The pitfalls of marijuana reform
"Whatever the cultural conditions that have made it possible, there is no doubt that the discussion about marihuana has become much more sensible," Harvard psychiatrist Lester Grinspoon wrote in 1977. "If the trend continues, it is likely that within a decade marihuana will be sold in the United States as a legal intoxicant."
This was not a silly prediction. At the time, there was good reason to believe it would come true. Six years before, the National Commission on Marihuana and Drug Abuse, appointed by Congress and the Nixon administration, had recommended that the federal government and the states legalize both private possession of marijuana for personal use and casual, nonprofit transfers of the drug in small amounts.
In 1973 Oregon became the first state to "decriminalize" marijuana, making possession of less than an ounce a civil offense punishable by a maximum fine of $100. In 1975 Alaska removed all state penalties for private cultivation and possession of up to four ounces. By the end of the decade, 11 states had decriminalized marijuana possession, a policy endorsed by President Carter, the American Bar Association, the American Medical Association, and the National Council of Churches. Every other state had reduced the penalty for simple possession, nearly all of them changing the offense from a felony to a misdemeanor. Most allowed conditional discharge, without a criminal record.
So Grinspoon's optimism was justified. Yet the year after his prediction, things started to turn around: In 1978 the federal government's policy of spraying Mexican marijuana crops with the herbicide paraquat, which can cause lung fibrosis and death when swallowed in small doses, prompted a nationwide panic among pot smokers. That same year, Carter drug adviser Dr. Peter Bourne, who was sympathetic to reform, was forced to resign after press reports that he had used cocaine at a party sponsored by the National Organization for the Reform of Marijuana Laws. His replacement, Lee Dogoloff, took a hard line on illegal drugs, including pot. And the percentage of Americans favoring marijuana legalization in the Gallup poll dropped for the first time in a decade, from 28 percent in 1977 to 25 percent in 1978. (By the late '80s, the figure was down to about 16 percent.)
The '80s and early '90s saw a series of further setbacks:
• In 1983, the Drug Enforcement Administration began spraying paraquat on marijuana crops in the United States. Throughout the decade, the federal government pursued an aggressive domestic eradication policy, especially in California.
• The Reagan administration announced a "zero tolerance" program, imposing draconian seizure penalties for marijuana possession, even in tiny amounts.
• In 1987 Supreme Court nominee Douglas Ginsburg withdrew under pressure from his erstwhile supporters after admitting that he had smoked pot as a law professor.
• In 1989 the federal government launched Operation Green Merchant, raiding the homes of people suspected of growing marijuana because they had purchased gardening equipment.
• In 1990 Alaska voters passed a referendum, pushed vigorously by Bush administration drug czar William Bennett, that recriminalized marijuana possession.
• That same year, Congress approved a transportation appropriations bill that threatens to withhold funding from states that do not suspend the driver's licenses of drug offenders, including marijuana users, for at least six months.
•: In 1992 the Department of Health and Human Services canceled a federal program that was supposed to supply patients with medical marijuana.
Under the Clinton administration, there's reason to hope that the pendulum may begin to swing in the other direction again. Both President Clinton and Vice President Gore have used marijuana, and both recall more with nostalgia than with hostility the counterculture of the '60s that many older Republicans still associate with the drug. Clinton has slashed the staff of the Office of National Drug Control Policy, and he has sought advice from scholarly critics of the Bush war on drugs, at least one of whom supports marijuana legalization. Perhaps most significantly, the woman Clinton plans to appoint as surgeon general, Dr. Joycelyn Elders, has said patients who can benefit from medical marijuana should be able to receive it.
But before reformers try to take advantage of what promises to be a more tolerant policy environment, they need to understand what went wrong the first time around. Since marijuana is both the most widely used and the least harmful of the major illegal drugs, the lessons of the anti-pot backlash have broad implications. If reformers cannot succeed in the case of marijuana, where the arguments for legalization seem to be strongest, it's not likely they will succeed elsewhere.
