A QUAGMIRE FOR OUR TIME

At least since 1996, when voters in California and Arizona approved
ballot initiatives legalizing the medical use of marijuana, Americans
have been trying to send the same message to Washington, D.C.: The
nation's escalating, $20-billion drug war is a disastrous and costly
failure that is stuffing the prisons, ruining thousands of lives both
here and abroad, and producing few perceptible gains--except maybe in
the careers of politicians.

With every passing year, the message becomes louder.

In elections that followed passage of the California and Arizona
initiatives, similar measures have been passed in Oregon, Washington
State, Maine, Alaska, Colorado, and Nevada, many of them by
overwhelming majorities. Last year a medical-marijuana bill was also
approved by the Hawaii legislature and signed by the governor.

In the summer of 1998, Republican Congressman Bob Barr of Georgia, a
leading drug-war hawk, wrote a gag rule into the District of
Columbia's appropriation bill to prohibit a vote on a
medical-marijuana initiative from even being counted. Ten months
after the election, when a federal judge finally overthrew the ban,
the count showed that it, too, had passed.

In every one of those jurisdictions, voters are, in effect,
repudiating the drug war and ignoring federal lawmakers: One of every
five Americans now lives in a place where state law allows people
with a doctor's recommendation to smoke pot legally in order to
mitigate symptoms not easily controlled by federally licensed
drugs--particularly to relieve chronic pain or nausea caused by
chemotherapy for cancer, to reduce ocular pressure in glaucoma, to
fight debilitating weight loss caused by AIDS, or to reduce the
muscle spasms of multiple sclerosis.

That's not all. Drug-law reform--what Barr calls "this subversive
criminal movement"--has gone well beyond medical marijuana.

Last November a campaign led by a veteran California political
consultant named Bill Zimmerman and funded by a trio of deep
pockets--billionaire financier George Soros, Cleveland insurance
executive Peter Lewis, and John Sperling, president of the for-profit
University of Phoenix--secured passage of California's landmark
Proposition 36, which requires that anyone convicted of simple
possession of an illicit drug be sent to treatment, not to prison.

The measure, which went into effect July 1, appropriates $120 million
annually for additional treatment services.

California's nonpartisan legislative analyst estimates that it will
keep some 30,000 individuals a year out of prison and save the state
$500 million in prison-construction costs and between $200 million
and $250 million annually in prison-operating costs.

Looking for states in which to run Proposition 36-type ballot
measures in November 2002, Zimmerman is now conducting polls and
running focus groups in Florida, Ohio, Michigan, and Missouri. The
poll results in Florida, he says, are as favorable as they were in
California. So far, of the 15 drug reform initiatives Zimmerman has
run, 14 have been approved.

The list goes on. The New Mexico legislature, with the strong backing
of Republican Governor Gary Johnson, approved bills earlier this year
permitting pharmacies to sell syringes over the counter to drug users
in order to reduce the risk of HIV transmission; expanding funding
for drug treatment; restoring voting rights to convicted felons; and
allowing the early release and treatment of women convicted of
nonviolent drug-related offenses.

And New York Governor George Pataki, another Republican, has been
calling for reform of the state's 1973 Rockefeller drug laws, under
whose "mandatory minimum" sentences even some first-time
offenders--individuals charged merely with possession--have been
given prison terms of as much as 15 years to life. For Ethan
Nadelmann, who heads the Soros-funded Lindesmith Center-Drug Policy
Foundation, all these reforms aim for "harm reduction"--to control
the medical and social effects of drug use as well as the corollary
damage that results from enforcement of punitive drug-control laws.
Their focus is on reducing deaths from drug overdoses, bringing down
the rate of HIV infection by encouraging needle exchanges, getting
nonviolent drug offenders out of prison and into treatment, and
"wasting less taxpayer money on ineffective criminal policies." This
is the sagebrush rebellion of the left.

