U.S. Supreme Court to Hear Arguments in Medical Marijuana Use Case

The U.S. Supreme Court will hear oral arguments today in a California case that could make or break a growing trend in some states towards legalizing medical marijuana.

Maryland Attorney General J. Joseph Curran Jr. has joined with his counterparts from California and Washington in filing a joint amicus brief supporting the respondents, two women who use marijuana as a pain medication.

At issue in the case, Ashcroft v. Raich, is whether federal law enforcement agencies have a right to take action against individuals who grow marijuana at home for their own use where the practice is permitted by state law.

Curran’s support is based on the passage of a law by the General Assembly in 2003 that reduced the crime of possession of marijuana to a misdemeanor if the defendant can convince a judge that it is needed for medical reasons.

It’s consistent with Maryland public policy, he said last week of the state’s involvement in the Supreme Court case. We want to prosecute illicit use but, at the same time, there’s a medical purpose.

Curran conceded that Maryland’s law, which still regards marijuana possession as inherently illegal, whatever the purpose, is somewhat different than California’s, which legalized medicinal usage, but he stressed that the policy intent is the same.

In the case before the high court, Angel McClary Raich and Diane Monson claim the federal government has no authority to prosecute them because the marijuana they use is cultivated in their own back yards and is never transported out of state.

However, the U.S. Department of Justice says it has a right to enforce the federal Controlled Substance Act because it applies to all use, possession and trafficking of illegal drugs.

Under federal law, marijuana is still classed in the same category as heroin.

The 9th U.S. Circuit Court of Appeals agreed with the women that the Controlled Substance Act, as applied to wholly intrastate conduct permitted by state law, overstepped Congress’ authority under the constitution’s Commerce Clause.

A spokesman for the U.S. Department of Justice declined to comment, but in his brief, Acting Solicitor General Paul D. Clement argues that local use of drugs has a substantial and direct effect upon interstate commerce.

This is largely because drugs can later be transported out of state, the brief states.

The federal government also has an interest in controlling intrastate traffic in illegal drugs in order to effectively control interstate trade, Clement notes.

Congress accordingly concluded that regulation of intrastate drug activity was a reasonably necessary means to accomplish its comprehensive regulation of the interstate market, the brief says.

Monson, who uses marijuana to alleviate chronic back pain and spasms, decided to file suit after federal agents raided her home in August 2002.

She was joined by Raich, a medical marijuana campaigner who also uses the drug as a pain reliever for various ailments.

The two plaintiffs initially sought a preliminary injunction and declaratory relief in an attempt to prevent further raids on their homes.

This was denied by a federal judge, but the 9th Circuit reversed the decision.

Pro-marijuana advocates in Maryland, who led the effort in the General Assembly last year, are hopeful that the case could be a watershed.

Bruce Mirken, director of communications for the Washington- based Marijuana Policy Project, which helped mastermind the law change in Maryland, said fear of federal involvement has prevented some states from taking greater steps to legalize medicinal usage of the drug.

It would certainly remove a cloud that some people perceive to be [hanging] above the discussion, he said.

Concern about federal intervention was a factor during the debate in Maryland, Mirken claimed, because some legislators who were against legalization used it to bolster their argument.

The outcome was a compromise that means that anyone charged with possession who can argue successfully that it is needed for medicinal reasons will face only a $100 fine.

The previous maximum sentence was a $1,000 fine and up to a year in prison.

Gov. Robert L. Ehrlich Jr. signed the Maryland bill into law last year despite opposition from the White House.

In an interesting twist, the Cato Institute – a conservative think tank, but also a strong advocate for state’s rights – has, like the Marijuana Policy Project, filed an amicus brief in support of the plaintiffs.

A total of nine states (not including Maryland), have taken action to decriminalize medicinal use of marijuana, the most recent being Vermont.