SilverFeniks
Bluelighter
- Joined
- Jul 2, 2002
- Messages
- 4,541
*crosses fingers that justice for the truly-suffering will prevail*
-
DPMC Moderators: tryptakid
Supreme Court to hear medical pot case (Updated 3/03/05) (merged)
- Thread starter Edge80
- Start date
High expectations
Marijuana growers wait on Supreme Court ruling to determine if they must return to prison
By Ann Harrison, San Francisco Bay Guardian
December 29, 2004
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 (see "Supremes on Pot," www.sfbg.com/39/09/news_pot.html). 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.
Link
Marijuana growers wait on Supreme Court ruling to determine if they must return to prison
By Ann Harrison, San Francisco Bay Guardian
December 29, 2004
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 (see "Supremes on Pot," www.sfbg.com/39/09/news_pot.html). 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.
Link
MARIJUANA DECISION EXPECTED ANY DAY:
Can California have its marijuana and smoke it too?
By Jeff Katz, The California Aggie
March 3, 2005
Since voters passed the Medical Marijuana Act in 1996, the state law has been seemingly in contradiction with federal laws that say marijuana is an illegal drug under any circumstances.
The U.S. Supreme Court is now reviewing Ashcroft vs. Raich, in which a decision is expected any day regarding the federal government's authority over the matter.
And according to Americans for Safe Access, a group working for medical marijuana rights, now may be as good a time as any for a ruling to be made.
"Right now, the Supreme Court is definitely oriented towards state rights," said campaign director Hilary McQuie. "I don't want to make a bet, but that more than any other factor could be in favor of the Reich decision."
California resident Angel Raich, a prescribed medical marijuana user, sued the federal government in 2002 to challenge federal laws that banned her from using the substance under the Medical Marijuana Act.
After the act passed, federal agents began periodic raids in California to break up marijuana cooperatives, saying that the federal Controlled Substance Act ( CSA ) does not recognize medical marijuana.
While the US Constitution grants policing power to states, it stipulates that the federal government may intervene when the situation involves commerce between states.
According to court documents, the federal government believes it can override the state law using the CSA because there are sales taking place.
But a Dec 16, 2003 ruling by the Ninth Circuit Court of Appeals decided that using "the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." The government's appeal of that decision landed the case in the Supreme Court in April of 2004.
Patrick Murphy, a California drug policy expert, says that the case could easily go either way at this point; regardless, Californians who support medical marijuana shouldn't panic if the court rules in favor the government.
"The notion of an individual in possession is now a question that a state can make a judgment on and this decision won't overturn that," Murphy said. "More likely, this could settle the question of whether state law is trumped by federal."
The Drug Free America Foundation, an umbrella group that filed a brief in favor of the government's position, did not return calls from The California Aggie for comment.
Despite the assurance that medical marijuana users would still be protected under state law, some wonder whether the federal government could use a win to conduct more frequent raids.
Murphy said the likelihood of such action is low, although the government may still decide to target doctors in an effort to make an example of them.
"But you have to have someone out there willing to make the arrest, and then you also have to have someone willing to prosecute it, and it's just not a very good use of resources," he continued. "Frankly, drugs just aren't a priority for the federal government anymore."
Even a ruling in favor of Raich, although viewed as a big boost for medical marijuana advocates, is something McQuie said is only a minor protection in the larger picture.
"It doesn't end the fight for medical marijuana if it wins because we need to have it rescheduled at the federal level," McQuie said. "But it is a move in the right direction."
Link
Can California have its marijuana and smoke it too?
By Jeff Katz, The California Aggie
March 3, 2005
Since voters passed the Medical Marijuana Act in 1996, the state law has been seemingly in contradiction with federal laws that say marijuana is an illegal drug under any circumstances.
The U.S. Supreme Court is now reviewing Ashcroft vs. Raich, in which a decision is expected any day regarding the federal government's authority over the matter.
And according to Americans for Safe Access, a group working for medical marijuana rights, now may be as good a time as any for a ruling to be made.
"Right now, the Supreme Court is definitely oriented towards state rights," said campaign director Hilary McQuie. "I don't want to make a bet, but that more than any other factor could be in favor of the Reich decision."
