IS ASA HUTCHINSON QUALIFIED TO RUN DEA?

All right, it hardly qualifies as big news that a Bush administration
appointee would be an embodiment of the conventional political wisdom,
perhaps slightly to the right of the Beltway consensus, but unlikely to
think outside the box. In the case of Asa Hutchinson, who struck me as the
most capable of the ultimately doomed House impeachment managers, however,
it seems something of a shame.

Ah, well, he made the choice to take the job as head of the Drug
Enforcement Administration. It's likely to end his political career and
make him something of a laughingstock. Or, maybe, when he finishes the
years of peddling disinformation which that job has to entail, unless one
is willing to admit the obvious failure of the drug war, he can write a
book on morals and become a wealthy eminence grise.

Still, it's disappointing that an apparently able and intelligent person
would be so stubborn about disseminating obvious falsehoods.

It's not so surprising that the Arkansas Republican former congressman,
during his first week as head of the Drug Enforcement Administration would
promise bravely that the federal government will devise some method to
enforce the federal ban on use of marijuana for medical purposes. His
position is, after all, a law enforcement job and the U.S. Supreme Court
recently affirmed (albeit on narrow grounds) the federal laws against sale
and use of marijuana, even for medical purposes.

The most disappointing aspect of Mr. Hutchinson's comments on taking office
was, as Kevin Zeese of Common Sense for Drug Policy told me, "not just the
implicit disrespect for voters in the nine states that allow medicinal
marijuana use, but his continuing peddling of the myth that there is no
scientific evidence of marijuana's medical value." Hutchinson also implied
that any slackening of enforcement efforts might "send the wrong message"
to teenagers, a rhetorical flourish that should have been discredited long
ago, quite recently by a report commissioned by the last "drug czar," but
apparently lives on in certain peoples' mental fantasies.

Mr. Hutchinson told reporters on his first official day in office that the
scientific and medical communities have determined that there is no
legitimate medical use for marijuana but "if they continue to study it we
will listen to them." He said it is important to "send the right signal"
when dealing with medical marijuana enforcement issues.

Those statements suggest he is completely unfamiliar with the Institute of
Medicine report commissioned by former "drug czar" Barry McCaffrey after
California and Arizona passed initiatives in 1996 authorizing medical use
of marijuana (and other drugs in Arizona's case) and issued in March 1999.
The Institute of Medicine is a division of the National Academy of Sciences
convened to provide accurate information when science, medicine and public
policy intersect.

The IOM report ("Marijuana and Medicine: Assessing the Science Base") was
based on a thorough review of all the scientific papers extant on the
subject as well as some investigations the panel undertook itself. It
summarized its conclusions as follows:

Advances in cannabinoid science of the past 16 years have given rise to a
wealth of new opportunities for the development of medically useful
cannabinoid-based drugs. The accumulated data suggest a variety of
indications, particularly for pain relief, entiemesis, and appetite
stimulation. For patients such as those with AIDS or 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. The data are weaker for muscle
spasticity but moderately promising.

While contending that the future of medical marijuana does not lie in the
smoked plant, the report acknowledged that "until a non-smoked rapid-onset
cannabinoid drug-delivery system becomes available [which the report
suggested might be 10 years], we acknowledge that there is no clear
alternative for people suffering from chronic conditions that might be
relieved by smoking marijuana, such as pain or AIDS wasting." The report
recommended that the federal government set up a program to allow such use,
under tightly-controlled conditions for severe illnesses only.

Barry McCaffrey, after the report was issued, found one sentence he could
quote without giving up his self-image as a valiant drug warrior, the
sentence about the future of medical marijuana not lying in smoked raw
plant. He was fond of embellishing the sentence by going into a lame laugh
line about a big doobie not being medicine in modern America. Some
audiences laughed. Too few knew that, in so doing, he was ignoring the rest
of the report completely -- and too few in the media knew enough to ask him
the question. Considering his personal testiness, he might never have
answered it if he had been asked anyway.

One might have hoped that Asa Hutchinson would have approached the issues
with a little more concern for accuracy. It is accurate, after all, that
marijuana is still on Schedule I under the Controlled Substances Act
(whether justifiably or not is another question), which means that
possession, manufacture and use are all prohibited. It is not accurate that
the "scientific and medical community" agrees there are no medical uses.
Whether Hutchinson said so out of ignorance or as a conscious deception I
don't know, but those are the only two logical choices.

