In a major blow to the Justice Department, the 9th Circuit Court of Appeals today ruled that the federal drug crime statute does not apply to those simply using medical marijuana with a doctor's recommendation:
A federal appeals court ruled today that a law outlawing marijuana may not apply to sick people with a doctor's recommendation in states that have approved medical marijuana laws.
The 9th U.S. Circuit Court of Appeals, ruling 2-1 in a rare late-afternoon filing, said prosecuting these medical marijuana users under a 1970 federal law is unconstitutional if the marijuana isn't sold, transported across state lines or used for non-medicinal purposes.
``The intrastate, noncommercial cultivation, possession and use of marijuana for personal medical purposes on the advice of a physician is, in fact, different in kind from drug trafficking,'' Judge Harry Pregerson wrote for the majority.
The court added that ``this limited use is clearly distinct from the broader illicit drug market, as well as any broader commercial market for medical marijuana, insofar as the medical marijuana at issue in this case is not intended for, nor does it enter, the stream of commerce.''
The case is Raich v. Ashcroft, 03-15481, the decision is here.
Update: Randy Barnett, a blogger over at Volokh, argued the case. Here's his description of the ruling....warning, it's in legalese:
....the majority is a straightforward adoption of the Commerce Clause doctrine already adopted by the Ninth Circuit in US. v. McCoy and U.S. v. Stewart. Because the class of conduct at issue in this case--the cultivation and use of cannabis for medical purposes--is completely noneconomic, the aggregation principle of Wickard v. Filburn does not apply (as per the Supreme Court in U.S. v. Lopez and U.S. v. Morrison). There is no other jurisdictional "hook" in the Controlled Substances Act and the connection between the class of activities here and interstate commerce is too attenuated.
Update: Howard Bashman of How Appealing lists these news stories on the decision:
Additional press coverage of yesterday's medical marijuana ruling of the U.S. Court of Appeals for the Ninth Circuit: Henry Weinstein of The Los Angeles Times reports that "Medical Pot Users Win Key Ruling; The U.S. can't prosecute patients who use it on the advice of a physician and obtain the drug at no charge, an appeals court panel rules." Bob Egelko of The San Francisco Chronicle reports that "Medical pot wins a legal victory; U.S. appeals court ruling is likely to face a challenge." And Claire Cooper of The Sacramento Bee reports that "Major ruling favors medical marijuana."
Posted Tuesday :: December 16, 2003 | TrackBackIn other coverage, The San Francisco Examiner reports that "9th U.S. Court protects pot patients." The Oakland Tribune reports that "Appeals court orders feds to halt pot raids; 'We feel we've been vindicated after a long, hard effort,' attorney says." The San Jose Mercury News reports that "Court exempts medicinal pot from federal ban." The Seattle Times reports that "Appeals court upholds medical marijuana use." And The Seattle Post-Intelligencer reports that "Ruling bolsters medical marijuana law; Court says those who use for medicinal reasons are exempt."
It's like diggin a ditch with a teaspoon...
Posted by: letharjk on December 16, 2003 08:25 PMWe'll wait and see....
Posted by: Patrick on December 16, 2003 09:46 PMright on judges
Posted by: el lurker on December 16, 2003 10:05 PManybody heard of operation overgrow?
Posted by: el lurker on December 16, 2003 10:06 PMThe importance of the courts
more reasons to get rid of Bush before he does more harm.
A good thing.
Posted by: on December 17, 2003 09:18 AMThe very idea that Marijuana is so persecuted in this country, while children are forced to take the mind control medications, Concerta and Ritlian, in order to attend school, shows the unreasonable bias of politics in medicine.
Marijuana is a safe effective drug, which eases the suffering of sick and dying people with few side effects. Ritlian is known to cause brain damage, and in reality is similar to drugging mental patients in order to control them. I personally cannot believe that Marijuana is still illegal in 2003. The law is certainly not based in science, or concern for the welfare of the American People.
Stop Ritlian now and Legalize Marijuana.
Marijuana is safe? I haven't heard that one before.
Posted by: Patrick on December 17, 2003 09:34 AMThanks for the link to Randy's blog on the case. For all those commenters who doubt what the S. Ct. will do, go over and read Randy's writeup. The shorthand for his (as Jeralyn noted) legalese is that, during the New Deal, the Supreme Court held in Wickard v. Filburn that Congress' power to legislate under the Commerce Clause was virtually unlimited and thus could reach anything on which Congress wanted to legislate.
That was the largely undisputed constitutional interpretation until the recent Rehnquist court cases (Lopez and Morrison) to which Randy refers. In those cases, the Court circumscribed Wickard by, among other things, saying that the activity involved had to be genuinely commercial in nature, and not simply indirectly affecting or affected by interstate commerce. They did that to limit federal laws they didn't like, saying governance of those activities was left to the states as a matter of federalism.
