Fair-Weather Federalists

Conservatives should oppose federal prosecution of medical marijuana providers

Jacob Sullum | August 13, 2008

When Owen Beck was 17, doctors amputated his right leg to stop the spread of bone cancer. His parents, desperate to find a drug that would relieve their son's excruciating phantom limb pain, brought him to Charlie Lynch's medical marijuana dispensary in Morro Bay, California, carrying a recommendation from a Stanford University oncologist. The marijuana not only eased the pain but also alleviated the nausea caused by chemotherapy.

Called to testify as a character witness in Lynch's federal marijuana trial, Beck did not get far. When he mentioned his cancer, U.S. District Judge George Wu cut him off and sent him packing. Wu decreed there would be no talk of the symptoms marijuana relieves, no references to California's recognition of marijuana as a medicine, no mention even of the phrase medical marijuana in front of the jury.

In short, there would be no explanation of how Lynch came to operate what prosecutors called a "marijuana store" in downtown Morro Bay for a year, openly serving more than 2,000 customers. Under federal law, which forbids marijuana use for any purpose, all that was irrelevant. So it's hardly surprising that Lynch was convicted last week of five marijuana-related offenses that carry penalties of five to 85 years in prison.

Nor is it surprising that so many self-described conservatives, including Republican presidential candidate John McCain, support the prosecution of people like Charlie Lynch, abandoning their avowed federalist principles because of blind hostility toward a plant they associate with draft-dodging, flag-burning hippies. It's not surprising, but it's shameful.

The U.S. Drug Enforcement Administration has raided more than 60 medical marijuana dispensaries in the last two years. Because the deck is stacked against them, dispensary operators facing federal drug charges typically plead guilty.

Lynch instead gambled on a defense known as entrapment by estoppel, which occurs when someone is arrested for actions the government assured him were legal. Before he opened Central Coast Compassionate Caregivers in 2006, Lynch called the DEA to ask about his legal exposure. He says an agent told him he should consult with state and local authorities, which he took to mean he could avoid trouble as long as he complied with state and local law.

It's not hard to see why Lynch believed he was operating a legitimate business. He had the blessing of the Morro Bay Chamber of Commerce and the city council; local officials, including Morro Bay's mayor, posed for pictures at the dispensary's opening; and neither his neighbors nor the city police objected.

At Lynch's trial the DEA denied giving him any sort of green light, or even a yellow one. But the response he says he got from the agency is the response he should have gotten, because under the U.S. Constitution the medical use of marijuana is a local matter.

At one time John McCain seemed to acknowledge as much. In April 2007 he said, "I will let states decide that issue." But he quickly abandoned that position, and this year he said he'd continue the DEA's medical marijuana raids, declaring, "It is a national issue and not a [state] issue." By contrast, McCain's Democratic opponent, Barack Obama, has promised to stop the raids.

McCain's medical marijuana position contradicts his professed allegiance to federalism. "The federal government was intended to have limited scope," he says on his website, vowing to appoint judges who "respect the proper role of local and state governments."

That commitment is inconsistent with reading Congress' power to regulate interstate commerce broadly enough to cover homegrown medical marijuana, as the Supreme Court did in 2005. "If Congress can regulate this under the Commerce Clause," Justice Clarence Thomas noted in his dissent, "it can regulate virtually anything—and the Federal Government is no longer one of limited and enumerated powers."

By supporting the Bush administration's medical marijuana policy, McCain is renouncing such concerns. Worse, his promise to flout the Constitution probably will enhance his appeal among conservatives.

© Copyright 2008 by Creators Syndicate Inc.

Comments

Elemenope|8.13.08 @ 1:03PM|#

Federalism as a fig leaf is nothing new, nor is it limited to drugs.

If it's something they'd like to use the fed for, then they act like they've never heard of the 10th Amendment.

If it's something the fed has done and they don't like it, it's States' Rights time, baby!

Robert Goodman|8.13.08 @ 1:12PM|#

Do they really think they can get away with not setting a precedent? Or is "states' rights" just something that they've heard "conservatives" are "supposed to" be for, or code language for some conservative stances (like segregation) that used to be associated with states' rights? Maybe a euphemism like "choice" (for "abortions") that's divorced from its literal meaning but which they still believe has some power to euphemize away opposition?

bill|8.13.08 @ 1:32PM|#

This is why the 17th amendment needs to be repealed.

|8.13.08 @ 1:32PM|#

Called to testify as a character witness in Lynch's federal marijuana trial, Beck did not get far. When he mentioned his cancer, U.S. District Judge George Wu cut him off and sent him packing. Wu decreed there would be no talk of the symptoms marijuana relieves, no references to California's recognition of marijuana as a medicine, no mention even of the phrase medical marijuana in front of the jury.

