Commentary

Punishing the Sick

This article first appeared in the Washington Times, January 18, 2000.
It’s hard to think of much positive to say about presidential candidates Al Gore and George W. Bush. The best case for the latter is that he isn’t the former. The best case for the former is that he isn’t Bill Clinton.

On one issue, however, both candidates represent a breath of fresh air. Both have a more compassionate and sensible position on the use of marijuana as medicine than do the Clinton administration and the Republican Congress.

Morphine is illegal, but is routinely prescribed as a painkiller. Not marijuana, however, which remains illegal under federal law for all uses.

Yet, it is widely acknowledged that marijuana can help those suffering from AIDS, cancer, glaucoma, multiple sclerosis and other ailments. Although a recent report by the Institute of Medicine worried about the detrimental effect of smoking pot, it concluded that “marijuana has potential as medicine.”

The American Medical Association Council on Scientific Affairs reported that “anecdotal, survey and clinical data” demonstrate marijuana’s medical usefulness. The National Institute 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 was legal; nearly half said they’ve urged their patients to acquire the drug irrespective of the law. A poll of the British Medical Association yielded similar results.

This doesn’t mean there aren’t risks, or that pot is the best medicine for everyone under all circumstances. But half a dozen states most recently Maine, in a November initiative have decided that medical marijuana should be an option.

The administration responded by threatening to prosecute any doctor with the temerity to issue a prescription under state law. The GOP Congress denounced voters who OK’d use of marijuana and barred the District of Columbia from even counting the votes in its election.

In contrast, Bush says that while he opposes the medical use of marijuana, he believes states should be allowed to decide differently. Gore argues that patients and doctors “ought to have the option” of using pot.

The desperate need for a new policy is evident from the travails of author Peter McWilliams and entrepreneur Todd McCormick. After passage of California’s Proposition 215, which allows the medical use of marijuana, McWilliams and McCormick were arrested for growing pot.

In 1998, both were indicted for conspiring to manufacture marijuana. They were released on bail, but only if they forswore use of marijuana and submitted to random drug tests.

McCormick’s mother gave him pot as a child to help him cope with cancer. He still suffers severe pain from fused vertebrae caused by his earlier cancer treatments.

McWilliams has AIDS and non-Hodgkin’s lymphoma; his doctor recommended marijuana as a last resort to combat nausea.

Unfortunately, McWilliams has found the prescription drug Marinol to be largely ineffective. Since he now vomits up much of his AIDS medication, his viral load (the measure of active AIDS virus in his body), once “undetectable,” in his words, has rocketed upward to potentially lethal levels.

The defendants’ health doesn’t concern prosecutors, however.

“Our job is to enforce the law and not to legislate,” explained Assistant U.S. Attorney Fernando Aenlle-Rocha, in a classic “I was only following orders” defense.

Prosecutors even asked the judge to forbid the defendants from informing the jury of either passage of Proposition 215 or their medical conditions. Yet, necessity — essentially the notion that one has to choose between evils — is a traditional common law defense.

In fact, it has been used in medical marijuana cases. In September, the 9th U.S. Circuit Court of Appeals ordered a lower court to consider “medical necessity” in response to the Clinton administration’s attempt to close the Oakland Cannabis Buyers’ Cooperative.

But District Judge George H. King granted the prosecution motion. With their trial set to start on Nov. 30, 1999, McCormick pled guilty, though he is appealing King’s ruling. McWilliams simply pled guilty to end the case.

As McWilliams awaits sentencing, his attorney, Tom Ballanco, says that “it’s all up to the judge to demonstrate there is some compassion in the federal law.” The judge certainly should do so, but, alas, any such compassion may come too late to save McWilliams’ life.

Washington’s misbegotten drug war has many victims. None are more tragic than the suffering and terminally ill, such as McCormick and McWilliams, who are treated as criminals. The Democratic White House and Republic Congress should follow the lead of Gore and Bush and incorporate both compassion and common sense into the law.

Doug Bandow is a senior fellow at the Cato Institute.