What Are They Smoking?
Medical marijuana advocates have the truth, the voters, and even a few brave politicians. So why are they getting nowhere?
On July 29 the House of Representatives, by a voice vote, (which means nobody's vote had to be recorded) reaffirmed a previous decision ordering officials not to count the vote on Initiative 59, which Washington, D.C. citizens had voted on last November. Initiative 59 would have authorized the medical use of marijuana, with a recommendation or prescription from a licensed physician. Exit polls showed that it had support from about 70 percent of D.C.'s voters. But a few weeks before the election was held, Republican Rep. Bob Barr attached an amendment to a District appropriations bill forbidding the use of any funds to count the votes on this measure. Counting the vote involved flipping a computer switch, at an estimated cost of $1.28.
It takes a request from only one Member of the House to require that a vote be recorded. Only one Member would have had to say, in effect: "If you guys want to nullify the will of the voters, and demonstrate your utter contempt for the democratic process that gives you whatever shred of legitimacy you possess as lawmakers, you'll at least have to have your name on a 'yea' vote for all to see."
But not a single legislator made that request, so the House continued the nullification of the rights of D.C. citizens in the most cowardly fashion possible, behind the anonymity of a voice vote.
There are House members on the right side of this issue. Democrat Barney Frank of Massachusetts has introduced legislation to "re-schedule" marijuana, from Schedule I (reserved by law for drugs with unique abuse potential and no known medical uses) to a Schedule that would allow doctors to prescribe it legally. Republican Ron Paul of Texas openly criticizes federal drug laws on a regular basis, but he wasn't on the floor at the time.
Chuck Thomas of the Marijuana Policy Project tried to activate a phone and e-mail campaign before the vote. Some drug-reform activists, including Peter McWilliams, used their e-mail lists to encourage protests. But the trickle of protests and the editorial I did for the Orange County Register out on the Left Coast didn't impress the august members of the House of Representatives.
Why did this happen?
Most elected officials have the impression that there will be no political price to pay for demonstrating utter (and utterly cruel) and downright irrational intransigence on the subject of medical marijuana. Even those few who are in sympathy with the goals of reformers perceive that it is more important to preserve some degree of comity with their legislative colleagues. Chuck Thomas thinks some Democrats placed party solidarity ahead of forcing a recorded vote. This must have happened on the Republican side as well.
In some ways this should be surprising. The District of Columbia isn't the only place where medical marijuana proposals were on the ballot. In all six states where such measures were on the ballot, they were passed easily. The smallest margin vote gathered by medical marijuana initiatives was 56 percent in California. Arizona, generally viewed as a politically conservative state, passed the measure for the second time, after the state legislature had gutted the previously-passed medical marijuana initiative.
A Gallup Poll taken March 19-21 of this year found 73 percent of adults favored "making marijuana legally available for doctors to prescribe in order to reduce pain and suffering.'' Other polls show the same thing. If it came to a national referendum on the topic, even with almost all elected officials, all of law enforcement and a good deal of the medical community in active, declared opposition, there is little doubt that it would pass. That has been the situation in each state where such an initiative has passed.
Recent events have obliterated whatever intellectual and legal rationale ever existed for extending marijuana prohibition to sick people whose doctors believe marijuana might offer them some benefit no other medication can. After California passed Prop. 215 in 1996, Drug "Czar" Barry McCaffrey threatened, fulminated, and commissioned a study by the quasi-independent Institute of Medicine. Issued in March of this year, that study offered a couple of sops to the drug warriors - -- for example, it concluded the future of medical marijuana does not lie in smoked marijuana -- but on balance the report acknowledged that "the adverse effects of marijuana use are within the range tolerated for other medications," and that marijuana is useful in treating several medical conditions: nausea induced by cancer chemotherapy, AIDS "wasting syndrome," some kinds of chronic pain -- especially chronic back conditions, and even some aspects of multiple sclerosis.
The upshot is that while the report did not make direct policy recommendations, nobody who read it with a shred of intellectual honesty could conclude that marijuana belongs on Schedule I of the schedule for prescription medicines established by the Controlled Substance Act of 1974. This conclusion verifies the conclusions of every government panel that has studied marijuana, from the 1898 Indian Hemp Commission selected by the British government to the Nixon-era Schaefer Commission. Every independent government agency around the world that has studied marijuana with a smidgen of impartiality has concluded that prohibition imposes more costs on society than does the herb itself. And as the Institute of Medicine report notes, the discovery in the middle 1980s of specific cannabinoid receptors in the human brain suggests things earlier researchers and policy wonks didn't know about, including the fascinating possibility that the human body is hard-wired to use cannabis.