This is what confuses me. I thought a defendant had right to explain his actions. I thought this was universally recognized in judicial system. Am I just completely effed in the head?

Elemenope|8.13.08 @ 1:38PM|#

Am I just completely effed in the head?

No, but the Honorable Mr. Wu there deserves to get effed in the head.

|8.13.08 @ 1:53PM|#

The judge was trying to prevent jury nullification. Whether a judge can do that was the subject of an interesting book published by the Cato Institute a few years ago by Clay Conrad, aptly called Jury Nullification. Short answer: the Framers probably thought that possible nullifcation was part of the package of trial by jury.

Elemenope|8.13.08 @ 2:06PM|#

the Framers probably thought that possible nullifcation was part of the package of trial by jury.

I don't think there's much "probably" about it. They would have been familiar both with the history of Common Law juries and the then-recent case of John Peter Zenger.

|8.13.08 @ 2:09PM|#

If it's something they'd like to use the fed for, then they act like they've never heard of the 10th Amendment.

Also, perhaps it has to do with the fact that defending national security is a proper function of the feds, and dangerous drugs are rightly seen as a threat to our nation.

|8.13.08 @ 2:13PM|#

Barack Obama has promised to stop the raids:
"The way I want to approach the issue of medical marijuana is to base it on science, and if there is sound science that supports the use of medical marijuana and if it is controlled and prescribed in a way that other medicine is prescribed, then it's something that I think we should consider."

Sound science: CHECK!
Control and prescription: CHECK and CHECK!

If the necessary conditions for him to "consider" it are already covered and he still doesn't have a position, it doesn't sound he'll CHANGE much. But then, you already knew this, didn't you?

adrian|8.13.08 @ 2:14PM|#

ian = juanita?

Elemenope|8.13.08 @ 2:16PM|#

Also, perhaps it has to do with the fact that defending national security is a proper function of the feds, and dangerous drugs are rightly seen as a threat to our nation.

Drug use is neither hostile action by a foreign power consisting of casus belli, nor is it an insurrection or rebellion with territorial ambitions.

You, sir, are reaching.

|8.13.08 @ 2:17PM|#

Also, perhaps it has to do with the fact that defending national security is a proper function of the feds, and dangerous drugs are rightly seen as a threat to our nation.

Pretty lame. You've got do better than than at H&R.

|8.13.08 @ 2:23PM|#

"dangerous drugs are rightly seen as a threat to our nation."

Questions the government (and its apologists) should, rightly, have to answer before (as a necessary precondition for) enacting and enforcing a Drug War Policy:

1. What is the danger -- its nature and extent?
2. How does that danger compare with the danger of other things (for example, alcohol, prescription drugs, reckless driving, unprotected sex), which the law will continue to permit, or at least tolerate, during the proposed period of prohibition?
3. What happens if the prescribed methods for responding to the "Danger" turn out to be more harmful than the "Danger" itself, and what procedure will be in place to track and judge that?

But we didn't get such answers prior to the Drug War, and you won't hear them anytime soon, if at all, because this is the government of "We Say So," and by "We" I do NOT mean "We the People."

In the face of abuses of authority such as were clearly evident in the Lynch case, I hope that We the People will speak loudly in November, using the failed Drug War as a truly accurate and applicable litmus test to weed out hopefuls and incumbents who support the Drug War and the tyranny it has visited upon us. A vote against the Drug War is not a vote to endorse drug use. It is, rather, the endorsement of sanity in government, not to mention the simple liberty that should be the birthright of every American.

ktc2|8.13.08 @ 2:27PM|#

Sure they believe in federalism, but only when they aren't making the federal rules.

|8.13.08 @ 3:56PM|#

The way I want to approach the issue of medical marijuana is to base it on science, and if there is sound science that supports the use of medical marijuana and if it is controlled and prescribed in a way that other medicine is prescribed, then it's something that I think we should consider.

There's enough weasels in that sentence to clean out a chicken farm. I count at least six, maybe seven.

|8.13.08 @ 3:57PM|#

A vote against the Drug War is not a vote to endorse drug use

No, it is a vote for drug use and I for one don't think America's Children © should be using drugs. It is necessary to Protect the Children.