Several factors contributed to the reversals that began in the late '70s, but the most important was a persistent misperception: Both opponents of reform and the general public seemed to believe that the argument for legalization was based on the premise that "marijuana is harmless." So far as I can tell, no serious scholar or prominent activist who favored changing the marijuana laws ever made this claim. Rather, the reformers argued that pot was less harmful than other drugs and less harmful than the government had led people to believe. But by the time the policy debate filtered into local newspapers, college campuses, and suburban living rooms, these nuances were lost—partly because, in the experience of most users, marijuana was harmless.
This perception established a test that marijuana was bound to fail, since no drug is safe in every dose and circumstance. Consequently, the growing public and official tolerance of marijuana use was vulnerable from the start. Confronted by a powerful counter-reform movement in the late '70s and early '80s, it withered.
Current attempts to revive progress toward legalization run the risk of repeating this pattern. One major approach to reform emphasizes the medical uses of cannabis; another emphasizes the remarkable versatility of the hemp plant, from which marijuana is derived. There is good evidence for these claims. But like the notion that marijuana is completely safe, they tend to establish excessively ambitious criteria for legalization. Overplaying the benefits of cannabis may prove just as risky as underplaying its potential harms.
This is partly a matter of emphasis, but also a matter of style. If you're trying to convince the average American that legalization is a wise policy, it's deadly to come across as a marijuana enthusiast. The most successful reformers have been sober, cautious people far removed from pothead stereotypes—people like Harvard's Grinspoon, author of the 1971 book Marihuana Reconsidered.
Grinspoon set out to present credible evidence of marijuana's harms to pot-smoking kids who were ignoring the government's warnings. "I was concerned about all these young people who were using marijuana and destroying themselves," he says. But after examining the research on marijuana's effects, "I realized that I had been brainwashed, like everybody else in the country." In his book, he methodically debunked the many spurious claims about pot, including fears that it causes crime, sexual excess, psychosis, brain damage, physical dependence, and addiction to other drugs.
The following year, the National Commission on Marihuana and Drug Abuse reached broadly similar conclusions: that the dangers of pot had been greatly exaggerated and could not justify punitive treatment of its users. The commission introduced the concept of decriminalization, which the newly formed National Organization for the Reform of Marijuana Laws soon adopted as a goal. At a time when some 600,000 people were being arrested each year on marijuana charges, most for simple possession, the strategy had broad appeal. Liberals were concerned about the injustice of sending college students to jail for carrying a joint or two. Conservatives worried about the mass alienation and disrespect for the law that the policy was breeding.
"There was the beginning of a consensus," says NORML founder Keith Stroup. "It said, 'I don't like marijuana smoking, but I don't think it should be treated as a criminal matter.'" Stroup argues that decriminalization was a necessary first step toward legalization. "Otherwise," he says, "you'd never get beyond the fear that, without criminal penalties, everybody would be stoned all the time, and the whole state would go down the tube."
But, as Grinspoon noted in the 1977 edition of Marihuana Reconsidered, decriminalization is inherently unstable. "As long as marihuana use and especially marihuana traffic remain in this peculiar position neither within nor outside the law, demands for a consistent policy would remain strong," he wrote. "We would have to ask ourselves why, if using marihuana is relatively harmless, selling it is a felony; then we would have to decide whether to return to honest prohibition or move on to legalization."
Americans did indeed ask this question, and since the late '70s the trend has been back toward "honest prohibition." An important harbinger of this reaction came in 1974, when Sen. James Eastland (D-Miss.) convened hearings on the "marijuana-hashish epidemic" with the avowed purpose of countering the "good press" that pot had been receiving. Dr. Gabriel Nahas, author of Marijuana: Deceptive Weed and Keep off the Grass, led a group of researchers who testified that marijuana may cause lung damage, birth defects, genetic abnormalities, shrinkage of the brain, impairment of the immune system, reduction in testosterone levels, and sterility.
