- The Washington Times - Tuesday, May 15, 2001

The Supreme Court agreed unanimously yesterday that "marijuana clubs" may not invoke a patients illness as a defense from federal prosecution, but justices bickered over whether sick patients themselves can avert arrest by claiming they need pot.
"We hold that medical necessity is not a defense to manufacturing and distributing marijuana," the court said in its 8-0 judgment allowing federal officials to shut down such operations in California and eight other states. But only five justices signed its explanatory opinion because of a spirited argument over Footnote 7.
The footnote, suggesting that even serious illness would not excuse a patient — a comment not necessarily binding in other cases — was a side issue that lawyers call "dicta" in the opinion written by Justice Clarence Thomas and backed by Chief Justice William H. Rehnquist with Justices Sandra Day OConnor, Antonin Scalia and Anthony M. Kennedy.
"Whether the defense might be available to a seriously ill patient for whom there is no alternative means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here," Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg countered in chiding their colleagues for venturing beyond the facts in the case.
Many advocates of permitting marijuana use for medicinal purposes claim it offsets nausea and other discomfort that causes patients with cancer and AIDS to wither from malnutrition, but the court disputed that stance.
"It is clear from the text of the act that Congress has made a determination that marijuana has no medical benefits worthy of an exception," Justice Thomas wrote.
"Its encouraging to see the Supreme Court has seen through the pot enthusiasts smoke screen by ruling in favor of the federal government," said Robert Maginnis, of the Family Research Council, who called lobbyists for medical marijuana a front for drug legalization. "Smoking pot is never sound medicine."
Chuck Thomas, communications director for the Marijuana Policy Project, minimized the decisions impact on the premise that virtually all marijuana prosecutions are at state and local levels.
"Were still going to be able to protect 99 percent of the marijuana users. The Drug Enforcement Administration doesnt have the resources to go into states and deal with individual users," Mr. Thomas said.
Joyce Nalepka of Silver Spring, president of Drug Free Kids, praised yesterdays decision, which she expected to help her organizations campaign to block the practice of using voter initiatives to approve medicines by popular vote.
"We agree with Justice Thomas. For all Schedule 1 drugs, there is no medicinal use. We are going to work to turn back those initiatives," Mrs. Nalepka said.
Alaska, Arizona, Colorado, Hawaii, Maine, Nevada, Oregon and Washington followed the lead of Californias voter initiative to permit medicinal use of marijuana.
Justice Stephen G. Breyer took no part in the case because his brother, U.S. District Judge Charles Breyer, originally granted a federal request to block marijuana distribution by Oakland Cannabis Buyers Cooperative and five other distributors.
The 9th U.S. Circuit Court of Appeals reversed the lower court and ordered Judge Breyer to clarify "criteria for a medical necessity exemption."
The justices had no disagreement about overturning the 9th Circuit order, which applied solely to distributors and manufacturers.
But the five justices who see the federal marijuana ban as absolute used the same footnote to lecture against judicial interference, even to support federalism by letting state law prevail.
"We share Justice Stevens concern for showing respect to the sovereign states that comprise our federal union," Justice Thomas wrote.
"However, we are construing an act of Congress, not drafting it. Because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it," he said in rebutting what he construed as a call for judicial activism.
In other action yesterday, the high court:
* Ruled that federal appeals courts should use a broad standard to decide if awards of punitive damages are so large as to be unconstitutional. The court ordered further review of a $4.5 million punitive award against Cooper Industries, a small California tool company.
* Allowed Tennessee to sentence Wilbert K. Rogers to 33 years in prison for murder even though his victim, James Bowdery, died 15 months after being stabbed. State law held attackers responsible for a death only if it occurred within a year and a day of the assault.
* Agreed to decide if police may prosecute new crimes with evidence seized from homes of criminals who consent to blanket searches as a condition of probation on earlier convictions.
* Made public new appeal papers filed Friday night by Terry Nichols, asking the justices to reconsider denial of his plea for a new trial on charges he conspired with Timothy McVeigh in the Oklahoma City bombing that killed 168 persons. He said his plea is justified by the FBIs failure to give defense attorneys thousands of documents, an omission that also led to postponement until June 11 of McVeighs scheduled execution tomorrow.

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