HOLES IN THE GOP UP IN SMOKE DRUG POLICY

The Supreme Court delivered a timely reminder of the social costs of
our "war on drugs." Its May 14 decision in U.S. v. Oakland Cannabis
Buyers' Cooperative rejected a medical-necessity exception to the
federal law criminalizing marijuana.

Meanwhile, President George W. Bush has moved toward abandoning his
instincts and repeating his predecessors' mistakes by endlessly
escalating a $20 billion-a-year "war" that-as most Americans now
understand-we have lost.

The court was faced with evidence that smoking marijuana can alleviate
the pain, even extend the lives, of tens of thousands of patients
suffering from cancer, AIDS and other serious illnesses. Still, it
held that Congress had allowed no room for a medical exception to the
law making it a crime to distribute marijuana or even to possess it
for personal use.

So, a doctor could be sent to prison for giving-perhaps even for
recommending-marijuana to a terminal cancer patient whose pain and
nausea cannot otherwise be relieved. The patient could be sent to
prison, too, although such prosecutions seem unlikely, in part because
most jurors simply would refuse to convict.

The justices were correct. Congress specified in 1970 that marijuana
had no "currently accepted medical use"-at least, none that Congress
was prepared to accept. In cases brought by the federal government,
this congressional ban overrides the laws of California and the eight
other states that have exempted medical marijuana from their own state
anti-drug statutes.

The Supreme Court neither agreed nor disagreed with Congress, but
rather deferred to an enactment that it had no power to revise-an
enactment that inflicts needless suffering and that Congress ought to
revise.

The most obvious proof that marijuana alleviates some patients' pain
is that so many of them say so. When a patient wracked by agonizing
pain says, "I feel much better after smoking marijuana," who is
Congress to say otherwise? For those who need expert assurances,
plenty exist.

"A small but significant number of seriously ill patients who suffer
from cancer, HIV/AIDS, multiple sclerosis, epilepsy, or other
conditions do not benefit from, or cannot tolerate, the leading or
conventional therapies," the American Public Health Association and
others said in an amicus brief. "Some ... have found cannabis to be
effective at alleviating symptoms of their condition or side effects
of their treatment. ... (It) can mean the difference between life and
death or relative health and severe harm."

Marijuana is also safer, less addictive, less subject to abuse and
less likely to have bad side effects than many legal pain relievers
and prescription medications. The U.S. Institute of Medicine (a
National Academy of Sciences affiliate), the California Medical
Association and Britain's House of Lords have given guarded approval
to carefully monitored marijuana smoking for certain patients.

Indeed, no serious analyst could doubt that marijuana alleviates some
patients' sufferings. Serious drug warriors' real concern is that
"state initiatives promoting 'medical marijuana' are little more than
thinly veiled legalization efforts," as William J. Bennett, the first
President Bush's drug czar, said in a May 15 Wall Street Journal op-ed.

There is some truth to this. Many medical-marijuana champions do have
such an agenda: Some exaggerate the medical benefits, and the 1996
ballot referendum in which California's voters became the first to
approve marijuana for medical use was so loosely drafted as to leave
room for recreational users to concoct bogus medical excuses.

But most advocates of a less-punitive approach to drug policy are
unpersuaded by the advocates of legalization-a group that includes
such prominent conservatives as Milton Friedman, George Shultz and
William Buckley Jr.

And Congress easily could legalize medical marijuana only for patients
with certain severe illnesses without vitiating criminal sanctions.
Why do hard-line drug warriors fight even that idea? Apparently out of
fear that it would muddy the message they want to send to people like
my teenagers. The message, in Bennett's words, is that "drug use is
dangerous and immoral."

Much as I respect Bennett, I take that personally. I smoked some
marijuana myself in the late 1960s and early 1970s, when it was hard
to go to a party without being offered a puff of the stuff. (Unlike
President Clinton, I inhaled.)

Most of my peers seemed to smoke more than I did. They also seemed
less dangerous when smoking than when drinking.

