A Quagmire for Our Time

by Peter Schrag

The American Prospect, August 2001

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 s500 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 s43 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-o 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 1o 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?

PETER SCHRAG, the former editorial-page editor of the Sacramento Bee, is a TAP senior correspondent and the author of Paradise Lost: California's Experience, America's Future.

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