June 15, 2005

"The only description I can come up with is that it looks like a Cheech and Chong movie."

We heard a lot about California's medical marijuana law last week when the U.S. Supreme Court held that Congress's power to regulate the possession of marijuana extended all the way to homegrowing medicinal users. But users and distributers in the state did not instantly readjust their behavior. Nothing forces federal prosecutors file charges, and it is unclear how the ruling will affect state prosecutors. To what extent are federal and state authorities now at odds with each other? Maybe not as much as you might think.

Here's a front-page NYT article suggesting that, quite aside from the conflict with federal law, California authorities have been having difficulty with their own Compassionate Use program, particularly the dispensaries or "pot clubs" that distribute marijuana, presumably to those who have a doctor's authorization:
Capt. Rick Bruce of the San Francisco police said more marijuana was on the streets than at any other time in his 30 years with the department. Captain Bruce said that while there were many sick people who legitimately turned to the drug for treatment, countless dealers had used the dispensaries as a cover for illegal sales.

"It's a huge scam," said Captain Bruce, who heads the city's Bayview station, which covers some of the highest-crime neighborhoods. "We see guys coming out of these places, and the only description I can come up with is that it looks like a Cheech and Chong movie. They are what you would call your traditional potheads; whether they have a medical condition beyond that is subject to debate."...

Getting inside the dispensaries, many patients say, is not difficult. Under the state law, would-be marijuana users seeking relief from a range of ailments, from chronic pain or nausea to cancer or AIDS-related symptoms, must receive a doctor's recommendation, which is roughly the equivalent of a prescription for federally approved medicines. If their usual doctors are reluctant to make a referral, patients can turn to "compassionate physicians" who advertise their services in newspapers and on the Web.

One of those physicians, Dr. R. Stephen Ellis, whose practice is explained on www.potdoc.com, promises to refund examination fees if an appointment does not result in a recommendation. MediCann, a chain of 10 clinics in the state run by a Santa Cruz doctor, Jean Talleyrand, processes about 700 patients a week, with about three-quarters of them getting a recommendation, said a spokesman, Nicholas Jarrett....

When some drug dealers are arrested, even with large quantities of marijuana, Captain Bruce said, many of them produce a medical marijuana card and insist they have done nothing wrong.

"It might as well be the summer of love out here," Captain Bruce said.
If we think the value of federalism is that the the states will serve as "laboratories of democracy," conducting policy experiments, we need to take a scientific attitude when we assess the results of the experiment. That means looking at all the evidence the experiment produces. We can't limit our view to the very sympathetic, suffering patients who brought the lawsuit that made it to the Supreme Court. They were genuinely ill, and they grew their marijuana at home. The dispensaries and the doctors are a different part of what has happened in California after the medicial marijuana law passed. As you form your ideas about what is good policy, you need to think, unsentimentally, about the whole picture.

2 comments:

Wave Maker said...

Was this information part of the record in the lower courts? If so, I can see how these facts would affect the justices.

Bruce Hayden said...

I would suspect that the problem at the Supreme Court was precisely the opposite - these facts were not in evidence. The question arises whether appeal judges should be able to include their own life experiences into their decisions, or should restrict themselves to the records before them.

The problem with the one is the legal adage, Bad Facts make Bad Law. Fifty years from now, we won't really consider the unpublished facts in the recently decided SC case. What we will remember, and will be taught, is the tension between Scalia's and Thomas' federalism theories.

So, from that point of view, judges shold stick to the facts before them.

But, of course, they are human, no matter what they want you to believe (esp. at legal functions).