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Peter Schrag: A Message From The Judge -- Is Ashcroft Listening?

Source: Sacramento Bee (CA)
Author: Peter Schrag -- Bee Columnist
Published: Wednesday, November 20, 2002
Copyright: 2002 The Sacramento Bee
Contact: [email protected]

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 "The 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.

About the Writer

Peter Schrag can be reached at Box 15779, Sacramento, CA 95852-0779 or at: [email protected]

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