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United States v. OCBC

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In The

United States Supreme Court

October Term, 2000

____________

United States of America,

Petitioner,

v.

Oakland Cannabis Buyers' Cooperative, et al,

Respondents.

____________

On Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

____________

BRIEF OF THE NATIONAL ORGANIZATION FOR

THE REFORM OF MARIJUANA LAWS AND

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS

AS AMICI CURIAE IN SUPPORT OF RESPONDENTS

_____________

John Wesley Hall, Jr.
Michael D. Cutler
523 West Third Street
46 Kenwood Street

Little Rock, AR 72201

Brookline, MA 02446
(501) 371-9131
(617) 738-1722
Counsel of Record for Amici
Counsel for Amicus NORML

Lisa B. Kemler

R. Keith Stroup
108 N. Alfred St.
1001 Connecticut Ave., NW; Suite 710
Alexandria, VA 22314
Washington, DC 20036

(703) 684-8000

(202) 483-5500

Of Counsel for Amicus NACDL
Of Counsel for Amicus NORML

February 2001

 

 

TABLE OF CONTENTS

Table of Authorities

Interest of Amici Curiae

Summary of the Argument

Argument

I. Introduction

A. What this case is and what it is not

B. The efficacy and public acceptance of the medical use of cannabis

II. The medical use of cannabis is an individual right that should be recognized by this Court in states where the people have enacted laws permitting it.

A. The power of the people to initiate legislation reserved by the Ninth and Tenth Amendments

B. Federal deference to state law on the medical use of cannabis, and the inapplicability of the Supremacy Clause

C. The right of liberty, privacy, and substantive due process in medical use of cannabis

1. Rights to the dignity of life, individual liberty and autonomy, and the "pursuit of happiness"

2. The right to privacy in "the right to be let alone" by government

3. Substantive due process: "history, legal traditions, and practices"

4. The Canadian experience

D. Civilized notions of personal liberty require this Court to recognize a con stitutional right to state chartered doctor-supervised treatment that is supe rior to any interest in federal prohibition.

III. The claim that federal drug law enforcement is harmed by the Compassionate Use Act of 1996 is untenable.

Conclusion

Appendix A:Polls Demonstrating Public Support for Medical Use of Cannabis, 1995-2000 1a

Appendix B:Organizations Supporting Medical Use of Cannabis, 1995-1999

Appendix C:Statements of Some of the Organizations in Appendix B

TABLE OF AUTHORITIES

Cases:

Alliance for Cannabis Therapeutics v. DEA, 289 U.S.App.D.C. 214, 930 F.2d 936 (1994)

Board of Regents v. Roth, 408 U.S. 564 (1972)

California Bankers Assn. v. Shultz, 416 US 21 (1974)

Cammarano v. United States, 358 U.S. 498 (1959)

Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261 (1990)

Eisenstadt v. Baird, 405 U.S. 438 (1972)

Griswold v. Connecticut, 381 U.S. 479 (1965)

Hines v. Davidowitz, 312 U.S. 52 (1941)

Hurtado v. California, 110 U.S. 516 (1884)

In The Matter of Marijuana Rescheduling Petition, Docket No. 86-22 (Sept. 6, 1988)

Katz v. United States, 389 US 347 (1967)

Kelly v. Washington ex rel. Foss Co., 302 U.S. 1 (1937)

Lopez v. United States, 514 U.S. 549 (1995)

Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 (1964)

Marijuana Scheduling Petition, 54 Fed.Reg. 53767, 53784 (Dec. 29, 1988), aff'd Alli ance for Cannabis Therapeutics v. DEA, 304 U.S.App.D.C. 400, 15 F.3d 1131 (1994)

Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1818)

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)

McIntyre v. Ohio Election Comm., 514 U.S. 334 (1995)

Meyer v. Grant, 486 U.S. 414 (1988)

Moore v. East Cleveland, 431 U.S. 494 (1977)

New York v. United States, 505 U.S. 144 (1992)

Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000)

NORML v. DEA, 182 U.S.App.D.C. 114, 559 F.2d 735 (1977)

NORML v. Ingersoll, 162 U.S.App.D.C. 67, 497 F.2d 654 (1977)

Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm., 461 U.S. 190 (1983)

Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992)

Poe v. Ullman, 367 U.S. 497 (1961)

Prinz v. United States, 521 U.S. 898 (1997)

Regina v. Carter, 2 C.R.R. 280, 144 D.L.R.(3d) 301 (Ont.Ct.App. 1982)

