Amicus Curiae Brief — United States v. OAKLAND CANNABIS BUYERS'COOPERATIVE

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FEB ~ No. 00-151

IN THE

Supreme Court of the United States

UNITED STATES OF AMERICA,

Petitioner,

vs

OAKLAND CANNABIS BUYERS’* COOPERATIVE,

and

JEFFREY JONES,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF AMICUS CURIAE OF

SHERIFF MARK N. DION (CUMBERLAND COUNTY,

MAINE), (MAINE) SENATOR ANNE RAND,

(CALIFORNIA) SENATOR JOHN VASCONCELLOS,

NEW MEXICO GOVERNOR GARY JOHNSON, AND

DKT LIBERTY PROJECT

IN SUPPORT OF RESPONDENTS

DAVID T. GOLDBERG JULIE M. CARPENTER *

817 Broadway JENNER & BLOCK, LLC

New York, New York 10003 601 Thirteenth Street, N.W.

(212) 228-1293 Washington, D.C. 20005

Counsel for Amici Sheriff Mark (202) 639-6000

N. Dion (Cumberland Counsel for Amicus DKT

County, Maine), (Maine) Liberty Project

Senator Anne Rand,

(California) Senator John

Vasconcellos, and New

Mexico Governor

Gary Johnson

February 20, 2001 * Counsel of Record

ELIT CIE ITA BAAN SITE NOS LTE ALE DA LLL TIE SALE E ILLES, EAL EEL LE ELE ED EAE

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 -- WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

DEA DEMMINE CP CN NEIRDIOE 05.06 ect cacewediescceues l

SUMMARY OF ARGUMENT .................c000- l

ps PT Ee ee Oe er Pe ene © te ee 6

I. Basic Statutory Construction Tools Establish the

Correctness of the Appeals Court Decision. ......... 6

A. Congress Did Not Withhold Traditional

ES ee Ses EB Say gee 6

B. The Statute Does Not Abrogate a Medical

eT ee a eee 10

I]. Principles of Judicial Restraint Counsel Strongly

Against an Unduly Broad Reading of the Statute. ... 15

A. This Case Is No Occasion for Announcement

Ee er errr pera 15

B. A Restrained Construction Serves Important

Constitutional Purposes. .................. 18

1. This Case Implicates Issues of

Constitutional Dimension. ............. 18

2. In Diverse and Appropriate Ways,

States Have Sought to Recognize and

Safeguard these Interests. .............. 23

III. Courts May Consider Legitimate State Interests In

Exercising Equitable Discretion. ................ 28

RAPUGMAEE: bk Sig ads noch W560 5 a kc acdc eks 858 30

il

TABLE OF AUTHORITIES

CASES Page

Alliance for Cannabis Therapeutics v.

Drug Enforcement Administration,

aS F.O0 2138 GOA. Cay Pee hs os 0 vcs ce ees 12

Amoco Production Co. v. Village of

Gambell, 480 U.S. 531 (1987) .............. 3, 7, 28

Arizona v. Evans, 514 U.S. 1 (1995) ............... 19

BFP v. Resolution Trust Corp., 511 U.S. 531

(SSID ks cavevicacsewerssaonk en eae 28

California ex rel. Lungren v. Peron,

39 Cal. App. 4th 1383 (1997) ................-.- 16

California Retail Liquor Dealers Ass’n v.

Midcal Aluminum, Inc., 445 U.S. 97 (1980) ........ 27

California v. Rigo, 69 Cal. App. 4th 409 (1999) ...... 26

California v. Trippet, 56 Cal. App. 4th 1532

(APPT) «cies oi capeee dbayabeeea cee ee 24, 26

Central Bank of Denver, N.A. v. First

Interstate Bank of Denver, N.A.,

ots OLS. MAPS soe a eg was 13

Chrysler Corp. v. United States, 316 U.S. 556

(FPRR) io vadecdeGeee cee 10, 29

Cruzan v. Director, Missouri Department

of Health, 497 U.S. 261 (1990) .......... 5, 19, 21, 24

ee

TABLE OF AUTHORITIES - continued

Page

Davies Warehouse Co. v. Bowles, 321 U.S. 144

SN NR POC Des cae oak Fe oes ow buen we 29

FERC v. Mississippi, 456 U.S. 742 (1982) .......... 20

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

ee Es is koa vais bie cha eS 8,9

Gebser v. Lago Vista Independent School District,

Me MP EP iis SS Cy Wins Conk wees ode 16

Grupo Mexicano de Desarrollo S.A. v.

Alliance Bond Fund, Inc., 527 U.S. 308 (1999) ...... 7

Hawaii v. Bachman, 595 P.2d 287 (Haw. 1979) ...... 15

Hecht Co. v. Bowles, 321 U.S. 321 (1944) ...... 7, 8, 24

Huron Portland Cement Co. v. City of Detroit,

ee NE as ra ah OO 4 Ks i cai ss 2

Idaho v. Hastings, 801 P.2d 563 (Idaho 1990) ....... 24

International Union, United Mine Workers

of America v. Bagwell, 512 U.S. 821 (1994) ........ 9

Jacobson v. Massachusetts, 197 U.S. 11

Ne ae ee i kas ws ea oe EE waa bees 5, 9, 24, 29

Jenks v. Florida, 582 So. 2d 676 (Fla. Ct. App.

RES a ee a ad igre at eo 4, 15, 24

Jones v. United States, 526 U.S. 227 (1999) ....... 4,18

Kauffman v. Alabama, 620 So. 2d 90 (Ala. Crim.

EE ee Sere ok ob k b's o's ks & opie 15

iV

TABLE OF AUTHORITIES - continued

Kuromiya v. United States, 78 F. Supp. 2d 367

OEM Oe. TE 23 Scie ers ee

Lexecon Inc. v. Milberg Weiss Bershad

Hynes & Lerach, 523 U.S. 26 (1998) .......

Miller v. French, 120 S. Ct. 2246 (2000) ......

Minnesota v. Hanson, 468 N.W.2d 77

Cee, Se. FO TPO se viaivicnncaceacinaans

Murray v. Giarratano, 492 U.S. 1 (1989) .....

National Organization for Reform Marijuana

Laws v. Bell, 488 F. Supp. 123 (D.D.C. 1980) ...

New State Ice Co. v. Liebmann, 285 U.S. 262

(se eee

Oregon v. Arana, 998 P.2d 688 (Or. Ct. App.

BE vik ckneh ceca che icra

Parker v. Brown, 317 U.S. 341 (1943) .......

Penry v. Lynaugh, 492 U.S. 302 (1989) ......

Porter v. Warner Holding Co., 328 U.S. 395

ERD ial oak pap bie oe sil Galen oma ued ee

Rizzo v. Goode, 423 U.S. 362 (1976) .........

Robinson v. California, 370 U.S. 660 (1962) ..

San Antonio Independent School District v.

Rodriguez, 411 U.S. 1 (1973) ..............

Schiro v. Farley, 510 U.S. 222 (1994) .........

Solid Waste Agency v. United States Army

Corps of Engineers, 121 S. Ct. 675 (2001) ....

Page

4, 18, 28

Vv

TABLE OF AUTHORITIES - continued

Page

Tennessee Valley Authority v. Hill, 437 U.S. 153

CRP PEE: 0595 wk aA sa eh EEE eee 9

Thompson v. Oklahoma, 487 U.S. 815 tease 19

Ticor Title Insurance Co. v. Brown,

PRA Ae BEF CUTE obs i 4k ob dab wees 16

United States v. Bailey, 444 U.S. 394 (1980) ..... 10, 18

United States v. Burton, 894 F.2d 188 (6th Cir.

ROE ss 5 a Gd ae CR oe ee ee 14

United States v. Cannabis Cultivators Club,

5 F. Supp. 2d 1086 (N.D. Cal. 1998) .............. Y

United States v. Kabat, 797 F.2d 580 (8th Cir.

SOE hee bay bak do oy Chee Re ee ae 12

United States v. Lopez, 514 U.S. 549 (1995) ......... 29

United States v. Raines, 362 U.S. 17 Ree: che awes 4,15

United States v. Randall, 104 Wash. D. Rep. 2249

an CPE cick chek cde cee 14, 22

United States v. Rutherford, 442 U.S. 544 (1979) ..... 22

Vacco v. Quill, $21 U.S. 793 (1997) ........cccccce 21

Vermont Agency of Natural Resources v.