Of these hazards, only lung damage has been well established by subsequent research. All the other claims have been discredited or remain controversial. Much of the research cited in the Eastland hearings was heavily criticized soon after it appeared. Some of it was laughably bad, with skewed samples and no control groups.
Despite the poor quality of these studies, anti-marijuana activists continue to cite them. "Those papers, and the ideas they brought forth, are at the heart of the anti-marijuana movement today," says Dr. John P. Morgan, professor of pharmacology at the City University of New York Medical School. "Nahas generated what was clearly a morally based counter-reform movement, but he did a very efficient job of saying that he was actually conducting a toxicological, scientific assessment."
The Eastland hearings left the impression that Americans had been duped by reformers about the nature of marijuana. The title of a piece in the June 10, 1974, issue of U.S. News & World Report is revealing: THE PERILS OF 'POT' START SHOWING UP. The writer was clearly confident that the speculation offered by Nahas and his colleagues was only the tip of the iceberg.
The testimony seemed to have a similar impact on Dr. Robert L. DuPont, then director of the National Institute on Drug Abuse. Although he initially supported reducing the penalties for marijuana possession, DuPont renounced decriminalization in 1979. "I have learned that it is impossible to be pro-decrim and anti-pot," he told an anti-marijuana group, "because no matter how you try to explain it to them, young people interpret decrim as meaning that pot must be okay because the government has legally sanctioned it."
DuPont's remarks reflect one of the main concerns that drove the anti-pot backlash: rising marijuana use among teenagers. According to NlDA's National Household Survey, the percentage of Americans between the ages of 12 and 17 who had ever used marijuana rose from about 14 percent in 1972 to about 31 percent in 1979, after which it declined steadily. NlDA's High School Senior Survey shows a similar trend: About 47 percent of seniors reported having used marijuana in 1975 (when the survey began); this figure rose steadily to a little over 60 percent in 1979, after which it declined. The most alarming and frequently cited NIDA pot statistic is for "daily" use by high-school seniors: It rose from 6 percent in 1975 to a peak of nearly 11 percent in 1978.
These numbers overstate the percentage of seniors who got stoned every day in the late '70s. First of all, they don't represent actual daily use throughout the year—only use on 20 or more of the previous 30 days. Granted, that's still pretty heavy. But the numbers include kids who had recently gone through a brief period of heavy use. And as Mark Kleiman, associate professor of public policy at Harvard's John F. Kennedy School of Government, notes in Marijuana: Costs of Abuse, Costs of Control, the data are probably inflated by error or exaggeration: Experience with marketing surveys indicates that questions about habitual activities like "On how many of the last 30 days did you use marijuana?" tend to elicit systematic overreporting. Furthermore, the 11-percent "daily use" figure appears to be inconsistent with information from NlDA's household survey.
In any event, it seems that teen-age marijuana use, like adult marijuana use, rose dramatically in the '70s, peaking around 1979. Many parents were alarmed at this trend, and there was reason to be concerned. Both supporters and opponents of legalization agree that it's not a good idea for unsupervised minors to use pot. Whatever the health hazards of the drug, they are likely to be more serious for children. Furthermore, frequent marijuana intoxication can interfere with emotional development, and there's no question that stoned kids have trouble absorbing and recalling information.
But the hysterical reaction of what came to be known as the Parent Movement for Drug-Free Youth, which attracted the active support of the federal government, cannot be understood merely as a response to these dangers. After all, the same concerns could be raised about alcohol use, which was also rising markedly among teenagers during this period. These parents focused their wrath on marijuana because it was an illegal, alien presence in their middle-class, suburban lives—a presence that was tolerated, if not condoned, by a large and growing number of Americans.
The police were looking the other way as tens of millions lit up. College professors, doctors, and lawyers were smoking pot. Movies and music glamorized drug use. There were water pipes in the local record store, for heaven's sake. Morgan, the CUNY pharmacologist, says the reform movement was caught off guard by the parental backlash: "We didn't know the revulsion and hatred that middle-class parents felt about marijuana and their kids getting high. We didn't have any idea how strongly they felt." The outraged parents who would eventually form the backbone of the anti-marijuana movement saw the drug as a lurking threat that would turn out to be far more hazardous than everyone seemed to believe.
