Medical marijuana growers win major victory

Bill Berkowitz

04.28.04 - Within hours of a decision by U.S. District Judge Jeremy Fogel allowing the Santa Cruz, Ca.-based Wo/Men's Alliance for Medical Marijuana to resume growing marijuana and distributing it to its patients, Attorney General John Ashcroft took time away from fighting the war on terrorism to petition the U.S. Supreme Court to reverse the federal appellate ruling underlying the judge's decision.

Judge Fogel's ruling was based on Raich v. Ashcroft which, explains Bruce Mirken, director of communications for the Washington, D.C.-based Marijuana Policy Project, was "a case won by patients Angel McClary Raich and Diane Monson, and their caregivers, who argued that because their medical marijuana activities were completely non-commercial and conducted entirely within California, the Commerce Clause as well as the Fifth, Ninth, and Tenth Amendments of the U.S. Constitution give the federal government no right to intervene."

Judge Fogel's extension of the protections of Raich to Santa Cruz's WAMM collective, Mirken said, was "the first time a court allowed a medical marijuana organization to grow marijuana without being subject to raids by federal drug agents."

Over the past three years, the Bush Administration has been fighting a multi-front war against marijuana in general and medical marijuana specifically: Hundreds of millions have been spent on anti-marijuana advertising; the DEA unleashed a series of high profile raids on medical marijuana buying and growing collectives; and the Bush's White House Office of National Drug Control Policy has dispatched deputy directors around the country to testify against medical marijuana legislation and fight against medical marijuana legalization initiatives.

"During the past 18 months," Mirken told me in a phone interview, "the DEA appears to have de-emphasized the raids." Admitting that he was speculating on the reasons for the change in strategy, Mirken allowed that since this is an election year, "Gestapo-like behavior unleashed by previous raids brought a fair amount of negative publicity to the agency. Images of severely-ill people harassed by armed government agents is not an image that Karl Rove, the president's top advisor, would be happy seeing on television.

"Which is not to say that John Walters, the drug czar, hasn't been fighting tooth and nail against medical marijuana," Mirken added. "Of late, Andrea Barthwell, one of a handful of deputy directors at the White House Office of National Drug Control Policy, has been going around the country denouncing medical marijuana proposals and spreading disinformation."

According to Mirken, one of the patented arguments Barthwell trucks out is a claim "there is no support within the medical community for the use of medical marijuana. In fact," Mirken points out, "a large number of medical and public health organizations including, for example, the American Academy of Family Physicians and the American Nurses Association are on record as supporting legal access to medical marijuana with physician's supervision."

Judge Fogel's ruling stems from a September 5, 2002 raid at the collective's marijuana farm by Federal Drug Enforcement Administration agents, where they not only seized some 167 plants, but they also detained several of the group's members. At the time, the DEA raid was roundly denounced by Santa Cruz city and county officials, including local law enforcement officials.

According to a report in the San Francisco Chronicle, "Even [California] Attorney General Bill Lockyer protested the raid, firing off a letter to U.S. Attorney General John Ashcroft in which he called the DEA's actions in Santa Cruz a 'provocative and intrusive incident of harassment.'"

The Fogel decision, which was greeted with great joy by the collective and its patients, unfortunately comes too late for some of the organization's clients. "This is wonderful news for the patients who have really endured a good deal of suffering since the raid," collective attorney and Santa Clara University law Professor Gerald Uelmen said. "Since the raid we have lost more than 20 patients, and there is no question but that their deaths were more painful than they needed to be.

"The Raich decision was really the breakthrough, but this (decision) takes it a step further," Uelmen added. "It says there is no difference between a single patient growing their own medicine and a collective group assisting each other to achieve exactly the same purpose."

"This is an incredible victory for us, though we do realize that everything is temporary," said Valerie Corral, the founder and director of the collective told the Chronicle. "We are so pleased to be able to begin our garden again."

"We are disappointed, but not surprised, that Attorney General Ashcroft has chosen to ask the Supreme Court for what amounts to a license to attack the sick," said MPP Executive Director Rob Kampia. "This administration has waged a war against medical marijuana patients that is completely unrestrained by science, compassion or sound legal principles. Conservatives should be appalled that the Justice Department is arguing that two patients and their caregivers, growing and using medical marijuana within California -- using California seeds, California soil, California water and California equipment, and engaging in no commercial activity whatsoever -- are somehow engaged in 'interstate commerce.

"We hope the Supreme Court will let the Ninth Circuit's decision stand," Kampia added, "but seriously ill patients shouldn't have to depend on the courts for protection. Congress can and should end this cruel federal war on the sick immediately."

Santa Cruz's Wo/Men's Alliance for Medical Marijuana has said they intend to replant their garden immediately, and they should be able to go ahead without fear of the DEA. According to Mirken, "The Supreme Court could decide as early as June whether they will hear the government's appeal of the Raich decision, but until and unless the court actually overturns Raich, Judge Fogel's ruling should stand and the members of WAMM will be safe."

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