Regina v. Clay, 75 C.R.R.(2d) 210, 2000 C.R.R.Lexis 97 (Ont.Ct.App. 2000)

Regina v. Parker, 75 C.R.R.(2d) 233, 2000 C.R.R.Lexis 96 (Ont.Ct.App. 2000)

Roberts v. United States Jaycees, 468 U.S. 609 (1984)

Roe v. Wade, 410 U.S. 113 (1973)

Rowan v. U.S. Post Office Dept., 397 US 728 (1970)

Schall v. Martin, 467 U.S. 253 (1984)

Singleton v. Norris, 338 Ark. 135, 992 S.W.2d 768 (1999), cert. den. 528 U.S. 1084 (2000)

Stanley v. Georgia, 394 U.S. 557 (1969)

Tehan v. United States ex rel. Shott, 382 US 406 (1966)

Union Pac. Ry. Co. v. Botsford, 141 U.S. 250 (1891)

United States v. Bass, 404 U.S. 336 (1971)

United States v. Morton Salt Co., 338 U.S. 632 (1950)

United States v. Oakland Cannabis Buyers' Coop., 121 S.Ct. 21 (2000)

Washington v. Glucksberg, 521 U.S. 702 (1997)

Washington v. Harper, 494 U.S. 210 (1990)

Winston v. Lee, 470 US 753 (1985)

Youngberg v. Romeo, 457 U.S. 307 (1982)

Constitutional Provisions:

U.S. Constitution

Art. I, ¤ 8

Art. IV, cl. 2

First Amendment

Third Amendment

Fourth Amendment

Fifth Amendment

Ninth Amendment

Tenth Amendment

Fourteenth Amendment

Cal. Const., Art. 4, ¤ 1

Canadian Charter of Rights and Freedoms, ¤ 7

Statutes and Rules:

S.Ct. Rule 29.6

S.Ct. Rule 37.6

 

Other Authorities:

Bergoffen & Clark, Hemp as an Alternative to Wood Fiber in Oregon, 11 J. Envtl. L. & Litig. 119 (1996)

Declaration of Independence

Griswold, The Right to be Let Alone, 55 Nw.U.L.Rev. 216 (1960)

Harris, "Rock feels road to the PMO begins as a good health minister," The Ottawa Citi zen (Jan. 28, 2001)

Lester Grinspoon, M.D. & James b. Bakalar, Marihuana: The Forbidden Medicine (Rev.ed. 1997)

National Academy of Sciences's Institute of Medicine, Marijuana and Medicine: Assessing the Science Base (1999)

Prosser, Privacy, 48 Calif.L.Rev. 391 (1960)

Schiraldi & Ziedenberg, Poor Prescription: The Cost of Imprisoning Drug Offenders in the United States, Justice Policy Institute (2000)

The National Drug Control Stategy: FY 2001, Budget Summary 2000 Annual Report, Table 3

U.S. Dept. of Health and Human Services, Monitoring the Future National Results on Adolescents Drug Use: Overview of Key Findings, Table 9: Long-Term Trends in Perceived Availability of Drugs by Twelfth Graders: Marijuana 1975-2000 (2001)

Warren & Brandeis, The Right to Privacy, 4 Harv.L.Rev. 193 (1890)

INTEREST OF AMICI

The National Organization for the Reform of Marijuana Laws (NORML) was organized in 1970, and participates in the public policy debate over marijuana policy for the tens of millions of adult Americas who use marijuana responsibly. NORML lobbies for the rights of marijuana users and other taxpayer and voters who oppose current prohibition policies. NORML has more than 5,000 financial supporters from every state. It also has a grassroots political network of more than 18,000 volunteer activists, including 60 state and local affiliated organizations, who oppose the criminal prohibition of marijuana.

NORML has long supported policies that would permit seriously ill patients to use canna bis as a medicine with a recommendation from their physician. NORML opposes the use of marijuana by children and adolescents, and has published a set of guidelines for responsible marijuana smoking entitled "Principles of Responsible Cannabis Use."

NORML asserted the medical use of cannabis in 1972 in an administrative petition asking the federal government to move cannabis from schedule I to schedule II of the Controlled Sub stances Act so doctors could prescribe it. After years of administrative litigation, a DEA Admin istrative Law Judge found in 1988 that:

Marijuana has been accepted as capable of relieving distress of great numbers of very ill people, and doing so with safety under medical supervision. It would be unreasonable, arbitrary and capricious for DEA to continue to stand between those sufferers and the benefits of this substance in light of the evidence in this record.