Dopey Drug Warriors

But the feds don't get it, or pretend not to get it. There's too much
money and too many jobs in the drug war, and being "tough" on drugs
is politically safer than the uncertain ground of moderation. And so
federal resistance to reform remains as adamant as ever. In 1988,
following an extended review of the research, Francis L. Young, an
administrative law judge of the Drug Enforcement Administration,
issued a voluminous ruling that marijuana "has been accepted as
capable of relieving the distress of great numbers of very ill
people, and doing so with safety under medical supervision. It would
therefore be unreasonable, arbitrary and capricious for DEA to
continue to stand between those sufferers and the benefits of this
substance in light of the evidence in this record." But despite
Young's decision, as well as a string of other appeals and scattered
attempts in Congress to move marijuana into the DEA's Schedule II
category of drugs--a class that doctors may prescribe and that
includes morphine and other narcotics--the DEA has refused to
reclassify marijuana.

It remains a Schedule I drug, a classification that means it is
officially a substance with a high potential for abuse and no proven
medicinal use, and thus is treated as contraband except for research
under extremely restricted circumstances.

Last winter, in the months immediately after George W. Bush's
election, some drug-law reformers thought the new president might
become to drugs what Richard Nixon was to China. As a candidate, Bush
once declared that marijuana ought to be a state issue; as recently
as January he acknowledged that "a lot of people are coming to the
realization that maybe long minimum sentences for first-time users
may not be the best way to occupy jail space and/or heal people from
their disease." At the same time, some senior members of the
administration were indicating that there would be a shift in the
drug war from interdiction and crop destruction to prevention and
treatment. (Bill Clinton said the same thing but never acted on it.)
So far, however, it's been mostly lip service.

In Attorney General John Ashcroft, Bush picked a conservative who
says he wants to "escalate the war on drugs." And in early May, when
Bush chose two devoted drug warriors for the administration's key
drug jobs, the direction seemed even clearer. To head the DEA:
Representative Asa Hutchinson of Arkansas, a moral crusader who
thinks that it would be a great idea to use federal funds to campaign
against state marijuana initiatives and who opposes any research on
medical use of marijuana because "it would send the wrong message to
children." And for drug czar: John P. Walters--once chief deputy to
William Bennett, drug boss under Bush pere; a hard-liner on criminal
penalties for drug users; a strong opponent of any medical exceptions
for marijuana use; and a hawk who favors using the military in the
drug war. A few days after those announcements, Bush approved a grant
of $43 million to the Taliban in Afghanistan--the most cruel,
repressive, and anti-American regime on earth--for its success in
eradicating the opium poppy crop. This is how America supports
freedom.

"The most effective way to reduce the supply of drugs in America is
to reduce the demand for drugs in America," Bush said in a Rose
Garden ceremony introducing his new drug warriors. "Therefore, this
administration will focus unprecedented attention on the demand side
of this problem." Did Bush get the irony?

In the president's proposed budget, of every $20 for antidrug
activities only about one dollar goes to treatment programs.

Two-thirds of the allocation goes to law enforcement, including a
hefty 21 percent increase for federal prisons. It's hard to think of
another issue on which Washington is more out of sync with voters--or
with the states--than it is on the drug war.

Drug-war enthusiasts like Bob Barr and activists like Sue
Rusche--executive director of the Atlanta-based National Families in
Action, probably the largest private antidrug organization in the
country--argue that it's the billionaire Soros who has seduced the
country into embracing all those drug-reform initiatives. Rusche may
be right that the current reform campaign wouldn't be possible
without the money from Soros and a few other deep pockets.

She's probably also correct in regarding medical marijuana as what
one reformer called "the big enchilada of reform"--the beginning of
what she sees as a slippery slope toward the decriminalization of
other drugs.

But compared with the more than $185 million the feds spend annually
on antidrug advertising and education campaigns and the billions that
go into the rest of the drug war, the Soros money is peanuts.

Even Barry McCaffrey, who was Bill Clinton's drug czar, acknowledged
as much. "The drug legalization people," he told Congress a couple of
years ago, "don't have a fraction of the power that we have now
brought to bear on this issue."

Soros and friends are fishing in well-stocked waters: Most Americans
seem to understand that despite the regular announcements of big drug
busts and the breakup of yet another family of South American drug
lords, illegal drugs are as plentiful as ever, and often cheaper than
they have ever been. In a poll conducted in March by the Pew Research
Center for the People and the Press, 74 percent of respondents
declared that the nation's costly drug war--up from $4.7 billion in
1988 to $20 billion now--is a failure.

