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.