The ALJ there recommended "that the Administrator transfer marijuana from Schedule I to Schedule II, to make it available as a legal medicine." Id. The Administrator of the DEA rejected this conclusion, and the Court of Appeals for the District of Columbia Circuit affirmed, effec tively denying medical cannabis to seriously ill patients, except for the DEA's own Compassionate IND program. In the past 20 years, NORML has several times litigated the issue of medical use of cannabis in federal courts. With reclassification blocked by the DEA, NORML has continued to advocate the medical use of cannabis and to support state and federal legislation and voter initiatives to that end.

The National Association of Criminal Defense Lawyers (NACDL) is the preeminent bar organization advancing the mission of the nation's criminal defense lawyers to ensure justice and due process for persons accused of crime. Founded in 1958, NACDL has more than 10,000 direct members and 80 state and local affiliate organizations with 28,000 members committed to preserving the Bill of Rights. The American Bar Association recognizes NACDL as an affiliate organization on its House of Delegates. NACDL promotes study and research in the field of criminal law. In furtherance of its objectives over the past decade, NACDL files approximately ten amicus briefs a year with this Court on criminal justice issues.

The parties have consented to NORML and NACDL filing this amici brief on behalf of the respondents, and the letters of consent are filed with this brief.

SUMMARY OF ARGUMENT

I.A. This case is not about a right to get "stoned," as petitioner's amici would suggest. Instead, it is about the confluence of the state and individual rights: A state's capacity to legislate its public health policy, by choosing its own means and ends to achieve what it believes best serves the good of its people, when there is no superior competing federal interest; and, the right of personal medical choices of the chronically and terminally ill, made in consultation with doc tors. This state-federal conflict implicates several individual liberties intertwined under our Constitution: The right of the "pursuit of happiness" and liberty by the chronically and terminally ill; the right of citizens "to be let alone" by government in personal decisions; and substantive due process when there is no comparable federal interest in prohibiting the conduct at issue.

B. Many sick people are not helped by conventional drug therapy for serious medical conditions. The medical use of cannabis has been recognized for 5,000 years. Hundreds of articles, books, and reports deal with the efficacy of cannabis for medicinal use. Nine states with 20.51% of the nation's population have legalized the medical use of cannabis.

II.A. No form of legislation is more fundamental than the right of the people of the American states to enact laws by initiative. This power is reserved to the people and the states under the Ninth and Tenth Amendments. In the nine states where the people have determined by their political and legislative processes that medical use of cannabis for the chronically or termi nally is a right and a choice made between doctor and patient, medical cannabis is elevated to a privacy and due process right. The federal government has a duty to respect these states' decisions, and has no law enforcement or public safety interest in criminalizing the medical use of cannabis in those states.

B. Unless the federal government has sought to preempt the field, which it has not done with drug laws, the Supremacy Clause does not prohibit states from enacting laws in the same area.

C. There is a constitutional right of privacy and substantive due process right in the medical use of cannabis when the decision is made under state law between a doctor and a chroni cally or terminally ill patient seeking to preserve a tolerable quality of life, under three separate but interrelated constitutional theories:

1. The decision to use medical cannabis can be the difference between a horrible existence or a minimal quality of life as death approaches. When sentient life becomes almost unbearable, anything that improves it takes on constitutional dimension. People have the right to define their own concept of existence. That right is the essence of the natural law upon which the Declaration of Independence, its "pursuit of happiness" and due process of law are founded. Cru zan holds that due process includes protection of the quality of life, and that applies here.

2. Implicit in the Bill of Rights is the "right to be let alone" by government. In Winston v. Lee, this Court recognized that some parts of the "right to be let alone" are more important than the government's interest in doing what it wants. The personal medical decision to use medical cannabis to alleviate suffering is such a right.

3. The right to medical use of cannabis is also protected by substantive due process because both pain relief and cannabis are recognized in our "history, legal traditions, and prac tices." The right to substantive due process must insure that chronically and terminally ill Ameri cans should have the right to doctor-approved medical use of cannabis if it alleviates their debili tating suffering or improves their quality of life in the days before their death.

III. The claim that federal drug law enforcement is harmed by medical use is untenable. Whatever one's stance on the "war on drugs," the prosecution of drug offenses by the federal government will go on unabated even if state chartered cannabis buyers' clubs are permitted to operate. The class of potential offenders that the federal government has selected are not drug abusers, but patients with doctor recommendations for treatment. The law enforcement and judicial machinery otherwise never would waste resources on such offenders. This issue involves no meaningful interest of the federal government, other than an opportunity to make a symbolic political statement in the "war on drugs." Casualties in the "war on drugs" should not be the chronically and terminally ill who are aided by medical use of cannabis.