United States ex rel. Stevens, 120 S. Ct. 1858

NE ieee Sans ck ea ee 4,18

Washington v. Glucksberg, 521 U.S. 702 (1997) . 5, 21, 22

Washington v. Harper, 494 U.S. 210 (1990) ... 16, 17, 27

Weinberger v. Romero-Barcelo, 456 U.S. 305

pee Rg aia Serger eSB A OY. fymal 7, 8,9

vi

TABLE OF AUTHORITIES - continued

Page

Whitley v. Albers, 475 U.S. 312 (1986) ............. 24

STATUTES

ropes Sem yt re eee rey rer 14

BA Ses RD civ Si cda ws hne ev sdGceassiaees 3

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PERE 6:0 0-6ss b 6b 0d bs 68 kee ae 16

ry re rr ree rer 3,6

SRD bowie ode les dmbwccndieeveeRees 6, 29

Model Penal Code § 3.02(1X(c) ......2cccccccceces 10

FR ne IE dno wo hess cue hewesieensasan 25

EE SG nvian'n sao Gud dances 606 oak 26

Cal. Health & Safety Code § 1136.9 ............... 25

Conn. Gen. Stat. § 21-0-246 . 0.0.2... c cc ccc ccccces 25

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vii

TABLE OF AUTHORITIES - continued

Page

SE I AUEEE Sb kekwiccccbpessceedocuschas 25

Mont. Code Ann. § 50-32-222(7) ..............4.. 25

SUNY. SE BAR GONOOUED oo cccesscndccvecoscceccee 26

N.H. Rev. Stat. Ann. § 318-B-9 ................2.. 25

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S.C. Code Ann.§ 44-S3-610 . 00... cc ccccccccccccce 25

Tenn. Code Ann. § 68-52-101 ... 2.2.00... 02 cece, 25

Tex. Health & Safety Code Ann. § 481.111 ......... 25

Tex. Health & Safety Code Ann. § 481.201-205 ...... 25

VO. COED AMR. GIBB TIOL wc ccscccccccccccvcces 25

VU Me FU Oe BUTE cc cccccccccccccecsénce 25

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Wash. Rev. Code § 69.51... .cccccccccccccccces 25

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TABLE OF AUTHORITIES - comtiened

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LEGISLATIVE MATERIALS

Emergency Price Control Act of 194).

56 Sent. 23 7,8

Hillary ) Parwee end Semeuthe Bend Dene Bape

Prohitence Act of 2000, Pub L. Me 166-172 at

ated Hesketh Begertang Act

Pub L. No 91-296, reprennead a 1970

USCCAN 418 ”

Operates ( oteccadanerd and

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Pub. L. No. 105-277, Dew F, 112 Sam Deel 0

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HR. Rep. No. 98-534 (19846), reprinned ie 1086

USCCAN 500 rT

H.R. Rep. No. 91-1464 (1970), reprimand te

IVMUSCCAN 4566

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Mo. Sen. Con Res. 14 (1904) *

Cal. Sen. Jotet Res. Mo. 8 Gepe 2, 1999) ba)

Robert } Glendos & bots T Young The Puddw

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(1998) ?

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STATEMENT OF INTEREST”

Amici Curiae Mark N. Dion, Anne Rand, John Vasconcellos,

and Gary Johnson are among the thousands of State and local

government officials who have worked to enact and enforce

State measures aimed at meeting the medical needs of those

seriously ill persons for whom marijuana has proven to offer

otherwise unavailable relief. Amicus DKT Liberty Project is a

not-for-profit organization founded in 1997 with the aim of

promoting and protecting civil liberties. It has actively

supported these innovative State and local government efforts

to safeguard the rights and interests of the seriously ill.

Although no question of the legality of these State measures

is before the Court in this case — and we believe that the

questions of Federal law that are squarely presented may be

resolved exclusively through ordinary statutory interpretation

tools — we are concerned that this case not be resolved based on

misperceptions about the purpose or effect of these laws and

that it not be decided in a manner that “pretermit[s]. . .

responsible solutions being considered” at the State level.

Murray v. Giarratano, 492 U.S. 1, 14 (1989) (Kennedy, J.,

concurring in judgment).

SUMMARY OF ARGUMENT

This case arises at a time of significant change in the

scientific, legislative, and public opinion climate concerning the

use of marijuana for therapeutic purposes by persons suffering

from acute pain and debilitating illness. Rigorous scientific

evidence documenting the specific benefits of marijuana for

particular medical conditions is accumulating, see National

Academy of Sciences/Institute of Medicine, Marijuana &

Medicine: Assessing the Science Base (1999) (“IOM Report”),

and this body of evidence — along with increased discussion and

* Consent to file this Brief has been sought and obtained from both

parties. Pursuant to this Court’s Rule 37.6, Amici attest that no counsel for

a party had any role in authoring this Brief and no outside party has made

a monetary contribution for its preparation or submission.

2

debate about the needs and autonomy claims of those suffering

from intolerable pain and terminal illness — has so far persuaded

thirty States to adopt legal rules that, in various ways, express

the conviction that use of marijuana by a narrow class of

seriously ill persons is not the sort of conduct that should give

rise to criminal punishment or civil liability.

Although, as described herein, these State responses differ

from one another in significant ways — some are avowedly

symbolic; others establish intricate State-administered patient

registration systems, and still others provide an affirmative

defense against charges of possession or cultivation of small

amounts of marijuana — this variety should not obscure

fundamental points of commonality. First, these measures are

concerned exclusively with individuals suffering from serious

illness whose conditions are likely to benefit from marijuana —

a class whose existence has been confirmed by the Institute of

Medicine’s authoritative study, and the contours of which

research is defining with increasing precision. Such measures,

which are consistent with the States’ historic power to protect

the health and well-being of their citizens, see Huron Portland

Cement Co. v. City of Detroit, 362 U.S. 440, 442 (1960), have

neither the purpose nor the effect of thwarting the Federal and

State statutes that punish trafficking in marijuana or proscribe

its possession for recreational use. Many of the measures

viewed as the most aggressive are modest in actual operation —

Alaska’s program has an estimated 180 enrollees, and Oregon’s

has approximately 1,675 — and these same States, through their

own courts, not only continue to punish those who engage in

the marijuana trade, but have been vigilant in assuring that new

protections for the grievously ill not become a shield for

lawbreakers.

Nor are these developments the only significant changes in

the background against which this case will be decided.

Petitioner informs the Court, see Pet. Br. at 27 n.12, that the

LOBE TSS LET Se.

3

U.S. Department of Health and Human Services will soon

release its view of the scientific evidence concerning marijuana

and health — as part of the disposition of a petition to reschedule

marijuana, see 21 U.S.C. § 811(b). And as Petitioner’s Amici

repeatedly emphasize, the Institute of Medicine Report held out

the hope that in coming years drugs derived from marijuana will

be developed that will offer the same benefits with fewer

adverse effects. See Br. Amicus Curiae of Family Research

Council at 9.

This case, it should be underscored, does not call upon the

Court to make an explicit /egal judgment about any of these

developments. Petitioner has not sought a declaration that any

California law is unenforceable, see Pet. Br. at 9 n.6; 28 U.S.C.

§ 2403(b), and, as will be made clear below, it is not, in fact,

necessary that the Court take cognizance of these developments

to answer the narrow statutory question the case squarely

presents. Rather, basic tools of statutory construction establish

that the Court of Appeals was correct to hold that the equity

jurisdiction conferred by 21 U.S.C. § 882 includes the full

measure of traditional discretion, including authority to modify

or dissolve injunctions when the public interest so requires. See

Amoco Pred. Co. v. Village of Gambell, 480 U.S. 531 (1987).

Nor is it essential that the context be taken into account were

the Court to undertake to resolve the much broader statutory

question that the United States urges upon it. As will also be

shown below, if the availability vel non of a necessity defense

is to be taken up, ordinary statutory construction rules are also

adequate in themselves to defeat Petitioner’s argument that the

Controlled Substances Act (“CSA”) includes an (implicit)

abrogation of the common law defense of medical necessity.

