Quick Hits (page 4)
Pot Luck -- A Victory for Federalism
By: Jacob Sullum (Norml)
Roscoe Filburn and Diane Monson both got into trouble with the federal government because of plants they grew. The future size and shape of that government hinges on whether those plants were any of its business -- and, if so, why.
Filburn, an Ohio farmer, grew 23 acres of wheat, 12 more than he was allowed under the Agricultural Adjustment Act. Most of it stayed on his farm, where he milled it into flour for his family, fed it to his livestock, and used it to plant the next year's crop. In 1941 Secretary of Agriculture Claude Wickard fined Filburn for his excessive self-reliance.
Monson, a California office manager and bookkeeper, grew six marijuana plants, six more than she was allowed under the Controlled Substances Act. She planned to use the cannabis to relieve severe back pain and muscle spasms caused by a degenerative spine disease, as permitted under California's Compassionate Use Act. In 2002 agents of the Drug Enforcement Administration raided her home and seized the plants.
Filburn challenged Wickard's penalty in federal court, arguing that the Constitution did not give the federal government the authority to tell him how much wheat he could grow on his own land for his own use. The Supreme Court disagreed, saying Congress was legitimately exercising its power to regulate interstate commerce.
After all, Filburn might decide to sell the wheat, and even if he didn't, he reduced overall demand by growing his own. In the aggregate, the Court reasoned, growing wheat for home consumption could have "a substantial economic effect on interstate commerce."
For more than half a century Congress has used this expansive reading of the Commerce Clause as a license to legislate on just about any subject it likes, gradually erasing the crucial constitutional distinction between state and federal powers. Only recently has the Court begun to suggest that the Commerce Clause is not infinitely elastic, and it still has not revisited Wickard v. Filburn.
So when Diane Monson and another medical marijuana user, Angel McClary Raich, sought an injunction to prevent the DEA from seizing their cannabis or arresting them, they had to convince a federal court that their situation was different from Roscoe Filburn's in a way that mattered. In a case that suggests both the promise and the limits of the Supreme Court's recent Commerce Clause decisions, they succeeded.
On December 16, the U.S. Court of Appeals for the 9th Circuit ruled that the Controlled Substances Act "is likely unconstitutional" as applied to Monson and Raich, overturning a district court's refusal to grant them a preliminary injunction. The 9th Circuit concluded that growing marijuana (or obtaining it for free from others, as Raich does) for one's own medical use "is not properly characterized as commercial or economic activity." It added that any impact on interstate commerce would be "attenuated."
This is the third case this year in which the 9th Circuit has tried to define the boundaries of the Commerce Clause. Each decision has been narrow: The first involved child pornography that never crossed state lines and was not intended for distribution; the second dealt with homemade machine guns that met the same criteria; and the most recent one is limited to "the intrastate, noncommercial cultivation and possession of cannabis for personal medical purposes as recommended by a patient's physician pursuant to valid California state law."
But taken together, these rulings help revive the idea that the Commerce Clause is not a blank check. They also show that "federalism is not just for political conservatives," as Monson and Raich's attorney, Boston University law professor Randy Barnett, put it. At the same time, the cases show how tricky it is to enforce limits on federal power without reconsidering the "substantial effects" doctrine exemplified by Wickard.
The dissenting judge in Monson and Raich's case argued that growing marijuana for your own medical use is no less "economic" or "commercial" than growing wheat to feed your family. He has a point. Like Filburn's wheat, Monson's marijuana could be sold, and in any case growing your own medical marijuana affects the overall demand for cannabis (and possibly for pharmaceutical substitutes).
The constitutional argument for letting the DEA seize Monson's marijuana is ridiculous, but it's not indisputably more ridiculous than the constitutional argument for letting the Department of Agriculture fine Filburn. When the law is a joke, it's hard to predict which arguments the courts will take seriously.
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Tan 'n' Trends
Growin' Our Own (page 4)
URGENT ... Red Alert ... Red Alert ...
By: Rodger Beasley
Part II of II. Click here for part I.
No living intelligent individuals are represented in this writing. Other than the obviously guilty.
0013 hundred hours ............. communique posted from the front lines by General Lee Doofy
We crossed the tracks in silence. The closer we got to McDope's the less yard we saw. We entered an area where peeling paint and concrete became the norm. I turned the corner onto McDope's street. A slate gray, Ford Ranger pickup was parked in front of what was once a small store. The store was flanked on each side by similar small buildings. The glow of brown and green neon was beckoning the comfort of Schlitz and Rolling Rock from one side. The building on the other side was covered in signs and banners, "Discount Carpet / Carpets Are Us." The middle building was as nondescript as its neighbors were explicit. There were no signs adorning the outside. The inside of the windows were covered with dust embedded, sun faded tapestries. One was purple and maroon with paisleys. The other had broad stripes in red, gold, green and black.