Those fears were reinforced by a series of articles that appeared in mainstream magazines in the late '70s and early '80s—articles with titles like "All the Evidence on Pot Isn't In!" (Seventeen), "How I Got My Daughter to Stop Smoking Pot" (Good Housekeeping), "Marijuana Alert: Enemy of Youth" (Reader's Digest), "Marijuana: Now the Fears Are Facts" (Good Housekeeping), "Marijuana: The Latest Dope on Its Dangers" (Mademoiselle), and "The Perils of Pot" (Discover). The articles delivered the same message as the Eastland hearings: You have been deceived. Marijuana is a lot more dangerous than you think.
The most influential anti-marijuana writer was probably the late Peggy Mann, a journalist who started writing about pot in 1978. After attending a conference in France on the dangers of marijuana, organized by Nahas and other anti-pot researchers, she wrote "The Case Against Marijuana Smoking," which appeared on the front page of The Washington Post's Outlook section. During the next few years she wrote many magazine articles on pot, including a four-part series in Reader's Digest that prompted a record 6.5 million reprint requests. In 1985 Mann published Marijuana Alert, which Nancy Reagan describes in the foreword as "a true story about a drug that is taking America captive."
Marijuana Alert gathers together almost every scrap of research that reflects badly on marijuana, including thoroughly discredited studies, while virtually ignoring anything that would give a different impression, including major surveys of the literature. This is not simply the mirror image of the approach taken by reformers. Scholars such as Grinspoon, John Kaplan, Norman Zinberg, Edward Brecher, and Andrew Weil were forced to deal with speculation about marijuana's harms and the research supporting it. Indeed, their task was precisely to confront those claims.
Mann, on the other hand, deals with the opposition's arguments and evidence mainly by omitting them. While she describes Nahas's studies finding that marijuana impairs cellular immunity, she neglects to mention that other researchers have tried but failed to replicate them. She discusses Harold Kolansky and William T. Moore's 1971 study suggesting that marijuana use causes a host of psychological problems, but not the storm of criticism it prompted. She cites A. M. G. Campbell's 1971 study finding that marijuana causes cerebral atrophy but leaves out the methodological flaws that made it worthless: All 10 subjects were psychiatric patients, and there was no nonpsychiatric control group; the study also failed to control for epilepsy, head injuries, mental retardation, and the use of other drugs, including alcohol. When Mann does mention criticism, it's only to dismiss it.
This approach is quite effective. If you haven't already heard about the studies and surveys she ignores, Mann's book may well convince you that marijuana is a very dangerous drug. Largely because of Mann and other anti-pot propagandists, many Americans have a vague sense that recent scientific findings show marijuana to be considerably more hazardous than people thought it was in the '70s (a notion reinforced by a similar impression about cocaine). Yet the basic picture remains the same: No one has ever died from a marijuana overdose; based on extrapolations from animal studies, the ratio of the drug's lethal dose to its effective dose is something like 40,000 to 1 (compared to between 4 and 10 to 1 for alcohol and between 10 and 20 to 1 for aspirin). Unlike alcohol used to excess, marijuana itself (as opposed to the act of smoking) does not appear to cause organ damage. And virtually all of marijuana's negative effects are associated with heavy use (the equivalent of several joints a day).
In his 1992 book Against Excess, Kleiman writes: "Aside from the almost self-evident proposition that smoking anything is probably bad for the lungs, the quarter century since large numbers of Americans began to use marijuana has produced remarkably little laboratory or epidemiological evidence of serious health damage done by the drug."