Were we all immoral? Were our parents or grandparents immoral when
they drank bootlegged liquor during Prohibition? Is having too many
beers immoral? Was President Bush immoral when he did whatever it was
that he did when he was "young and irresponsible"? When he drank too
much? When he drove drunk?

Morality vs. Illegality

Like Bennett, I hope that my teenagers will shun illegal drugs. But I
don't tell them that marijuana would be immoral or dangerous to their
health, because I don't believe that. The danger, I tell them, is that
using any illegal drug could leave them with criminal records or land
them in jail.

Bush and some of his advisers have said some vaguely encouraging
things about drug policy. "Maybe long minimum sentences for the
first-time users may not be the best way to occupy jail space and/or
heal people from their disease," Bush mused on Jan. 18. But on May 10,
he named as his drug czar former Bennett deputy John Walters, who
immediately stressed that he wants "to escalate the drug war."

Like Attorney General John Ashcroft, he has pushed the cruel and
futile policy of imprisoning small-time participants in drug
deals-many or most of them nonviolent-by the hundreds of thousands.
Walters also has displayed a special relish for sending the military
into Latin America to help friendly regimes chase cocaine growers and
suppliers. On April 20 an American missionary and her daughter were
killed in a small plane that a Peruvian fighter mistakenly shot down.

Walters revealed his mind-set in 1996, when he assailed the Clinton
administration's emphasis on drug treatment for hard-core addicts. He
called it "the latest manifestation of the liberals' commitment to a
'therapeutic state' in which government serves as the agent of
personal rehabilitation." In fact, treatment programs have proven more
effective on a dollar-for-dollar basis than criminal
sanctions-although many addicts cannot get access to treatment unless
they first get arrested.

In his Wall Street Journal op-ed, Bennett argued that the Reagan and
first Bush administrations had been winning the war on drugs until the
Clinton administration's policy of "malign neglect." He stressed that
between 1979 and 1992, "the rate of illegal drug use dropped by more
than half, while marijuana use decreased by two-thirds." Then, Bennett
noted, the rate began to climb again, especially among teens.

But critics counter that such surveys of drug use are inherently
volatile and unreliable. "In 1979, almost anybody would tell a
surveyor that they smoked marijuana," says Ethan Nadelmann, head of
the Lindesmith Center-Drug Policy Foundation; by 1992, drug use had
become legally risky and socially stigmatized.

And Bennett's depiction of President Clinton as soft on drugs does not
withstand scrutiny. While Clinton administration officials softened
the "war" rhetoric by speaking of drug abuse as a "cancer" and slashed
the budget of the drug czar's office, they also increased overall
spending on drug enforcement and interdiction. They also outdid even
Republicans in supporting savagely severe mandatory minimum prison
sentences for (among others) minor, first-time, nonviolent drug offenders.

Casualties of War

More fundamental, the surveys cited by Bennett are a less-valid window
into the costs and benefits of the drug war than some other facts:

the nearly 500,000 drug offenders now behind bars-many of them
first-timers nailed for mere possession-which is a tenfold increase
since 1980;

the death toll from HIV infections and drug overdoses that could have
been prevented by public health measures such as needle-exchange
programs, which Bennett and Walters condemn;

the crack epidemic that ravaged inner cities from the mid-1980s into
the early 1990s;

the undiminished hard-core abuse of cocaine, heroin and other hard
drugs, which have fallen steadily in price since 1980, and to which
some users have turned as the price of marijuana-bulkier, smellier,
harder to smuggle-has gone up;

the gang warfare;

the police corruption;

the racial profiling;

the invasions of privacy.

These and other harms inflicted on America by the drug war-especially
in black neighborhoods, where families have been decimated by
drug-related incarceration-dwarf the importance of the fluctuations in
pot smoking among middle-class teenagers that so interest Bennett.
Ninety-nine percent of them will never be serious drug abusers.

Nixon went to China. Bush should go to a common-sense drug policy that
actually might work. It's not too late.