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Thursday, Nov 26, 2009
Beyond that hypothetical outcome, observers agree that the main effect of the ruling will be to shut down buyers' clubs. Where they disagree is on how much impact that will have. Dave Fratello, who as campaign manager for the medical marijuana advocacy group Americans for Medical Rights has helped push through eight state ballot initiatives, acknowledged that "you won't see new clubs above ground," but downplayed the effect of that: "It's hard to say there'll be any concrete effect on anyone's activities. There's word of mouth and an extensive underground. The only thing missing is a storefront signifying an above-ground operation. And that's symbolic."
Daniel Abrahamson, director of legal affairs for the George Soros-backed Lindesmith-Drug Policy Foundation, a liberal advocacy group, also downplayed the ruling, saying, "I think the decision will have fairly little practical import. Most patients don't use buyers' clubs. Most grow their own or get it elsewhere." Pointing to the fact that use by individual patients was not considered by the court, Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws, agreed, saying, "The legal use of medical marijuana by seriously ill patients in states that have legalized its use is neither threatened nor challenged by this decision."
But San Francisco district attorney Terrence Hallinan, who is a firm supporter of Prop. 215, believes the ruling will have a significant impact. "I'm surprised at the breadth of the decision," he said. "The court seemed to go out of its way to knock out any medical necessity defense." As a result of the ruling, Hallinan expects above-ground buyers' clubs to close down or be closed. "I'm disappointed," he said. "The people of San Franciso, Calif., and the nation feel medical marijuana should be available. It's a backward move." Few marijuana prosecutions are handled at the federal level, but on the infrequent occasions when the government does step in, he expects it to continue its politically safe policy of seeking only civil injunctions against buyers' clubs. However, he thinks the ruling could also result in criminal prosecutions -- and believes that if it comes to that, the feds will find juries to convict.
As these comments indicate, what the court's ruling immediately affects -- perhaps the only thing it affects -- is distribution. Afraid of going after sick people directly, the court concentrated on manufacturing and distribution -- the pushers, if you will. But if the court is also telling individual patients that medical marijuana is acceptable for them, as at least the concurring opinion seems to, then the ruling is not only vague, it's self-contradictory and ultimately morally untenable. What's the point of telling sick people it's OK to smoke pot to relieve the symptoms of AIDS or the agony of chemo, but denying them a legal means of acquiring it? The buyers' clubs came into existence to address this very problem -- but it's the buyers' clubs that will be driven out of business or underground by this ruling.
In the end, the impact may be largely symbolic. In California, ground zero in the medical marijuana fight, there is only one high-profile buyers' club still operating (in Los Angeles), and it has only 860 active members. Activists interviewed were not aware of any other club with, in effect, a shingle hanging over its door anywhere else in the country. Even the Oakland Cannabis Buyers Cooperative, whose successful distribution led to the case finally before the Supreme Court, only had between 6,000 and 7,000 "certified" members.
But symbolic or not, not surprisingly, many people close to the issue in the state were bitterly disappointed with the ruling. Beverly Hills attorney Alan Isaacman, who has defended medical marijuana defendants, said, "Patients are being treated like criminals doing something outside the law. The government ought not put sick people in that position." Scott Imler, head of perhaps the highest-profile club in the country still distributing pot, said, "We're tired of the hiding, tired of the shame -- we wanted to move past that. We're not prepared to go back to hiding or to buying on the streets."
Jeff Jones, co-founder and executive director of the Oakland Cannabis Buyers Cooperative named in the case, said, "As the facts stand, we're banned." But he believes today's ruling opens new avenues of litigation involving the right of patients to remain free from harm.
The ruling's effects on states that have passed medical marijuana initiatives remain unclear. In a statement yesterday, California Attorney General Bill Lockyer expressed regret at the decision, saying it was "unfortunate that the court was unable to respect California's historic role as a ... leader in the effort to help sick and dying residents who have no hope for other relief than through medical marijuana." Lockyer promised to review the ruling "before any conclusions are reached or recommendations are made about California law."
