Pubdate: Thu, 01 Jan 2004
Source: National Review (US)
Copyright: 2004 National Review
Author: Doug Bandow
Note: Bandow ( is a senior fellow at 
the Cato Institute and a former special assistant to President Ronald Reagan.


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 

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, Angela 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 

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.
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