(A strict constructionist might wonder where the central government got the
authority to enact such a prohibition since it isn't in the Constitution
and it took an amendment to prohibit beverage alcohol. But you don't find
many authentic strict constructionists or constitutionalists in
conservative ranks these days, however promiscuously they may sling the
rhetoric.)

The IOM report also addressed the "sending the wrong message" issue. It
reported, after analyzing several cases of modest liberalization, including
the state-level debate on medical marijuana, that "there is no evidence
that the medical-marijuana debate has altered adolescents' perceptions of
the risks associated with marijuana use." In fact, it found a slightly
higher perception of risk among California teenagers -- though, in truth,
probably not a statistically significant difference -- than among teenagers
in other states in the year or two following the campaign that led to the
passage of Prop. 215 in 1996.

So the "send the wrong message" argument -- even aside from the question of
whether in a free society it is the government's job to manipulate and
massage teenagers' attitudes -- is totally bogus. Asa Hutchinson should
know it. If he doesn't, he's not qualified for the job he holds.

(Self-serving suggestion time. All of this and a great deal more is in my
current book, "Waiting to Inhale," available at your local bookstore or at
Amazon.com and barnesandnoble.com.)

Later, in an interview with Robert Novak and Al Hunt on CNN, Mr. Hutchinson
rebuffed a question about whether, in a federalist system, state law should
trump federal law by saying "that's not consistent with the supremacy
clause of the Constitution."

But in the recent Supreme Court case, the government did not make a
supremacy clause argument, an omission so striking that Justice Ruth
Ginsburg asked about it. The government attorney responded that the
supremacy clause was not at issue here, that in certain states the federal
law and state laws were simply different.

Mr. Hutchinson, a skilled and experienced attorney, should check the
transcripts. He should also be aware that none of the state laws
authorizing medical use of marijuana have been challenged in court on the
ground that they are in conflict with federal law or for any other reason
- -- for the simple reason that the prohibitionists know they would lose.

All this means state officials are bound to enforce state laws and it is up
to federal officials to enforce federal law. Mr. Hutchinson has
acknowledged that this will be a delicate problem.

Before he addresses it, he would do well to read the Institute of Medicine
report (the summary, along with reports on other scientific studies, is
available at www.csdp.org and at www.drugwarfacts.org; complete report at
www.nas.edu) and research the legal issues more thoroughly.

If he reads the IOM report he just might learn one more item of interest.
The IOM team noted that the most predominant argument for keeping marijuana
illegal that it encountered during its hearings had to do not so much with
the inherent dangers of marijuana itself -- for the simple reason that they
are few and mild and even prohibitionists know this -- but the fear that
use of marijuana would lead to the use of "harder" and more genuinely
dangerous drugs. So the IOM experts dealt with the issue at length.

They noted that the theory can be viewed two ways. There's the "stepping
stone" hypothesis, which suggests that there is something about the
chemical or pharmacological qualities of marijuana that leads users to be
more likely to try other illicit or dangerous drugs. After reviewing the
available scientific studies, the IOM report concluded that "There is no
evidence that marijuana serves as a stepping stone on the basis of its
particular physiological effect."

No evidence. Zip. Zero. Nada.

The other way to view the fear is as the "gateway" theory, for which there
is some scientific evidence. The IOM report made it clear that "the gateway
theory is a social theory. The latter does not suggest that the
pharmacological qualities of marijuana make it a risk factor for
progression to other drug use. Instead, the legal status of marijuana makes
it a gateway drug."

Come again? You mean the only reason with any credible scientific support
to suspect that people who use marijuana might move on to other, more
dangerous drugs is that marijuana is illegal, and people who seek to obtain
it are likely to come in contact with an underground world in which other
drugs are available and dealers stand to make bigger profits by saying "Why
don't you try something a bit more interesting? I've got a sample right here"?

Yep.

You mean that insofar as some teenagers who try marijuana do move on to
more dangerous drugs, the reason is that our political leaders keep
marijuana illegal? That the prohibitionists are ultimately responsible for
the suffering, devastation and even deaths caused by people who move on
from marijuana to other drugs?

At least partially so.

Time to learn the facts and face them, Mr. Hutchinson. Then see if you can
look at yourself in the mirror.