Will the Garden Grow?
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"WAMM is a club you literally have to be dying to get into," says Val Corral, co-founder of the Wo/Men's Alliance for Medical Marijuana in Santa Cruz, California.
As if to illustrate her point, the photos of 140 WAMM members who've died cover "The Wall of the Dead" in the collective's office. They are only barely outnumbered by the group's 175 surviving members, including spiritual luminary Ram Dass and novelist Robert Anton Wilson, whose access to pot's pain-relieving, nausea-inhibiting properties hangs in the balance on the opposite coast.
And yet, the value of medical marijuana itself will hardly be considered in the landmark medical marijuana case currently before the Supreme Court. Recently, Supreme Court justices heard Raich v. Ashcroft, a case centered on two chronically ill California women, who want the feds to stop interfering in their medical marijuana use.
Though 11 states (Montana is the most recent) allow some medical marijuana use, the federal government continues not to recognize marijuana's medical usefulness, nor to address the question of legalizing it across the board.
Instead, the Supreme Court debate on the case, Raich v. Ashcroft , has been framed in terms of interstate commerce. Bruce Mirken of the Marijuana Policy Project has been dumbfounded to hear the justices invoking Wickard v. Filburn, a 62-year-old Supreme Court decision used to uphold Congress' efforts to support grain prices by controlling wheat production. But he holds out some hope for a medical marijuana victory.
"Certainly some previous decisions suggest some justices have respect for states' rights and the commerce clause," says Mirken. "Theoretically, the feds' ability to ban illicit drugs comes from its ability to regulate interstate commerce. But the feds arguing that two women in California, using their own soil and equipment, and not selling anything, are engaging in interstate commerce – I'm sorry, but that's crazy !"
Crazy like a radical right-wing activist judge.
"It looks like Wickard to me," said Justice Antonin Scalia on hearing preliminary arguments on Nov. 29, including those from attorneys for Angel Raich and Diane Monson, who argued that the pot their clients use is not grown for money and never crosses state lines.
Said Scalia of marijuana cultivation, "Why is this not economic activity? This marijuana that's grown is like wheat. Since it's grown, it doesn't have to be bought elsewhere."
Waves of Grain
The Supreme Court's ruling is expected by spring 2005, and will quickly reverberate across California, since Raich, who lives in Oakland, has the exact same thing at stake as WAMM: protection from the feds.
Raich, who uses cannabis to treat scoliosis, endometriosis, severe headaches, chronic nausea, seizures, uterine fibroid tumors and a brain tumor, first joined forces with Diane Monson, who grows and uses pot to treat severe back spasms, two years ago. Their alliance began after DEA agents raided Monson's garden in Oroville, in Butte County. After a three-hour standoff with local law enforcement, the federal agents seized and destroyed Monson's six pot plants. Outraged, Raich and Monson petitioned a federal district court in California to force the DEA to butt out of their doctor-prescribed medical marijuana use. Though that court refused to grant their request, the 9th Circuit Court of Appeals subsequently ordered the lower court to issue a preliminary injunction.
WAMM, whose garden of 167 plants was raided a month after the Monson bust, subsequently won a similar injunction against the feds. Until it was issued, the Corrals – who were arrested during the 2002 raid, but released the same day – were living in legal limbo, thanks to a clause in the Controlled Substances Act that allows the feds to forfeit people's property up to five years after a bust.
Their federal fears temporarily assuaged, the Corrals began growing another pot garden, including a monster named Victoria which WAMM cheekily billed as "Our country's first federally protected marijuana plant."
The U.S. Justice Department, however, immediately appealed the Raich injunction to the Supreme Court, hence the Nov. 29 hearing. Should the justices rule against Raich, the Corrals would reopen themselves to the possibility of forfeiture if WAMM grows another garden next spring.
And so far, the case does not appear to be going in their favor. Supreme Court justices met the Raich/Monson states' rights defense with more than a little skepticism. Acting Solicitor General Paul D. Clement argued that it would be impossible to allow medical use of marijuana while banning recreational use. And the U.S. Justice Department maintains there is no separation between private marijuana use and interstate commerce, insisting that homegrown pot stimulates the illicit drug market by increasing the amount of marijuana available in the nation.
As Santa Cruz attorney Ben Rice, who represents WAMM, explains, "The feds believe that if you let marijuana be grown like this, prices will come down and it will be easier for people to use more of it. And then there's the fact that people believe that if you want to stomp on the left, keep going after marijuana, because they're the folks most likely to be caught with it."
Rice, who attended the Nov. 29 Supreme Court hearing in person, admits that it was not what he was hoping for. He says the two justices who've already had cancer, Sandra Day O'Connor and Ruth Bader Ginsberg, both seemed sympathetic to Raich and Monson's case. Since Clarence Thomas, who didn't say anything that day, and Rehnquist, who was not in court because of ill health, are big on states' rights, he thinks the case could go WAMM's way.