Blade looked out the car window and saw the Ford Ranger pickup. "Ah fuck, that god damn white nigger is here."
Major Mal turned sharply in his seat. "For Christ's sake Blade take it easy. The Reverend Rog is your cousin."
"That nigger lover is my second cousin and we ain't close."
"Just stay cool. The general and I will not have you starting any trouble while we are here!"
I pulled the staff car in behind the pickup. Mal and I got out and moved toward the door; Blade followed. I pushed on the door. It opened with a clang as a set of bells hanging on the inside chimed to momentary life. McDope was open for company. We shuffled around a couple of dust covered display cases. A single pack of Stella cherry flavored with curled and stained edges was lying on a bottom shelf.. We continued along a wall with bare shelving. A tattered poster was hanging by yellowed tape to the back wall. It was of a young guy with long curly brown hair. He was standing at a phone booth with the phone cradled between his ear and shoulder, rolling a joint and talking. - Yeah dad I got a job. - JOB DOUBLE WIDE -
I brushed aside a wood beaded curtain and stepped into the back room. Mal and Blade momentarily hesitated then followed me through. The Reverend was sitting, reading, on a thread bare couch. His feet, encased in black and purple short boots, were propped on a large wire spool stamped 'Property of National Power and Electric'. The silver cross hanging at chest level over his black turtle neck glittered as he sat up, removed his boots from the spool and rearranged his tan safari jacket on the arm of the couch. Major McDope was slouched into a black leather beanbag using a remote to rapidly scan the channels on a small television. He was wearing sandals and jeans that he had converted to bell bottoms by cutting up the seams and sewing in pieces of rainbow colored cloth. A blue t-shirt with gold letters -NORML- covered his top half while a red white and blue head band circled his gray shoulder length hair.
The room was littered with Freak Brothers comic books and High Times magazines. A flyer advertising the first people's pot conference hosted by NORML in Washington DC was tacked to the back wall.
McDope paused on a channel long enough to acknowledge our presence. "Good to see you General. Make yourselves comfortable."
We were looking for places to settle into what was in some respects a time warp when the Rev spoke up. "Blade, I hear that crazy blond was too much for you."
"Fuck you, you nigger lovin' faggot!"
Mal jumped in. "Blade, shut the fuck up."
Before Blade could reply McDope hit the mute button and spoke up. "Lets have them get this over with right here and right now. This feud has been going way too long. Rev what is the problem between you two?"
"He is an uptight, bigoted, redneck."
"You guys are blood. How can he be that much different than you."
Blade interrupted. "I'll tell you what the big deal is. Rev's granny ran away to Chicago to live with a nigger when his daddy was six years old. She never came back."
McDope thought a minute and then replied. "Damn Blade, that had to be close to seventy five years ago."
"Yeah maybe, but it seems like yesterday to some parts of this family."
McDope continued to referee the situation. "What about it Rev, is that what happened?"
"Yes that is about it. My granny gave up everything for love. She lived with her man in Chicago for fifty years until he passed away. She died twenty years later at ninety nine. It tells me that true love between the races is possible."
Blade got back into the fray. "Love, what about love of her children and family? I never saw any of that. It was selfish horseshit that is what it was. We have blue blood flowing in our veins. My granny was a life long dedicated member of the DAR."
The Rev began to bristle. "Yeah Blade, I know all about it. That and a dollar might buy you a draft beer next door at happy hour. You and your prejudices are an out dated problem."
"You have me wrong Rev. I ain't prejudiced. I'm pissed off. I don't give a shit one way or the other."
"That is bullshit Blade. I heard what your granny had to say about it at every family gathering for as long as I can remember. The quote went like this - As far as I am concerned we should send every one of those niggers back to Africa and pay their way as long as they take a hillbilly under each arm."
"You still don't get it Rev. That ain't prejudice. That is separatism and isolationism. My granny thought that this country made a mistake by letting anyone in on a permanent basis after the revolutionary war."
McDope had heard enough. "That is enough from both of you. I am telling you both that racial prejudice is a thing of the past. This is from the top and I want both of you to understand, especially you Blade. I want you to pass this on to the peckerwoods. This is from the Brand.