Anti-marijuana activists commonly claim that today's pot is more dangerous because it is "much more potent" than the pot of the early '70s, with an average THC content 10 times greater. This claim, which was influential in the successful drive for recriminalization in Alaska, is doubly wrong. As Morgan has noted, the assertion that pot is 10 times more powerful than it used to be is based on a spurious comparison of low-grade Mexican marijuana from fewer than 20 seizures tested in the early '70s with high-grade domestic marijuana from more than 200 seizures tested in the early '80s. The average THC content of domestic seizures tested by the federal government has been pretty stable—around 2 percent to 3 percent—since 1979, the first year for which reliable data are available.
But even if average THC content were significantly higher now than in the '70s, this is more likely a health benefit than a hazard. Since marijuana users generally smoke until they achieve a desired effect, higher potency means less inhalation—a positive result, since lung damage is the only well-established physical risk associated with marijuana use by otherwise healthy adults.
Although they talk about the physical effects of smoking pot, anti-marijuana activists seem to worry more about its psychological impact. Marijuana Alert, for example, is full of horror stories about sweet, obedient, courteous, hard-working kids transformed by marijuana into rebellious, lazy, moody, insolent, bored, apathetic, sexually promiscuous monsters. The most striking thing about these accounts is the extent to which the symptoms of marijuana use overlap with the symptoms of adolescence. "It was very easy for parents to blame marijuana for all the problems that their children were having, rather than to accept any responsibility," Grinspoon observes. "It became a very convenient way of dealing with and understanding various kinds of problems."
In addition to confusing correlation with causation, anti-marijuana activist blur the distinction between short-term and long-term effects. Under the influence of marijuana, for example, users appear listless; their thinking may seem disordered, and their short-term memories are impaired. But to judge by the anecdotes that Mann offers, these are persistent traits of pot smokers, intoxicated or not. She says the problems may not disappear for months after the last joint, if at all.
For anyone who knew a pothead or two in high school or college, this depiction of marijuana's effects may have the ring of truth. One of my colleagues cites the impact that pot seemed to have on some of his fellow students: They sat around getting stoned all day, skipping classes, accomplishing nothing. But since the vast majority of people who use marijuana don't end up this way, it's clear that heavy pot use is more likely to be the expression of psychological problems or personality traits than the cause of them. Of course, being stoned all the time would exacerbate almost anyone's problems, but that doesn't mean pot can magically transform a straight-A student into a burned-out hippie.
Another frequently cited behavioral result of smoking pot is the so-called gateway effect. In 1985 I covered a pot bust in northeastern Pennsylvania, following a long line of state police cars up winding dirt roads through the woods until we arrived at a modest marijuana farm. Watching the troopers uproot the tall, bright-green plants, I asked the officer in charge what all the fuss was about. He gave the standard response: "Marijuana may not be so bad, but it leads to harder drugs. I've seen it a thousand times."
I've been mulling that over, on and off, for the last eight years. My initial reaction was, "That's not true." I have since arrived at a more sophisticated position: "What's not true?" The gateway theory is deliberately ambiguous and therefore impossible to disprove. It's not clear what it means to say that marijuana "leads to" other drugs.
For example, heroin use is usually preceded by marijuana use, but marijuana use is rarely followed by heroin use. Those who use marijuana are statistically more likely to use other drugs (as are users of alcohol and tobacco), but this tells us nothing about causation. In particular, it does not tell us whether eliminating marijuana from the planet would have any impact at all on cocaine or heroin use. And to the extent that a "gateway effect" works by introducing pot users to the black market, prohibition is the real problem. In short, the most useful thing that can be said about the gateway theory is that it's not very useful—as a scientific concept, that is; it's very useful as a rhetorical device.
You could say the same for the entire case against marijuana. From a scientific perspective, it's not very impressive. But it has made a real difference in the hearts and minds of many Americans. The main reason the anti-pot campaign has been so successful is that many people believed they'd been told marijuana should be legalized because it was harmless. Therefore it did not take much evidence to discredit the reform movement. Just as the advocates of decriminalization drew strength from the actual lies the government had been telling about marijuana for decades, the anti-pot movement drew strength from the perceived lies of the reformers.