Legalization: the Road to Electoral Success?
Of course, politicians as a breed can't be expected to have much interest in science or respect for intellectual integrity. The perception among most professional pols is that to a much greater extent than Social Security ever was, drug reform is the real "third rail" of American politics. Whatever one might think privately, if you're tagged as a legalizer your political career is as good as finished. Punishment will be swift and severe, not just from law enforcement unions but from the general public.
Curiously, there is not a lot of evidence for this view. Not a single elected official who has questioned the wisdom of marijuana prohibition or called for legalization has suffered at the polls as a result. Kurt Schmoke was re-elected as mayor of Baltimore by a larger margin than his first election after questioning drug prohibition. Joseph Galiber, a New York assemblyman from the Bronx, introduced a drug legalization bill every year for a couple of decades and still had no problem getting re-elected. And Ron Paul, despite open hostility from the Republican establishment in Texas and the nation, seems to be able to be re-elected whenever he wants, despite his unremitting opposition to the War on Drugs.
More recently New Mexico Gov. Gary Johnson announced that he is in favor of decriminalizing drugs. The 46-year-old Republican governor, an avid athlete who uses neither alcohol nor illicit drugs (though he admitted to trying marijuana and cocaine in the 1970s), contends the national war on drugs has failed to stop the flow of drugs and consumes too much law enforcement money and attention. He vows to hold public forums later this year to jump-start the debate. He says it will take several years to sway public opinion and doesn't plan to introduce legislation in New Mexico this year. Johnson doesn't plan to run for another term, but he and the decriminalization issue are unlikely to disappear.
So what does that leave as an argument for resisting even modest, compassionate changes like allowing physicians to prescribe marijuana? The best hypothesis I can come up with is that being actively cruel to sick and old people is easier in terms of getting along with one's colleagues in government, and there's no political price to pay for deciding not to cross the most ignorant and intransigent of the prohibitionists. The medical marijuana movement might have billionaire George Soros to fund it, and enough public support to get initiatives passed at the state level. It might have a few general-circulation newspapers, a few libertarian and counter-culture publications on its side. But it doesn't have enough political clout to hurt politicians who support the most draconian aspects of marijuana prohibition.
This is true even (or maybe especially) at the state level, including in California, where the newspaper for which I write has the third-largest circulation in the state. Even elected officials who have publicly supported Prop. 215 wimp out in the face of the least little threat from the feds. From what I see, they pay no political price for their cowardice. The medical marijuana movement is substantial in this state, but not substantial enough to make any politician quake in his boots or even want to displease some of his more fascistic colleagues in government.
Consider the case of Bill Lockyer, the Democrat who was elected Attorney General of California last year. While his mother battled cancer in 1996, Lockyer told me and other journalists that he supported Prop. 215. If terminal patients could have access to cocaine or morphine (and patients after routine surgery are given morphine), he came to believe it was simply ridiculous that they should be denied the use of marijuana if there was even a glimmer of hope that it might relieve discomfort. He reaffirmed his support for proper implementation of Prop. 215 during the Attorney General's race and promised to appoint a task force to recommend guidelines.
The task force he appointed was heavy on the law enforcement side, which was probably politically expedient, but it did include a few patients, some caregivers, attorneys who had defended medical marijuana patients and medicalization advocates. It was co-chaired by San Jose's Democratic Sen. John Vasconcellos, who has been a stalwart opponent of the Drug War for years, and is a skillful legislative infighter to boot. The report, incorporated into legislation carried by Vasconcellos, recommended a voluntary state registry under the auspices of the Department of Health Services, with the idea of taking validated patients out of law enforcement's purview. Several medical marijuana advocates, including me, had critical comments to make, but considering all the interests that had to be persuaded to sign on, it wasn't a bad recommendation. It probably would have passed the Democrat-controlled legislature, maybe even garnering some Republican votes.