The evidence concerning scientific and legislative

developments, we believe, does supply further reason for

rejecting Petitioner’s statutory argument — or, at least, for

leaving the necessity question for a case in which it is squarely

4

presented. It is contrary to usual principies of judicial restraint,

see, e.g., United States v. Raines, 362 U.S. 17, 22 (1960), to

resolve questions — whether, for example, an individual charged

with criminal marijuana possession, see 21 U.S.C. § 844, may

raise the defense of necessity — in a case arising out of a civil

proceeding involving a different statutory provision, see 21

U.S.C. § 841(a)(1). And to the extent that Petitioner has

evidence concerning conduct by these particular Respondents

that is inconsistent with a claim of medical necessity, see,

e.g., Pet. Br. at 35 n.16, such allegations go to the propriety of

the particular order issued in this case and cannot establish that

there is no set of facts under which a necessity defense could be

sustained. Indeed, though Petitioner has shown limited interest

in having this case decided according to its particular facts — or

in pressing for an injunction that better incorporates the

safeguards it insists are necessary to prevent “abuse or diversion

of the drug,” id. at 26 n.11, it has had ample opportunity to do

so — including in a still-pending Ninth Circuit appeal.

But if the Court is to venture an answer to the broadly-

framed question, principles requiring that Federal statutes be

construed so as to avoid difficult constitutional questions, and

in a manner that takes due account of the States’ role, argue

strongly that a necessity defense has not been abrogated. See

Solid Waste Agency v. United States Army Corps of Engineers,

121 S. Ct. 675, 683 (2001); Vermont Agency of Natural

Resources v. United States ex rel. Stevens, 120 S. Ct. 1858,

1870 (2000); Jones v. United States, 526 U.S. 227, 239 (1999).

First, the enforcement of laws criminally punishing marijuana

possession would, in cases of suffering individuals with no

effective therapeutic alternative, raise real and substantial

constitutional questions. To the extent that an individual could

show that he would suffer intolerable pain — or risk death — as

a consequence of the government’s refusal to allow him to

possess marijuana, Jenks v. Florida, 582 So. 2d 676, 680 & n.4

(Fla. Ct. App. 1991), the Constitution’s basic protections

5

against unjustifiable intrusions on individual liberty would be

implicated. See, e.g., Washington v. Glucksberg, 521 U.S. 702

(1997); Jacobson v. Massachusetts, 197 U.S. 11, 24-30 (1905).

The ultimate disposition of such a constitutional claim would

then require assessment, inter alia, of the asserted governmental

interests, the availability of less burdensome alternatives, and

the existence of a practicable remedy. See generally Cruzan vy.

Director, Mo. Dep't of Health, 497 U.S. 261 (1990).

This Court should construe the statute at issue in this case so

as to postpone, rather than hasten, the day when such

constitutional questions must be definitively resolved. Both the

process of constitutional adjudication and that of self-

government are advanced by allowing these complex

questions — involving sensitive matters of public administration,

science, and morality, as well as law — to continue to receive

serious and thoughtful attention at the State level. See

Glucksberg, 521 U.S. at 788-89 (Souter, J., concurring in

judgment); New State Ice Co. v. Liebmann, 285 U.S. 262, 311

(1932) (Brandeis, J., dissenting). Indeed, it is a testament to the

approach that Justice Brandeis extolled that Petitioner’s Amici,

in the service of their argument for a maximal reading of the

Federal statute, attempt comparisons based on the outcomes of

the diverse policies pursued by the fifty States. See Br. Amicus

Curiae of Institute on Global Drug Policy of the Drug Free

America Foundation, et ai., App. 6.

In arguing for caution here and for respect for the good-faith

efforts of the States to exercise their police powers in a manner

that gives meaningful protection for significant personal liberty

interests, we do not maintain that there is no limit to State

“experimentation” under the Act — or that injunctive relief must

be denied whenever there is a State policy supportive of a

particular necessity claim. To the contrary, in settings where

core congressional power is implicated and where the text and

policy of the statute are clear and strong, the States must recede.

6

See 21 U.S.C. § 903 (providing for preemption when — but only

when — there is a “positive conflict’’). But in an instance where

a State is acting carefully — on a matter of its core historic

concern — and in a manner that respects clearly expressed

congressional intent and is consistent with traditional

constitutional and equitable limitations on the reach of the law,

courts exercising Federal equity power should tread carefully,

if at all.

ARGUMENT

I. Basic Statutory Construction Tools Establish the

Correctness of the Appeals Court Decision.

In arguing for reversal, Petitioner urges this Court to make

two separate and large interpretive leaps. The Court is asked to

hold both: (1) that in conferring on Federal and State courts the

power to enjoin violations of the CSA, see 21 U.S.C. § 882,

Congress (silently) withheld the flexibility and discretion that

are the acknowledged hallmark of the equity jurisdiction; and

(2) that, by placing marijuana in Schedule I, the 91st Congress

(by implication) abrogated a common law medical necessity

defense. Ordinary statutory construction tools are sufficient in

themselves to show the error of each proposition.

A. Congress Did Not Withhold Traditional Discretion.

Although Petitioner seeks to have this case decided on the

broad ground that considerations of medical necessity are not

cognizable in any proceeding, civil or criminal — in any way

pertaining to a Schedule I substance — whether involving

importation, distribution, or mere possession, see infra, the

question most squarely presented is whether the grant of power

contained in section 882 should be construed as requiring

Federal courts, sitting in equity, to enjoin any conduct that

appears to be inconsistent with the substantive prohibitions of

the CSA. As is shown convincingly and in finer detail in the

Respondents’ Brief, settled precedent directs a negative answer

to that question.

;

In Hecht Co. v. Bowles, 321 U.S. 321, 330 (1944),

Weinberger v. Romero-Barcelo, 456 U.S. 305, 329-30 (1982),

and Amoco Production Co. v. Village of Gambell, 480 U.S. 531

(1987), this Court affirmed that when a court exercises

jurisdiction under a Federal statute providing for injunctive

relief, it is presumed to have the full range of equity powers at

its disposal, unless a contrary intent appears plainly in the text

of the statute. See Porter v. Warner Holding Co., 328 U.S. 395,

398 (1946) (“the comprehensiveness of this equitable

jurisdiction is not to be denied or limited in the absence of a

clear and valid legislative command. Unless a statute in so

many words, or by a necessary and inescapable inference,

restricts the court’s jurisdiction in equity, the full scope of that

jurisdiction is to be recognized and applied”); Miller v. French,

120 S. Ct. 2246, 2255 (2000) (“we should not construe a statute

to displace courts’ traditional equitable authority absent the

‘clearest command”) (quoting Califano v. Yamasaki, 442 U.S.

682, 705 (1979)); see generally Grupo Mexicano de Desarrollo

S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 318 (1999).

Thus, rejecting arguments that Congress’s enactment of the

Emergency Price Control Act of 1942, 56 Stat. 23, had deprived

a court of discretion to withhold injunctive relief, the Hecht

Court explained:

We are dealing here with the requirements of equity practice

with a background of several hundred years of history . .

. . The essence of equity jurisdiction has been the power of

the Chancellor to do equity and to mold each decree to the

necessities of the particular case. Flexibility rather than

rigidity has distinguished it. The qualities of mercy and

practicality have made equity the instrument for nice

adjustment and reconciliation between the public interest and

private needs as well as between competing private claims.

321 U.S. at 329-30. “{I]f Congress desired to make such an

abrupt departure from traditional equity practice as is

8

suggested,” Hecht continued, “it would have made its desire

plain.” Jd. And Romero-Barcelo made clear that “(t]he grant

of jurisdiction to ensure compliance with a statute hardly

Suggests an absolute duty to do so under any and all

circumstances.” 456 U.S. at 313; see also Friends of the Earth,

Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 171

(2000) (“[dJenial of injunctive relief does not necessarily mean

that the district court has concluded there is no prospect of

future violations to deter’).

Petitioner’s argument against equitable discretion is

considerably weaker than in those cases. Where this statute’s

terms provide simply that courts “shall have jurisdiction .. . to

enjoin violations of [the CSA],” the law held insufficient to

curb discretion in Hecht provided that upon a showing that the

defendant “is about to engage in any .. . acts or practices

[against the law], a permanent or temporary injunction, or other

order shall be entered without bond.” 56 Stat. 33 (emphasis

added). Cf Lexecon Inc. v. Milberg Weiss Bershad Hynes &

Lerach, 523 U.S. 26, 35 (1998) (“[T]he mandatory ‘shall,’ . . .

normally creates an obligation impervious to judicial

discretion.”).”