California resident Angel Raich, a prescribed medical marijuana user, sued the federal government in 2002 to challenge federal laws that banned her from using the substance under the Medical Marijuana Act.
After the act passed, federal agents began periodic raids in California to break up marijuana cooperatives, saying that the federal Controlled Substance Act ( CSA ) does not recognize medical marijuana.
While the US Constitution grants policing power to states, it stipulates that the federal government may intervene when the situation involves commerce between states.
According to court documents, the federal government believes it can override the state law using the CSA because there are sales taking place.
But a Dec 16, 2003 ruling by the Ninth Circuit Court of Appeals decided that using "the CSA is an unconstitutional exercise of Congress' Commerce Clause authority." The government's appeal of that decision landed the case in the Supreme Court in April of 2004.
Patrick Murphy, a California drug policy expert, says that the case could easily go either way at this point; regardless, Californians who support medical marijuana shouldn't panic if the court rules in favor the government.
"The notion of an individual in possession is now a question that a state can make a judgment on and this decision won't overturn that," Murphy said. "More likely, this could settle the question of whether state law is trumped by federal."
The Drug Free America Foundation, an umbrella group that filed a brief in favor of the government's position, did not return calls from The California Aggie for comment.
Despite the assurance that medical marijuana users would still be protected under state law, some wonder whether the federal government could use a win to conduct more frequent raids.
Murphy said the likelihood of such action is low, although the government may still decide to target doctors in an effort to make an example of them.
"But you have to have someone out there willing to make the arrest, and then you also have to have someone willing to prosecute it, and it's just not a very good use of resources," he continued. "Frankly, drugs just aren't a priority for the federal government anymore."
Even a ruling in favor of Raich, although viewed as a big boost for medical marijuana advocates, is something McQuie said is only a minor protection in the larger picture.
"It doesn't end the fight for medical marijuana if it wins because we need to have it rescheduled at the federal level," McQuie said. "But it is a move in the right direction."
Link
anhalonium9
Bluelighter
if ever there was a reason to pray, it is now.
Annapurna1
Ex-Bluelighter
^ this case doesnt have a prayer..so dont waste it...its a safe bet that the SCOTUS will rule unanimously in favour of bush...
PurrrinInOk
Bluelighter
Medical cannabis activists claim that these single-cannabinoid synthetics (Marinol) are poor substitutes for the marijuana plant, which contains hundreds of compounds, and are needlessly expensive.
(One synthetic, Marinol, currently sells for about $17 a pill.) 8)
It's all about the money. GRRRRRRRRRRRRRR
I'm so pissed off right now, I can barely type this. My Aunt....who is only 39 years old is going to have heart problems for theREST OF HER LIFE because her doctor kept throwing Vioxx at her like it was CANDY for her back pain.
Sheeesh they should legalize it already....tax the hell out of it.
Lots of people have different opinions about this issue. Why do you all think that they do not want to legalize marijuana? I think that the Gov't is afraid that they cannot control it (and of course make money off of it) because it's a plant that pretty much grows anywhere.
Just curious to see the different prospectives.
(One synthetic, Marinol, currently sells for about $17 a pill.) 8)
It's all about the money. GRRRRRRRRRRRRRR
I'm so pissed off right now, I can barely type this. My Aunt....who is only 39 years old is going to have heart problems for theREST OF HER LIFE because her doctor kept throwing Vioxx at her like it was CANDY for her back pain.
Sheeesh they should legalize it already....tax the hell out of it.
Lots of people have different opinions about this issue. Why do you all think that they do not want to legalize marijuana? I think that the Gov't is afraid that they cannot control it (and of course make money off of it) because it's a plant that pretty much grows anywhere.
Just curious to see the different prospectives.
FATE OF MEDICAL MARIJUANA MOVEMENT MAY HINGE ON ASHCROFT V. RAICH RULING
By Fred Gardner, California Cannabis Research Medical Group
Pub. April 2005
The U.S. Supreme Court ruling in the case called Ashcroft et al v. Raich et al is likely to determine if and how the federal Controlled Substances Act applies to more than 100,000 people who use cannabis as medicine under the law in California and other western states.
The case was argued Nov. 29, 2004. The ruling is expected by June 2005.
A win for patient Angel Raich, her John Doe caregivers, and her co-defendant Diane Monson, would confer legitimacy on everyone in their situation. A loss could mean widespread, low-key terror with the DEA picking off growers, distributors and persons of interest at will.