ARGUMENT

I. Introduction

A. What this case is and what it is not

This case is not about a backdoor effort to get "stoned," as petitioner's amici so cavalierly assert. The chronically sick and dying who, in private consultation with doctors, have deter mined they have no other recourse other than medical use of cannabis, take serious issue with the amici's attack on their medicine. The respondents assert the fundamental right of their patients to enhance the quality of whatever is left of their lives, when other treatment and medication have failed to relieve suffering. This case also concerns the fundamental right to exercise legislative power as reserved by the Ninth and Tenth Amendments, to the people of nine states. Finally, this case presents an exercise of law enforcement authority in a limited area by the federal government where it lacks constitutional power to act.

Popularly enacted legislation permitting compassionate medical use of cannabis is an assertion of a fundamental right by the people and the states. Those state laws recognize a right for patients who have lost any real quality of life from chronic or terminal illness to be free from unnecessary pain and suffering. Enabling patients whose medical conditions deny them a quality of life to use medical cannabis with their doctor's oversight is a matter fully reserved to the people and the states under the Ninth and Tenth Amendments that the federal government must respect. The federal government has no power to legislate in this area under either the commerce clause or "necessary and proper" clause of Art. I, ¤ 8 of the Constitution.

This case involves numerous fundamental interests at risk in the attempt by federal law to prohibit what nine states have allowed. This exercise of rights by the people and the states to legislate in matters of personal human dignity is protected from federal abrogation under our fundamental concept of ordered liberty and federalism. The people and states are unilaterally entitled to legislate what means they believe better serve their own defined goals, where there is no compelling conflicting federal interest, and where a personal medical choice after consultation with a doctor. This conflict implicates multiple individual liberties intertwined under our Consti tution: The right of the "pursuit of happiness" and liberty by the chronically and terminally ill; the right of people "to be let alone" by their government in these personal decisions; and substantive due process, particularly when there is no serious federal interest in prohibiting the conduct at issue.

B. The efficacy and public acceptance of the medical use of cannabis

Petitioner's amici trivialize the irrefutable facts of this case that many sick people simply are not helped by conventional drug therapy for serious medical conditions. Petitioners' amici ignore the 5,000 years of recognized medical use of cannabis, including a wealth of modern articles on the utility of the medicinal use of cannabis, and the history of cannabis use in the United States beginning before our colonization. The most recent books citing published find ings are: Lester Grinspoon, M.D. & James b. Bakalar, Marihuana: The Forbidden Medi cine (Rev.ed. 1997) and National Academy of Sciences's Institute of Medicine, Mari juana and Medicine: Assessing the Science Base (1999). Even the DEA's ALJ recognized the case for the medical use of cannabis presented by NORML was never refuted by the agency. The DEA would not hear of it, however, and refused to adopt the ALJ's recommendation despite the uncontradicted evidence. (See notes 3-5, supra.)

Petitioner's amici also overlook the sheer numbers of ordinary people who recognize that there should be compassionate use of cannabis. (Appendix A) Many influential American and other medical organizations and health care providers recognize that there is a bona fide need for the medical use of cannabis when a doctor and patient decide it is necessary. (Appendices B & C)

II. The medical use of cannabis is an individual right that should be recognized by this Court in states where the people have enacted laws permitting it.

This case presents the recognition of important legal doctrines at the heart of our form of constitutional government: individual liberty and the powers reserved to the people and the states. As a matter of individual liberty, it should be beyond the power of the federal government to regulate the medicinal use of cannabis when the voters or legislatures of states decide it should be legalized for medical use. Nine states with 20.51% of the population have approved of the medical use of cannabis since 1996 (see note 12, supra): Eight by initiative and one by the legislature. The public and medical organizations strongly support medical cannabis use for those who would be aided by it. (Appendices A-C)

It is only natural, then, that the proponents of the medical use of cannabis go directly to the people when a state legislature fails to act. It is, no doubt, a natural right.

A. The power of the people to initiate legislation reserved by the Ninth and Tenth Amendments

The power of initiative and referendum appears in about half of the state constitutions, as it does in California. Cal. Const., Art. 4, ¤ 1. This quintessential reservation of political and legislative power is expressly reserved to the people and the States under the Ninth and Tenth Amendments. In addition, the initiative power is clothed with full First Amendment protection as "core political speech" and a method of petitioning government for redress of grievances. See Meyer v. Grant, 486 U.S. 414, 421-22 (1988):

The circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change. [A] petition circulator . . . will at least have to persuade them that the matter is one deserving of the public scrutiny and debate that would attend its consideration by the whole elector ate. This will in almost every case involve an explanation of the nature of the proposal and why its advocates support it. Thus, the circulation of a petition involves the type of interactive communication concerning political change that is appropriately described as "core political speech."