Nor would there be a plausible basis for believing that

Congress intended for injunctions to be non-discretionary in

this setting. First, ensuing history strongly suggests that

Congress would have expected civil proceedings under the CSA

to be a somewhat exotic alternative to the criminal prosecutions

' And as Justice Rutledge observed — dissenting from a decision

holding that the Emergency Price Control Act provisions governing the

award of damages did not displace courts’ power to award monetary

restitution in their equitable discretion — “[i]t is not excessive to say that -

perhaps no other legislation in our history has equalled the Price Control

Acts in the wealth, detail, precision and completeness of its jurisdictional,

procedural and remedial provisions.” Warner Holding Co., 328 U.S. at 404

(Rutledge, J., dissenting).

9

that have always been the mainstay of the Act’s enforcement.”

Thus, this is not a case where the party enlisting the aid of

equity would have no adequate remedy at law, nor is it an

instance seeking prevention of an injury of truly irreparable

character. Compare Tennessee Valley Authority v. Hill, 437

U.S. 153, 173-75 (1978) (concluding that only an injunction

could vindicate the objectives of the Endangered Species Act),

with Romero-Barcelo, 456 U.S. at 314 (noting that statutory

purposes could be accomplished through the availability of

“fines and criminal penalties”); see also Friends of the Earth,

528 U.S. at 171 (noting district court’s reliance on civil

penalties for deterrence).?

Of equal import, this case — involving, inter alia, the efforts

of AIDS patients to secure a substance that the Institute of

Medicine, in a recent, comprehensive study commissioned by

the United States, pronounced to be “promising treatment,” for

their condition, see infra — would be an odd candidate for

holding that Congress had, sub silentio, repudiated “the

qualities of mercy and practicality” that this Court has identified

as the “essence” of the equity jurisdiction. Cf. Jacobson, 197

U.S. at 38-39 (suggesting that in hypothetical case seeking to

enforce compulsory vaccination statute against person whose

“particular condition of . . . health or body” would make

administration of the vaccine “cruel and inhuman,” the judiciary

” As the District Court noted, the entire thirty-year history of the CSA

has yielded only five reported decisions involving section 882(a). See

United States v. Cannabis Cultivators Club, 5 F. Supp. 2d 1086, 1104 (N.D.

Cal. 1998).

* Indeed, though section 882(b) provides for “trial... by a jury in

accordance with the Federal Rules of Civil Procedure” for those who violate

injunctions, wholesale resort to that mode of proceeding would raise distinct

constitutional questions. See, e.g., International Union, United Mine

Workers of Am. v. Bagwell, 512 U.S. 821, 840 (1994) (Scalia, J.,

concurring).

10

would “be competent to interfere and protect the health and

life” of “the individual concerned”); cf generally Chrysler

Corp. v. United States, 316 U.S. 556, 570 (1942) (Frankfurter,

J., dissenting) (“A court of equity is not just an umpire between

two litigants . . . the public interest is in its keeping as the

conscience of the law. The circumstance that one of the parties

is the Government does not in itself mean that the interest

which it asserts defines and comprehends the public interest

which the court must vindicate.”’).

B. The Statute Does Not Abrogate a Medical Necessity

Defense.

Although this Court need not — and probably should not, see

infra — decide the necessity defense question at the high level of

abstraction that the United States demands, traditional statutory

construction tools also establish tat, if the question of

abrogation is to be decided wholesale, it should be resolved for

Respondents.

As Respondents point out, this Court has never construed a

Federal statute as having entirely abrogated a common law

justification defense, such as necessity or duress, see United

States v. Bailey, 444 U.S. 394, 415-16 & n.11 (1980) (noting

that “Congress in enacting criminal statutes legislates against a

background of Anglo-Saxon common law,” but holding that

facts of that case would not support a necessity defense) (citing

Morissette v. United States, 342 U.S. 246 (1952)), and such a

drastic departure from settled legislative practice should not be

found absent an unmistakably clear congressional statement.

See Model Penal Code § 3.02(1)(c) (intent to abrogate

justification defense should “plainly appear” in criminal

statute).

Although Petitioner has argued that the text and structure of

the CSA would satisfy any clear statement requirement, its

near-exclusive reliance on Congress’s placement of marijuana

on Schedule I puts far greater weight on that particular

11

legislative action than it fairly may bear. In fact, the meaning

Petitioner would have the Court ascribe to Congress’s 1970

action is not the most plausible interpretation — let alone an

inescapable one. Most fundamentally, contrary to Petitioner’s

drumbeat argument, see, e.g., Pet. Br. at 14, 22, the placement

by Congress of a substance in Schedule I does not equate

automatically to a “determination” that marijuana ““‘has no

currently accepted medical use in treatment in the United

States,” or has no “‘accepted safety for use . . . under medical

supervision.” /d. (quoting 21 U.S.C. § 812(b)(1)(B) and (C)).

Rather, the text and structure of the statute make it plain that

Congress is not bound by the same criteria as would be the

Attorney General or the Drug Enforcement Agency in deciding

a reclassification petition. Indeed, Congress has repeatedly

affirmed this understanding, see H.R. Rep. No. 98-534, at 4

(1983), reprinted in 1984 U.S.C.C.A.N. 540, 543 (explaining

legislation placing in Schedule I a drug — methaqualone — which

previously had been approved by the FDA, by noting that “the

[DEA] may not, in the absence of Congressional action, subject

drugs with a currently accepted medical use in the United States

to Schedule I controls”); see also Hillary J. Farias and

Samantha Reed Date-Rape Prohibition Act of 2000, Pub. L. No.

106-172 (directing Attorney General, “notwithstanding sections

[811(a), 811(b), 811(c) and 812)], to issue a final order placing

GHB [gamma-hydroxybutyrate] in [Scheduie I]”).

National Organziation for Reform of Marijuana Laws

(NORML) v. Bell, 488 F. Supp. 123, 139 (D.D.C. 1980),

underscores this point. In that case, plaintiffs challenging the

constitutionality of placement of marijuana on Schedule I

argued strongly that it did not satisfy the statutory criteria. That

contention, the district court explained, misconceived the

Statutory scheme: “Even assuming, arguendo, that marijuana

does not fall within a literal reading of Schedule I,” NORML

explained, “[p]lacing marijuana in Schedule I furthered . . .

12

regulatory purposes of Congress,” id. at 140; see also id. at 138-

39 (explaining that “[t]he statutory criteria of Section 812(b)(1)

are guides . . . but they are not dispositive” and noting

Congress’s “fear[]” that lighter penalties for marijuana “would

create the impression that marijuana use was acceptable”). In

sum, the core premise of Petitioner’s argument — that Congress

actually and necessarily resolved the question of medical

necessity in 1970 —is a mistaken one. Cf. Schiro v. Farley, 510

U.S. 222, 236 (1994).*

Indeed, the contemporaneous history establishes with

unusual clarity that the interpretation that the Petitioner insists

is the only possible meaning of Congress’s 1970 action — i.e.,

that the placement of marijuana in Schedule I expressed an

affirmative “declaration” or “determination” — is not really a

tenable one. Recognizing that it was not in a position to make

* The other arguments from the “statutory scheme” are no more

persuasive. First, the existing statutory regime makes no provision for

individuals who have in good faith exhausted all approved treatments, and

its processes for rescheduling — which, in a prior instance, dragged on for

nearly twenty-two years, see Alliance for Cannabis Therapeutics v. Drug

Enforcement Administration, 15 F.3d 1131 (D.C. Cir. 1994) — provide no

meaningful alternative for individuals whose life expectancy is measured in

months. As for the argument that the decision below “completely abandons

any pretense of requiring [R]espondents to comply with” the “significant

restrictions . . . [designed] to ensure a closed system of distribution,” Pet. Br.

at 24, 25, it appears that Petitioner did not propose specific limitations that

might have enabled the injunction to operate in a manner that better

approximated what Congress is claimed to have intended.

United States v. Kabat, 797 F.2d 580, 591-92 (8th Cir. 1986), cited at

Pet. Br. at 20, is not helpful to Petitioner. The essence of the medical

necessity defense is not that those asserting it “‘disagree with the

[government’s policy] decisions,’” Pet. Br. at 20, but rather that they are

“confronted with such a crisis as a personal danger, a crisis which did not

permit a selection from among several solutions, some of which did not

involve criminal acts,” Kabat, 797 F.2d at 591 (citing United States v.

