Commentary

Forget the War on Drugs Already

This article was published on Nationalreview.com, December 19, 2003.

On Dec. 16, the Ninth Circuit Court of Appeals barred federal prosecution of those using marijuana under a doctor’s care. Smoking pot under such circumstances is “different in kind from drug trafficking,” stated the court: “this limited use is clearly distinct from the broader illicit drug market.”

The U.S. Supreme Court recently let stand a lower court ruling barring Uncle Sam from punishing doctors who prescribe medical marijuana. California’s new governor, Arnold Schwarzenegger, admits to past drug use. Radio host Rush Limbaugh has sought drug treatment, forcing even prohibitionist conservatives to acknowledge the pervasiveness of drug abuse. The war on drugs is going badly.

Last year 19.5 million Americans used drugs. Some 14.6 million people smoked marijuana; despite the law; assorted police stings, operations, and campaigns; hundreds of thousands of arrests; and overflowing prisons.

The U.S. is increasingly alone in prosecuting marijuana users. The Netherlands has long tolerated personal possession and allowed cannibas coffee shops. Pot is now available as a prescription drug at pharmacies. Spain no longer arrests recreational drug users; Portugal has decriminalized marijuana use. So has Luxembourg.

Belgium allows the medical use of marijuana and is considering permitting citizens to grow small amounts of pot. Local authorities in France and Germany decide whether or not to arrest cannibis users. Germany even allows hard-drug use in legal “drug-consumption rooms.” In Britain police increasingly confiscate marijuana but leave the users alone; new guidelines embody a “presumption against arrest.”

The Swiss senate has approved legislation legalizing personal use of cannibas. The Australian and New Zealand governments are considering approving the medical use of marijuana.

Canada provides marijuana through its health-care program and has proposed decriminalizing pot cultivation and consumption. As in Britain, police in Toronto merely confiscate pot from users.

And in the U.S., an Alaskan appellate court has affirmed the constitutional right of citizens to grow and consume marijuana at home. Arizona, Connecticut, Michigan, North Dakota, and other states have relaxed their penalties for drug use and sale.

A new Maryland law, signed by conservative Republican Gov. Robert L. Ehrlich, sharply reduces the punishment for people who use marijuana for medicinal purposes. Nine states have fully legalized the medical use of marijuana, a policy supported by three fourths of Americans. Legislation introduced by Reps. Dana Rohrabacher (R., Ca.) and Maurice Hinchey (D., N.Y.) to bar federal raids on medical-marijuana patients and providers received 152 votes, up from the 93 votes which opposed a condemnation of medical-marijuana laws in 1998. The federal government’s ability to interfere with state medical-marijuana policies has been limited by the courts.

Moreover, the establishment edifice undergirding prohibition is cracking. Conservative Republican Gov. Gary Johnson of New Mexico became the first sitting governor to advocate legalization of drug use. Last year more than 400 past and present judges and law-enforcement officers formed Law Enforcement Against Prohibition. LEAP’s head, Jack Cole, who spent 26 years with the New Jersey State Police, observes: “illicit drugs are easier to get, cheaper, and more potent than they were 30 years ago. … Meanwhile, people are dying in our streets and drug barons grow richer than ever before.”

Why government tosses pot smokers in jail while tolerating use of alcohol and cigarettes, far more dangerous substances by most measures, has never been obvious. There is good reason for people to abstain from all of them; there is no good reason to imprison them if people do not.

The pervasiveness of illicit-drug use was demonstrated by Rush Limbaugh’s announcement that he was seeking treatment for an addiction to pain-killing medication. Some of his conservative defenders, like Gary Bauer, argued that an addiction arising from an illness or injury is different than one growing out of recreational-use, but in both cases morally accountable individuals choose to procure — illegally — regulated substances which cause pleasure. The undoubted appeal of drugs does not eliminate responsibility for buying and consuming them in either case.

Moreover, those using marijuana as medicine have as good an argument for compassion as does Rush Limbaugh. Although some people view medical marijuana as a means of eventually legalizing recreational pot use, most users turn to marijuana as a last resort.

For instance, Angel McClary Raich of Oakland, California smokes marijuana to combat nausea and other consequences of her treatment for brain cancer. “She has tried essentially all other legal alternatives to cannabis, and the alternatives have been ineffective or result in intolerable side effects,” says her physician, Dr. Frank Lucido. A nurse suggested that she try pot: “Marijuana is my miracle,” Raich explains.

Daniel Kane, also of Oakland, suffers from AIDS-wasting syndrome. “Even now, I get this sort of tingling in my body thinking about what we have achieved” by using marijuana, he says.

Teddy Hiteman of Henderson, Nevada, suffers from MS. “Medicinal pot has been a godsend,” she says. A Republican who voted for George W. Bush, she observes: “I wish we had more conservatives who would understand.”

Michael Ferrucci of Livermore, California, has lung and testicular cancer. Pot “has been far more beneficial to me than other medications they have recommended to me, including powerful narcotics like morphine, Demoral and codeine.”

San Francisco’s Judith Cushner has endured breast and uterine cancer. Of the Supreme Court ruling, she remarked, “It took seven years to get this far. Cancer moves a lot faster than that.”

