Legal Affairs – Medical Marijuana and the Folly of the Drug War

National Journal

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.

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.