You talk about your 'right' to get high, well how about my right to live in a drug free society?

Drugs are illegal for their bad for us, the government has a right and in fact an obligation to protect us from dangerous drugs. The government has a right and in fact an obligation to make dangerous things illegal, and drug addiction isn't good for us.

Drugs have always been illegal and always will be, grow up and get used to it. It is not just US law but international treaty.

|8.13.08 @ 4:24PM|#

Ian (the troll?) wrote, "You talk about your 'right' to get high, well how about my right to live in a drug free society?"

I never talked about my right to "get high." I often talk about my absolute ownership of my own body, and the liberty I have (or should have), as an American citizen and rightfully as a human being, to decide how to use and dispose of that body, in particular, what to eat, drink, smoke, use as medicine, or pursue as employment or recreational activities. this goes way beyond the topic of drugs. If, in excercising my decisionmaking authority, I do not pose a credible and imminent danger to you or others, then my choices are none of your business, and by extension, no business of your deputies in the government.

You don't have a right to live in a drug free society, because you don't have a right to remake society to your whim -- just so, you have no right to dictate that everyone listen to country and western music or paint their houses blue. If you can show that someone's drug use (or abuse) harms or credibly threatens to harm you in any significant way, you might reasonably expect government to intervene to prevent or redress that harm. Otherwise, you can make decisions only for yourself and your dependents. That's called liberty. If you don't like it, there are hundreds of countries around the world where you can get the opposite. Don't try to make this country into one or them, or tolerate its devolution into one of them. Simply go where the government pursues your agenda without conflicting with that government's founding principles (if any). Right now, the hypocriticial, schizoid behavior of our government, which directly contradicts its founding principles, is ripping up the social fabric, and that must end. It will end, but only if we deliberately end it soon will it end well.

Ian|8.13.08 @ 4:31PM|#

If, in excercising my decisionmaking authority, I do not pose a credible and imminent danger to you or others, then my choices are none of your business, and by extension, no business of your deputies in the government.

Yes they are because your choices may have downstream effects on society. What about the cost of health care for drug addicts? They raise the price for us all.

Ian|8.13.08 @ 4:35PM|#

just so, you have no right to dictate that everyone listen to country and western music or paint their houses blue.

If the majority votes for it then I do.

because you don't have a right to remake society to your whim

You have whatever rights the government gives you.

Right now, the hypocriticial, schizoid behavior of our government, which directly contradicts its founding principles, is ripping up the social fabric, and that must end.

How so?

It will end, but only if we deliberately end it soon will it end well.

Don't think so.

If you can show that someone's drug use (or abuse) harms or credibly threatens to harm you in any significant way, you might reasonably expect government to intervene to prevent or redress that harm.

Negative downstream effects on society, drugged driving, crack babies, crime, lost productivity at work, health care costs.

|8.13.08 @ 4:44PM|#

just so, you have no right to dictate that everyone listen to country and western music or paint their houses blue.

If the majority votes for it then I do.

because you don't have a right to remake society to your whim

You have whatever rights the government gives you.

Great Scott! My Troll-Sense is tingling!

TallDave|8.13.08 @ 5:03PM|#

What about the cost of health care for drug addicts? They raise the price for us all.

So do diabetics. Shall we make sugar a controlled substance? Or shall we admit that the criminal justice system is a poor tool for dealing with a medical problem?

Elemenope|8.13.08 @ 5:40PM|#

You have whatever rights the government gives you.

Technically you only have the rights you are willing to kill for.

But that's neither here nor there. In a civilized society with a limited government, rights do not emanate from that government nor any activity of the polity.

Federal Dog|8.13.08 @ 5:50PM|#

"well how about my right to live in a drug free society?"

Unbelievable.

You have no such right, any more than you have the right to live in a non-obese society, a non-gambling society, a non-alcohol-drinking society, or any number of things that you might not like.

You have the right not to engage in those habits. You have the duty to leave other people alone and to mind your own business.

Yahoo Answerer|8.13.08 @ 7:06PM|#

But - but - but - someone MIGHT drive across a state border with some.

Juanita Wayback Machine|8.13.08 @ 7:14PM|#

Juanita | February 29, 2008, 2:29pm | #

"The wholesale legalization of drugs and other (oh god, not that) pleasurable activities would have to go hand in hand with a great national campaign on personal responsibility."