Seward, 687 F.2d 1270, 1276 (10th Cir. 1986)).

we) PY Om EO ARTES IR an

13

a judgment, the same Congress that went on to enact the CSA

passed the Marijuana and Health Reporting Act, Pub. L. No. 91-

296, requiring the Department of Health, Education, and

Welfare to prepare a report on marijuana, see 1970

U.S.C.C.A.N. 418 (acknowledging the Jack of “authoritative...

information involving the health consequences of using

marihuana”’), and when the CSA was enacted, Congress

accepted the interim written recommendation of HEW: that

“marijuana be retained within schedule I” pending “the

completion of certain studies now underway to resolve this

issue,” H.R. Rep. No. 91-1444 (1970), reprinted in 1970

U.S.C.C.A.N. 4566, 4579, 4629. Then, Congress created a

Commission on Marihuana and Drug Abuse, which it “directed

to prepare a report to guide Congress.” Pub. L. No. 91-513,

§ 601. Whatever reasons subsequent Congresses may have had

for not heeding that Commission’s ultimate recommendation —

i.é., that possession and distribution of small amounts of

marijuana be placed beyond the reach of the criminal law — such

subsequent congressional inaction cannot retroactively convert

the initial, pragmatic decision of 1970 into an affirmative

“declaration” or “determination.” See Central Bank of Denver,

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164,

180-85 (1994).2

* The “sense of Congress” language inserted into the Omnibus

Consolidated and Emergency Supplemental Appropriations Act of 1999,

Pub. L. No. 105-277, Div. F, 112 Stat. 2681, 2760-61, see Pet. Br. at 22,

hardly fills the void. Whatever effect a court might give an unambiguous

declaration that was passed in such marginal fashion, the legislation at issue

states only that “certain drugs are listed on Schedule I of the Controlled

Substances Act if they have a high potential for abuse, lack any currently

accepted medical use in treatment, and are unsafe, even under medical

supervision” (emphasis added) — not that every Schedule I substance meets

that description — and then reaffirms Congress’s commitment to the Federal

Food, Drug and Cosmetic Act prohibition on “the sale of any unapproved

drug, including marijuana,” id. (emphasis added).

ls

Congress’s longstanding appropriations for the United States

government to provide marijuana to a limited class of seriously

ill individuals through its Compassionate Investigative New

Drug (“CIND”) Program further refute an argument from the

words of section 812. Had Congress really “determined” that

no individual could “safely” use marijuana “under medical

supervision,” it is doubtful that it would have provided the

substance to the scores of individuals who have participated in

that Program, under doctors’ supervision, for nearly a quarter

century. See Kuromiya v. United States, 78 F. Supp. 2d 367,

372 (E.D. Pa. 1999) (noting “obvious[] tension between the

government’s repeated statements that marijuana has not been

proven to provide any beneficial results and its decision to

continue supplying it to eight individuals for medical needs”).”

Finally, the contention that there is any basic Jogical

incompatibility between marijuana’s placement on Schedule I

and recognition of a medical necessity defense is further refuted

Similarly, while Petitioner might have the Court believe that Congress

has made a specific finding that marijuana use has “‘a substantial and

detrimental effect on the health and general welfare of the American

people,’” Pet. Br. at 17 (quoting 21 U.S.C. § $01(2)), the actual statutory

provision quoted does not mention marijuana, but refers generally to “[t}he

illegal importation, manufacture, distribution, and possession and improper

use of controlled substances.” /d.; 21 U.S.C. § 801(1) (finding that “[mJany

of [these same substances] . . . have a useful and legitimate medical purpose {

and are necessary to maintain the health and general welfare of the :

American people”).

° Indeed, the CIND program was initiated to settle a lawsuit filed by {

a patient who, based upon a showing of medical necessity, had been |

acquitted of unlawful cannabis cultivation in the District of Columbia.

United States v. Randall, 104 Wash. D. Rep. 2249 (D.C. Super. 1976); see

also United States v. Burton, 894 F.2d 188, 191 n.2 (6th Cir. 1990) (citing

the existence of CIND Program as precluding defendant’s asserting

necessity defense and noting fact that “after this proceeding was begun,

Burton became part of [the] program and now receives marijuana for his

glaucoma under a physician’s supervision’”’).

15

by the decisions of State courts interpreting legislation that is

identical in relevant respects to the Federal CSA. See, e.g.,

Jenks, 582 So. 2d at 680; Hawaii v. Bachman, 595 P.2d 287

(Haw. 1979); Idaho v. Hastings, 801 P.2d 563 (Idaho 1990).

Although these decisions do not control a Federal court’s

interpretation of the Federal statute, they further undermine any

claim that the CSA language can only be read as abrogating a

necessity defense.”

II. Principles of Judicial Restraint Counsel Strongly

Against an Unduly Broad Reading of the Statute.

Even if traditional tools of statutory construction yielded a

less definitive answer, however, fundamental rules of judicial

self-restraint and federalism would argue against giving the

CSA the sweeping construction that the Petitioner insists upon

here. See Raines, 362 U.S. at 22 (noting that courts should

avoid “premature interpretations of statutes in areas where their

constitutional application might be cloudy”).

A. This Case Is No Occasion for Announcement of a

Broad Legal Rule.

At the outset, the question of the availability of a necessity

defense to a criminal indictment is not even directly presented

in this case, and while this proceeding involves charges of

; Indeed, even the handful of State court decisions declining to allow

a necessity defense have done so on grounds that weaken Petitioner’s

Statutory argument. In these cases, as in Burton, courts have pointed to the

existence of a (State) compassionate programs as foreclosing a defendant’s

establishing the prerequisite absence-of-lawful-alternatives element of the

necessity defense — rather than holding that lawful possession of marijuana

is incompatible per se with placement on the equivalent of Federal Schedule

I. See, e.g., Kauffman v. Alabama, 620 So. 2d 90 (Ala. Crim. App. 1992);

Minnesota v. Hanson, 468 N.W.2d 77, 78 (Minn. Ct. App. 1991). See

generally Marijuana Policy Project Report, How Can a State Legislature

Allow Patients to Use Medical Marijuana Despite Federal Prohibition ?, at

L-1 to L-2 (Feb. 2001) (“MPP Report”).

16

distributing marijuana, see 21 U.S.C. § 841, the grounds on

which Petitioner would have the case resolved — that placement

of marijuana in Schedule I conclusively eliminates a defense of

medical necessity — would be far more broadly applicable to

cases involving, for example, simple possession for use by an

individual with a serious illness. In fact, as Petitioner

recognizes, the criminal law of the State from which this case

arises imposes criminal punishment for distribution — but not

possession for therapeutic use — of marijuana; it continues to

enforce that criminal statute, including against the sort of

“buyers’ club” to which Petitioner takes such strong exception,

California ex rel. Lungren v. Peron, 59 Cal. App. 4th 1383,

1387 (1997) (closing San Francisco club under State law); cf

21 U.S.C. § 844a (limiting penalties for first-time offenses

involving possession of “personal use amounts” of certain

substances).

In fact, Petitioner has maneuvered to have this case resolved

ona very high plane of generality, declining the opportunity on

remand to put evidence into the record that might have

persuaded the District Court to exercise its discretion to retain

a broader injunction. And though Petitioner underscores the

significance of “restrictions . . . [designed] to ensure a closed

system of distribution,” Pet. Br. at 24, 25, no modification that

might better serve the legislative purpose of preventing “abuse

or diversion of the drug” was presented to the District Court.

See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 289-

90 (1998) (recognizing that “judicially implied system of

enforcement” should track purpose and operation of “express

system of enforcement”).*

® Similarly, evidence indicating that Respondents were making

marijuana available to individuals without adequate proof of necessity,

see Pet. Br. at 35 n.16, might support a claim that the modified injunction

contains inadequate safeguards, but it is not an argument against recognizing

any necessity exception. Cf. Washington v. Harper, 494 U.S. 210, 235 n.13

ars

a eR pC a ee

17

Finally, developments to which the Briefs of Petitioner and

its Amici point actually highlight that the broad statutory

question not only need not be decided in this case, but may be

of declining significance. Cf. Ticor Title Ins. Co. v. Brown, 511

U.S. 117, 118 (1994) (per curiam) (“we have concluded that

deciding this case would require us to resolve a constitutional

question that may be entirely hypothetical, and we accordingly

dismiss the writ as improvidently granted”).

