June 06, 2005

Missed Opportunity in Raich

by Sean Sirrine

As some of you have noticed I'm a bit fixated on the portion of the opinion written by Justice Stevens in which he refers to "medical necessity." He mentions that the question of medical necessity wasn't brought in front of the Supreme Court in this case, and it seems that he may have joined the dissenters had it been.

As I mentioned earlier in my original post, UNITED STATES v. OAKLAND CANNABIS BUYERS’ COOPERATIVE et al. held that medical necessity wasn't a defense against manufacturing and distributing marijuana.

A quick reading of Justice Stevens' concurring opinion in Oakland Cannabis Buyers' Cooperative (with whom Justice Souter and Justice Ginsburg join) reveals:

The overbroad language of the Court’s opinion is especially unfortunate given the importance of showing respect for the sovereign States that comprise our Federal Union. That respect imposes a duty on federal courts, whenever possible, to avoid or minimize conflict between federal and state law, particularly in situations in which the citizens of a State have chosen to “serve as a laboratory” in the trial of “novel social and economic experiments without risk to the rest of the country.” New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting). In my view, this is such a case.3 By passing Proposition 215, California voters have decided that seriously ill patients and their primary caregivers should be exempt from prosecution under state laws for cultivating and possessing marijuana if the patient’s physician recommends using the drug for treatment.4 This case does not call upon the Court to deprive all such patients of the benefit of the necessity defense to federal prosecution, when the case itself does not involve any such patients.

Unfortunately, Justice Stevens was unable to address this point in Raich because the question of medical necessity wasn't present.

[Update: PG beat me to the punch on this analysis in his comments to my original post.]

June 6, 2005 11:58 PM | TrackBack
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