The Aryan Brotherhood (Brand) is the only organization that was born in prison. It was formed by white motorcycle bikers in 1964 at San Quentin prison, in Marin County, California. They are not saying that you need to like different ethnicities. What they are saying is use them. You can not hold power over, or make money from, dead people, regardless of their ethnicity. I am passing on the thoughts of the Brand and the board, as those thoughts are understood by me.
The ruling members of the Brand (the board) know, and have acknowledged for quite some time, that power is the key. They have systematically, through fear and intimidation, gained control over the toughest part of the jungle: the American prison system. They have done this by using the blacks, the Latinos and anyone else they needed. You or anyone that you know does not want to live with them.
The Brand has done such a good job of establishing themselves that the government, although already having them incarcerated, fears them. In an attempt to regain control the government has set out to place on death row or execute as many of the board of the Brotherhood as possible. They are hoping for twenty-three death penalty convictions and will be trying in excess of forty individuals late this year and early next spring.
This, although flawed, is the governments logic. In the year 2000 fifty-one inmates were murdered in prison, thirty-four thousand inmates were assaulted, eighteen thousand staff were assaulted and at least one in five inmates has been sexually assaulted. The government thinks that by eliminating the Brand they will bring a stop to that level of violence, thus making prison a safer place. It is a cheap shot at trying for a quick fix on a problem that will only get worse. If prison is to be a deterrent, why would someone expect it to be a safe place? Without the Brand the other organized groups will jump back on the stage in a power struggle that can, in the short term, cost as much life and suffering as the Brand. Why now, when the Brotherhood has figured out that power and the color of mean green money is the real absolute ruler, are they to be exterminated? Are they being exterminated because they have learned the lessons of capitalism? What is the lesson here? In the outside world man attempts to educate lesser men and even animals. An ape is rewarded for figuring out red is hot and green is cool. On the inside it appears as if the system works just the opposite. The more you learn the more you are in danger.
The entire prison system needs to be overhauled. The best place to start is on the outside. It is becoming evident to everyone that it all comes down to dollars. The mistake that the Brand has actually made is figuring that out. The government liked it better when they could point the finger at them for simple racist activities. For the Brand to figure out that capitalism is the answer, that was too much for the system to absorb.
General, I know that you came here today to discuss issues of rights, liberty, privacy and the drug war. The prison situation and race also encompass those issues. Along with the big one, capital punishment. If our government is telling us that the only way they can control the super max prison system that they have built to protect us from the lords of the jungle is to systematically execute the rulers of that jungle of purgatory; if that is indeed the case, why have we incarcerated them in the first place? That has, in most instances, made them worse instead of better.
Some of the weak and shallow basis of our entire belief system has been laid bare by the last eight years of politics. Clinton's last four years and Bush's first four years have pretty well opened it up. Democrat or Republican - it really doesn't appear to matter. They are just variations of capitalists. Each capitalizing on our problems as Americans. What we need is a new direction. We do not need to go back to the fuzzy little world of Bill Clinton and we do not need to go forward to tyranny. We need a political party that will address our problems with out capitalizing on we the people, regardless of our race creed or color. I will throw my vote out the window once again this election year before I will be a party to more of the same.
We can always blame Ralph Nader. We can call him an ego maniac or whatever and let him be the scapegoat and the fall guy. Or we can screw our nuts back on and encourage him to push for change. How about this scenario? He runs and convinces Wesley Clark to run on the ticket with him. We would then at least have the start of a few good men. To dream of politicians as public servants is to dream the impossible dream."
I got a word in edgewise. "Damn McDope, I think you may have lost us on that one."
"I'm sorry General. I get a bit wound up over politics. You guys want to do a number?"
I took a quick look at Mal, Blade and the Rev. They seemed somewhat stunned. McDope had a way of doing that to people. "Yeah McDope, lets see if we can take the edge off." He picked a doobie up from beside the bean bag, placed it in a roach clip, lit it and passed it to me. I took the pro-offered joint from him and looked at the roach clip. A silver pewter casting of Richard Nixon, protruding from a toilet, with the words IMPEACH NIXON embossed over the top. I took a hit and passed it to Major Mal. Did he, did MadMan Blade, did Reverend Rog really get any of it? Maybe, and even more importantly, did it matter? Was politics the ultimate reality game? Was it a place to find apathy? Was it any different than being immersed in apathy through sports?
I looked at my companions. MadMan Blade found his solace and his spirit with two wheels in the wind. Reverend Rog found his solace and spirit in the theosophical teachings of the Secret Doctrine. Major Mal found his spirit and solace in the hum and the whirr of well oiled and running equipment. McDope found his spirit and solace in playing the game. I began to analyze myself. McDope's weed had a way of doing that to me. Fuck it. "McDope how about putting on some tunes? We should all be able to agree on that."