There is a spectrum of possible outcomes in between the unambiguous win and loss ( See "Robert Raich on the Judgment," this issue. )
The suit started out as Raich et al v. Ashcroft et al. It was filed in October, 2002, in response to intermittent DEA raids, such as the raid that closed the 6th Street club in San Francisco, and the destruction of WAMM's garden north of Santa Cruz.
Angel McClary Raich, 39, was the prime mover. Her life would be at risk, she contended, if the feds raided the two caregivers who were growing her year's supply of cannabis ( for no charge ). Angel sought a court order enjoining the Justice Department and the Drug Enforcement Administration from carrying out any more raids.
Although painfully thin due to her afflictions, Angel ( which is the name she chose for herself ) has a strong ego and the will to make history --"for all of us," she says.
She comes from Stockton, from a working-class family. Her parents divorced when she was four. Angel has disturbing memories of being molested by a family member. At 12 she was put in a full-body brace to correct curvature of the spine. She developed asthma and had several cysts removed while still in high school.
She married her high school sweetheart. They worked as apartment managers in the Central Valley and had two kids. They divorced. Angel remarried and worked at a series of blue- and white-collar jobs.
At age 30 she had a serious adverse reaction to the birth-control pill, resulting in partial paralysis. An inoperable brain tumor was diagnosed. Confined to a wheelchair, in pain, she was given strong prescription painkillers --synthetic opiates, methadone and Fentanyl-- which induced nausea, vomiting and other intolerable effects.
She was hospitalized and made a feeble attempt to cut her wrists. A nurse advised her to try marijuana; Angel wouldn't hear of it because it could cost her custody of her kids. When desperation ultimately led her to try the prohibited herb, her pain receded, and in due course she regained her mobility and found her calling as a martyr/advocate.
By 2000 Angel had moved from the Central Valley to the Bay Area, made friends with other patients and activists trying to implement California's medical marijuana law, and formed a non-profit of her own called "Angel Wings Outreach."
In the course of helping patients deal with legal problems, Angel met attorney Robert Raich. "It really became hard to see where he ended and I began," she recalls. "We became one."
Robert Raich, 48, is a rabbi's son who went to Harvard and then to law school at the University of Texas. He is almost as thin as Angel, very soft-spoken and mild-mannered. It was Raich who had the insight, back in 1998, that section 885( d ) of the Controlled Substances Act, which allows undercover police officers to buy, handle, and sell narcotics, could apply to a city-authorized cannabis dispensary.
Raich represented the Oakland Cannabis Buyer's Co-op in a federal case initiated by the Clinton Justice Department in 1998. The U.S. Supreme Court eventually ruled that the OCBC couldn't claim "medical necessity" as grounds for violating the Controlled Substances Act. Whether an individual could claim "medical necessity" was not addressed in the OCBC case; it is one of the arguments Angel's lawyers made on her behalf in the present case.
Angel's co-defendants are two anonymous growers ( "caregivers" in terms of California law ) and Diane Monson, a 47-year old accountant who has her doctor's approval to use cannabis to treat disabling back pain and spasms.
In August, 2002, Monson was growing six outdoor plants in her home garden in the foothills of Oroville. DEA agents arrived to question her about a large quantity of marijuana growing elsewhere in Butte County on property that she and her husband formerly owned and on which they still held the mortgage ( i.e., they were getting monthly payments from the new owners ).
Diane told the law enforcers she'd been unaware of the large grow. The DEA agents said they were going to confiscate her six plants then and there. ( Ordinarily the feds don't concern themselves with small quantities of marijuana. ) Diane asked the Butte County Sheriff's deputies who had accompanied the feds to confirm that the plants were legal under Prop 215.
Federal-State Confrontation
A tense, three-hour standoff ensued during which the Butte County District Attorney, Mike Ramsey, asked the U.S. Attorney for the Eastern District of California, John Vincent, to call off the raid. Ramsey's support is a tribute to his integrity ( "He's against medical marijuana, personally, but he respects and upholds California law," says Philip A. Denney, MD, who has an office in Redding. ) It's also a tribute to the standing in the community of Monson and her recently deceased husband.