The "myth of harmlessness" shows up again and again in Mann's writings; it's her favorite foil. It also appears in essays by political commentators. In a 1983 National Review article, for example, Richard Vigilante refers to "much rhetoric about marijuana's being 'a harmless recreational drug'" and describes the task of reformers as "having to argue for the drug's legality by proving its harmlessness." News coverage confirms that many people thought they were hearing the message that pot is harmless during the '70s. In its article on the 1974 Eastland hearings, for example, U.S. News reported: "The researchers…agreed that the claim that cannabis is an innocuous drug is ill-founded." In 1980 Newsweek could casually refer to "the widely accepted public view today that [pot] is probably harmless."
"This is just bizarre," says Richard Cowan, who became NORML's national director last year. "No one here ever claimed that marijuana is harmless. That's an easy straw man, since nothing is harmless." A charter member of Young Americans for Freedom, Cowan wrote an influential piece for National Review in 1972, "American Conservatives Should Revise their Position on Marijuana." In the two decades since then, he has repeatedly encountered the "marijuana is harmless" straw man.
No doubt anti-marijuana propagandists have sometimes deliberately mischaracterized the arguments of their opponents. But there is also an element of genuine misunderstanding here, rooted in the limitations of the English language. There is no convenient, shorthand way to express what the reformers have been trying to say: Marijuana is not so harmful, compared to other (legal and illegal) drugs, compared to a wide range of recreational activities, compared to its image as portrayed by the government, and compared to the laws aimed at suppressing its use. There is no word that means "acceptably risky" or "not all that dangerous," no word that expresses a low relative evaluation of harmfulness in the same way that inexpensive expresses a low relative evaluation of cost.
So reformers trying to be pithy have had to make do with modified versions of safe, innocuous, and harmless, as in "comparatively safe," "relatively innocuous," or "harmless for most people." When their arguments are summed up by others, the crucial modifiers are often lost.
For today's reformers, then, it's not enough to have the facts straight and to formulate solid arguments. They have to be aware of how their arguments will be perceived. In this connection, there are serious pitfalls for activists pursuing either of the two approaches to reform that are now prominent within the marijuana movement.
The problems with the hemp-as-wonder-plant strategy are pretty obvious. Marijuana activists Jack Herer of California and Gatewood Galbraith of Kentucky are among the leading advocates of this approach, which has also attracted the support of High Times and country singer Willie Nelson. In his 1985 book The Emperor Wears No Clothes, which High Times editor Steve Hager calls "the bible of the hemp movement," Herer explores the history and the many uses of the hemp plant: In addition to medicine, it can be a source of food, oil, fuel, paper, building materials, and fiber for rope and fabric. He argues that hemp derivatives could successfully compete with current products, and he implies that the pharmaceutical, paper, and petroleum industries have conspired to suppress marijuana. He contends that substituting methane, methanol, and charcoal from hemp-based biomass for fossil fuels would halt global warming and thereby "save the world."
There are some good things to be said for Herer's approach. His book demonstrates how our view of hemp, which was once a very important legal crop in the United States and other countries, has been warped by the government's campaign against marijuana. And it is no doubt true that entrepreneurs would rediscover profitable, nonpsychoactive uses for the plant if legal barriers were removed.
Perhaps most important, the hemp movement has attracted interest from a lot of people—mostly young and leftish, but also libertarians, including Orange County Register columnist Alan Bock and some readers of this magazine. Herer's organization, HEMP (Help Eradicate Marijuana Prohibition), sets up a stand on weekends in Venice, California, touting the plant's uses and offering passers-by the opportunity to examine hemp rope and clothing. People stop and chat, and some of them sign a petition to get a marijuana legalization initiative on the ballot. Rallies and the sale of hemp products by mail also help to arouse curiosity.
Still, it would be fair to say that the hemp movement has limited appeal. What goes over in Venice does not necessarily go over in Provo or in Washington, D.C. Kevin Zeese, vice president of the Drug Policy Foundation, praises the Hererites for getting young people involved in the fight against prohibition. But he observes: "That wing [of the movement] presents the marijuana user as a stereotype that frightens society—the long-haired hippie. It scares people."