"No problem General. Some hard driving blues will probably work for all of us. How about Clapton and the King? I don't think that even Blade will object to the collaboration of good tunes between the races."
Blade didn't say a word. They were, as McDope had said, pretty good tunes. We silently passed the number, in the Impeach Nixon roach clip, around and around.
Continued at some time and in some way, until death.
For my brothers in enlightened life. Take care ....... The General
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Pipeline (page 4)
Pot Measure Stuck at Starting Line
By: Ed Fletcher (Sacramento Bee)
January 1st was supposed to be a big day for medical marijuana users. That's the day Californians with AIDS, glaucoma, cancer, multiple sclerosis, epilepsy, chronic pain and other ailments could begin getting state-issued identification cards -- thus freeing them from jail time as they debate their medical need with cops.
That won't happen. State officials charged with running the program say they don't have enough money to get it going.
"This is a fee-based program, but we need startup funding," said Lea Brooks, a spokeswoman for the state Department of Health Services. "We have a very tight budget."
The author of the legislation aimed at augmenting Proposition 215 said he was "astonished" and "angry."
"Departments are there to carry out the law -- not (flout) it," said Sen. John Vasconcellos, D-Santa Clara.
Under the law, SB 420, the state cards would replace other cards authorized in some counties. Advocates say a state system would be a win-win for those in need and for cops and courts -- freeing criminal justice officials from having to separate legitimate patients from lawbreakers. The state law would also create greater uniformity.
Even though Proposition 215 passed in 1996, the federal government continues to enforce federal marijuana laws in California. Court decisions have backed the state law, but the conflict continues.
Vasconcellos said he would be surprised if Gov. Arnold Schwarzenegger -- who supported Proposition 215 -- knows what the health department is up to.
The governor's press office said it is still checking into the matter. "This administration will review the statute and implementation plan," said Schwarzenegger spokeswoman Ashley Snee, reading a prepared statement. She would not speculate on when the law might be implemented.
In the absence of state-issued cards, the Oakland Cannabis Buyers' Cooperative is continuing to issue its own cards. On a recent midweek day, clients from Sacramento, Glendale, Calaveras and Oakland all filed through to apply for or renew their cards.
Statewide, 23,000 Californians carry cooperative ID cards. An additional 20 to 25 new cards are issued each day after cooperative staff members review the doctor's note for each applicant, call the doctor and check the physician's standing with the state medical board.
Under the stalled new law, county health departments were to begin issuing state cards on Jan. 1. The law also imposes legal limits on marijuana possession. Patients or primary caregivers may possess no more than 8 ounces of dried marijuana.
Additionally, they may maintain no more than six mature and 12 immature marijuana plants per qualified patient. Higher limits are possible, if set by local authorities or if patients can prove a greater medical need.
But those limits won't go into effect until the ID card portion becomes reality. Brooks said the state health department would need four people working full time and $470,000 to get the program on its feet. Once running, the program would support itself through fees collected from cardholders.
The 389-word Proposition 215 includes no language spelling out how much marijuana may be carried, grown, sold or consumed. As a result -- and in the absence of a state law -- local officials have been forced to set their own legal limits. Courts also have played a major role sorting out what's legal.
In Humboldt County, the district attorney's guidelines say authorized medical marijuana users may possess 3 pounds of dried marijuana. "The law needed to be clarified for a long time," Humboldt County Sheriff Gary Philp said in a phone interview. "It makes it easier for law enforcement and everyone involved to have some clarity."
Jeff Jones, executive director of the Oakland cooperative, said the new law will do the most good in rural California, where "patients are spending nights in jail" because law enforcement officers disregard the mandate of Proposition 215.
A blurb on the Drug Policy Alliance Web site says the law "seeks to protect patients from cowboy cops."
While many agree that the legislation represents a major compromise between law enforcement officials and medical marijuana advocates, others aren't happy at all. Mike, a 55-year-old Calaveras County resident who asked that his last name not be used, said he felt safer when the government didn't have a list of medical marijuana users. "I don't think the state needs to get involved," said Mike, as he filled out his card renewal application in Oakland. He said marijuana has helped him with his ailments and improved his life.
Dennis Peron, one of the driving forces behind Proposition 215, said he doesn't support the new law and said he is thinking about suing to block its implementation. "Anybody who registers with the cops is crazy," Peron said.
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