B. Federal deference to state law on the medical use of cannabis, and the inap plicability of the Supremacy Clause

Once the voters of a state have adopted an initiative or a state legislature has enacted a statute protecting the medical use of cannabis, the people of that state have compellingly ex pressed their public policy, even if that public policy differs from that of the federal government. Federalism mandates that state public policy is entitled to presumptive deference. State legislation expresses its public policy; Schall v. Martin, 467 U.S. 253, 281 (1984); especially legislation adopted directly by the people.

The Supremacy Clause, U.S. Const., Art. IV, cl. 2, provides the federal government no support in its attempt to nullify this state law because Congress has not even remotely attempted to preempt every part of the field of criminalizing drug crimes. Indeed, every state has laws against the illegal use, manufacture, and distribution of controlled substances. And, the federal government could not preempt drug regulation even if it wished, because there is no general federal police power, a power singularly reserved to the states. Lopez v. United States, 514 U.S. 549, 560 n.3 (1995). Indeed, Lopez portended the conflict here: "When Congress criminalizes conduct already denounced as criminal by the States, it effects "Ôa change in the sensitive relation between federal and state criminal jurisdiction."'" Id. (quoting United States v. Bass, 404 U.S. 336, 349 (1971)).

Federal and state drug laws have co-existed for more than 60 years, and state laws recog nizing medical use of cannabis manifestly do not "Ôstand[ ] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'" Pacific Gas & Electric Co. v. State Energy Resources Conservation and Development Comm., 461 U.S. 190, 203-04 (1983) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).

As in Lopez, Congress cannot remain in denial of reality and cannot declare night to be day and simply expect this Court rubberstamp that conclusion. Lopez, 514 U.S. at 566-67. Kelly v. Washington ex rel. Foss Co., 302 U.S. 1, 9-10 (1937), answers this question for us:

Under our constitutional system, there necessarily remains to the States, until Congress acts, a wide range for the permissible exercise of power appropriate to their territorial jurisdiction although interstate commerce may be affected. . . . States are thus enabled to deal with local exigencies and to exert in the absence of conflict with federal legislation an essential protective power. And when Congress does exercise its paramount authority, it is obvious that Congress may determine how far its regulation shall go. There is no constitutional rule which compels Congress to occupy the whole field. Congress may circumscribe its regulation and occupy only a limited field. When it does so, state regulation outside that limited field and otherwise admissible is not forbidden or displaced. The principle is thoroughly established that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so "direct and positive" that the two acts cannot "be reconciled or consistently stand together." (citations omitted)

Thus, unless Congress dictates that the states may not regulate drug crimes, something it will never do, the federal government cannot claim preemption.

C. The right of liberty, privacy, and substantive due process in medical use of cannabis

There is a constitutional right of privacy and a substantive due process right in the medical use of cannabis when that decision is made under state law between a doctor and a chronically or terminally ill patient seeking to preserve a tolerable quality of life. This right is more significant when patients seek to preserve some semblance of human dignity and freedom from the ravages of disease in their final days. This principle is founded on three interrelated constitutional theo ries:

1. Rights to the dignity of life, individual liberty and autonomy, and the "pursuit of happiness"

For some patients, the decision to use medical cannabis can be the difference between a horrible existence or a minimal quality of life as death approaches. When a state has permitted the use of medical cannabis for these people, after conventional medication has failed or forced them to suffer intolerable side effects, their very ability to define their life is at stake. When the quality of life makes becomes almost unbearable, anything that improves the quality of life has constitu tional dimension. "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 850-51 (1992).

Indeed, "defin[ing] one's own concept of existence" is the essence of the natural law expressed in ¦ 2 of the Declaration of Independence: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness." As the Court stated in Board of Regents v. Roth, 408 U.S. 564, 572 (1972), the Court has not attempted to define with exactness the liberty guaranteed by due process, because, "[i]n a Constitution for a free people, there can be no doubt that the meaning of Ôliberty' must be broad indeed."

Our Constitution is born of the proposition that all legitimate governments must secure the equal right of every person to "Life, Liberty, and the pursuit of Happiness." In the ordinary case we quite naturally assume that these three ends are compatible, mutually enhancing, and perhaps even coincident.

