JUDGING MARIJUANA

By Maggie Wolff Peterson

I try to take my wisdom where I find it.

So the other day, Judge Judy was keeping me company on television while I sorted laundry. She’s a smart gal, and a perfect companion when folding towels and sheets. Her litigants offer lessons in human nature, generally at its worst, but instructive nonetheless.

I don’t usually find political truths on the program, but the other day I did.

The plaintiff was a man who looked to be of Baby Boomer age, thin and wasted, with huge eyes over sunken cheeks. He could not stand before the judge, but instead attended the proceeding seated.

He told Judge Judy he was paraplegic, with awful chronic pain and muscle spasms as a result of the paralysis.

The defendant was a big, beefy guy, shaved head, a sneer across his lips. He had contracted with the plaintiff to grow a crop of cannabis to be sold as medicinal marijuana. The plaintiff was from Oregon, where this transaction is legal, and he had a doctor’s prescription to acquire the herb.

The plaintiff had paid the defendant just over $400, with the agreement that a future crop was to be his. The defendant had accepted payment with the promise to begin a crop for the plaintiff.

And then something happened. The plaintiff never got his crop. He petitioned the defendant several times to see the plants, to be assured they were being grown, but the defendant refused. And the plaintiff was in no state to pressure anyone about anything.

In the end, the guy got back his $400. Judge Judy never straight-out asked the defendant directly what happened to the gorgeous crop intended for the plaintiff, displayed as evidence in large color photographs of vigorous plants in neat rows. But she clearly knew.

Judge Judy always knows.

In our patchwork, federalist system of laws, what’s legal in one place may not be in another. That’s true in everything from local zoning laws to the state statutes that enable sick people to seek relief with marijuana.

Really, there’s nothing new about using marijuana medically. Queen Victoria, in a time of extreme social rigidity and convention, used marijuana freely to treat menstrual pains. Even on this side of the Atlantic, marijuana was widely used medically until a change in public opinion during the 1920s began to demonize the weed.

Call it publisher William Randolph Hearst protecting his timberland interests against a potential cheap source of paper pulp. Call it the racism of Harry J. Anslinger, the first director of the federal Bureau of Narcotics, who found statistics where there were none before.

“There are 100,000 total marijuana smokers in the US, and most are Negroes, Hispanics, Filipinos and entertainers,” he said. “Their satanic music, jazz, and swing, result from marijuana use. This marijuana causes white women to seek sexual relations with Negroes, entertainers and any others.”

And he also said, “Reefer makes darkies think they’re as good as white men.” The federal Marijuana Tax Act of 1937 required anyone producing, distributing or using marijuana for medical purposes to register and pay a tax. Opiates and cocaine were already illegal, and Prohibition had criminalized alcohol. The tax act made it through Congress, over the objections of the American Medical Association.

But shortly thereafter, the federal government began to encourage hemp-growing. In the 1940s we needed rope for the war effort, and imported sisal from the Philippines had been cut off by Japan. So grow hemp, the Feds extolled. Our government was establishing its pattern of criminalizing marijuana with one hand while acknowledging its use with another. Our pot laws are nothing if not consistently inconsistent.

By 1951, with world order restored in favor of the US, the federal Boggs Act lumped marijuana with opiates and other drugs prohibited by law. The Feds had finally made marijuana an illegal substance. It’s testimony to the palliative value of marijuana that it has rebounded and returned to the medical lexicon. Today it’s allowed medically in 11 states: Alaska, California, Colorado, Hawaii, Maine, Maryland, Montana, Nevada, Oregon, Vermont and Washington.

In San Francisco last month, federal agents raided three marijuana clubs, saying they were fronts for larger drug trafficking and money laundering operations. Well, duh. It’s not a big leap from legal to illegal in a system that characterizes marijuana as both.

Unless we want the 11 states in which pot is medically legal to become our modern equivalent of leper colonies, havens for the ill and needy, we better take a longer view at what Prohibition has always promoted: lawlessness.

Medical marijuana groups are pressing for blanket laws to ensure the safe, predictable availability of their drug. Cannabis club operators concur. It only makes sense to remove the black-market incentive from a product that is legal and effective. People who are already suffering enough to seek the reefer remedy shouldn’t be afraid that their supplier also has customers who will pay more, illegally.

Of course, the US Supreme Court has gone the opposite direction on this issue. Its Gonzales v. Raich ruling is based on a 1942 case involving a farmer named Filburn who, the year before, cultivated 23 acres of wheat instead of the 11.1 acres the government asked him to. The extra wheat, he said, was for his private consumption.

Oh, no, the government countered. By growing wheat beyond regulation, Filburn would undercut commodity prices and hurt farmers. The point of regulating fungibles is to protect the market and keep prices strong, the justices opined.

So, by growing marijuana for their own use, defendants Angel Raich and Diane Monson, two ladies from California, are undermining the price that dealers get for marijuana. “Like the farmer [Filburn]... respondents are cultivating, for home consumption, a fungible commodity for which there is an established, albeit illegal, interstate market,” Justice John Paul Stevens wrote in June for the majority of the Court.

By invoking the authority of the federal commerce clause for noncommercial, private cultivation of marijuana, the Court was once again protecting the existing market for an agricultural product. Unfortunately, that market is black (or green).

The ruling puts everyone on notice that the Feds may swoop in, even if you have only a small cannabis patch in the backyard, in a state where it is legal to do so. The Court has strengthened the contraband status of cannabis, making it riskier to possess and grow. And in the world of basic economics, risk equals reward, ratcheting up the enticement to divert a legal crop for a big payoff.

That’s probably what messed things up for Judge Judy’s poor plaintiff. If he wants to continue using legal marijuana, he’ll have to find another grower, make another contract, wait for another crop, and hope that this time the drugs don’t take an illegal wrong turn.