The DA of Butte County did not prevail, and as Diane Monson read aloud the text of Prop 215 ( "I thought they needed to hear it," she says ), DEA agents macheteed and hauled away her almost-ready-to-harvest herbal painkiller.
Angel read about Monson's plight and asked her to become a co-plaintiff so that a favorable decision by the Court could apply to patients whose illnesses were not life-threatening. The two women are represented by San Francisco defense specialist David Michael, and Randy Barnett, a professor of constitutional law at Boston University School of Law, an authority on the 9th amendment, in addition to Robert Raich.
Preliminary Injunction
In requesting an injunction they argued, among other things, that the federal government has no jurisdiction because the process by which the plants were grown for and consumed by Raich and Monson did not affect interstate commerce significantly.
The request for a preliminary injunction was denied in March 2003 by U.S. District Court Judge Martin Jenkins. Raich et al appealed to the 9th Circuit, and in October '03, made their arguments to a three-judge panel ( Pregerson, Paez and Beam, on loan from the 8th Circuit ). In December '03 the 9th Circuit panel ( with Beam dissenting ) directed the District Court Judge to issue the preliminary injunction. Jenkins did so in May 2004. It reads:
"Defendants, and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange."
The above injunction --which the Bush Administration wants the Supreme Court to quash-- is what made the summer of 2004 relatively stress-free for many Californians who were growing for or distributing cannabis to patients whose doctors had approved its use.
The Key Arguments
Before appearing in Court, each side makes its arguments in written briefs, which are supplemented by "amici" ( friend of the court ) briefs from interested parties.
The Justice Department brief, submitted by Acting Solicitor General Paul Clement, argues that Congress had a valid goal in passing the Controlled Substances Act to regulate interstate commerce in licit and illicit drugs. "Medical" users growing their own would undermine that goal. Interstate commerce, although not affected by a few instances of medical users growing their own cannabis in California, is inevitably affected when all such instances are considered in aggregate. All marijuana-related activity is inherently economic because marijuana is a "fungible" substance --it can be bought and sold in commerce. All marijuana is essentially the same, and if the parties in this case didn't have marijuana grown for them, they'd be buying it on the market.
Among the feds' arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the DOJ brief, "Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances." It would also undercut "the incentives for research and development into new legitimate drugs." That's as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.
The U.S. Supreme Court overturns three out of four cases it chooses to review. The absence of Chief Justice Rehnquist ( undergoing treatments for cancer ) would work to Raich's advantage. As a young lawyer in the Nixon Justice Department, Rehnquist helped write the Controlled Substances Act. His questions during the Oakland Cannabis Buyers' Co-op oral argument in 2001 were overtly hostile. And he's considered results-oriented ( fight the war on drugs ) rather than principled ( curtail the overreaching Commerce Clause ). Rehnquist could still read the transcript and vote on the Raich case, even though he did not attend the oral argument. He is expected to write an opinion ( or have his law clerks do so )... If there's a 4-4 tie, the opinion of the 9th Circuit stands, but doesn't become binding authority on the rest of the country.
States' Rights
Most of the amici briefs focus on states' rights. For those of us who remember the battles to end segregation in public schools in the South, there is obvious irony in our side calling for "states' rights." It was in the name of states' rights that governors Orville Faubus and Ross Barnett barred the schoolhouse doors in Arkansas and Mississippi, while up north we were singing "The ink is black, the page is white, together we learn to read and write, to read and write. And now a child can understand this is the law of all the land -all the land!"
Another inversion involves the question of individual rights, to which so-called conservatives always pay lip service. The right to self-medicate is an individual right if ever there was one --but the conservatives are suddenly all about "public health," like a bunch of bleeding-heart liberals!
The marijuana prohibition takes us through-the-looking glass because it's based on the Mad Hatter's premise that the drug is always harmful, never helpful. The feds and their amici refer to marijuana as only "purportedly," "assertedly," "allegedly" medical. But the record established at the district court level --which is supposedly all the Supreme Court goes on-- consists of four declarations by the two patients and their physicians showing that cannabis does indeed have medical benefits. The government submitted no evidence to the contrary. They contend it's just a question of law.
Precedent Case
The key precedent is a 1942 case, Wickard v. Filburn, which established that impact on interstate commerce is not a function of individual transactions ( such as caregivers growing cannabis for Angel Raich ) but of all such transactions, in aggregate ( all medical users growing their own or having it grown for them within California ).
