Prescription: Drugs

When California and Arizona overwhelmingly passed initiatives allowing the medical use of marijuana, drug warriors were apoplectic. What do these measures mean?

In the run-up to November's elections, opponents of California's Proposition 215 and Arizona's Proposition 200--both of which allow doctors to recommend or prescribe currently illegal drugs--drove home one basic point: These ballot initiatives were, in the words of Clinton drug czar Barry McCaffrey, "a stalking horse for legalization." California's initiative, Orange County Sheriff Brad Gates warned, "wouldn't just legalize marijuana for medical use--it would legalize marijuana, period, with absolutely no controls on quality, or dosage, or who can get it." State Rep. Paul Mortenson (R-Mesa) told the Arizona Republic, "The message from Proposition 200 is, Do drugs, so what?" "What we have here," pronounced California Attorney General Dan Lungren, "is a law flying under false colors."

In the end, however, what opponents had was a failure to convince. Even the vast majority of voters in both states who oppose drug legalization remained unpersuaded. Indeed, the final tallies weren't even close: Fifty-six percent of Californians favored Proposition 215, with 44 percent opposed. Arizona's Proposition 200 scored an even more lopsided win, 65 percent against 35 percent.

The medical-use initiatives carried the day due not to any nascent push for widescale legalization but to the huge reservoir of sympathy people have for desperately ill patients and chronic pain sufferers. Pre-election polls commissioned by Arizonans for Drug Policy Reform, the group pushing Prop. 200, found less than a quarter of state residents favored legalization. Election exit polls on the initiative, however, showed overwhelming support in every demographic group, including Republicans, conservatives, and Dole voters.

In the wake of such success--and national polls suggesting receptiveness to the idea--the medical-use movement is sure to spread across the country. Californians for Medical Rights, one of the main proponents of Prop. 215, has renamed itself Americans for Medical Rights and will lobby for similar measures in other states. And Rep. Barney Frank (D-Mass.), who in 1995 introduced a medical marijuana bill in Congress, says he will introduce new legislation similar to the California initiative.

These votes represent the most significant shift in drug policy in recent years--not because they allow medical use as a covert means of legalization, but because, in the words of the chief organizer of the Arizona initiative, they "make the debate on legalization possible for the first time." They do so by challenging the drug war's axiomatic assumption that "illegal" or "illicit" drugs are demonic substances that offer no possible benefits to society. As one tenet of the drug war's underlying philosophy is opened to debate, it seems likely a more expansive reconsideration of the whole enterprise may be in the offing.

Although significant, that is a far cry from Sheriff Gates's apoplectic, fanciful assertion that California's Prop. 215 would "legalize marijuana, period." Other opponents have raised the specter of "pot doctors" and "Dr. Feelgoods" who will indiscriminately provide fraudulent medical certification for recreational users, effectively legalizing drugs. In such a fractious debate, it's particularly important to appreciate precisely what the California and Arizona initiatives--deemed "tremendous traged[ies]" and "dangerous development[s]" by drug czar McCaffrey--write into law.

California's Compassionate Use Act of 1996 largely grew out of the experience of illegal but semi-tolerated "buyers' clubs" that provide marijuana to chemotherapy, AIDS, glaucoma, and chronic pain patients. One of the guiding forces behind the measure was Dennis Peron, director of San Francisco's Cannabis Buyers' Club, which has over 6,000 registered members. (See "Club Medicine," April 1996.) Peron, a co-author of the proposition, also heads Californians for Compassionate Use, which, along with Californians for Medical Rights, coordinated the campaign.

In stumping for the measure, proponents stressed medical and personal angles. Television spots featured an oncologist, a former cancer patient, and the widow of a cancer patient discussing the ways in which medical marijuana helps ease pain and suffering. Support for the initiative was strongest in and around urban centers such as San Francisco, Los Angeles, and San Diego. Demographically, Prop. 215 polled well among most groups other than Republicans and, interestingly, voters 65 and older. Where whites and blacks voted overwhelmingly in favor of the measure, Latinos and Asians barely opposed it, 49 percent to 51 percent. The pro-215 campaign spent about $2 million, much of it supplied by out-of-state contributors, including billionaire George Soros and insurance magnate Peter Lewis.

