A Quagmire for Our Time

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 $500 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
père; 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 $43 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
8-0 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 émigré 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
Castañeda, 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 10 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?

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