Filburn was an Ohio farmer who grew more wheat than he was allowed to under the Agricultural Adjustment Act, which was intended to keep prices up by limiting production. That Act was clearly trying to regulate economic activity. The Court ruled that Congress could regulate consumption of Filburn's wheat on his own farm because if all farmers acted likewise, Congress's scheme to regulate the price would be undermined.
Raich-Monson argue that Wickard v. Filburn is a bad analogy because Filburn sold some of the wheat he raised, and much more of it was being consumed by his cows ( from which he derived milk, and which he sold occasionally ) than by his family. He also raised and sold chickens and he sold eggs, i.e., he was using his wheat in running a commercial farm. Moreover, the Agricultural Adjustment Act didn't apply to farmers growing small quantities for family use. And the principle of "aggregation" established in Wickard did not apply in the two cases --Lopez ( 1995 ) and Morrison ( 2000 )-- by which the Rehnquist court has limited Congress's power under the Commerce Clause.
Raich-Monson's arguments are designed to appeal to "conservatives." By ruling against them, the Court would significantly extend federal power under the Commerce Clause --the last thing "conservatives" supposedly want to do. "If the Court upholds Petitioners' claim of federal power," the Raich-Monson brief points out, "this case will supplant Wickard to become the most expansive interpretation of the commerce clause since the Founding, and this Court's landmark decisions in Lopez and Morrison will become dead letters."
Link
By Fred Gardner, California Cannabis Research Medical Group
Pub. April 2005
The U.S. Supreme Court ruling in the case called Ashcroft et al v. Raich et al is likely to determine if and how the federal Controlled Substances Act applies to more than 100,000 people who use cannabis as medicine under the law in California and other western states.
The case was argued Nov. 29, 2004. The ruling is expected by June 2005.
A win for patient Angel Raich, her John Doe caregivers, and her co-defendant Diane Monson, would confer legitimacy on everyone in their situation. A loss could mean widespread, low-key terror with the DEA picking off growers, distributors and persons of interest at will.
There is a spectrum of possible outcomes in between the unambiguous win and loss ( See "Robert Raich on the Judgment," this issue. )
The suit started out as Raich et al v. Ashcroft et al. It was filed in October, 2002, in response to intermittent DEA raids, such as the raid that closed the 6th Street club in San Francisco, and the destruction of WAMM's garden north of Santa Cruz.
Angel McClary Raich, 39, was the prime mover. Her life would be at risk, she contended, if the feds raided the two caregivers who were growing her year's supply of cannabis ( for no charge ). Angel sought a court order enjoining the Justice Department and the Drug Enforcement Administration from carrying out any more raids.
Although painfully thin due to her afflictions, Angel ( which is the name she chose for herself ) has a strong ego and the will to make history --"for all of us," she says.
She comes from Stockton, from a working-class family. Her parents divorced when she was four. Angel has disturbing memories of being molested by a family member. At 12 she was put in a full-body brace to correct curvature of the spine. She developed asthma and had several cysts removed while still in high school.
She married her high school sweetheart. They worked as apartment managers in the Central Valley and had two kids. They divorced. Angel remarried and worked at a series of blue- and white-collar jobs.
At age 30 she had a serious adverse reaction to the birth-control pill, resulting in partial paralysis. An inoperable brain tumor was diagnosed. Confined to a wheelchair, in pain, she was given strong prescription painkillers --synthetic opiates, methadone and Fentanyl-- which induced nausea, vomiting and other intolerable effects.
She was hospitalized and made a feeble attempt to cut her wrists. A nurse advised her to try marijuana; Angel wouldn't hear of it because it could cost her custody of her kids. When desperation ultimately led her to try the prohibited herb, her pain receded, and in due course she regained her mobility and found her calling as a martyr/advocate.
By 2000 Angel had moved from the Central Valley to the Bay Area, made friends with other patients and activists trying to implement California's medical marijuana law, and formed a non-profit of her own called "Angel Wings Outreach."
In the course of helping patients deal with legal problems, Angel met attorney Robert Raich. "It really became hard to see where he ended and I began," she recalls. "We became one."
