Pubdate: Wed, 29 Dec 2004
Source: San Francisco Bay Guardian, The (CA)
Copyright: 2004 San Francisco Bay Guardian
Author: Ann Harrison
Cited: Raich v. Ashcroft
Cited: National Organization for the Reform of Marijuana Laws
Bookmark: (Cannabis - Medicinal)
Bookmark: (Decrim/Legalization)


Marijuana Growers Wait On Supreme Court Ruling To Determine If They Must
Return To Prison

A pending U.S. Supreme Court decision on medical marijuana patients
and their caregivers could have far-ranging consequences for cannabis
activists slapped with federal drug charges - and those wishing to
limit the power of the federal government.

At least 30 pending federal marijuana cases will be affected by the
outcome of /Ashcroft v. Raich, /a case the Supreme Court heard Nov. 29
that debated whether the feds exceeded their constitutional powers by
imposing national drug laws on the local, noncommercial use and
cultivation of medical cannabis. A decision is expected by summer.

The cases include growers, patients, and dispensary operators busted
by federal agents for growing marijuana that they considered legal. At
least two California medical cannabis growers, Bryan Epis and Keith
Alden, have been released from prison pending the outcome of the Raich
case after the Ninth Circuit Court of Appeals limited federal
oversight of medical pot growers.

Windsor resident Alden was convicted in 2003 for cultivating 755
plants for several medical cannabis dispensaries. He served 20 months
of his 44-month federal sentence before being released in April. Alden
says he's optimistic the patients will win the case, but no matter the
outcome, the publicity surrounding the case has helped defendants like
him rally support for their own legal battles.

"The Raich lawyers are done now, but we the people are not done,"
Alden said. "We will always maintain our right to petition and be
heard, and this is our time now to step up and put the pressure on."

The Supreme Court case was brought by Oakland medical cannabis patient
Angel Raich and Oroville patient Diane Monson after the federal Drug
Enforcement Administration raided Monson's home in 2002, seizing six
marijuana plants grown under the Compassionate Use Act, which
California voters passed as Proposition 215. A federal judge denied
the women's request for a preliminary injunction against more
government raids. But that decision was reversed by the Ninth Circuit
Court of Appeals, which then placed an entire group of medical
cannabis cases on hold pending the federal government's appeal of the
case to the Supreme Court.

"If Raich wins her case, then I will win my case, and if not, I will
defiantly go back to prison," said Epis, who was released from his
10-year mandatory federal drug sentence in August. Epis was arrested
in June 1997 for growing free medical cannabis for four medical
marijuana patients in Chico, and he was convicted five years later.
Ashley Epis, Epis's 10-year-old daughter, appeared on billboards
throughout California that read "My dad* *is not a criminal." Epis
says that if the justices find the government has overstepped its
powers by arresting growers like him, then "people could feel more
protected and safe from federal harassment and intimidation."

Dale Gieringer, state coordinator for the California chapter of the
National Organization for the Reform of Marijuana Laws, said those
distributing medical cannabis will also be vulnerable if the federal
government gets the green light for future raids. "I expect a
crackdown on [medical marijuana] dispensaries if this goes the wrong
way," Gieringer said. "It wouldn't surprise me at all if there would
be an attack on large dispensaries in particular, with the government
seeking forfeiture against the landlords. If that happens, who is
going to want to rent to a dispensary anymore?"

Asked to comment on this prediction, the feds were tight-lipped. "We
are reserving comment on any medical marijuana issues until the case
is decided," DEA spokesperson Bill Grant said.

Gieringer added that the case will also impact negotiations between
patients, caregivers, and local officials, who often use the federal
prohibition against all marijuana use as an excuse to duck medical
marijuana laws in the 10 states that have passed them.

"I know there will be local entities that say regulation of
dispensaries will be contingent on what happens in the Raich case,"
Gieringer said.

Robert Raich, Angel Raich's husband, who served as an attorney on her
legal team, said the case will directly affect three California medical
cannabis dispensaries with cases in the Ninth Circuit: the Oakland
Cannabis Buyers Cooperative, the Marin Alliance for Medical Marijuana,
and the Ukiah Cannabis Buyers Club. The Wo/Men's Alliance for Medical
Marijuana collective in Santa Cruz, which serves terminally ill
patients, also received an injunction against federal raids as a result
of the Ninth Circuit Court ruling, Raich said. He added that Oakland
medical marijuana grower Ed Rosenthal is appealing his conviction for
growing medical cannabis to the Ninth Circuit and that a loss in the
Raich case could also reduce his grounds for appeal.

The Raich case rests largely on the Supreme Court justices'
interpretation of the 1942 case /Wickard v. Filburn,/ which defines
the limit on the federal government's power to regulate commerce. The
case involved a wheat farmer who argued that the federal government
had no jurisdiction over his crop because it was all consumed on his
family farm. But the court found that the case fell under the federal
government's power to regulate interstate commerce.

If the justices rule against the patients, it could vastly expand the
federal government's reach, even though state marijuana laws would
still stand. The government's acting solicitor general, Paul Clement,
argued in the case that if the service or good in question is also
available in a commercial market, then it impacts the market and could
thus be regulated by the federal government.

"This could affect virtually everything," said Raich, who cited child
care as a service that is sold in the commercial market and could thus
be regulated by the federal government. Under this argument, even sex
is not excluded from government control. "Under the solicitor
general's argument, the federal government would be able to regulate
every aspect of marital relations because the conduct is the same as
that engaged [in] as part of a commercial market for prostitution,"
said Raich, who noted that this very example was brought up during the
Raich Supreme Court arguments.
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