The measure closely resembles laws twice passed by the state legislature but vetoed by Gov. Pete Wilson. It allows patients to possess, grow, and consume pot on a doctor's "recommendation" that "the person's health would benefit from the use of marijuana" in treating terminal illnesses such as cancer, "chronic pain," or--and this is what gave opponents fits--"any other illness for which marijuana provides relief." Prop. 215 also stipulates that a patient's "primary caregiver"--defined as "the individual designated by the person...who has consistently assumed responsibility for the housing, health, or safety of that person"--is not subject to criminal sanctions. Doctors recommending use would similarly be exempt from punishment or other sorts of retribution, such as the lifting of state medical licenses.

The point man behind Arizona's Drug Medicalization, Prevention, and Control Act of 1996 was Phoenix-area millionaire John Sperling. Sperling, the head of the Apollo Group, a consortium of for-profit educational institutions, says his interest in the issue is "purely public policy. I spent 10 years reading about drug policy and never read a positive article." He is emphatic that "we have to medicalize drug use. We have to get it out of the hands of the criminal justice community and put it into the hands of the public health and medical community." Toward that end, Sperling created Arizonans for Drug Policy Reform and pulled together a high-profile board: Former Reagan administration official John Norton served as chairman of a group that included former Civil Aeronautics Board head Marvin S. Cohen, state Court of Appeals Judge Rudolph S. Gerber, and over a dozen prominent Arizona physicians. Sperling also convinced former Sens. Barry Goldwater and Dennis DeConcini to publicly back the measure.

As with the California initiative, proponents focused on the inviolability of the doctor-patient relationship, the nausea that accompanies cancer chemotherapy and radiation treatments, and the loss of appetite and weight (wasting syndrome) in AIDS patients. The message resonated with virtually every demographic group. Total spending ran to about $1 million, and much of the backing came from people like Soros and Lewis.

Prop. 200 promises a broader impact than California's initiative. It enables doctors to prescribe any Schedule I drug--a category that includes marijuana, heroin, LSD, MDMA, and other illegal substances--if they can cite research that "supports" a medical application and they obtain a concurring written opinion from another doctor. Those prescriptions would provide a valid, legal defense against drug possession or use charges. The act also includes a number of criminal justice provisions designed to "medicalize" the drug war: People without valid prescriptions who are convicted of possession or use fewer than three times can't get jail time; state prisoners serving time for nonviolent use or possession--conceivably as many as 1,800 people--are immediately eligible for a parole hearing and possible release. Parolees and newly convicted people will have to attend court-ordered drug treatment, education, and community service. A truth-in-sentencing provision holds that anyone convicted of committing a violent crime while high must serve 100 percent of his sentence.

Organizers of both efforts remain emphatic that the propositions cover only legitimate, defensible medical use--a position somewhat undercut when Californians for Compassionate Use's Peron recently told The New York Times that "all marijuana use is medical--except for kids." But Bill Zimmerman, head of Californians for Medical Rights, has also stated unambiguously on CNN's Crossfire that he is opposed to legalization of drugs and that the law's provisions apply only to patients under the care of certified physicians.

Even proponents who support drug legalization agree on the narrow focus. If anything, says Dale Gieringer, head of the California chapter of the National Organization for the Reform of Marijuana Laws and a co-organizer of the Prop. 215 drive, most legalization advocates fear a backlash and so are particularly keen to build a fire wall between "medicalization" and legalization. California NORML is circulating a guide about Prop. 215 which notes in bold-faced, capital letters: "PROP. 215 IS FOR SERIOUSLY ILL PATIENTS. DO NOT ABUSE IT BY TRYING TO MAKE UP BOGUS MEDICAL EXCUSES. NORML SUPPORTS THE RIGHT OF ADULTS TO USE MARIJUANA RECREATIONALLY, BUT WE DO NOT CONDONE THE ABUSE OF PROP. 215 FOR NON-MEDICAL PURPOSES. NOT ONLY DOES SUCH BEHAVIOR INVITE A PUBLIC BACKLASH, IT IS ILLEGAL AND SUBJECT TO PROSECUTION."

"One thing doctors don't want to do is to take time out of their practice to testify in court," notes Dr. Jeffrey Singer, a Phoenix-area surgeon who was a spokesman for Arizona's Prop. 200. Because prescriptions for Schedule I drugs will be subject to court scrutiny and justification, doctors will have every reason to follow both the letter and spirit of the law, says Singer, an open advocate of drug legalization and donor to libertarian groups, including the Reason Foundation, this magazine's parent organization.

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