. . . Together, these considerations suggest that Nancy Cruzan's liberty to be free from medical treatment must be understood in light of the facts and circumstances particu lar to her.

Cruzan v. Director, Missouri Dep't of Health, 497 U.S. 261, 331 (1990) (Stevens, J., dissenting) (footnote omitted)

A state has an "unqualified interest in the preservation of human life." Cruzan, 497 U.S. at 282. Because of that interest, states sometimes seek the preservation of life notwithstanding the utter lack of quality of that life. Thus, Nancy Cruzan's family had to fight the State of Mis souri which wanted her to keep her alive by state mandated medical intervention. Like the state in Cruzan, the federal government tells us that patients who want to preserve their own life, who are struggling to stay alive despite painful or debilitating side effects of modern medicine, have no right to preserve any semblance of dignity of their waning life by medical procedures approved by the voters of their state. Is it not ironic that a prison inmate can be judicially forced to be medi cated to have a quality of life on death row or in prison or for the preservation his life, even to later execute him? Yet here, the government denies a comparable right to the chronically or terminally ill patient who could benefit from the medical use of cannabis. This judicial distinction, to heal prisoners but harm terminal patients, is irrational and contrary to any concept of ordered liberty in a free nation.

If a state has such an "unqualified interest in the preservation of life," it must of necessity also have an interest in the quality of the life it preserves as the end approaches. In some situa tions, particularly the AIDS wasting syndrome, the medical use of cannabis usually provides the only means to sustain life. If so, then there should be a constitutional right to use it.

2. The right to privacy in "the right to be let alone" by government

There is a basic right to privacy in this nation, "the right to be let alone," and it runs throughout the law of individual liberty. Whatever its source, be it in the common law, the law of torts, the Ninth Amendment, one of those "penumbra" rights within the Bill of Rights as a whole, or whether it is a liberty interest under the due process clauses of the Fifth and Four teenth Amendments, government must recognize that certain rights reserved to the people and states are beyond its reach.

The phrase was truly memorialized in Justice Brandeis's famous dissent 73 years ago in Olmstead v. United States, 277 U.S. 438, 478 (1928):

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone:the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

While the "right to be let alone" originally emerged into this Court's cases in a dissent, the existence of a constitutional right "to be let alone" is now well accepted. The Court has repeat edly cited Olmstead and considered "the right to be let alone" as a part, not only of the Fourth Amendment, but also the First, Fifth, and Fourteenth Amendments.

The "right to be let alone" has been found to outweigh even one of the weightiest of governmental interests: The interest in procuring evidence to prosecute a violent crime. In Winston v. Lee, 470 U.S. 753, 765-66 (1985), the Court denied the government the ability to obtain evidence by forced major surgery on the body of the accused to remove a bullet, even where the search would certainly produce evidence of a violent crime:

The Fourth Amendment protects "expectations of privacy," see Katz v. United States, 389 U.S. 347 (1967):the individual's legitimate expectations that in certain places and at certain times he has "the right to be let alone:the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting). Putting to one side the procedural protections of the warrant requirement, the Fourth Amendment generally protects the "security" of "persons, houses, papers, and effects" against official intrusions up to the point where the community's need for evidence surmounts a specified standard, ordinarily "probable cause." Beyond this point, it is ordinarily justifiable for the community to demand that the individual give up some part of his interest in privacy and security to advance the community's vital interests in law enforcement; such a search is generally "reasonable" in the Amendment's terms.

But, the Court held that this compelled surgical intrusion for evidence implicated expectations of privacy and personal security to such a degree that the intrusion was constitutionally unreasonable under the Fourth Amendment even though it certainly would produce evidence of a violent crime. Id. at 758-59. The government's normally compelling need to obtain vital evidence to enforce the criminal law and prosecute a violent criminal constitutionally had to give way to the personal dignity of the individual because the search was "unreasonable" under the Fourth Amendment.

That rationale applies with equal force here: No matter what the governmental interest in prosecuting drug crimes, the personal and fundamental interest in preserving the dignity of life should weigh more heavily, particularly when a state has declared its public policy that its citizens are entitled to the benefit of the medical use of cannabis.