Thus, while Petitioner's arguments relate to “Schedule I

substances” generally, this case in fact is concerned only with

the therapeutic use of marijuana — a drug whose presence on

Schedule I has an undeniably unique legislative history, see

supra, one whose difference from other similarly classified

substances has long been acknowledged, see NORML, including

by those who administer the CSA, see Kuromiya, 78 F. Supp.

2d at 368-69 (discussing history of CIND program), and whose

continued presence on that Schedule is the subject of a pending

administrative proceeding. Indeed, Petitioner alerts the Court

that the Department of Health and Human Services will soon

release its evaluation of scientific evidence that others have

found especially compelling.

And as Petitioner’s Amici emphasize, the Institute of

Medicine’s study, while explicitly recognizing real therapeutic

benefits that some derive from smoking marijuana, also predicts

that the “‘future of cannabanoid drugs lies not in smoked

marijuana but chemically defined drugs,” see Br. Amicus

Curiae of Family Research Council at 9 (quoting IOM Report).

Although the efficacy of such drugs may not be presumed — and

their ultimate development will depend on market forces (and

government willingness to allow research to proceed) — if the

(1990) (“‘[t}hat such a practice may take place in some institutions in some

places affords no basis for a finding as to [the program at issue]’”) (quoting

Parham v. J.R., 442 U.S. 584 (1979)).

18

optimism of Amici is well-founded, the significance of the

issues presented for decision will diminish. But cf. IOM Report

at 4 (“Although most scientists . . . agree that the pathways to

cannabanoid research are clearly marked, there is no guarantee

that the fruits of scientific research will be made available to the

public for medical use.”).”

B. A_ Restrained Construction Serves Important

Constitutional Purposes.

1. This Case Implicates Issues of Constitutional

Dimension.

To construe the statute as universally abrogating a medical

necessity defense would run afoul of the rule that statutes

should be construed — as the CSA surely may be in this case —

so as to avoid, rather than invite, constitutional difficulty. See

Solid Waste Agency, 121 S. Ct. at 683; Vermont Agency of

Natural Resources, 120 S. Ct. at 1870; Jones, 526 U.S. at 239.

That rule of construction not only reflects separation of

powers concerns — by presuming that legislators intend to honor

their constitutional oaths — but, as this Court’s decisions also

recognize, it expresses a judgment that the process of

” The advent of the fully effective alternatives would have obvious

legal significance. Just as the defense to prison escape does not survive the

disappearance of the condition creating the necessity, see Bailey, 444 U.S.

at 415 (noting that escapee from prison fire is “‘not to be hanged because he

would not stay to be burnt,’” but holding that defense is available only to

those who return) (quoting United States v. Kirby, 74 U.S. 482, 487 (1868)),

the interest in allowing marijuana to be available for therapeutic purposes

is premised on the unavailability, for certain individuals, of an equally

effective alternative.

On the other hand, the potential for such drugs has no relevance for

the individuals whom Respondents and the State measures currently serve.

See IOM Report at 7 (“It will likely be many years before a safe and

effective can delivery system, such as an inhaler, is available for patients.

In the meantime there are patients with debilitating symptoms for whom

smoked marijuana might provide relief.”).

19

constitutional adjudication itself benefits when complex

questions are not prematurely resolved. See Thompson vy.

Oklahoma, 487 U.S. 815, 856 (1 988) (O’Connor, J., concurring

in judgment). Not only is it possible that the day for judicial

resolution of an issue will not, in fact, arrive, see id. —

legislatures might heed an emerging consensus or steer away

from constitutionally sensitive approaches — but later

deliberation can benefit from information about policy

developments whose contours are not judicially foreseeable.

See Murray, 492 U.S. at 14 (Kennedy, J., concurring in

judgment) (“judicial imposition of a categorical remedy .. .

might pretermit other responsible solutions being considered in

Congress and state legislatures”); cf: Arizona v. Evans, 514U.S.

1, 23 n.1 (1995) (Ginsburg, J., dissenting) (““We have in many

instances recognized that when frontier legal problems are

presented, periods of ‘percolation’ in, and diverse opinions

from, state and federal appellate courts may yield a better

informed and more enduring final pronouncement by this

Court.”’).

These insights apply with special force in cases where the

pertinent constitutional provision is open-ended and its

interpretation dependent on discerning evolving societal

standards and on ethical and scientific — as well as legal —

considerations. Thus, in Cruzan, the Court, while recognizing

that the interests involved were of constitutional magnitude,

resisted announcing a comprehensive rule of law to govern the

conditions under which life support from incompetent patients

might be withdrawn, citing the “number of sources” available

to States in considering such a “perplexing question with

unusually strong moral and ethical overtones,” 497 U.S. at 277.

Finally, reserving resolution of constitutional questions — in

areas where both public opinion and relevant empirical facts are

changing — can reinforce the premises expressed in the

20

Constitution’s federal structure. Thus, in Justice Brandeis’s

classic formulation:

|

|

To stay experimentation in things social and economic is a

grave responsibility. Denial of the right to experiment may

be fraught with serious consequences to the nation. It is one

of the happy incidents of the federal system that a single

courageous state may, if its citizens choose, serve as a

laboratory; and try novel social and economic experiments

without risk to the rest of the country.

New State Ice Co., 285 U.S. at 311(Brandeis, J., dissenting); see

also San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 42

(1973) (“[t]he very complexity of the problems of financing and

managing a... public school system suggests that there will be

more than one constitutionally permissible method of solving

them’’) (internal citation and quotation omitted).

Encouraging deliberation at the State level on difficult

questions — including those of constitutional magnitude — is

important to the process of self-government. See FERC v.

Mississippi, 456 U.S. 742, 790 (1982) (O’Connor, J.,

concurring in part and dissenting in part) (“Citizens . . . cannot

learn the lessons of self-government if their local efforts are

devoted to reviewing proposals formulated by a faraway

national legislature.”); William H. Rehnquist, 1998 Year-End

Report of the Federal Judiciary, 11 Fed. Sent. R. 134, Nov.-

Dec. 1998 (noting that the “pressure in Congress to appear

responsive to every highly publicized social ill . . . needs to be

balanced with an inquiry whether . . . we want most of our

relationships decided at the national rather than the local

level’).

These considerations played a central role in the Court’s

recent decisions involving assertions of constitutional right by

(and on behalf of) individuals suffering from terminal illness.

Thus, in Cruzan, Justice O’Connor’s concurring opinion

explained:

21

[N]o national consensus has yet emerged on the best solution

for this difficult and sensitive problem. Today we decide

only that one State’s practice does not violate the

Constitution; the more challenging task of crafting

appropriate procedures for safeguarding incompetents’

liberty interests is entrusted to the “laboratory” of the States,

in the first instance.

497 U.S. at 292 (citing New State Ice Co).

And the various opinions in Glucksberg and Vacco v. Quill,

521 U.S. 793 (1997), approached the assertions of constitutional

right in similar fashion, recognizing that the issues in these

cases touched on fundamental liberty interests, but that many of

the questions of constitutional relevance — bearing on whether

a right could be recognized, whether an asserted State interest

could be accomplished through less invasive means, and

whether a practicable remedy could be devised — were not yet

amenable to definitive resolution. See Glucksberg, 521 U.S. at

745 (Stevens, J., concurring in judgment) (noting that

“[a]voiding intolerable pain and the indignity of living one’s

final days incapacitated and in agony is certainly “[a]t the heart

of [the] liberty” interest protected by the Constitution) (citation

omitted); id. at 792 (Breyer, J., concurring in judgment) (“were

a state law to prevent the provision of palliative care, including

the administration of drugs as needed to avoid pain at the end

of life[,]” the constitutional concerns “would be more directly

at issue”); see generally id. at 737 (O’Connor, J., concurring)

(noting “extensive and serious evaluation” of issues by States).