Never happen, most pleasurable activities are wrong and immoral, which is why they are ilegal.

dr_dog|8.13.08 @ 7:19PM|#

The second link in the article is broken. It should point to here. (For some reason the trailing / is significant).

|8.13.08 @ 7:30PM|#

I'll trade your "right to live in a drug-free society" for my right to live in a religion free society; The well known problems of religious belief including but not limited to terrorism, irrationality and the promotion of cretinism.

Ironic|8.13.08 @ 8:58PM|#

"I'll trade your "right to live in a drug-free society" for my right to live in a religion free society; The well known problems of religious belief including but not limited to terrorism, irrationality and the promotion of cretinism."

I love that line! Can I use it?

|8.13.08 @ 9:11PM|#

Ian- "You have whatever rights the government gives you."

No, no, no. Read the preamble to the Constitution, Rights are not granted by the government, the are inherent to each and every person. That is the very basis of the idea of being a free nation. Ian you think like a slave. What about the USA having the highest incarceration rate in the world? That's the real effect of illegal drugs, a nation of criminals. Didn't you learn anything from Prohibition?

Abdul Alhazred|8.13.08 @ 10:32PM|#

Also, perhaps it has to do with the fact that defending national security is a proper function of the feds, and dangerous drugs are rightly seen as a threat to our nation.

I smell a troll.

somedude|8.14.08 @ 1:08AM|#

I hope obama just ends the raids and doesn't try to get "marijuana by prescription." I am happy with the "marijuana by recommendation," the way it is practiced here in LA. It pretty much makes it legal to anyone smart enough to read the ads in the LA weekly and pay the fee to get your recommendation.

That being said obama's position is still better than mccains.

|8.14.08 @ 1:34AM|#

Be my guest;

|8.14.08 @ 1:38AM|#

Be my guest;

and may I recommend;
http://www.reason.com/blog/show/128061.html#1055142

|8.14.08 @ 1:55AM|#

The Drug War = Over $500 billion down the drain with no net return on our investment except for 2 million people locked up wasting my tax dollars @ $50K + per year and a federal deficit that continues to balloon out of control.

Ending the Drug War = a taxed and regulated industry that would generate upwards of $7-10 billion in new tax revenue and add billions more from reduced legal and enforcement costs, provide money for rehabilitation and eliminate the HUGE profits enjoyed by gangs, drug lords and cartels. Increased supply would drive margins down for these groups which would put them out of business. Studies of The Netherlands have shown demand would not increase as they smoke less per capita than we do.

Seems pretty logical to anyone that has taken ECON 101. And for those who say it would fail...go do a little homework on why Cannabis became illegal (racism by the federal government and the need to employ those involved in prohibition) or just look at how well Prohibition turned out.

"Never happen, most pleasurable activities are wrong and immoral, which is why they are ilegal." - Juanita Wayback Machine

Juanita...Please explain to me how sitting in my house having a smoke and eating a bag of chips is immoral? You do realize that cannibas is illegal because the federal government didn't want mexicans in this country? Where do you think the word Marijuana came from??? Do some homework about this topic before you waste anymore hard drive space at reason!

Justen|8.14.08 @ 5:16AM|#

Guys. Guys. Don't feed the trolls. They're either intentionally trying to aggravate you or so insanely ignorant they have no place in this, or any, rational conversation. Pretend they're not here.

Now as to this article, yet another shocking miscarriage of justice and evidence of the federal government's continued war on state rights. They act outside their jurisdiction, and not to protect the health or rights of California citizens, but to send a message to California and other states considering following its path about what happens when you object to and refuse to abide by illegal and unconstitutional federal laws.

There isn't even the faintest rational argument in support of the federal government's behavior in the case of medicinal cannabis dispensaries in California. This is flat out abuse of power for (extremely hypocritical) political and moral purposes.

Robert Goodman|8.14.08 @ 2:02PM|#

I hope obama just ends the raids and doesn't try to get "marijuana by prescription." I am happy with the "marijuana by recommendation," the way it is practiced here in LA.

A prescription is a recommendation. A recommendation is a prescription. What did you think "prescribe" meant?