While most Americans are not ready for legalization, the majority say
that drug abuse should be treated as a disease, not a crime.

And a whopping 73 percent also say that doctors should be allowed to
prescribe marijuana to their patients.

Those numbers aren't surprising. By now, it's become folk wisdom that
the huge run-up in the nation's enormous prison population has been
driven in considerable part by the drug laws. Of the 1.2 million drug
arrests in this country in 1999, 80 percent were for possession, and
more than half of those for possession of marijuana.

And when 35 percent of American adults 26 years or older have tried
marijuana but only 5.4 percent still smoke it, they surely have begun
to suspect that pot isn't the highway to addiction that
prohibitionists depict. By now they've also heard enough stories
about first-time drug offenders who've been sent away to murderer-
and rapist-length prison terms to know that something is seriously
wrong.

More than 300,000 Americans are in prison on drug charges, roughly 12
times as many as there were in 1980, at an annual cost of more than
$6 billion in prison expenses alone.

Currently 31 percent of all admissions to state prisons are drug
offenders, of whom a vastly disproportionate number are blacks.

It's hardly surprising that there's now a Families Against Mandatory
Minimums Foundation, which claims 20,000 members in 25 chapters
across the country.

The Government versus the People

Zimmerman's drug-law-reform campaign began almost accidentally after
a nurse in Southern California named Anna Boyce, a member of a
neighborhood anticrime patrol, reported a burglary one night.

When the deputies arrived to investigate, they found a small amount
of pot, which the owner of the home, a lawyer, used to control the
pain from his rheumatoid arthritis.

The burglars were never caught, but the lawyer was busted and charged
with possession. As Zimmerman tells the story, "Boyce was so outraged
that she launched a campaign to allow patients to use marijuana as
medicine." Twice the California legislature passed the resulting
bill; twice Governor Pete Wilson vetoed it. It was at that point that
Boyce turned to Nadelmann's organization, which brought in Zimmerman.

Zimmerman and his backers freely acknowledge that their ultimate
objective is not to rewrite state laws but to change federal ones.
The initiative route, though often clumsy and inflexible, they
believe, is simply the fastest way--and the cheapest--to send the
message.

But law enforcement still speaks a lot louder in Washington than does
treatment or drug-law reform.

Shortly after California passed the medical-marijuana initiative in
1996, McCaffrey, U.S. Attorney General Janet Reno, and other senior
members of the Clinton administration warned that any physician
caught discussing marijuana with a patient would be subject to
revocation of his or her authority to prescribe drugs under the terms
of the federal Controlled Substances Act--a sanction that, if carried
out, would ruin the doctor's practice. Although the administration
later softened the threat to target only physicians "recommending"
marijuana to patients, two federal judges, responding to a suit filed
by doctors and patients, ultimately enjoined the government from
issuing such threats--which, in effect, would have amounted to a gag
rule--or from launching any investigations on that ground. "If such
recommendations could not be communicated," said U.S. District Judge
William Alsup in a decision handed down last September, "the
physician-patient relationship would be seriously impaired."
Recommending pot is not the same as providing it, he ruled, and
patients have a right to know their doctors' recommendations: Even if
they could not get drugs legally, they would know enough to try to
change the law--which, of course, is what they've been trying to do.

But it's on the matter of supply that the government has concentrated
its response.

Ever since the first medical-marijuana initiatives passed, the
government has sought to shut down groups like the Oakland Cannabis
Buyers Cooperative (OCBC), which distributed pot to those it regarded
as legitimate users.

A liberal three-judge panel of the Ninth U.S. Circuit Court of
Appeals accepted the OCBC argument that since patients with no other
remedies but pot could offer a medical-necessity defense in a
criminal case, so could the supplier use it against the government's
attempt to close it in a civil action. But in an 8-0 decision handed
down in May, the Supreme Court ruled that there was no room in
federal law for any medical-necessity exception for the cannabis
clubs. (Significantly, three of the eight justices pointedly
declared, in a concurring opinion by Justice John Paul Stevens, that
the medical-necessity defense "might be available to a seriously ill
patient for whom there is no alternative means of avoiding starvation
or extraordinary suffering.")