Whether or not these recent precedents are read as

establishing that a seriously ill person has a right to access to

marijuana or any other particular medically necessary therapy,

the evidence increasingly confirms that there is an identifiable —

but limited — class of very ill people for whom marijuana does

offer real and unique medical benefits, i.e., for whom the

predicament hypothesized in Justice Breyer’s opinion is a real

22

one. The interests of such individuals, whom cannabis enables

to manage what would be “otherwise unavoidable physical

pain” and other serious health- and life-threatening symptoms,

are “of constitutional dimension[{].” See United States y.

Randall, 104 Wash. D. Rep. 2249, 2253 n.29 (D.C. Super.

1976) (“a law which apparently requires a person to submit to

deteriorating health without proof ofa significant public interest

to be protected raises questions of constitutional dimensions”);

see also Jacobson. It would be unfortunate to require courts

and legislatures — as they would have to in the absence of any

cognizable necessity defense — to consider these questions

primarily through a constitutional lens. See Glucksberg, 521

U.S. at 788-89 (Souter, J., concurring in judgment).

Thus, the Institute of Medicine Report concluded that

cannabis is “promising for treating wasting syndrome in AIDS

patients” and that for them and other “patients . . . who are

undergoing chemotherapy and who suffer simultaneously from

severe pain, nausea, and appetite loss, cannabinoid drugs might

offer broad-spectrum relief not found in any other single

medication,” IOM Report at 177, and within that group, “[t]here

will likely always be a subpopulation of patients who do not

respond well to other medications,” id. at 3-4; see also id. at

154 (“for patients for whom standard antiemitic therapy is

ineffective and who suffer from debilitating emisis,” the

“harmful effects of smoking marijuana for a limited period of

time might be outweighed by the antiemitic benefits”); cf. S.J.

iy Significantly, the primary evidence of marijuana’s therapeutic value

is not as a cure, but rather as enabling individuals suffering from serious

illness to better respond to and tolerate potentially life-saving conventional

treatments. That point is critical in distinguishing the legal claims in cases

such as this one from those in United States v. Rutherford, 442 U.S. 544

(1979), and Quill, where there was a substantial interest in protecting

individuals from harm and in encouraging them to pursue promising modes

of treatment and pain relief.

23

Gould, Jt Works Like a Charm, N.Y. Times, May 4, 1993

(describing successful use of marijuana in course of treatment

for abdominal mesothelioma after “absolutely nothing in the

available arsenal of anti-emetics worked at all’),

2. In Diverse and Appropriate Ways, States Have

Sought to Recognize and Safeguard These

Interests.

There is growing sentiment — informed by this and other

research, as well as by greater discussion of the dilemmas

confronting individuals with terminal illness — that it is wrong

to punish individuals who are seriously ill for availing

themselves of relief from pain and other debilitating symptoms.

As the Institute on Medicine summarized, “public support for

patient access to marijuana for medicinal use appears

substantial; public opinion polls taken during 1997 and 1998

generally report 60-70 percent of respondents allowing

medicinal use of marijuana.” IOM Report at 18. Similarly, a

1999 Gallup Survey showed that 73% favored “making

marijuana legally available for doctors to prescribe in order to

reduce pain and suffering.” MPP Report at D1; see also Robert

J. Blendon & John T. Young, The Public and the War on Illicit

Drugs, 279 JAMA 827 (1998) (reporting analysis of public

opinion surveys concerning medical use of marijuana)!

These sentiments have been expressed not merely in public

opinion surveys, but in legislation and popular initiatives at the

State level. Compare Penry v. Lynaugh, 492 U.S. 302, 333-35

'' The Institute on Medicine’s report also addressed the empirical

evidence bearing on other questions that figure in debates over allowing

access to marijuana for medical purposes, finding, for instance, that there is

“no convincing data to support th{e] concern that sanctioning medical use

of marijuana might increase its use among the general population,” id. at

104 and that “there is no evidence that the medical marijuana debate has

altered adolescents’ perceptions of the risks associated with marijuana use,”

id.

24

(1989) (“The clearest and most reliable objective evidence of

contemporary values is the legislation enacted by the country’s

legislatures . . . . The public sentiment expressed in. . . polls

and resolutions may ultimately find expression in legislation,

which is an objective indicator of contemporary values upon

which we can rely.”).”

There are now thirty States that have, in some fashion,

recognized the interests of those for whom marijuana provides

needed relief. Cf Cruzan, 497 U.S. at 282 n.10 (“important

individual interests should [not] be afforded less protection

simply because the [State] government” is the party defending

them). As would be expected in a federal system — one in

which public health has been primarily the concern of the

States, see Jacobson — the various States that have undertaken

to recognize and safeguard these rights have done so in very

different ways. In some States, as noted above, judicial

decisions have recognized a narrow medical necessity defense

when individuals using marijuana therapeutically have been

prosecuted for violating drug laws. See California v. Trippet,

56 Cal. App. 4th 1532 (1997); Jenks, 582 So. 2d at 680; Hawaii

v. Bachman, 595 P.2d 287 (Haw. 1979); Idaho v. Hastings, 801 |

P.2d 563 (Idaho 1990).

Fourteen others currently have statutes authorizing the

administration of “therapeutic research programs,” whereunder

patients meeting narrowly circumscribed criteria could obtain

He Although Penry and Thompson involved the Eighth Amendment’s

Cruel and Unusual Punishments Clause, this Court’s cases have noted a

substantial convergence between that prohibition and that of the Due

Process Clause. See Whitley v. Albers, 475 U.S. 312, 327 (1986); cf.

Jacobson, 197 U.S. at 39 (“cruel and inhuman in the last degree” to enforce

compulsory vaccination statute against person with potentially lethal

reaction); Robinson v. California, 370 U.S. 660, 667 (1962) (“Even one day

in prison would be a cruel and unusual punishment for the‘crime’ of having

a common cold.”).

25

small quantities of marijuana from private physicians and the

States themselves — although these programs have foundered as

a practical matter.” Four other States — Alaska, Iowa,

Montana, and Tennessee — have amended their statutes so as to

place marijuana on a schedule that recognizes its therapeutic

use.

Numerous other States have enacted more frankly symbolic

legislation, and legislatures in six States — Missouri,

Michigan, New Hampshire, California, Washington, and New

Mexico — have passed non-binding resolutions urging the

Federal government to make marijuana available by

prescription. See, e.g., Mo. Sen. Con. Res. 14 (1994); Cal. Sen.

Joint Res. No. 8 (Sept. 2, 1993).

Far more attention has been given to the more thorough

reforms passed in eight States (seven by popular initiative) in

recent years — Alaska, California, Colorado, Hawaii, Maine,

Nevada, Oregon, and Washington. These laws either provide

an exemption from prosecution or supply an affirmative defense

to (State) charges of possession of up to a small amount of

'? See, e.g., Ala. Code § 20-2-110; Ga. Code Ann. § 43-34-120; 720

Ill. Comp. Stat. 550/11; Mass. Gen. Laws ch. 94D §1; Minn. Stat. § 152.21;

N.J. Stat. Ann. § 26:2L; N.Y. Pub. Health §§ 3328, 3397: R.I. Gen. Laws

§ 21-28.4-1; S.C. Code Ann. § 44-53-610; Tex. Health & Safety Code Ann.

§§ 481.111, 481.201-205; W. Va. Code § 16-SA-7; see also Wash. Rev.

Code § 69.51; N.M. Stat. Ann. § 26-2A. In almost every State, the efficacy

of these programs was hampered by the cumbersome and expensive Federal

review process. California has recently undertaken the most ambitious State

research program. Amicus Vasconcellos was the sponsor of S.B. 847, which

appropriated $3 million for the California Center for Medicinal Cannabis

Research. See Cal. Health & Safety Code § 1136.9.

'* A number have laws provide for changes in State treatment of

marijuana that take effect when — but only when — Federal law changes.

See, e.g., Conn. Gen. Stat. §§ 21-a-246, 21a-253, Mont. Code Ann. § 50-32-

222(7); N.H. Rev. Stat. Ann. § 318-B-9; Tenn. Code Ann. § 68-52-101; Va.

Code Ann. § 18.2-250.1; Vt. Stat. Ann. tit. 18 § 4471; Wis. Stat. § 46.60.

26

marijuana for individuals suffering from certain defined

medical conditions who have been advised by their doctor that

they are likely to benefit from marijuana. Five of the States

provide for registration processes for those individuals,

see Alaska Stat. § 17.37; Haw. Rev. Stat. § 329; Or. Rev. Stat.

