MEDICAL MARIJUANA AND THE FOLLY OF THE DRUG WAR

The Supreme Court delivered a timely reminder of the social costs of
our "war on drugs" with its May 14 decision rejecting a
medical-necessity exception to the federal law criminalizing
marijuana.

Meanwhile, President Bush has moved toward abandoning his own best
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 most obvious proof that marijuana alleviates some patients' pain
is that so many of them say so.

In the face of overwhelming evidence that tens of thousands of
patients suffering from cancer, AIDS, and other serious illnesses can
greatly alleviate their pain, and even extend their lives, by smoking
marijuana, the Court 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. This means that 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 cancer patient could be sent to prison, too, although such
prosecutions seem unlikely, in part because most jurors would simply
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 ought to be revised by
Congress.

The most obvious proof that marijuana alleviates some patients' pain
is that so many of them say so. When a patient racked 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 all given
guarded approval to carefully monitored marijuana smoking as a
therapy 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 (at least so far) by the advocates of legalization -- a
group that includes such prominent conservatives as Milton Friedman,
George Shultz, and William F. Buckley Jr. And Congress could easily
legalize medical marijuana only for patients with certain severe
illnesses without vitiating the criminal sanctions for all other
sellers and users.

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?

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 January 18. But on May
10, he named as his drug czar former Bennett deputy John P. Walters,
who immediately stressed that he wants "to escalate the drug war."
Like Attorney General John D. 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 has also displayed a special relish for sending the military
into Latin America to help friendly regimes chase cocaine growers and
suppliers -- notwithstanding such collateral damage as the April 20
deaths of an American missionary and her daughter 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 as
"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 themselves 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 took over with a 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 A. 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 protected their political backsides by
increasing 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.

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 commonsense drug policy that
might actually work. It's not too late.

Stuart Taylor Jr. is a senior writer for National Journal magazine,
where "Opening Argument" appears.