In addition to the image problem, there's the substance of Herer's arguments. Even leaving aside the idea of a "marijuana conspiracy," Herer asks people to accept a host of claims about hemp—some clearly true, some dubious. And not only about hemp: To believe that this plant can "save the world," you have to buy (at least) the global-warming theory—as if marijuana legalization weren't controversial enough. Regardless of how truthful Herer's claims are, it's just too much. As Zeese puts it: "It comes across as, 'This is the wonder drug that can save the world, the environment, the trees, the fuel supply; it can heal the blind and crippled.' It really sounds like a snake-oil salesman, even though there's a lot of truth to it."
The Herer approach also seems like a ploy to distract people from the real issue. After all, hemp's main use in the United States today is not for paper or cloth or fuel. Any mildly skeptical person, upon hearing a guy with a long beard in a tie-dyed shirt talk about the wonderful versatility of the hemp plant, is going to have a pretty good idea what's really on his mind. The appearance of deceit only makes getting high seem all the more sinister: If there's nothing wrong with it, what are they trying to hide?
The issue of medical marijuana presents some of the same problems, but it's much harder for people to dismiss. For one thing, there is strong evidence that marijuana can relieve pain, help treat glaucoma, control nausea and vomiting, and stimulate appetite. There's also some indication that it's helpful for controlling seizures and muscle spasms. In 1988, after hearing 13 days of testimony and reviewing 18 volumes of evidence, the DEA's chief administrative law judge, Francis Young, concluded that marijuana has significant potential as a medicine and called it "one of the safest therapeutically active substances known to man." Furthermore, there is a real, potentially huge, and very sympathetic constituency for medical marijuana. Polls find that a large majority of Americans agree the drug should be available to these patients.
Most of the reformers I interviewed for this article predicted that medical marijuana would be legally available soon, perhaps within the first year of the Clinton administration. The change would not require legislation, or even direct presidential action. "I don't expect President Clinton to touch the marijuana issue, after his inhaling comments," Zeese says. But Clinton could instruct people at the DEA, HHS, and the Food and Drug Administration either to resume the federal government's medical marijuana program or to reclassify the drug so it could be available by prescription. Either way, if the new policy is for real, thousands of cancer, glaucoma, and AIDS patients could start receiving legal pot.
That prospect raises the complicated question of what connection, if any, medical marijuana has to broad legalization. Anti-pot activists such as Peggy Mann have long argued that medical marijuana is a red herring, a tactic to make the drug more acceptable and thereby promote legalization. Robert Randall, president of the Alliance for Cannabis Therapeutics, notes that, logically, marijuana could be legally available as a medicine but not as a recreational or social drug.
"We do that with almost every drug on the planet," he says. "It's illegal for you to have Valium if you don't have the scrip. So what's the big difference here?"
The big difference may be that marijuana is a lot more popular. Tens of millions of Americans smoke pot from time to time, and more might if it were easier to get or if it became more socially acceptable. Marijuana is also easier to manufacture than Valium. Still, it's wrong to argue, as Mann and the DEA do, that the drive for medical marijuana is merely a ruse. Many people want marijuana because it can help save their sight or relieve their suffering. There is a humanitarian argument for medical marijuana that is distinct from the argument for broad legalization. Nonetheless, it's clear that medical availability would affect the legalization debate.
The question is, how? Zeese, who ran NORML from 1983 to 1986, suggests medical access could hurt the drive for legalization in the same way decriminalization did: by eliminating sympathetic victims (in that case, the middle-class college kids who were going to jail for marijuana possession). "You'd be taking a lot of the steam out of the legalization movement, because you'd be putting a kinder and gentler face on the drug war," he says. "We wouldn't have those cancer patients and AIDS patients and glaucoma patients at our side as allies. We'd no longer have that compassionate argument."