But even before the bill got out of committee, newly-elected Democratic Gov. Gray Davis, who has been carefully climbing the political ladder in various elected positions since he was Jerry Brown's chief of staff back in the 1970s and is perhaps the most aptly named politician in America, announced that he would almost certainly veto it. This was unusual in that the most common complaint about Davis in the legislature had been that he refused to take positions on pending legislation, leaving Democrats in the dark about what his legislative priorities were. But his spokesman said he was convinced that federal law was supreme in this area and was loathe to have the California state government challenge it so formally as by establishing a state registry.
On the last day of the legislative session, Sen. Vasconcellos made SB 848 a "two-year bill," meaning no final vote was taken and it can be brought up again next year. Vasconcellos had flirted with law enforcement-backed ideas that might have mollified Gov. Davis, like making state registration mandatory or requiring doctors to report contacts with medical marijuana patients to county health officials (even if they had not prescribed or recommended it themselves) who would forward names to a state registry. Most patients and medical marijuana advocates opposed such notions vocally and there was no guarantee Gov. Davis would have signed it anyway. The effort to implement Prop. 215 will take even longer. And while a September 13 9th Circuit Court decision ordering a federal judge who had closed Northern California cannabis clubs to reopen the case and consider a "medical necessity" defense should have an impact on federal enforcement activities, it's too early to tell what impact it will have at the state level. Federal officials obviously sense the fear in California. Drug Czar Barry McCaffrey practically threatened to arrest Attorney General Lockyer if he so much as authorized government research on medical marijuana. Instead of telling McCaffrey something like "I'11 be sure to notify the media when you come by with the handcuffs and we'll whip you in court," Lockyer left the meeting with his tail between his legs. An old-line New Deal liberal with just a bit of a '60s sheen, he seems uncomfortable and troubled by arguments that might sound like they have something to do with "states' rights." He also came to the AG's office after years in the legislature, including a longish stint as Senate Democratic leader, so it's quite likely he still has a legislator's accommodationist instinct rather than an executive leader's mindset.
Lockyer is obviously upset with the intransigence of federal drug warriors but not ready to challenge federal hegemony, even by so modest a step as signing on to the petition pushed by Virginia resident John Gettman to take marijuana off Schedule I. Now that Marinol, the synthetic form of THC, has been taken off Schedule I, the argument for maintaining Schedule I status for the raw herb, which is associated with even fewer medical risks than Marinol, has disintegrated. Lockyer told me in an interview that he favored rescheduling as the key to most of the problems that have made it so difficult to implement Prop. 215, but he doesn't want to be seen even as a "friend of the court" on behalf of the rescheduling petition.
In addition, Lockyer has refused to intervene in the obviously selective and politically-motivated prosecution of former Libertarian Party gubernatorial candidate Steve Kubby by Placer County officials. In fact, the AG's office has provided expert witnesses to the local prosecutors. Kubby credits marijuana with keeping him from dying of adrenal cancer years ago, and his doctor from more than 20 years ago agrees and will testify to that effect. Kubby had a recommendation from a licensed doctor, just as Prop. 215 specifies, and grew marijuana plants in his home near Lake Tahoe. Prosecutors allege he was growing to sell based on the number of plants they confiscated, but produced no evidence of any sales in preliminary phases of the trial. Nor has Lockyer, who according to California law "shall have direct supervision over every district attorney and sheriff and over such other law enforcement matters as may be designated by law, in all matters pertaining to the duties of their respective offices," chosen to express a view about the case of medical marijuana activist Marvin Chavez, who was sentenced to six years in prison after the judge instructed the jury not to consider Prop. 215 in its deliberations.
Richard Cowan, former executive director of NORML who now presides over the Web site www.marijuananews.com , has an alarming theory to explain Lockyer's inaction. "I think that what almost all of the politicians really fear is the political power of organized 'law enforcement.' If this is the case, then this should be of concern to everyone, regardless of their views on marijuana prohibition. When a nation is effectively ruled by the political power of the police, it is a police state, regardless of whether or not it retains the formal procedures of a democracy."
The organized political power of law enforcement is nothing to sneeze at. In California, the prison guards' union has become a prodigious political machine through selective campaign donations and support for prison-filling legislation like the "three strikes" law. Other law enforcement organizations who used to exercise their clout fairly quietly have been more and more openly making campaign donations and lobbying for the kind of laws they prefer.
It wasn't all that long ago that police chiefs would tell me "we don't make the laws, we just enforce them" during interviews or editorial board meetings. Now, none of them even try to claim such detachment from the political or legislative process any more. They are heavy political players and they are political players with the power to arrest their opponents and, if not send them to jail, at least make their lives miserable and expensive for months and years as the legal process unfolds ever so slowly.