So now the Court is put in the position of being hoist on its own petard. The interesting thing, as Randy notes, is that this applies to both sides of the Court. Given the facts here, especially the reality of state legislation, the right-wing side has essentially no basis to distinguish this case from their earlier ones limiting Wickard. But the same is true for the dissenters, who to uphold the 9th circuit would have to give up their opposition to Lopez and Morrison and accept their limitations as binding precedent.
It's also interesting that the dissenting judge in the 9th circuit had to basically ignore the S. Ct.'s holdings in Lopez and Morrison, and rely on a completely unrestricted interpretation of Wickard. That approach sounds to me like it came from Bush v. Gore -- "I'll only apply our own precedents when they give a result I like." Bad enough when the S. Ct. does it; even more indefensible when a lower court does it.
Posted by: Steady Eddie on December 17, 2003 09:52 AMLegalization at the state level has the potential to sabotage the drug war, regardless of federal court rulings. Even if the feds don't recognize state decriminalization of pot, the states aren't required to enforce federal anti-drug laws.
Currently, pot takes up the largest share of drug war spending. And the feds depend heavily on interjurisdictional task forces in which state and local law enforcement bear the brunt of the work.
If a state withdraws its support and tells the feds "you're on your own"--well, you do the math.
Posted by: Kevin Carson on December 17, 2003 10:30 AMPatrick, for your enlightenment regarding the safety of marijuana, I recommend you buy a copy of "Marijuana Myths, Marijuana Facts" by Dr. John Morgan and Lynn Zimmer. Chapters 7 through 18 discuss the actual science (as opposed to prevailing propoganda) pertaining to the physiological and psychological effects of marijuana use. I think it is fair to conclude from the evidence that, used responsibly, marijuana consumption is safe.
Posted by: T Chris on December 17, 2003 10:58 AMI think deep down Patrick knows if mj were legalized, him or some of his co-workers would more than likely be laid off and be forced to look for a real job. (One not based on harassment and suffering)
Posted by: kdog on December 17, 2003 12:30 PMkdog,
Your belief of the impact of marijuaua legal or illegal, on my job is laughable.
T-Chris,
I have that book, and have looked at it the past. I be happy to check it again. If I recall correctly, this refers to the mild intoxicating effects, not the potential side effects of taking unfiltered, carcinogenic smoke into one's body. Oh yeah, there's always vaporisors...
Posted by: Patrick on December 17, 2003 01:31 PMOr cigarettes, right Patrick.
I always come back to the point that it is no ones business what I put in my body. (Emphasis on I and My) Not my governments, not Officer O'Malley on the beat, not anyone.
Posted by: kdog on December 17, 2003 02:38 PMKdog,
And if everyone behaved as you claim you would, we would have much fewer problems in the world. But as it is, people fill their bodies with all kinds of legal and illegal substances, then act violently, drive vehicles, commit suicide, get lost, or whatever, causing an impact to society. What you put in your body is no concern of mine, unless your behavior after the fact causes it to be. Unfortunately the "few" have spoiled if for the "many" or in this case vice versa.
And the cigarette argument won't fly. Tobacco is as big, if not a bigger business as marijuana, yet for some reason, we don't see people growing tobacco plants? Why is that?
Posted by: Patrick on December 17, 2003 02:49 PMPatrick~
Easy answer, it is not cost effective for people to grow their own tobacco when the average cigarette costs approx $.20 a piece, while the same amount of marijuana that you'd find in one pack of cigarettes costs 100x that amount (yeah that's right, good quality MJ can run $400/oz. of course it depends on where you live and how many hands it's been through).
You imprison simple possession of non-violent citizens and claim you are doing society a favor, condemning all marijuana users to the draconian laws this country has in place. Where's the logic in that?
Why is it that I have to deal with prescription medicated drivers on the road, half of which are not paying attention to what they are doing and by definition are affecting the safety on the road, while basing the argument that MJ users are a danger to society.
I have a libertarian pov in that the gov't should have no say in what I do with my body as kdog mentioned. In that, what I do at home does not affect anyone else, so why should I feel like a criminal because of these assinine laws or fear prosecution because I'd rather smoke a joint than drink a beer. If another crime is committed while under the influence of a narcotic (alcohol/MJ) then yes, there are consequences to be had - but down and outright imprisonment for possession is ludacris!
MJ laws need to be changed, sure there will be people that are problems to society as there are now, but taking a more rational approach to MJ use instead of locking people up with murderers, rapists, and other violent criminals is just common sense. Are you trying to create more criminals or are you trying to help people? Putting people in jail doesn't solve the problem, it just creates more problems.
My 2 cents worth~
Posted by: WackyWeed on December 17, 2003 03:25 PMPatrick, I concur that MJ causes a host of health problems, very severe driving incidents, and is addictive. But like alcohol, which causes similar effects, I don't think prohibition is the best way to deal with these problems.