The decision, however, did not overturn the medical-marijuana laws;
what it did instead was create more uncertainty for both medical-pot
users and the government. The feds had brought the suit in the first
place knowing that if they went after either small-time growers or
individual users in discrete criminal prosecutions, a costly and
cumbersome process in any case, they risked wholesale
acquittals--essentially nullification of the law--by juries composed
of many of the very same people whose sympathy toward cancer patients
and glaucoma victims led them to vote for medical marijuana in the
first place.

Better, then, to try civil injunctions as in the OCBC case--without
the burden of fines or imprisonment, or juries--to put the
distributors out of business.

But now that the court has made its decision, who is going to enforce
it--and how? If the government succeeded in shutting down centralized
distributors like OCBC, it would simply drive the supply system
toward the black market, with its additional risks, or into other
channels. The Oregon initiative, for example, specifically allows any
patient registered as a medical-marijuana user with state
authorities--a certificate is available with a physician's
recommendation--to grow up to seven marijuana plants, or to have a
designated caregiver grow them on the patient's behalf.

Kelly Paige, who runs the Oregon Medical Marijuana Registry, says
she's not sure whether two or more people could designate the same
caregiver: Could someone grow 21 plants for three patients or 700 for
100 patients?

Paige says that there's a "gray area in the law" on that point.

But what is clear is that the state's registry, now with 2,500 names,
is growing at a rate of 50 a week. Will the government seek to shut
that down, thereby not only creating more law enforcement problems
but setting up a major state-federal confrontation?

The Nevada initiative, passed by a 65 percent majority last November,
has even more interesting implications. It requires the legislature
to approve "appropriate methods for supply of the plant to patients
authorized to use it" and has consequently prompted a bill, so far
stalled in the legislature, authorizing the state to grow and
distribute the pot. Following the 1999 initiative approved in Maine,
a similar bill was being considered there.

If Uncle Sam were to take on the states in such cases, federal law
would clearly prevail.

But does an administration professing to respect states' rights
really want to embark on a campaign in which it seeks to thwart what
would quickly be called the will of the people?

What George Soros and William F. Buckley Have in Common

The debate about drugs and the drug war spawns all sorts of wacky
theories. One is that marijuana is a "gateway drug" that soon leads
users to crack and heroin.

Another, suggested by Calvina Fay, executive director of the Drug
Free America Foundation, is that Soros and his fellow money bags fund
the reform movement because they "are business people" who sooner or
later hope to be making money in the trade. It's true that the
reformers are squinting toward something that ultimately looks a lot
more like decriminalization, if not legalization, and that the
compassionate-marijuana-use campaign is itself, in effect, a gateway
to a broader libertarian agenda to decriminalize all drugs.

Joseph Califano--Jimmy Carter's secretary of health, education, and
welfare, who now heads Columbia University's National Center on
Addiction and Substance Abuse--calls Soros "the Daddy Warbucks of
drug legalization."

But on that issue, Soros has estimable company--from William F.
Buckley to former Secretary of State George P. Shultz to economist
Milton Friedman. Nadelmann says that Soros, an emigre from eastern
Europe, was offended that in the United States, a model for democracy
around the world, "there is no open dialogue on this issue," and that
given Congress's attempts to stifle research and suppress debate--not
to mention the huge number of people incarcerated for drug
addiction--"this is not an open society."

Soros, with his global interests, sees the issue in international
terms: in possible adaptations of the treatment-centered drug
policies of western Europe; in resisting what Nadelmann describes as
the danger of a Cambodia-style escalation--into Ecuador, back into
Peru, perhaps into Brazil--of Washington's $1.3-billion Plan
Colombia, the bloody, U.S.-funded South American guerrilla war cum
coca-eradication program; and in the reformers' wider campaign of
harm reduction and drug regulation (as with tobacco and alcohol)
instead of prohibition. If Colombian cocaine production were stopped
tomorrow, Nadelmann said, "the U.S drug problem would change only
peripherally."