Robert Raich, 48, is a rabbi's son who went to Harvard and then to law school at the University of Texas. He is almost as thin as Angel, very soft-spoken and mild-mannered. It was Raich who had the insight, back in 1998, that section 885( d ) of the Controlled Substances Act, which allows undercover police officers to buy, handle, and sell narcotics, could apply to a city-authorized cannabis dispensary.
Raich represented the Oakland Cannabis Buyer's Co-op in a federal case initiated by the Clinton Justice Department in 1998. The U.S. Supreme Court eventually ruled that the OCBC couldn't claim "medical necessity" as grounds for violating the Controlled Substances Act. Whether an individual could claim "medical necessity" was not addressed in the OCBC case; it is one of the arguments Angel's lawyers made on her behalf in the present case.
Angel's co-defendants are two anonymous growers ( "caregivers" in terms of California law ) and Diane Monson, a 47-year old accountant who has her doctor's approval to use cannabis to treat disabling back pain and spasms.
In August, 2002, Monson was growing six outdoor plants in her home garden in the foothills of Oroville. DEA agents arrived to question her about a large quantity of marijuana growing elsewhere in Butte County on property that she and her husband formerly owned and on which they still held the mortgage ( i.e., they were getting monthly payments from the new owners ).
Diane told the law enforcers she'd been unaware of the large grow. The DEA agents said they were going to confiscate her six plants then and there. ( Ordinarily the feds don't concern themselves with small quantities of marijuana. ) Diane asked the Butte County Sheriff's deputies who had accompanied the feds to confirm that the plants were legal under Prop 215.
Federal-State Confrontation
A tense, three-hour standoff ensued during which the Butte County District Attorney, Mike Ramsey, asked the U.S. Attorney for the Eastern District of California, John Vincent, to call off the raid. Ramsey's support is a tribute to his integrity ( "He's against medical marijuana, personally, but he respects and upholds California law," says Philip A. Denney, MD, who has an office in Redding. ) It's also a tribute to the standing in the community of Monson and her recently deceased husband.
The DA of Butte County did not prevail, and as Diane Monson read aloud the text of Prop 215 ( "I thought they needed to hear it," she says ), DEA agents macheteed and hauled away her almost-ready-to-harvest herbal painkiller.
Angel read about Monson's plight and asked her to become a co-plaintiff so that a favorable decision by the Court could apply to patients whose illnesses were not life-threatening. The two women are represented by San Francisco defense specialist David Michael, and Randy Barnett, a professor of constitutional law at Boston University School of Law, an authority on the 9th amendment, in addition to Robert Raich.
Preliminary Injunction
In requesting an injunction they argued, among other things, that the federal government has no jurisdiction because the process by which the plants were grown for and consumed by Raich and Monson did not affect interstate commerce significantly.
The request for a preliminary injunction was denied in March 2003 by U.S. District Court Judge Martin Jenkins. Raich et al appealed to the 9th Circuit, and in October '03, made their arguments to a three-judge panel ( Pregerson, Paez and Beam, on loan from the 8th Circuit ). In December '03 the 9th Circuit panel ( with Beam dissenting ) directed the District Court Judge to issue the preliminary injunction. Jenkins did so in May 2004. It reads:
"Defendants, and their agents and officers, and any person acting in consort with them, are hereby enjoined from arresting or prosecuting Plaintiffs Angel McClary Raich and Diane Monson, seizing their medical cannabis, forfeiting their property, or seeking civil or administrative sanctions against them with respect to the intrastate, noncommercial cultivation, possession, use, and obtaining without charge of cannabis for personal medical purposes on the advice of a physician and in accordance with state law, and which is not used for distribution, sale or exchange."
The above injunction --which the Bush Administration wants the Supreme Court to quash-- is what made the summer of 2004 relatively stress-free for many Californians who were growing for or distributing cannabis to patients whose doctors had approved its use.
The Key Arguments
Before appearing in Court, each side makes its arguments in written briefs, which are supplemented by "amici" ( friend of the court ) briefs from interested parties.
