Pubdate: Wed, 20 Nov 2002
Source: Sacramento Bee (CA)
Copyright: 2002 The Sacramento Bee
Contact:  http://www.sacbee.com/
Details: http://www.mapinc.org/media/376
Author: Peter Schrag, Bee Columnist
Bookmark: http://www.mapinc.org/find?154 (Conant vs. McCaffrey)

A MESSAGE FROM THE JUDGE -- IS ASHCROFT LISTENING?

At first glance, Judge Alex Kozinski seems miscast in the role of Tom Paine 
in the ongoing battle between the federal government and the states over 
medical marijuana.

Kozinski, who serves on the 9th U.S. Circuit Court of Appeals and who may 
be the smartest member of that court, is a conservative appointed by 
President Reagan in 1985. But there he was the other day, writing an 
opinion saying that the feds have no business telling California and other 
states that they can't allow the medical use of marijuana, despite 
voter-enacted laws allowing precisely that.

But then again, Kozinski's opinion seems entirely consistent with 
conservative federalism principles and a Supreme Court that's gone in 
precisely the same direction.

The opinion was a concurrence in a unanimous three-judge decision ordering 
the feds to stop harassing doctors who recommend marijuana to their cancer, 
glaucoma and AIDS patients. The other members of the three-judge panel 
ruled only that the federal threat to yank the drug prescribing licenses of 
marijuana-recommending doctors violated their free-speech rights. Kozinski 
agreed, but went much further.

The Supreme Court, Kozinski reminded the Justice Department, has ruled that 
"[T]he federal government may neither issue directives requiring the states 
to address particular problems, nor command the states' officers, or those 
of their political subdivisions, to administer or enforce a federal 
regulatory program." That means "that, much as the federal government may 
prefer that California keep medical marijuana illegal, it cannot force the 
state to do so. Yet, the effect of the federal government's policy is 
precisely that: By precluding doctors, on pain of losing their DEA \[Drug 
Enforcement Administration\] registration, from making a recommendation 
that would legalize the patients' conduct under state law, the federal 
policy makes it impossible for the state to exempt the use of medical 
marijuana from the operation of its drug laws."

Kozinski also cited a list of major studies, some of them commissioned by 
the federal government, concluding that at least for some patients the use 
of marijuana may be far more helpful and less dangerous than federal policy 
pretends.

That may not be the last legal word on this issue, but it ought to be a 
reminder to Attorney General John Ashcroft, who's been determined to bust 
every little California pot club in sight, that especially at a time like 
this, he ought (at the very least) to have more urgent things to do.

This was supposed to be an administration that was going to get off the 
states' backs and that, in light of the nation's obvious vulnerability to 
terrorist attacks, ought to be using its agents -- whether it's 
prosecutors, DEA agents or FBI investigators -- for higher priority jobs.

Ditto for Ashcroft's campaign to overturn Oregon's assisted suicide law, 
first approved by Oregon voters in 1994 and then overwhelmingly reaffirmed 
three years later.

In the last six years, drug law reformers, bolstered by the deep pockets of 
financier George Soros and others, have won an almost uninterrupted string 
of ballot victories in a growing list of states -- California, Oregon, 
Washington, Alaska, Arizona, Maine, Colorado. In some they've come with 
initiatives legalizing the medical use of marijuana; in others they've come 
in laws (as with California's Proposition 36) in laws requiring treatment 
rather than incarceration for most drug offenders.

This year, for the first time, that drive hit major bumps. In Ohio, voters 
rejected Issue 1, a measure that required treatment, not jail, for drug 
offenders. Nevada voters voted against a marijuana decriminalization 
proposal; Arizona voters rejected what one advocate called "a kitchen sink" 
initiative that covered everything from decriminalization to state 
distribution of medical marijuana.

In part those defeats are attributable to overreaching by drug reform 
advocates. Some of the measures were too broad and/or too permissive. In 
part they reflect a new campaign by federal and state officials to stop the 
reforms. In Ohio, Gov. Bob Taft raised an estimated $1 million from his own 
contributors to beat Issue 1. Meanwhile, White House drug czar John Walters 
was speaking in the affected states -- and the federal government was 
running ads -- on the hazards of marijuana.

Nonetheless, voters in Washington, D.C., overwhelmingly approved a 
treatment initiative like California's Proposition 36. Voters in 47 
Massachusetts towns supported measures calling on legislators to support 
decriminalizing the possession of small amounts of marijuana. Voters in San 
Francisco, reacting to the federal crackdown on distribution, approved 
Proposition S, allowing city officials to explore the idea that the city 
grow and distribute its own medical pot.

You might write that off as just another example of Bay Area nuttiness. But 
it's consistent with surveys showing that voters favor the medical use of 
marijuana and want more treatment and less punishment for hard-drug addicts.

The administration's crackdown on medical marijuana is both cruel and 
stupid. It violates Bush's own federalism principles, wastes resources, 
fosters contempt and causes still more suffering for sick people.

Somebody should engrave Alex Kozinski's opinion over Ashcroft's door.
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MAP posted-by: Jay Bergstrom