3. Substantive due process: "history, legal traditions, and practices"

Analogous to the above two standards and using similar language, but still clearly a standard of its own, is the right to substantive due process under the Fifth and Fourteenth Amend ments. If the right to substantive due process means anything, it should mean that chronically and terminally ill Americans should have the right to medical use of cannabis if it alleviates suffering from their serious medical condition and thereby gives them some quality of life in the days before their death. This Court has already recognized a substantive due process right to be free from pain and suffering in Cruzan, involving a woman who was in a persistent vegetative state whose family wanted to have a feeding tube withdrawn so she could die and be allowed to be free of her misery. A fortiori, it naturally flows from that case that there also is a parallel right patients in chronic pain or the terminally ill to alleviate their pain and suffering when they want to live. Nancy Cruzan had a right to stop being force fed and to die to alleviate her pain and suffering that was caused merely by her being kept alive in that condition. For patients with their doctors' approval, who want to go on living but without their pain and suffering, they also have an "un qualified interest in the preservation of human life."

After Cruzan, the Court held in Washington v. Glucksberg, 521 U.S. 702 (1997), that there was no due process right to assisted suicide. The Court stated its approach to due process issues; id. at 710:

We begin, as we do in all due-process cases, by examining our Nation's history, legal traditions, and practices. See, e.g., Casey, 505 U.S. at 849-850; Cruzan, 497 U.S. at 269- 279; Moore v. East Cleveland, 431 U.S. 494, 503 (1977) (plurality opinion) (noting importance of Ôcareful "respect for the teachings of history"')."

This substantive due process analysis derives from Justice Harlan's dissent in Poe v. Ullman, 367 U.S. 497, 542-43 (1961), elucidating the true meaning of "the full scope of liberty" under due process:

It is this outlook which has led the Court continuingly to perceive distinctions in the imperative character of Constitutional provisions, since that character must be dis cerned from a particular provision's larger context. And inasmuch as this context is one not of words, but of history and purposes, the full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This "liberty" is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . . and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment. . . . . (citations omitted)

Justice Harlan's opinion in Poe is recognized as the source of modern individual judicial review of substantive due process claims.

Our "history, legal traditions, and practices" unequivocally tell us that the individual is more important than the government and that government interference with a person's autonomy must be based on extremely important societal interests. In some cases, an individual's right to personal autonomy can outweigh even the undeniably power governmental interest in prosecuting violent crime, as in Winston v. Lee. We must never forget that our government exists to serve its citizens; the citizens do not exist to serve the government. Moreover, medical use of cannabis is a part of our nation's history and the history of civilization for the last 5,000 years. State authorized medical use of cannabis for patients with a dire need thus clearly qualifies for recogni tion under substantive due process.

4. The Canadian experience

Canada's Charter of Rights was adopted less than two decades ago, and it closely parallels our Bill of Rights; so much, indeed, that the Canadian courts apply American case law as an aid in interpreting their Charter. Similarly, because of our geographic proximity and open border, political alliances, and similar adversary system with the same common law origin, this Court has looked to Canadian law and experience as an aid in interpreting our Bill of Rights.

Section 7 of the Canadian Charter of Rights and Freedoms is their version of our Due Process Clause, and it provides that "[e]veryone has the right to life, liberty and security of the person and the right not to be deprived of those rights except in accordance with the principles of fundamental justice." Less than a year ago, the Ontario Court of Appeals found a fundamental right in the medical use of cannabis for the chronically ill, just as asserted here. The Canadian government is attempting to implement medical use for distribution through its national health care system. Thus, there is a right to the needful medical use of cannabis, notwithstanding that possession and delivery of cannabis otherwise remains a crime in Canada. Regina v. Parker, 75 C.R.R.(2d) 233, 2000 C.R.R.Lexis 96 (Ont.Ct.App. 2000) (right to use cannabis to control epilepsy; Marinol¨ was not helpful to Parker but cannabis was; medical necessity defense sus tained as a fundamental right); Regina v. Clay, 75 C.R.R.(2d) 210, 2000 C.R.R.Lexis 97 (Ont.Ct.App. 2000) (no fundamental right to recreational possession of marijuana notwithstand ing Parker's recognition of a medical necessity right; both decided same day).

Parker was thus held to have a complete defense to criminal prosecution for his possession and cultivation of cannabis for his personal medical use. The Canadian court's analysis in Parker closely parallels this Court's own due process analysis:

[¦ 96] . . . "[s]ection 7 is also implicated when the state restricts individuals' security of the person by interfering with, or removing from them, control over their physical or mental integrity". There is no question, then, that personal autonomy, at least with respect to the right to make choices concerning one's own body, control over one's physical and psychological integrity, and basic human dignity are encompassed within security of the person, at least to the extent of freedom from criminal prohibitions which interfere with these. . . .