The Justice Department brief, submitted by Acting Solicitor General Paul Clement, argues that Congress had a valid goal in passing the Controlled Substances Act to regulate interstate commerce in licit and illicit drugs. "Medical" users growing their own would undermine that goal. Interstate commerce, although not affected by a few instances of medical users growing their own cannabis in California, is inevitably affected when all such instances are considered in aggregate. All marijuana-related activity is inherently economic because marijuana is a "fungible" substance --it can be bought and sold in commerce. All marijuana is essentially the same, and if the parties in this case didn't have marijuana grown for them, they'd be buying it on the market.
Among the feds' arguments is one usually left unspoken: prohibition serves the interests of the pharmaceutical corporations. As expressed in the DOJ brief, "Excepting drug activity for personal use or free distribution from the sweep of the CSA would discourage the consumption of lawful controlled substances." It would also undercut "the incentives for research and development into new legitimate drugs." That's as close as the government has come to acknowledging that wider cannabis use would jeopardize drug-company profits.
The U.S. Supreme Court overturns three out of four cases it chooses to review. The absence of Chief Justice Rehnquist ( undergoing treatments for cancer ) would work to Raich's advantage. As a young lawyer in the Nixon Justice Department, Rehnquist helped write the Controlled Substances Act. His questions during the Oakland Cannabis Buyers' Co-op oral argument in 2001 were overtly hostile. And he's considered results-oriented ( fight the war on drugs ) rather than principled ( curtail the overreaching Commerce Clause ). Rehnquist could still read the transcript and vote on the Raich case, even though he did not attend the oral argument. He is expected to write an opinion ( or have his law clerks do so )... If there's a 4-4 tie, the opinion of the 9th Circuit stands, but doesn't become binding authority on the rest of the country.
States' Rights
Most of the amici briefs focus on states' rights. For those of us who remember the battles to end segregation in public schools in the South, there is obvious irony in our side calling for "states' rights." It was in the name of states' rights that governors Orville Faubus and Ross Barnett barred the schoolhouse doors in Arkansas and Mississippi, while up north we were singing "The ink is black, the page is white, together we learn to read and write, to read and write. And now a child can understand this is the law of all the land -all the land!"
Another inversion involves the question of individual rights, to which so-called conservatives always pay lip service. The right to self-medicate is an individual right if ever there was one --but the conservatives are suddenly all about "public health," like a bunch of bleeding-heart liberals!
The marijuana prohibition takes us through-the-looking glass because it's based on the Mad Hatter's premise that the drug is always harmful, never helpful. The feds and their amici refer to marijuana as only "purportedly," "assertedly," "allegedly" medical. But the record established at the district court level --which is supposedly all the Supreme Court goes on-- consists of four declarations by the two patients and their physicians showing that cannabis does indeed have medical benefits. The government submitted no evidence to the contrary. They contend it's just a question of law.
Precedent Case
The key precedent is a 1942 case, Wickard v. Filburn, which established that impact on interstate commerce is not a function of individual transactions ( such as caregivers growing cannabis for Angel Raich ) but of all such transactions, in aggregate ( all medical users growing their own or having it grown for them within California ).
Filburn was an Ohio farmer who grew more wheat than he was allowed to under the Agricultural Adjustment Act, which was intended to keep prices up by limiting production. That Act was clearly trying to regulate economic activity. The Court ruled that Congress could regulate consumption of Filburn's wheat on his own farm because if all farmers acted likewise, Congress's scheme to regulate the price would be undermined.
Raich-Monson argue that Wickard v. Filburn is a bad analogy because Filburn sold some of the wheat he raised, and much more of it was being consumed by his cows ( from which he derived milk, and which he sold occasionally ) than by his family. He also raised and sold chickens and he sold eggs, i.e., he was using his wheat in running a commercial farm. Moreover, the Agricultural Adjustment Act didn't apply to farmers growing small quantities for family use. And the principle of "aggregation" established in Wickard did not apply in the two cases --Lopez ( 1995 ) and Morrison ( 2000 )-- by which the Rehnquist court has limited Congress's power under the Commerce Clause.
Raich-Monson's arguments are designed to appeal to "conservatives." By ruling against them, the Court would significantly extend federal power under the Commerce Clause --the last thing "conservatives" supposedly want to do. "If the Court upholds Petitioners' claim of federal power," the Raich-Monson brief points out, "this case will supplant Wickard to become the most expansive interpretation of the commerce clause since the Founding, and this Court's landmark decisions in Lopez and Morrison will become dead letters."
Link