Maybe what you meant is that you don't want the doctor's recommendation/prescription to have to be on a triplicate form.

bob|8.14.08 @ 4:07PM|#

Ian
Drugs have always been illegal and always will be, grow up and get used to it. It is not just US law but international treaty.
this statement shows your ignorance, for depending on your age , your grandparent's or great grands could buy it in the local stores.
On a religous side the bible makes a clear distintion between drinking and drunkeness , drinking being ok drunkiness not ok. alcohol is just another drug doctors used to actully prescribe cannabis for alcoholics.
cannabis as a pill , can leave the patient mindless/drunk smoking a joint does not have this effect.

bob|8.14.08 @ 4:08PM|#

same goes for pain meds ,which have warnings on them that they can cause dizziness, drousiness/ drunkiness. being one who deals with enough pain to know this, i can tell you , i would rather smoke a joint then take pain meds, since i am against drunkiness.
i have bneen a hard working law biding citizen who volunteers in my community and see the laws against marajuana strickly as a form of discrimination, mostly in the job market.
we all need to support law inforcment, L.E.A.P. LAW INFORCEMENT AGAINST PROABITION. look it up.

Black Market Paranoia|8.14.08 @ 7:02PM|#

Medical Cannabis should be freely available in herb stores. There are hundreds of legally available herbs that are not healthy if taken in excess. Cannabis is much less damaging than other potentially habit forming herbs. No amount of prohibition will result in the pipe dreams of protecting children from exposure to intoxicating substances or result in a "drug free" society. Besides, this is not a child protection issue. The issues are medical privacy, States' Rights, and individual liberty.

In the USA, we have the same amount of drug addicts today as we did prior to the establishment of the FDA. Not less, not more, but the same. The difference is now drugs are more expensive and we have a large segment of the population incarcerated for breaking unconstitutional regulations on drugs. Yet, prohibitionists always exclaim that drug use will go up if drugs are legalized. Legalization has not been tried, so the speculation of an increase in use is just that: speculation.

|8.14.08 @ 7:44PM|#

I live in California and I voted for the Proposition that legalized (from the state view) medical marijuana. Now I wish I hadn't, not because I don't think it was a good idea, but because I think it was irresponsible for the state of California to lead folks to believe that they would be able to use medical marijuana and be safe from prosecution. (IIRC the Feds made it very clear to California that they would not recognize the state's legalization of medical use). Unless the citizens of California and the other states that wish to legalize medical marijuana use are willing to fight the Feds over this, then it is a pointless symbolic gesture, and is putting the citizens of those states at risk for some pretty severe treatment at the hands of the federal drug warriors. BTW, it is not just the Feds, I have an aquaintance that is getting a lot of grief from the city of San Diego law enforcement, and have read news reports of other local law enforcement agencies aggressively going after users of medical marijuana. If we want to make it legal, let's make damn sure it really is legal, so those who can get some relief from using it can do so without fear of prosecution.

Justen|8.14.08 @ 8:11PM|#

Kern County in California is notorious for ignoring state law and persecuting dispensaries and medicinal cannabis users. I lived there recently, saw a lot of it go down. I knew a few people who were forced to go on 2 hour drives to fill their prescriptions, one of them who was treating chronic pain from an injury he sustained while serving in Iraq. Pretty sad.

|8.16.08 @ 12:50PM|#

Obama's being a weasel. He was a constitutional law professor, and he knows damned well that federal prohibition of drugs is unconstitutional, because we repealed the 18th amendment.

He just doesn't want to come right out and say that the War on Drugs, is illegal, immoral, expensive, and really fucking stupid, because he's afraid that McCain will be able to use that against him.

-jcr

|8.16.08 @ 12:53PM|#

Drugs have always been illegal and always will be, grow up and get used to it.

That would come as a tremendous surprise to my grandfather, who delivered heroin, cocaine, and cannabis on his Western Union route in San Francisco, circa 1910.

ALL drugs were over-the-counter drugs in the USA until the 1930's.

-jcr

bob42|8.16.08 @ 6:05PM|#

Don't forget to write your favorite congress critter and urge them to co-sponsor and bring HR 5842 and HR 5843 to the floor for discussion.

Not that either measure stands a chance, and I realize that the average congress critter would rather imprison more millions that approach the drug war with any degree of honesty. However, their reasons for refusing to do so might be entertaining, and there's always the chance that one of the bills will actually survive committee, affording an even more entertaining floor discussion regarding the actions and motives of the Office of National Drug Control Policy Propaganda.

bob|8.17.08 @ 2:56PM|#

bob42
i could not find what those bills said, so how can i support them?
i would like to know what they actually say.