That view has support in Latin America as well--from Mexican
President Vicente Fox, who said he'd legalize drugs if he could, and
his foreign minister, Jorge Castaneda, who says it's time "for
rethinking ... this absurd war no one really wants to wage"; and from
a growing list of prominent people--Americans and others--who signed
a Soros-funded "open letter" (ostensibly directed to UN
Secretary-General Kofi Annan) declaring that "the global war on drugs
is now causing more harm than drug abuse itself." Among the signers:
former Costa Rican President Oscar Arias, former Nicaraguan President
Violeta Barrios de Chamorra, former Colombian President Belisario
Betancur, Harvard paleontologist Stephen Jay Gould, former Kansas
City Police Chief Joseph McNamara, Stanford University President
Emeritus Donald Kennedy, and scores of others--academics, physicians,
cabinet ministers, members of parliament, prosecutors, and judges.

More immediately, in April the Canadian government liberalized rules
for the medical use of marijuana and began to move toward an
Oregon-style system in which physician-certified users or designated
caregivers may grow limited amounts of pot. At almost the same
moment, U.S.-subsidized Peruvian Air Force fighters, pursuing what a
Central Intelligence Agency tracking plane had tentatively identified
as a bunch of drug runners flying over the Brazilian-Peruvian border,
shot down a plane carrying American Baptist missionaries--killing a
mother and her infant--and then strafed the survivors clinging to the
plane's wreckage. No one can count how many Peruvians, Bolivians, and
Colombians have been killed or driven off their land in the same war.

Reforming Reefer Madness

At this point, even the scientific debate in this country about the
medical use of marijuana is so hampered by politics and fraught with
so much extraneous cultural baggage that it can hardly be conducted
at all. Two years ago, the National Academy of Sciences' Institute of
Medicine issued Marijuana and Medicine: Assessing the Science Base,
an extensive, two-year, administration-commissioned review of the
research that debunks the contention that marijuana is a "gateway
drug" for the young (alcohol and tobacco, it points out, are far more
common gateways). "Smoked marijuana should generally not be
recommended for long-term medical use," says the report.
"Nonetheless, for certain patients, such as the terminally ill or
those with debilitating symptoms, the long-term risks are not of
great concern." But even the Institute of Medicine report, which has
been cited by drug prohibitionists to prove that smoked marijuana is
addictive and medically useless, is bogged down in controversy.

The prohibitionists argue that other drugs are available to control
nausea, pain, and the other symptoms for which patients smoke pot.
The most important, a synthetic form of THC, one of marijuana's
psychoactive compounds, comes in a pill under the trade name Marinol.
But many patients have found the highs and other side effects of THC
pills hard to control; others, suffering from nausea, can't even hold
the pills down. Smoking marijuana, they say, generally acts faster
and makes it possible for them to self-regulate the amount of the
drug they absorb into their systems.

The critics of reform are right that the medical-marijuana flag is
being flown by a lot of users--and dealers--who have no clearly
defensible medical reason for possessing pot or who stretch the
definition of medicinal usage to the breaking point. (In Petaluma,
California, for instance, two men who were recently arrested and
tried for running a pot farm on which they were growing nearly 900
plants in a barn and half a dozen greenhouses and selling the stuff
at a 100 percent markup.

They said they were doing it for "compassionate use" under the
state's medical-marijuana act.) At the same time, however, a lot of
potentially legitimate users in states such as Hawaii, which has
legalized medical use, are afraid to enroll in state registries,
which are open to law enforcement officers, for fear of prosecution.
But that's all the more reason to have a regulated system that allows
all concerned--patients,doctors, and cops--to determine what is and
isn't legitimate medical use.

Every one of the new reforms is now being tested--in the field, in
the courts, and in the public arena.

Increasing amounts of the movement's resources and energy are now
being spent on these tests, which offer the most real hope for sanity
in drug policy and are likely to determine the future of the reform
drive.

Probably the biggest test has just begun in California with the
implementation of Proposition 36, the drug-treatment initiative,
which Zimmerman and Nadelmann hope will be a model for other states.