What concerns me is that the drug reform movement has apparently not found a way to counteract this kind of law-enforcement political clout with political clout of its own or even begun to recognize the problem. Libertarians and other people who have concerns about the war on drugs seldom put the issue at the top of their priority list. They'll say they're for medicalization or legalization if asked, and maybe they'll talk to neighbors or co-workers if the subject comes up. But when it comes to trying to pressure politicians, even through a simple e-mail campaign, they're seldom around. You'll see patients -- often people with little or no money and severe physical handicaps -- and a few dedicated reformers at the scene when work needs to be done, but most of those who support reform confine their support to moral support.
It's not hard to understand a certain reluctance. It doesn't take talking about drug legalization too many times to get yourself branded as a "fanatic" on the subject, a johnny-one-note whose views can be discounted accordingly. Most of the media still marginalize marijuana reformers readily (sometimes unconsciously) with what they think are cute references to hippies and folks who never got out of the Sixties. The offhand comment "what are you smoking?" is often sufficient to end any serious discussion of drug law reform, and it is invoked repeatedly by people with no other means of defense. Last year, The Wall Street Journal even accused Nobel Laureate Milton Friedman of using illegal drugs. (Friedman responded, in a letter-to-the-editor, "I have not done so during the past 85-plus years. But I make no guarantees for the future.) And for those casual or recreational users of marijuana, there is the perfectly-justified fear that if they speak up they'll become targets of law enforcement attention.
I don't know what it will take to get beyond these and other inhibitions and create a situation in which the prohibitionists are as politically marginalized as they are intellectually bankrupt. I don't even know what it will take for elected politicians to pay as much attention to the repeatedly expressed desires of the people as to the blandishments of self-interested, empire-protecting law enforcement officials.
I have no idea whether, as some reformers and drug warriors seem to think, a few cracks in the prohibitionist facade precipitated by authorizing the medical use of marijuana will undermine the entire drug war and eventually bring it to a halt. I'm inclined to think otherwise, that a good-faith effort to implement a system whereby marijuana can be prescribed and researched would leave the warriors with most of their empire intact. But I've met too many patients who get relief from marijuana yet remain fearful of law enforcement, even in a state whose voters have authorized them to use their and their doctors' preferred medicine. If we can't figure out a way to end this legally-induced cruelty, to let sick people get access to marijuana safely and legally, we forfeit a lot of claims to being a civilized society.
Barry McCaffrey is both right and wrong about people like me. I proudly cop to being for much more extensive drug legalization. But I've tried to stay away from that argument while there seemed to be a chance to get marijuana medicalization done for the sake of patients and common compassion. Maybe that makes me a "stealth" legalizer exploiting the medical marijuana issue. But he can co-opt me and others like me easily by showing a speck of common sense (and respect for federal law) on medical marijuana. That would satisfy many advocates of legalization of medical marijuana and take them out of the political battle. Then he could take on the remaining legalizers on a clearer and less emotional political playing field, where he presumably thinks he would have an advantage.
His reluctance to do so leaves his argument for drug prohibition standing on the shaky ground of harassment of the suffering. And insofar as that is the case, it's all the more essential for casual opponents of the drug war to make ending it a higher priority. The drug war can't be waged without the invasion of private spaces and the systematic shredding of the Fourth Amendment and much else in the Constitution. It has led to expansion of property forfeiture laws and undermined the concept of private property.
The drug war has led law enforcement officials and many citizens to support the idea that random searches of law-abiding citizens who have shown no evidence of wrongdoing are acceptable and even desirable. It has filled prisons with people who have done no harm to others. It has created entire industries that inflict misery on people with medical problems. It has enhanced federal power at the expense of localities and states -- not to mention individual citizens. It is predicated on and feeds the idea that no citizen ever becomes fully adult in the eyes of the State, that all must be protected from themselves by brave guardians willing to lie and prostitute whatever shred of intellectual integrity they may once have possessed to protect mere ignorant citizens. It gets citizens accustomed to the idea of making law and public policy through lies, exaggeration and myths rather than intelligent analysis.
Beliefs and policies are changed when those with a strong desire are willing to speak up even when they are ridiculed and apparently marginalized. If we can't end the drug war, perhaps we don't deserve to be free.