Justices deal blow to medical marijuana

By Dan Nakaso
Advertiser Staff Writer

The U.S. Supreme Court's ruling yesterday that marijuana has no medical benefits puts Hawai'i's registered medical marijuana users in legal limbo. But supporters believe the decision ultimately will have little effect in the Islands.

As of June last year, when Hawai'i's medical-marijuana program was signed into law, Tom Mountain could legally smoke marijuana that was prescribed to him for back pain. Advertiser library photo • June 14, 2000

"Whereas some other drugs can be dispensed and prescribed for medical use ... the same is not true for marijuana," Justice Clarence Thomas wrote in the unanimous decision. "Indeed, for purposes of the Controlled Substances Act, marijuana has no currently accepted medical use at all."

The 8-0 ruling all but invalidates measures adopted in eight states that give sick people a "right" to obtain marijuana for medical use.

Because federal law trumps state laws, the ruling makes clear that the distribution of marijuana is illegal throughout the United States.

However, it is not clear that federal authorities will be able to enforce the prohibition. Advocates of medical marijuana said they are confident that jurors in the eight states will not convict those charged with giving marijuana to a sick person.

Moreover, federal agents are spread too thin to enforce the law, they said.

California was the first state to approve a measure giving seriously ill people a "right to obtain" marijuana for medical purposes. Seven states have adopted similar measures: Alaska, Colorado, Hawai'i, Maine, Nevada, Oregon and Washington.

The court's ruling does not squarely address whether the use of marijuana by sick people is illegal.

Gov. Ben Cayetano signed Hawai'i's medical-marijuana program into law in June after impassioned testimony before the Legislature that marijuana relieves chronic pain, glaucoma and AIDS symptoms, among other ailments.

Patients registered with the Department of Public Safety can have no more than three mature marijuana plants, four immature plants and one ounce of usable marijuana per mature plant.

But the law is mute on where the patients should get their plants and marijuana.

Because Hawai'i's law has no provision for growers' clubs, the court's ruling should make little difference here, said Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws in Washington, D.C.

Hawai'i, like many of the other states with medical marijuana laws, specifically "chose not to develop any means for marijuana distribution," St. Pierre said. "So they should not be subject to any ill effects from this ruling."

Dennis Shields of Captain Cook on the Big Island was one of the first to register for Hawai'i's medical-marijuana program. He sees no reason to stop using marijuana to ease his chronic pain.

"The ruling is a shot across the bow but I don't think it delivered a fatal wound," he said.

U.S. Attorney Elliott Enoki and Ted Sakai, director of the state Department of Public Safety that implements Hawai'i's medical marijuana program, were less certain of the ruling's ramifications.

The 187 people registered with the Department of Public Safety are safe from state prosecution, Sakai said. "But we've told them from the very beginning that they could be prosecuted under federal law. They've always known that."

Enoki wants to consult with others in the Justice Department because "it appears to me that it is not entirely resolved." Until then, he said, the registered medical marijuana users are "free to read the opinion themselves and get legal advice."

The case centered on the Oakland Cannabis Buyers' Cooperative, one of several cannabis clubs that sprang up after California voters approved a referendum in 1996 permitting people with notes from their doctors to use marijuana.

The Justice Department asked Federal Judge Charles Breyer to issue an injunction closing the Buyers' Cooperative — which he did in 1998. Breyer is the brother of Justice Stephen G. Breyer, who recused himself when the case came to the Supreme Court.

The cooperative appealed to the Ninth Circuit Court of Appeals, which ordered Charles Breyer to rewrite his order to permit the cooperative to continue distributing marijuana to those who could prove that it was a "medical necessity."

Arguing that this could create a massive loophole in federal drug laws, the Clinton administration appealed to the Supreme Court, which issued its own order last August keeping the cooperative shut until it could decide the case.

In a concurring opinion yesterday, Justice John Paul Stevens, joined by Justices David H. Souter and Ruth Bader Ginsburg, agreed with Thomas' opinion but expressed concern that it may have been too sweeping.

"Most notably, whether the (medical necessity) defense might be available to a seriously ill patient for whom there is no other means of avoiding starvation or extraordinary suffering is a difficult issue that is not presented here," Stevens wrote.

In addition, Stevens said, "The overbroad language of the Court's opinion is especially unfortunate given the importance of showing respect for the sovereign states that comprise our Federal Union."

"We share Justice Stevens's concern," Thomas replied. "However ... because federal courts interpret, rather than author, the federal criminal code, we are not at liberty to rewrite it."

Don Topping, president of the Drug Policy Forum of Hawai'i, believes the court's ruling will merely keep the informal supply of medical marijuana underground.

"I definitely see it as a boon to the black market," he said. "Without some kind of buyers club here, I'm sure they're cheering and having parties. It's definitely a victory for them."

The ruling also could push some toward Roger Christie's Religion of Jesus Church and the Hawai'i Cannabis Ministry he runs on the Big Island with Jonathan Adler. Christie and Adler have provided marijuana to hundreds of people wanting it for medical reasons in the last three years, often for free.

They believe that more patients will turn to them under the protection of religious freedom.

"The Supreme Court decision knocks out cannabis clubs but will be a great big boost for our ministries to provide the healing herb that people so desperately need," Christie said. "We expect a giant blessing from this decision."

Advertiser wire services contributed to this report.