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.

While the laws are narrowly tailored, they nonetheless raise a number of practical concerns that all sides agree will ultimately be worked out in state legislatures or the courts. For instance, what happens if a patient's doctor-approved marijuana use conflicts with an employer's drug-testing policy? California's initiative doesn't stipulate that a "recommendation" be written, or that it suggest dosage and frequency–details that will need to be clarified in subsequent legislation. And neither law legalizes the sale or distribution of marijuana or other illegal drugs, meaning that patients will not necessarily have a lawful means of getting their prescribed medication.

These sorts of issues are yet to be hammered out, but the situation falls far short of the "legal anarchy" bemoaned by California Attorney General Lungren. Indeed, on November 6, Lungren himself issued guidelines on how state-level law officers should deal with the law, suggesting that the situation is something less than chaotic. The guidelines note that the proposition "may create an affirmative factual defense in certain criminal cases" and suggest that, when considering an arrest, officers should ask for and try to verify evidence that the suspect is using marijuana under a doctor's recommendation. Such guidelines represent a significant policy reversal: Last summer, Lungren himself authorized a highly publicized raid on San Francisco's Cannabis Buyers' Club.

More difficult questions revolve around the interaction of the new statutes with federal drug laws. Under federal law, it remains illegal to manufacture, use, possess, or distribute any Schedule I drugs, including marijuana. So even patients following doctors' orders–and complying with state laws–are violating federal law. The position of doctors is more complicated still. While doctors are already prohibited from prescribing Schedule I drugs, the U.S. Drug Enforcement Administration also licenses physicians to prescribe controlled substances such as morphine. The DEA carefully tracks the use of such drugs and exercises powerful oversight in that area. (See "No Relief in Sight," January.) It is not clear if the feds will respond to doctors who prescribe or recommend Schedule I drugs by revoking their authority to prescribe controlled substances. Indeed, it is not even clear how the DEA will learn that doctors are prescribing marijuana or other Schedule I drugs, since those prescriptions will not be filled by pharmacists.

The DEA's official position on the initiatives, announced the day after the elections, hardly clarifies the issue. "The passage of these propositions in no way alters the DEA's fundamental mission: to enforce the federal drug laws of the United States. The DEA intends to continue targeting the most significant drug traffickers at home and abroad." Due to limited resources, the DEA traditionally has ignored individual users and small-time dealers, focusing instead on "drug kingpins" and large commercial operations. The feds have largely left buyers' clubs alone. But the California Medical Association has expressed fears that doctors prescribing marijuana to more than a few patients will be categorized as "significant drug traffickers" and either lose their prescribing privileges or be arrested. Rep. Frank says that, given the overwhelming victories in both California and Arizona and the negative publicity associated with hauling legitimate practitioners into court, it is "very unlikely" that federal agents will go after doctors in those two states or elsewhere in the country.

At least in the short run, the DEA seems to be adopting a wait-and-see posture, ready to spring on any evidence of increased use among children and other groups as a way to move public opinion to support a federal crackdown. McCaffrey's office has announced plans to "actively collect data–i.e., drug related accident rates, teen pregnancy, work absences, hospital emergency cases, and the like–which will indicate the consequences of the referenda." It will be interesting to see what that discovery process turns up, especially since McCaffrey's conclusion already seems firmly in place: "A hoax has been perpetrated and will be exposed," he wrote after passage of Props. 200 and 215. "By our judgment, increased drug abuse in every category will be the inevitable result of the referenda."

In fact, very little is inevitable in the wake of the propositions. No one–opponent or proponent–knows for sure what will happen. In California, thousands of "registered" marijuana users already receive their pot from buyers' clubs. And, says NORML's Gieringer, there are already "scores" of doctors publicly "recommending" pot to patients. How much will medical-use rates change in the face of Prop. 215? Will more doctors get with the program? "There's no way to know," he says.

