglary and breaking and entering.

"My advice to anyone growing theirs at home," says Ehle, "is keep your
mouth shut and don't let anyone know what you're doing--except the
police, because I don't want my staff walking unknown into the middle
of potentially lethal situations."

Meanwhile, Tischler points to the September arrest of dealers on
Pacific Avenue as evidence that without dispensaries for medical
marijuana patients, many will be left to get it on the street.

"Which is not what we want. We want safe, group access, not on the
streets, which would be good for a city's image, too," she says.

Back in Court

Ironically, the Corrals' main hope of growing a garden in 2005 may lie
with the decision-making abilities of Chief Justice William Rehnquist.
Corral believes the court could end in a draw if Rehnquist is too sick
to rule, in which case the decision reverts back to the 9th
circuit--and she believes that court will uphold WAMM's original
injunction. But were Rehnquist to die, the Corrals fear that Bush
would appoint a radical conservative judge who would rule against
Raich and thus jeopardize WAMM's garden and the Corrals' freedom.

"This may be a states' rights issue, but we don't think the Supreme
Court will view it as such," she says. "They'll see it as a Controlled
Substances Act issue. It would be wonderful if this court were willing
to look past that, but we don't think they're interested in the rights
of people who are sick and dying. But in some cases, they've made some
remarkably enlightened decisions in the last few years, so one can
only hope."

That said, she fears that since DEA head Karen Tandy is an expert in
forfeiture, if the Raich case goes down in flames, the feds won't be
arresting people so much as taking everything they own.

"That's a good way to destroy someone in the USA. America is all about
what you own, that's how you fit in socially, by what you have.

"Mike and I have worked for 30 years, living in a shoe box, washing in
a teacup. We had a very simple life, before all this started," she
says. "But now I think we'll be under the gun, if they catch us
growing or distributing anything, in the event the injunction is
overturned, which they'll probably do by next spring, just in time for
the next planting season. Probably, they'll be there the next day,
with their guns drawn. They told us they'd be back."
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