'It's medicinal' vies against 'It's illegal'

California has become the epicenter of a states vs. feds battle over marijuana use.

At the "Sixties Paraphernalia" shop on Victory Blvd. here, you can glimpse the past of US marijuana use - hash pipes, "bongs," cigarette papers - and catch an earful about its future.

"The federal government is still stuck in the pre-Beatles days of 'reefer madness,' " says Skip Stanley, a bearded biker who also holds a graduate degree in sociology. He cites a recent poll showing nearly 80 percent support for medicinal marijuana use, and notes nine states have approved such use. "States are trying to move ahead with ways of using this plant to alleviate suffering but the feds still think of users as just Dead-heads and zombies."

The issue of medicinal "pot" is boiling over again. The recent conviction in federal court of an Oakland man for marijuana distribution is one sign, as are federal crackdowns on medical cannabis clubs across the Golden State. State lawmakers from Sacramento to the US Capitol are preparing laws and resolutions to clarify existing laws in California and, by extension, eight others with medical marijuana statutes.

The fight represents a states-rights battle that goes beyond the symbolism of Berkeley versus the Bush administration. The clash pits states rights to define and control criminal issues against the federal government's authority under the Constitution to control the shipment and trafficking of illegal substances.

"Medical marijuana may prove to be the ultimate confrontation of state's rights vs. federalism in America," says Jonathan Turley, a constitutional law expert at George Washington University. "The question is whether or not states can take their own course on issues of novel and independent social experimentation."

Many in California want the answer to be yes. California congressman Sam Farr is introducing legislation within weeks that would create two legal categories of marijuana - medical and criminal. The legislation is intended to allow individuals who can prove they possess or cultivate the plant for medical use only to use that as a defense in a federal trial.

In the recent case of Ed Rosenthal, federal prosecutors blocked the jury from hearing any discussion of an Oakland ordinance which was designed to protect medical cannabis users from federal prosecution.

Rosenthal had been deputized by the city to distribute the drug under the rules of their own law. But jurors did not hear about this or about state Proposition 215, passed in 1996, which legalized medical use. Mr. Farr says "These federal agencies, including the DEA [Drug Enforcement Administration] and Justice Department, both led by Atty. Gen. John Ashcroft, have no respect for the laws we have here in California" or the eight other states (Maine, Colorado, Arizona, Nevada, Oregon, Washington, Alaska, and Hawaii).

At the same time, state Assemblyman Mark Leno (D) of San Francisco and state Sen. Don Perata (D) of Oakland are formally urging the 52 members of the California congressional Delegation to amend America's Controlled Substances Act to allow the medical necessity defense, and to cut federal departments whose budgets are used, in their view, to "harass, intimidate, and prosecute Californians attempting to comply with Prop. 215."

But opponents of the medical-marijuana movement point to a federal listing of the drug as illegal. In 2001, the Supreme Court handed medical marijuana users a major defeat, ruling that the classification as illegal has no exception for ill patients.

Of the states with medical-marijuana laws, "only California generates sufficient friction [with] the federal government to force the issue," says Allen St. Pierre, executive director of the National Organization for the Normalization of Marijuana Laws (NORML).

Whether or not the Farr legislation or the Leno/Perata initiatives will be successful in either short or long terms is an unknown made more precarious by the current White House, activists on both sides agree. Many feel such legislation could pass only to be vetoed by President Bush.