[¦ 102] In my view, Parker has also established that the marihuana prohibition infringed the second aspect of liberty that I have identifiedÑthe right to make decisions that are of fundamental personal importance. As I have stated, the choice of medication to alleviate the effects of an illness with life-threatening consequences is a decision of funda mental personal importance. In my view, it ranks with the right to choose whether to take mind-altering psycho-tropic drugs for treatment of mental illness, a right . . . ranked as "fundamental and deserving of the highest order of protection" in Fleming v. Reid (1991) . . . .

The Ontario court's approach underscores the utter implausibility of the government's justification for bringing this case: The Canadian government has no trouble prosecuting recre ational marijuana cases despite a fundamental right to medical use, but the United States govern ment thinks otherwise. As respondents have pointed out, despite California's Compassionate Use Act of 1996 and that state's decriminalization of small personal use amounts of cannabis, the number of marijuana arrests in California has increased. The law enforcement interest, if it exists at all (and, in light of Winston v. Lee, we do not agree that it does), is not remotely or legitimately limited or harmed by medical use legislation. They can co-exist.

D. Civilized notions of personal liberty require this Court to recognize a consti tutional right to state chartered doctor-supervised treatment that is superior to any interest in federal prohibition.

Fundamental notions of personal liberty under our scheme of constitutional government and federalism require this Court to recognize that, when a state has explicitly permits its citizens medical use of cannabis when doctor and patient agree, there is a fundamental constitutional right to the use of medical cannabis, free from unreasonable federal interference.

III. The claim that federal drug law enforcement is harmed by the Compassionate Use Act of 1996 is untenable.

Proposition 215, the California Compassionate Use Act of 1996, has had no material effect on the federal government's law enforcement machinery. Until this case, the federal government never wasted the time and resources of the DEA and the U.S. Attorney's Offices on such small cases. This case was brought merely to intimidate California voters by showing that the federal government is fighting the "war on drugs." The fact no one has been federally prose cuted for distribution from a buyers' club created under Proposition 215 is truly telling. The federal government's resources are better spent on other aspects of the "war on drugs" where it can plausibly if not credibly claim that it really believes marijuana is a danger to society. The primary governmental entities with law enforcement jurisdiction over respondents, the State of California, Alemeda County, and the City of Oakland, have found their conduct entirely legal. Indeed, the City of Oakland has designated the Oakland Cannabis Buyers' Club a health care provider under Proposition 215.

The state and federal government will continue to fight the "war on drugs," notwithstand ing Proposition 215 and notwithstanding the drug war's apparently counterproductive impact on the availability of illegal drugs and the harm they cause. The federal spending on the war on drugs has increased seven-fold in 15 years, and the number of people incarcerated for drug crimes has grown 1,000% in twenty years. The war on drugs, however, has done absolutely nothing to prevent teenagers from experimenting with cannabis. The government's ability to prosecute those who import, grow, and deal marijuana for profit has been unimpeded by Proposition 215. Marijuana arrests have risen in California since Proposition 215 and the decriminalization of possession of small amounts, while bona fide patients have gained security from the publicly regulated access to the medicine they need. See J.A. 158-59. Most interestingly, and contrary to what is claimed here, the federal government has not claimed there is any interference with federal law enforcement interests in the ten states (including California) that decriminalize small amounts of cannabis. Why the distinction? It is a tacit admission that the government's argument must fail.

The federal government virtually never prosecutes cases involving individual users of small amounts of marijuana. The states do because it falls within their police power and not the federal government's. This fact only adds to the conclusion that is no meaning federal interest involved in Proposition 215. Casualties in the "war on drugs" should not be the chronically and terminally ill who are aided by medical use of cannabis.

 

 

CONCLUSION

If our Constitution means anything, it should mean that "the war on drugs" cannot be made to be a war on the quality of life of the chronically or terminally ill. Sadly, for the sake of public respect for our government, the government believes in a constitutional regime that enables the federal government to enforce its policies which enhance patient pain contrary to state law. This Court must reject any such a view of the constitution that violates the rights of both citizens and the states to enact laws for their common good where there is no federal interest.

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

John Wesley Hall, Jr. Michael D. Cutler

523 West Third Street 46 Kenwood Street

Little Rock, AR 72201 Brookline, MA 02446

(501) 371-9131 (617) 738-1722

Counsel of Record for Amici Counsel for Amicus NORML

Lisa B. Kemler R. Keith Stroup

108 N. Alfred St. 1001 Connecticut Ave., NW; Suite 710

Alexandria, VA 22314 Washington, DC 20036

(703) 684-8000 (202) 483-5500

Of Counsel for Amicus NACDL Of Counsel for Amicus NORML

February 2001

 

 

Appendix





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