Although opinions are not unanimous, there is substantial medical evidence indicating the medical efficacy of marijuana. The American Medical Association Council on Scientific Affairs has reported that “anecdotal, survey, and clinical data” demonstrate marijuana’s medical usefulness. The National Institutes of Health stated that “Marijuana looks promising enough to recommend that there be new controlled studies done.” Groups ranging from the American Cancer Society to Kaiser Permanente support access to or research on medical marijuana.

Individual doctors agree. In one survey, more than 70 percent of American cancer specialists said they would prescribe marijuana if it were legal; nearly half said they have urged their patients to acquire the drug irrespective of the law. A poll of the British Medical Association yielded similar results.

The New England Journal of Medicine has backed access to medical marijuana. In May Lancet Neurology pointed out that marijuana had proved effective against pain in lab tests and could become “the aspirin of the 21st Century.” In a recent issue of Brain journal, researchers at London’s Institute of Neurology reported: “In addition to symptom management, cannabis may also slow down the neurodegenerative processes that ultimately lead to chronic disability in multiple sclerosis and probably other diseases.” Policy analyst Paul Armentano reports that an Oxford University study published in Clinical Rehabilitation found that marijuana aided MS patients in bladder relief, pain relief, and spasticity.

Earlier this year the American Nursing Association supported legalizing access to therapeutic marijuana. So did the New York State Association of County Health Officials.

This doesn’t mean there aren’t risks in smoking pot, or that it is the best medicine for everyone under all circumstances. But marijuana should be a legal option in a society that styles itself both compassionate and free.

Allowing the medical use of marijuana wouldn’t even prevent the government from punishing recreational users, however misbegotten that policy may be. The sick are demonstrably different. Moreover, after interviewing 37 law-enforcement agencies, the General Accounting Office found that the majority “indicated that medical-marijuana laws has had little impact on their law-enforcement activities.”

When he ran for president, George W. Bush said laws regarding the medical use of marijuana were matters for the states: “I believe each state can choose that decision as they so choose.” Although he said he opposed such laws, he criticized the Clinton administration, which sought to undermine such initiatives at every turn.

But the Bush administration has taken an entirely different stance. Reports Dean Murphy of the New York Times: “Federal agents have raided farms where medicinal marijuana is grown, closed cooperatives where it is distributed and threatened to punish doctors who discussed it with their patients.” Uncle Sam also has prosecuted obviously ill people who have dared use marijuana to ease their nausea or pain. California Attorney General Bill Lockyer complains that “The decision to continue federal raids on medicinal marijuana providers when there is no evidence that the operation is actually engaged in illicit commercial distribution is wasteful, unwise and surprisingly insensitive when it comes to listening to Californians who have made clear their support for medicinal marijuana at the ballot box.”

Nevertheless, Karen Tandy, recently appointed to head the Drug Enforcement Administration, rejected criticism of federal interference with state laws allowing medical use of marijuana. Why should Washington respect federalism when doing so would restrict its ability to jail the sick?

Indeed, the Bush administration appealed the Ninth Circuit ruling barring the DEA from lifting licenses to prescribe controlled substances for doctors who prescribe marijuana in accordance with state law. Ten doctors, six patients, and two groups filed suit, winning at the appellate court level-yielding the decision which was affirmed by the U.S. Supreme Court.

Interestingly, a larger proportion of Republicans than Democrats supported legalizing the medical use of marijuana when voting in Alaska, California, Colorado, and Nevada. In fact, Rep. Rohrabacher says that “I have no doubt that if there were a secret ballot on this, a lot of Republicans would vote along with [liberal Massachusetts Democrat] Barney Frank.” But they are afraid of political retribution.

Alas, Democratic presidential contenders Howard Dean, John Edwards, and John Kerry have all proved to be as unsympathetic as Republican politicians. Only long-shot Rep. Dennis Kucinich (D., Ohio) has come out forthrightly against jailing the sick. Neither party has a monopoly on philosophical principle or political courage.

“Marijuana is still an illegal drug,” says Richard Meyer of the DEA. “We will continue doing our job.” And that means preventing the sick and dying from using the only medicine that works for many of them.

For these drug warriors punishing drug users is far more important than healing the sick. In appealing the Ninth Circuit ruling to the U.S. Supreme Court, Solicitor General Theodore B. Olson called the issue one “of exceptional and continuing importance” since the decision “impairs the Executive’s authority to enforce the law in an area vital to the public health and safety.” Drug Czar John Walters has even threatened Canada with intrusive border searches, delaying traffic south: “It is my job to protect Americans from dangerous threats.”

But the drug laws are the real dangerous threats to public health and safety. The only way to protect the public is to guarantee the right of the sick to use marijuana and to stop jailing pot smokers who just want to get high. Nothing would be served by imprisoning Rush Limbaugh for his apparent legal transgressions, just as we all are poorer for the millions of people jailed in the government’s misbegotten war on drugs over the years. We should treat drug use as a medical, moral, and spiritual issue — not a criminal one.

Doug Bandow is a senior fellow at the Cato Institute and a former special assistant to President Ronald Reagan.