Singer, the Phoenix-area surgeon, says that although the Arizona law allows doctors to prescribe any Schedule I drug, "the most typical application will be marijuana for cancer patients and spinal-cord injury patients"–uses understood and seemingly accepted by the public. Will public opinion shift if doctors prescribe more controversial substances for less-sympathetic patients? How will voters react when the first parolees leave Arizona state prisons?

Similarly, it's unclear how recreational drug-use rates will change–or even whether such fluctuations can be tied to the initiatives. Nor can we know whether the possibility of a legal defense for possession and use of illegal drugs will discourage state and local cops from pursuing all such cases.

Following the passage of Props. 200 and 215, perhaps only this much is certain: A new conversation about drug policy is taking place, one that actually requires state and federal governments to enter into dialogue with citizens. "Just say no" has been answered with "Tell us why." It is not clear that the government will be able to hold up its end of the discussion.

In his official statement lamenting the new state laws, McCaffrey sputtered, "We had support from former Presidents Ford, Carter, and Bush"–as if a trinity of one-term ex-chief executives would somehow provide a boost to any cause. The statement reflects a flustered mindset, one that has not had to work hard in the past to win arguments: "Doctors will not recommend pot when there are clearly better treatments. Most parents do not want their kids smoking dope. The problem is, there will be a small group of doctors recommending marijuana to people."

As Americans for Medical Rights and other groups push initiatives in other states, the conversation about the medical use of currently illegal drugs is bound to continue. Frank says the California and Arizona initiatives "give some real oomph" to the medical-use debate. "They are another argument for changing federal law," he says. Although he concedes such a change is unlikely to unfold quickly, he suggests that Congress will take note of public opinion.

Nor, despite what opponents claim, is there any reason to assume that medical-use laws lead inexorably to legalization. Indeed, the "medicalization" of drug laws can be seen as simply shifting control from the criminal justice system to a more insidious, paternalistic authority (the Maricopa County, Arizona, Libertarian Party urged a "no" vote on Prop. 200 for similar reasons). While people may be willing to expand the current pharmacopoeia, they are not necessarily signing on to the idea that individuals should have the right to decide what drugs they can take. Just as drug warriors must explain themselves to a skeptical public, so too must legalizers.

The potential connection between medical use and legalization is, in fact, a fairly subtle one. McCaffrey has suggested, "There could not be a worse message to young people than the provisions of these referenda. Just when the nation is trying its hardest to educate teenagers not to use psychoactive drugs, now they are being told that 'marijuana and other drugs are good, they are medicine.'" On one level, such an equation is absurd: People–including teenagers–don't take drugs recreationally because they are certified as "good" medicine. If they did, we could expect a run on any number of drugs, ranging from Kaopectate to penicillin. At the same time, redefining marijuana as medicine makes people less likely to automatically agree that it is an unmitigated evil.

The real contribution of medical marijuana to the larger debate on legalization is that it may well put the lie to official claims about drugs. Lungren, for instance, has said that smoking or eating marijuana has no beneficial medical effect (even as he allows that Marinol, a prescription version of THC, the main active ingredient in marijuana, has some value). At the very least, recent events will focus more critical scrutiny on government statements. When McCaffrey presents his evidence of the "inevitable result of the referenda," he will have to work to convince his audience.

Yale Law School Professor Steven B. Duke suggests that if the public sees more and more people using marijuana medically and testifying to its value, they may rethink their position on it. "There might be a recognition as well that the government is lying in other areas of drug policy, too," says Duke, co-author of America's Longest War: Rethinking Our Tragic Crusade Against Drugs. "Among prohibitionists, there's a sense that if you give an inch, you lose everything. That's certainly the case with [opponents] of medical marijuana." Ironically, the failure to compromise on a relatively noncontroversial topic such as medical marijuana could open the door to a much broader rejection of the drug war.

It is in this sense that the initiatives have, as Arizona's John Sperling puts it, made the "debate on legalization possible." What shape it will take and what ends it will achieve are far from certain. Judging from poll data, there is currently little support for legalization. But as the passage of Props. 200 and 215 forces prohibitionists to justify their policies, and the country's experience with the open medical use of illegal substances gets underway, that debate should prove to be one full of possibilities.