But he says that once Randy Barnett, a Boston University Law School professor who's representing the two women, got up, "The knives came out."
"There was no sympathy from Justices Antonin Scalia and Anthony Kennedy," says Rice. Justice Stephen Breyer, who told Barnett that his clients should ask the FDA to reclassify marijuana as appropriate for medical use, was "really unsympathetic," says Rice.
In the end, framing the debate as a states' rights argument, rather than emphasizing compassion for the sick and dying, is a strategic decision by Raich and Monson's attorneys that Rice says may or may not backfire.
"It's easy to say in hindsight, 'Oh, they goofed in taking that tack', but we usually always also argue the right to ameliorate pain when someone is close to death," he says.
If the court rules against Raich and Monson, Rice says the Corrals likely wouldn't be in danger if they cease to operate WAMM, "but if they continue to do so, they definitely risk being arrested and having their property forfeited."
As for where a loss in the Supreme Court would leave the rest of California's medical pot users in general, Rice believes individual patients aren't going to be at risk, given the state's medical pot initiative and the county's three-pound limit, but cannabis clubs, coops and dispensaries could be in danger.
"The alarming part of all this is that patients who aren't able to grow their own medicine, or grow with others, will be back to buying on the black market, a situation in which they'll have no control over the quality of the pot they buy, including whether it was grown organically or with pesticides," he says.
With Santa Cruz County Sheriff Mark Tracy having resigned Dec. 1, Rice hopes that Chief Deputy Steve Robbins, who'll take over until the next election, will continue to treat marijuana as a community health issue.
"The three-pound limit is not that much if you're really sick," says Rice, noting that someone who smokes a pack a day consumes five pounds of tobacco annually. But whatever happens in the Supreme Court, Rice says the justices' decision won't gut California's medical marijuana laws.
"It's just gonna make it more difficult to produce pot," he says, noting that the Supreme Court has also left the Conant decision intact, thereby protecting doctors' rights to discuss and prescribe marijuana.
The Big Picture
Meanwhile, MPP's Bruce Mirken says whatever happens in Raich v. Ashcroft, time will show that Bush was on the wrong side of history.
"In Montana's 2004 election, medical marijuana outpolled Bush by three points, " says Mirken. This despite the fact that Montana was a "red state" in which Bush clobbered Kerry with a 59 percent win – medical marijuana did even better, winning in a 62 percent landslide.
He also notes that support for case currently before the Supreme Court has come from some conservative quarters, including the states of Alabama, Louisiana and Missouri, which take a hard line on drugs and punish first-time users with prison sentences as long as 10 years.
"These three states aren't exactly a den of pot-smoking hippies the last time I looked," Mirken says. "Their support is more about preserving states' rights, than promoting medical marijuana use."
So, while Mirken feels it would be a tragedy if the women don't prevail in Raich v. Ashcroft, "The fact is that the train has already left the station."
"Thirty years from now, we'll look back at the current federal policy of jailing medical marijuana growers as every bit as incomprehensible as the burning of witches," he says. "Ultimately, we will win. Whatever the Supreme Court rules, it cannot overturn Prop. 215, and the protections of patients in California and other states with medical marijuana initiatives."
WAMM, of course, is also contemplating what it will do in the unhappy event that the Raich case goes south.
"To quit at this point is to lose every step forward we've taken," says Corral. "The real question is how to succeed in a way that not only saves lives but our own work, too ...other than writing a book from jail."
Corral hasn't forgotten that the city and the county of Santa Cruz have put their necks on the line here, too, thanks to staged medical pot giveaways on the steps of City Hall following WAMM's 2002 bust, and the county's recent OKing of a three-pound-per-person limit for medical marijuana users and the introduction of a medical cannabis voluntary ID card. She realizes there's a lot at stake in this case for a lot of people.
"I don't for one moment want to deny the importance of what has already happened, " says Corral. "We grew the only legal medical marijuana garden in the nation that didn't belong to the government."
But she has to be realistic about the possibility that whatever protections WAMM has now could quickly be lost, and yet the group's work must somehow continue.
"The feds' actions have not stopped the suffering of our patients. They haven't cured anyone with their policies. There is no cure for AIDS. Not one paraplegic is up and running. All they offer is suffering, so for us to stand down in face of that would be an absurdity," she says. "There's always something else we can do."
That something else, says Corral, could take the form of small collectives that maintain a low profile and work together to share their knowledge of growing cannabis.
Weirdly enough, though, all of the current obstacles have made her even more resolute.
"We cannot continue to close hospitals and kick people out of vets' homes here, and destroy people's medicine, while blowing up other people's countries," she says. "It's suffering that makes people say 'No more!' and which inspires WAMM to carry on, no matter what."