Posted by: Jason on December 17, 2003 04:05 PMAnd the cigarette argument won't fly. Tobacco is as big, if not a bigger business as marijuana, yet for some reason, we don't see people growing tobacco plants? Why is that?
Because people don't get arrested by undercover cops posing as convenience store clerks when they try to buy tobacco products.
What's your point?
Posted by: cmdicely on December 17, 2003 04:26 PMConsider for a moment that, if legalized, the cost of MJ would become so low that smoking it would not be the only cost-effective method of ingestion. One could grow or buy large quantities of quality MJ for dirt cheap, literally, and thus brew teas, bake foods, and create extracts which provide a much safer path of ingestion.
In a sane society, we would actively promote healthy behaviors, and accept each individual's domain over their body and spirit.
Place your mind outside the box.
Posted by: Lopan on December 18, 2003 07:08 AMWhat you put in your body is no concern of mine, unless your behavior after the fact causes it to be.
Patrick, we are finally in agreement. People who use mj responsibly -- who don't drive under the influence, or get too stoned to supervise their kids -- should not be bothered by law enforcement. Now that we agree on that point, I urge you to join NORML, which has long advocated the elimination of criminal penalties for the responsible use of marijuana.
Posted by: T Chris on December 18, 2003 08:30 AMPatrick, there are laws to regulate behavior. I have no problem with laws against murder, rape, robbery and the like. I just don't see or believe that these crimes have anything to do with mj. And to imply that the economic aspect of prohibition is irrelevant lacks common sense. Are you saying police dept.'s and DA offices don't allocate funds in their budgets to arrest and prosecute mj users? If it were legalized, how could you justify these budgets? Not to mention the prison industry, one of the fastest growing in the nation.
Posted by: kdog on December 18, 2003 08:33 AMPatrick = Polly prissypants
Posted by: on December 18, 2003 09:43 AMWow, someone left the door open at the asylum.
For those of you with logical arguments,
Tobbacco is still costly, but the point was there's more to the process of cigarette use than simply growing a weed. Tobbacco plants are much more time intensive to cultivate, therefore it's easier to control and then TAX as some who support legalization have suggested.
I'm speaking of California law now, for those of you who don't know the difference or don't care.
I don't imprison anyone. I simply follow the law that society has set, and if people are found guilty and sent to prison because of a law you disagree with all you have to do is get enough support, and change it. Just don't count on my support for this change. California is a decriminaluzed state. The maximimum penalty for less than 1oz is a ticket and a fine. That's the black and white, the reality is unless it's possessed for sale, you pretty much have no problem and won't even be cited unless you're a kid on school grounds. There is no magical weight that makes what a person is possessing automatically a sales case, as I have heard others claim before. There must be a showing of actual intent to sell, ie packaging material, scales, pay & owes.... I think this is a reasonable balance and should be status quo.
People under the influence of prescription drugs who drive may also be violating the law, if the level of impairment effects their ability to operate a vehicle. It's the same with every intoxicant, legal or illegal. What's your point?
If it was legal and abundantly available, there would be other ways to use it... Yes of course there would be, and there are right now. As I've said in the past, I'm not against medical marijuana, although I think it's largely a placebo and a used as a trojan horse for recreational legalization.
However, as with alcohol, which is heavily taxed to help off-set the costs associated with treatment, injury, ill-health etc, that comes with abuse, how would you off-set the costs of these same problems with marijuana. Keeping in mind that is is very difficult to control becuase it is so easily cultivated and I certainly do not want my taxes raised. My point is not that the economic impact of prohibition is irrelevant, it's exactly the point.
As for joining NORML or any other organization with similar stated goals, I don't fully support their agenda, and in many cases find myself opposed to them and their philosophies. Doesn't make them wrong, just me excercising my freedoms.
My department received approximately 17,000 dollars from the federal government via grants for the enforcement of marijuana laws. I didn't do the math, but a it's certainly a percentage of a fraction of a percentage of the total budget.
Patrick-
We agree again! I am looking out my window to see if there are any pigs in the sky.
The only issue I have with what you say is over taxation. While I would be thrilled to pay a tax, and smoke legally, even if there were no tax, we would still save money by legalizing pot. Your state has already saved a ton of money by not jailing users. Good for California! They also make some money through the fines (maybe just a different method of taxation?).
Decrim saves a lot of money, legalization would save more. Some people (like me) cant grow anything. We would go to stores and pay a tax.
You and I still disagree on physical harm caused by MJ (my life ins co. says you live 7 years longer if you smoke). I am sure that we will disagree on many more issues. It is nice though, to hear a cop who is rational on this topic
Wow. I applaud the court's courage. Now let's start a pool to bet on how many days it will take the Supremes to overturn this astonishing display of common sense.
Posted by: T Chris on December 16, 2003 07:30 PM