§ 475.300; Colo. Const. amend. 20; Nev. H.B. 121 (proposed),

and three (Alaska, Hawaii, and Nevada) make registration a

mandatory precondition to receiving the law’s protections.”

The caricatures and anecdotes offered by Petitioner’s Amici

notwithstanding, these recent measures, while more aggressive

than prior efforts, remain confined to the area where claims of

individual right are most compelling, where traditional State

powers and responsibilities are at their apex, and where

legitimate Federal interests are most attenuated: relieving the

threat of (State) penalties for possession of small amounts of

marijuana by individuals suffering from debilitating medical

conditions.

Thus, these programs remain generally modest in size and

are being administered in good faith, and with due respect for

the laws prohibiting distribution — and possession — of

marijuana for any other, non-medical reason. See, e.g., Oregon

v. Arana, 998 P.2d 688, 689 (Or. Ct. App. 2000) (affirming

marijuana dealer’s conviction for “the manufacture, delivery,

and possession of a schedule I controlled substance,” Or. Rev.

Stat. § 475.992); see also California v. Rigo, 69 Cal. App. 4th

409 (1999) (declining to give broad interpretation to

Proposition 215 protection); Trippet, 56 Cal. App. 4th at 1550

(same). Most provide for active monitoring and control by

public health officials, and the evidence shows that they are

resorted to by doctors in a conscientious and professional

'® Colorado and Nevada voters approved constitutional amendments

on November 7, 2000. Their legislatures are now considering the

implementing legislation.

27

manner. See Washington v. Harper, 494 U.S. 210, 223 (199V)

(“we will not assume that physicians will prescribe .. . drugs

for reasons unrelated to the medical needs of the patients;

indeed, the ethics of the medical profession are to the

contrary”). Their effects are being carefully studied and

debated at all levels of State government. See, e.g., Report of

Maine Attorney General’s Task Force On Medical Marijuana

(Sept. 13, 2000).

For example, in Oregon, the Health Division of the State

Department of Health and Human Services has taken an active

role. Some 1,700 patients have registered, as a result of

recommendations by 515 doctors. In Alaska, there are 180

patients, and in Maine, 250 participants. See MPP Report App.

F. The petitions of patients and caregivers to have different

conditions recognized as eligible have been carefully

considered. See id. at F-5, F-101%

Indeed, many — including those in the law enforcement

community — who expressed apprehension have been favorab! y

impressed by the good faith with which these have been

implemented. See Michael Pollan, Living with Medical

Marijuana, N.Y. Times Magazine, July 20, 1997.

These measures not only fulfill the States’ important role of

protecting the fundamental rights of the individuals within their

jurisdiction, but they provide a body of experience that can

inform future deliberations in the political and judicial branches

at every level. Indeed, it is a testament to the constructive and

constitutionally appropriate role the States are playing that

'° The anecdotal focus on California, see Family Research Council Br.

at 17-20, while understandable at one level, is, in an important sense,

misleading. California’s law is broader than those of other States, and has

so far provided for a less active role for public health officials. Cf

California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 US

97, 105 (1980). Thus, concerns that may have some arguable force with

respect to California simply have no relevance to the other jurisdictions

28

Petitioner’s Amici have included an Appendix to their brief that

attempts to use comparative statistics from the fifty States to

show that allowing limited access to cannabis for those with

certain grave medical conditions will weaken young people’s

resolve to refrain from experimentation with recreational drugs.

Although we doubt both the premises of that argument and the

probative weight of those crude statistics, see supra n.11, the

ability to make such comparisons and argue about their legal

and policy implications is precisely the sort of “happy incident”

of federalism that Justice Brandeis’s opinion celebrated.

III. Courts May Consider Legitimate State Interests In

Exercising Equitable Discretion.

In addition to the States’ roles as constituents of the federal

system, the measures discussed implicate their traditional

sovereign interests and responsibilities, as well. See Solid

Waste Agency, 121 S. Ct. at 683; BFP v. Resolution Trust

Corp., 511 U.S. 531, 544 (1994) (“[flederal statutes impinging

upon important state interests cannot . . . be construed without

regard to the implications of our dual system of government”)

(internal citation and quotation omitted); Parker v. Brown, 317

U.S. 341 (1943) (interpreting Sherman Act so as not to reach

anti-competitive conduct sanctioned by State law). Although

the District Court did not rely on State interests in deciding on

the scope of injunctive relief ordered in this case, an equity

court’s power to vindicate the “public interest” includes the

power — and responsibility — to take account of legitimate State

interests, as well. Nothing in the text of § 882 — or the structure

of the Act as a whole — requires otherwise.

While an equity court must give effect to statutory policies,

the law is clear that the policies expressed in any one Federal

statute do not always define “the public interest.” See Village

of Gambell, 480 U.S. at 545-46 (while the “statutory interest in

preservation of subsistence resources is a public interest,” it

does not necessarily “supersede all other interests that might be

29

at stake”); Chrysler Corp., 316 U.S. at 570 (Frankfurter, J.,

dissenting) (“The circumstance that one of the parties is the

[United States] Government does not in itself mean that the

interest which it asserts defines and comprehends the public

interest which the court must vindicate.”’).

In fact, “[wJhen the frame of reference moves... toa system

of Federal courts representing the Nation, subsisting side by

side with 50 state judicial, legislative, and executive branches,

appropriate consideration must be given to principles of

federalism in determining the availability and scope of equitable

relief,” Rizzo v. Goode, 423 U.S. 362, 379 (1976).

Although the CSA no doubt restricts the range of measures

that States may implement, it is not plausibly read as divesting

States of all power to pursue measures narrowly targeted to

serious local public health problems. To the contrary, in

Statutory language no less emphatic than any relied on by

Petitioner here, the Act expressly disclaims an interest in

“occupy[ing] the field,” providing only those State laws that are

in “positive conflict” with the Federal statute should yield. 21

U.S.C. § 903.

And this Court’s decisions have long recognized the

preeminent role of the States in matters of public health.

The safety and the health of the people of Massachusetts are,

in the first instance, for that commonwealth to guard and

protect. They are matters that do not ordinarily concern the

national government. So far as they can be reached by any

government, they depend, primarily, upon such action as the

state, in its wisdom, may take.

Jacobson, 197 U.S. at 38; see United States v. Lopez, 514 U.S.

549, 566 (1995) (“The Constitution .. . withhold[s] from

Congress a plenary police power that would authorize

enactment of every type of legislation.”); Davies Warehouse

Co. v. Bowles, 321 U.S. 144, 154 (1944) (“Ata time when great

measures of concentration of direction are concededly

30

necessary, it may be thought more farsighted to avoid

paralyzing or extinguishing local institutions which do not

seriously conflict with the central government's place.”).”

As described above, many States have pursued policies that

seek to protect and secure the medical needs of seriously ill

individuals, without compromising the objectives of preventing

abuse and diversion that Petitioner identifies as at the core of

the Federal statutory concern. These initiatives pose no

“serious” conflict with Federal law, and neither the substantive

nor the jurisdictional provisions of the Act should be construed

in a manner that might lead to their being extinguished.

CONCLUSION

For the reasons set forth above — and those presented by

Respondents — Amici request that the judgment of the Court of

Appeals be affirmed.

" Indeed, the measures discussed herein reflect a further reality: that

although Federal law may aspire, in Petitioner’s terms, to a “closed system,”

marijuana remains widely enough available that individuals whose medical

needs are grave enough to lead them to run the gauntlet of potential

punishment are likely to be able to obtain it. Accepting that reality, the

States must be accorded some latitude to decide that these individuals and

the public generally will be better served by a regime that maximizes the

involvement of physicians and State health officials and minimizes any role

for those who traffic in illicit drugs.

Respectfully submitted,

DAVID T. GOLDBERG

817 Broadway

New York, New York 10003

(212) 228-1293

Counsel for Amici Sheriff Mark N.

Dion (Cumberland County, Maine),

(Maine) Senator Anne Rand,

(California) Senator John

Vasconcellos, and New Mexico

Governor Gary Johnson

JULIE M. CARPENTER *

JENNER & BLOCK, LLC

601 Thirteenth Street, N.W.

Washington, D.C. 20005

(202) 639-6000

Counsel for Amicus DKT Liberty

Project

*Counsel of Record