During the campaign last year, opponents--among them cops, district
attorneys, some judges, and, most prominently, the state's powerful
prison guards' union--charged that the new law's enforcement
machinery would be too cumbersome to make addicts cooperate and keep
them in treatment until they're clean. Under the old law, drug-court
judges could send addicts to treatment as a condition of probation;
if they failed to cooperate, they could be jailed without further
ado. Under the new initiative, resisters and backsliders are entitled
to a hearing before they can be sent to prison. The opponents also
contended that the state simply doesn't have the treatment facilities
or the trained personnel to handle the expected 30,000-plus
cases--heroin addicts, coke snorters, meth users, and others
convicted of drug possession--that are expected to be driven into the
system each year. The existing system, they charged correctly,
doesn't have nearly enough capacity or trained therapists to handle
even those who voluntarily seek treatment.

In San Francisco, the city's health department has more than 1,000
people on its waiting list at the end of each month.

Zimmerman says that the $120 million that the initiative appropriates
for each of the next five years should be sufficient to provide the
necessary services--because while some people require extended
residential treatment, most do not. But for much of the past spring,
there was a great deal of arm wrestling between probation departments
and health officials about who got how much of the money.

In essence, the same law-enforcement groups that said the state was
short of treatment facilities tried to snatch a large share of the
treatment money for themselves.

The outcome of the new reform laws is hardly assured.

The public has obviously moved on the issue and so have national
politicians like Republican Senator John McCain of Arizona and
Democratic Senators Barbara Boxer of California and Patrick Leahy of
Vermont. (All three said that their views were affected by Traffic,
the grainy, documentary-style film about the futility of the drug war
at the Mexican border--which, if true, shows how primitive
congressional understanding of the drug issue really is.) And so, it
appears, have some Bush cabinet officials, including Health and Human
Services Secretary Tommy Thompson, who as governor of Wisconsin
supported some needle exchange programs and has since succeeded in
getting a supporter of such programs named as the administration's
AIDS "czar." Even McCaffrey, Clinton's drug general, left office
early this year sounding more moderate than he had when he began,
talking now about "holistic" policies, saying the country should stop
using the term "drug war," and distancing himself from the "drug
gulag."

Nadelmann says drug-law liberalization is roughly where gay rights
was a decade ago: "It's a matter of cultural transformation." That
hardly means that enlightenment is just 10 years off. Our fundamental
ambivalence as a nation--between our concern for AIDS, cancer, and
glaucoma patients with no real alternatives but smoked marijuana and
our powerful sense that heroin and crack are dangerous and
destructive substances; between citizens who understand that our
existing policies of interdiction and repression are failing and the
real fears of those same citizens as parents that their children may
be in jeopardy; between our libertarianism and our puritanism--is
likely to make us hesitate. The kids who experiment with deceptively
dangerous meth-type drugs like ecstasy and end up in the emergency
room seem to be younger than they've ever been before, and they're
scaring a lot of people. "The public," said Rusche, "has been badly
deceived" by the drug-reform campaign. "There'll be a backlash." If
we start reading stories about addicts released under reform-law
diversion programs committing ugly crimes, or more items about
teenagers overdosing on ecstasy or coke at rave clubs, Rusche could
turn out to be a prophet.

At the same time, however, let's not underestimate the possible
backlash against the stupidity and rigidity of the drug warriors in
Washington--or the power of existing federal policy, the excesses of
the drug war, and unbending state criminal statutes such as the
Rockefeller drug laws to energize the reform campaign.

A government of drug-war militants like Bob Barr, Asa Hutchinson, and
John Walters may be the best way to move the rest of the country
toward moderation. Every time thoughtful voters hear that old
reefer-madness rhetoric, the credibility of the larger antidrug
message is undermined--as is the legitimacy of a national drug policy
that, despite administration talk about treatment, is still rooted in
the criminal justice system, not in the medical system.

The votes and the polls of the past five years indicate that
Americans seem quite capable of distinguishing between outright
legalization, which they fear, and the excesses of the drug war,
which they reject.

It's eerie how much the quagmire of the drug war, at home and abroad,
is beginning to resemble that other quagmire of a generation ago.
Bust a few hundred more solid citizens who are trying to control
their chemotherapy-caused nausea with pot, shoot down a few more
Baptist missionaries in Peru, move a step closer toward actual
American military involvement in Colombia, and who knows how much
further reform could go?