Editorial: Supreme Fictions 5/18/01

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David Borden, Executive Director, [email protected]

After last winter's election debacle, some observers of Supreme Court jurisprudence remarked on an apparent inconsistency in the court's applications of the Constitutional requirement of equal protection under the law. Equal protection for Florida's voters was so important as to pose an insurmountable standard for carrying out the Florida Supreme Court's order to recount the votes statewide in the time remaining.

Yet in drug cases involving charges of racial discrimination in law enforcement, the court has gone 180 degrees to the opposite, setting an insurmountably high standard for defendants to have the benefit of equal protection. It was not enough, as we noted in our December 15th editorial, for Christopher Armstrong and company to show that not one crack cocaine defendants in Los Angeles federal court over a four year period was caucasian, where many caucasians had been sent to state court during the same period, where penalties were much more lenient. But extreme racial bias resulting from police and prosecutorial choices wasn't enough to satisfy a majority on the court that Chris Armstrong deserved equal protection; Armstrong had to have met the impossibly high standard of proving that Congress deliberately intended for there to be a racial disparity.

This week's Supreme Court ruling on the medical marijuana cooperatives case also raises troubling issues of inconsistency. The opinion, written by Justice Clarence Thomas, found that there is no medical necessity defense available for medical marijuana because Congress deliberately decided when writing the Controlled Substances Act that marijuana has "no accepted medical use."

But for Congress to say this doesn't make it true. Abundant evidence exists, and existed then, to prove not only that marijuana does have medical uses accepted by significant numbers of physicians, but that the process by which Congress and the agencies to which the CSA delegates medical scheduling authority was dishonest and driven by ideology, not science. The same can accurately be said for the parallel necessary determination for placing marijuana in Schedule I (banned even for medical use), having a "high potential for abuse."

This is why the DEA's own administrative law judge, Francis Young, found in a 1988 ruling that the DEA's placement of marijuana in Schedule I was "arbitrary and capricious" and that marijuana is "the safest therapeutically active substance known to man." Young's ruling was simply rejected by the DEA's top cop at the time, Robert Bonner (not known for his nonexistent scientific credentials).

So in ruling against the medical marijuana co-ops this week, the Court allowed Congress and delegated agencies to author a medical fiction and use it to perpetuate a tyranny against medical marijuana patients and their providers. The very sort of tyranny the Constitution arguably was designed to protect against.

Perhaps the Court can plead lack of jurisdiction -- the Congress, some might say, and federal agencies as delegated by Congress, are the proper places for scientific and policy determinations to be made. Those bodies might do so imperfectly, sometimes even dishonestly, but the place to correct that is through the political system. But then why did Judge Young call marijuana's medically banned status "arbitrary and capricious," language with specific legal meaning intended to find the process by which that status was decided as legally invalid?

More importantly, where does Congress derive the right or power to even be involved in such decisions? This leads to another, more fundamental fiction that the Court has perpetuated, this time from a Court of the past. Federal drug prohibition laws have been justified, in substantial part, on the Constitutional clause authorizing the federal government to regulate interstate commerce. This occurred during a time when the courts assisted in dramatically expanding the power of the federal government vs. the power of the states.

In this case, at least, the result is ludicrous. No reasonable person can conclude that having the power to regulate interstate commerce gives the federal government the right, for example, to prohibit individuals from growing marijuana in their backyards. Similarly, the interstate commerce clause cannot reasonably be thought to justify banning freely associating individuals from growing this or any other plant in a community for distribution to patients in that community for medical use. Yet this indefensible legal fiction has been the accepted Constitution justification for a federal drug war for decades. Remember that it took a Constitution amendment to prohibit alcohol. Why not for other drugs?

The question, then, is why justices such as Thomas and Scalia, who purportedly stand for a strict interpretation of the Constitution in its original intent, have not risen in revolt against a legal fiction perpetrated by a past court that dramatically and inappropriately expanded federal police power? A fiction without which federal action against the medical marijuana co-ops could only be regarded as lawless?

Perhaps the true answer is that courts, past and present ultimately are influenced by ideologies far more than their proponents would like to believe, instruments of political power rather than impartial defenders of law and rights.

The current Supreme Court has some work to do if it wishes to be seen otherwise.

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Issue #186, 5/18/01 Editorial: Supreme Fictions | Supreme Court to Medical Marijuana Movement: Drop Dead -- Movement to Feds: Get Real | Study Finds Seattle Drug Arrests Target Blacks, Suggests Decrim Dialogue, Police Chief Suggests Arresting More Whites | In US First, South Carolina Court Finds Drug-Using Woman Guilty of Murder in Death of Fetus | Colombian Coca and Poppy Production Up Last Year Despite Heightened Drug War, Market Crash Ahead? | Thugs Kill New York City Marijuana Retailer, Two Others, Police Blame Marijuana | DEA's Caribbean Office Lied About Arrests, GAO to Investigate | Two Steps Forward, One Step Back in Indiana Sentencing | Canadian Medical Association Journal Calls for Marijuana Decriminalization | Media and Resources: Arianna Huffington, Village Voice, Salon.com, MotherJones.com, U. Miami Law Review, CDC | The Reformer's Calendar
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