Cowan offers a more optimistic scenario: Hundreds of thousands of people will be using legal pot, free to speak out about its effects without fear of repercussions. "The cat will be out of of the bag," he says. "That is going to totally change the dynamics of the issue….lf we get medical access, we're going to get legalization eventually. The narcocracy knows this; it's the reason they fight it so much."
Grinspoon, too, suggests that medical access would be difficult to contain. "The problems connected with that are so vast that it will not work," he says. He estimates that legal pot would retail for about $10 an ounce, much less than current black-market prices, typically $100 to $300 an ounce, depending on quality and availability. "Everybody will be going to the doctor and saying, 'Oh, I've got a backache, I've got this, I've got that.' The doctors are not going to want to be gatekeepers."
Moreover, any preparation of marijuana that was available by prescription would have to receive FDA approval. Grinspoon notes that pharmaceutical companies are not likely to pay for the expensive tests that would be necessary to meet the FDA's strict standards for efficacy, since marijuana could not be patented. In any case, he says, "why should people wait? They're suffering."
If the government didn't reclassify marijuana, Grinspoon says, it would need "an army of bureaucrats" to supervise any workable medical marijuana program. And what the bureaucracy gives, it can take away. A new administration could once again block medical access. Since availability would be based on claims about marijuana's therapeutic value, the government could always decide that new research or the development of "better" alternatives justified cutting off the legal supply. For all these reasons, Grinspoon argues that legalization is the best way to achieve medical availability, rather than the other way around.
If Grinspoon is right, it may be time to plow through the research again and dig up all those arguments from the '70s. In fact, this is what's happening in Alaska, where the challenge to recriminalization will involve rehashing the debate over marijuana's hazards. A Superior Court judge there has concluded that the 1990 anti-pot initiative can be upheld only if the drug's effects have changed significantly since 1975, when the Alaska Supreme Court ruled that the state constitution's privacy clause protects marijuana use in the home.
Putting marijuana on trial is an approach that's designed to favor the prohibitionists. It requires, if not proof of harmlessness, something very close to it. And even if the opponents of recriminalization can meet the burden of proof, the issue can always be raised again in 10 or 15 years. It is never finally settled.
Part of the problem is that most Americans do not view marijuana simply as a drug—a substance with certain benefits and certain hazards, one that can be used moderately or excessively, responsibly or irresponsibly. As a subject of public concern, marijuana has always been fraught with symbolism, and it has always represented something foreign to white, middle-class America: Mexicans, jazz musicians, ghetto blacks, hippies.
Decriminalization succeeded—and, despite the setbacks, it largely remains a success—because reformers were able to take the focus off the drug, with all its potent symbolism, and put the law on trial instead. But once the penalties for possession were reduced, the spotlight shifted back to marijuana's harmfulness. "A poor job was done, from the late '70s on, of framing the arguments," Cowan says. "We stayed on the defensive, allowing the debate to be focused on 'the latest research.' What we needed to do was to start telling people about the effects of the laws." If legalization is to succeed, reformers will have to stress the injustice of prohibition—not just for the college kid caught with a few joints or the woman who gives pot brownies to AIDS patients, but for anyone who grows or sells marijuana. Not long ago REASON received a letter from a reader:
"I am a 42 year old male and married to a wonderful woman. We have three children who I love very much. My desperation is derived from the fact that I was taken away from my wife and children by the U.S. government and sent to prison in another state for a conviction of conspiracy to import and distribute marijuana. Although I have never been in trouble before with the law and always have been a productive, tax-paying citizen, the Government sentenced me to 25 years in prison without the possibility of parole. There was no violence or guns involved in this alleged conspiracy, and I can honestly proclaim that I have never broken any of God's Ten Commandments, but the Government has taken the rest of my life away from me. My children are ages 12, 2, and 1. I will never see or feel any of the cherished moments of their childhood, which breaks my heart. More importantly, they will grow up without a father, which hurts me more than anything."
I suspect that the average American would have little sympathy for this man. Unless that changes, marijuana will never be legal again.
Jacob Sullum is associate editor of REASON.
This article originally appeared in print under the headline "Selling Pot".