Many people are under the impression that a negative Supreme Court ruling would make medical marijuana illegal, and Andrea Tischler of the medical pot-friendly Compassion Flower Inn in downtown Santa Cruz realizes that. But she wants people to remember that individuals with a medical marijuana prescription will still be protected by Proposition 215.
Tischler does, however, note that there continues to be a Catch 22 – people who have medical pot recommendations but can't grow their own can't get their medicine, since there currently aren't any dispensaries in the county.
"Maybe we'll have to go underground on the growing front, and take care of it in our own community. WAMM is very visible, very public. So, maybe we will need to form smaller groups, with 20 people in each cell, until this difficult period passes, which hopefully will be over in four more years, with impeachment always being an option."
Tischler says that with an estimated 1,500 medical pot patients in the city, and 4,000 patients countywide, most have to hop on a bus to Oakland or San Francisco to buy an eighth to last a week or two.
Which is why Tischler's been in communication with the Santa Cruz City Council, asking if they're in favor of a city ordinance allowing medicinal users three pounds of dry mature cannabis buds, 100 square feet of garden canopy – and a greater amount with a doctor's approval.
She'd also like the city to pass a resolution making cannabis possession a low law enforcement priority, and see a task force recommend where dispensaries and cooperatives can operate in the city.
Devil in the Details
Santa Cruz Mayor Mike Rotkin says he supports the idea of a citywide ordinance, though he thinks we're already covered by the county ordinance. He says the SCPD already makes a low priority of enforcement against people for private use.
Rotkin is not however a fan of the task force idea, preferring to amend current ordinances to allow dispensaries in locations that seem appropriate – namely ones not close to schools, residential zones or downtown in the commercial area. That leaves the city's large industrial zones – an idea that seems to fit those of Capitola Police Chief Rick Ehle, who concluded, after 25 years in Oakland, that most major turf battles were about selling pot.
"I'm not taking a position against medical marijuana," says Ehle, " but if we had community or commercial grows with guards, that would be great from a public safety point of view. Three pounds of pot, or six if there's two patients growing together, in a house is too much, when you can have your throat slit for $500 or less."
A Capitola resident recently did in fact have his throat slit, in an incident that illustrates the safety issue that often gets left out of the medical marijuana debate. Gang affiliates from Southern California violently burglarized a home in Capitola where the occupant was growing large quantities of bud. Though the victim survived being stabbed and shot multiple times, Ehle worries about what it means for the safety of residential communities to have large medical marijuana gardens in their midst.
WAMM member Suzanne Pfeil, who grows her own marijuana to ease the pain of post-polio syndrome and previously has been robbed, says she somewhat solved the problem this year by installing a $70 closed-circuit camera. This allowed her to capture images of the thief, thus helping the police track down the perpetrator, who was charged with felony burglary and breaking and entering.
"My advice to anyone growing theirs at home," says Ehle, "is keep your mouth shut and don't let anyone know what you're doing – except the police, because I don't want my staff walking unknown into the middle of potentially lethal situations."
Meanwhile, Tischler points to the September arrest of dealers in downtown Santa Cruz as evidence that without dispensaries for medical marijuana patients, many will be left to get it on the street.
"Which is not what we want. We want safe, group access, not on the streets, which would be good for a city's image, too," she says.
Back in Court
Ironically, the Corrals' main hope of growing a garden in 2005 may lie with the decision-making abilities of Chief Justice William Rehnquist. Corral believes the court could end in a draw if Rehnquist is too sick to rule, in which case the decision reverts back to the 9th circuit – and she believes that court will uphold WAMM's original injunction. But were Rehnquist to die, the Corrals fear that Bush would appoint a radical conservative judge who would rule against Raich and thus jeopardize WAMM's garden and the Corrals' freedom.
"This may be a states' rights issue, but we don't think the Supreme Court will view it as such," she says. "They'll see it as a Controlled Substances Act issue. It would be wonderful if this court were willing to look past that, but we don't think they're interested in the rights of people who are sick and dying. But in some cases, they've made some remarkably enlightened decisions in the last few years, so one can only hope."
That said, she fears that since DEA head Karen Tandy is an expert in forfeiture, if the Raich case goes down in flames, the feds won't be arresting people so much as taking everything they own.
"That's a good way to destroy someone in the USA. America is all about what you own, that's how you fit in socially, by what you have.
"Mike and I have worked for 30 years, living in a shoebox, washing in a teacup. We had a very simple life, before all this started," she says. "But now I think we'll be under the gun, if they catch us growing or distributing anything, in the event the injunction is overturned, which they'll probably do by next spring, just in time for the next planting season. Probably, they'll be there the next day, with their guns drawn. They told us they'd be back."
Sarah Phelan is news editor of Metro Santa Cruz.