The New Politics of the Drug War

Voters in California and Arizona just said no to draconian laws.

Did Election Day mark the beginning of the end of the War on Drugs? To some drug warriors, the reform initiatives approved by voters in California and Arizona were the first step toward unilateral disarmament.

“The implications of this for the social norms that keep kids away from drugs are very serious,” says Steve Dnistrian, senior vice president of the Partnership for a Drug-Free America. “There has been no greater fundamental challenge to the drug-prevention field in a long time.”

What is beyond dispute is that advocates of drug reform are enjoying unprecedented success in setting the nation’s drug-policy agenda, at least for the moment. The “get-tough,” “just say no” party is on the defensive.

Since the first term of President Richard Nixon, the American political system has responded to popular concerns about drug use by funding the steady expansion of federal and state law-enforcement agencies. With the advent of crack cocaine in the mid-1980s, the civic credos of “getting tough” and “just saying no” carried the weight of common sense and enjoyed sway in schools, print, and on the airwaves.

Enter: the marijuana problem. Between 1992 and 1996, the number of teen-agers smoking marijuana roughly doubled, a phenomenon that received wide attention during the recent presidential campaign. But Bob Dole’s harsh attacks on Bill Clinton for allegedly condoning this development failed to excite American voters. Given the perception of a leadership vacuum around the time of the election, it’s not surprising that initiatives such as those in Arizona and California emerged.

Though lumped together in articles like this, the two laws are actually quite different. Arizona’s is the more sweeping. It requires that all nonviolent drug offenders be paroled (an estimated 1,000 persons are eligible to go free within the next 90 days); that the money saved in jail-related costs go toward funding of a new parents’ commission on drug education; that all violent drug offenders do 100 percent of their sentence; and, almost as an afterthought, allows doctors to prescribe marijuana, heroin, or LSD. The California law, by contrast, shields from prosecution persons who use marijuana under an oral or written “recommendation” from a medical practitioner.

“The California law is an implicit rejection of the drug war,” says Sam Vagenas, spokesman for pro-reform forces in Arizona. “Arizona was an explicit rejection.”

Is the result a delegitimization of the drug war–a cultural surrender–an instance of defining deviancy down, as cultural conservatives would have it? Judge for yourself.

On the Internet, one entrepreneurial mind has already set up a Web site offering 27 grams of mail-order medical relief for $270 (“taxes included”) and handy guidelines for how to smoke it. The legality is virtual: “All buyers must send copy of medical report and birth certificate.” A return address in given. Is this a brazen hoax? Street dealing on the information highway? Proceed, with a caveat emptor, to:

In the Family Therapy Network chat room, a posting on marijuana proved to be the most popular ever, prompting a wide-ranging adult discussion of law, professional responsibility, mental health, addiction, mind expansion, and above all, children.

The Berkeley Cannabis Buyers Club had to take down its Web site, which had been overwhelmed by surfers hoping to score electronically. Tom Tuk, the designer of the home page, angrily yanked the site with this statement: “Mail distribution [of marijuana] is an avenue of diversion for abuse!”

In the nation’s capital, the sound you hear is of paper being shuffled. The president’s drug czar, Gen. Barry McCaffrey, has made it clear he regards the two laws as the work of deceptive and mischievous drug legalizers who have snookered a lot of otherwise right-thinking people. But what will federal drug agencies do? McCaffrey told the Washington Post that he would make his recommendations to Clinton by Christmas.

In the meantime, drug warriors in Phoenix and Sacramento are on their own and not happy about it. Richard Romley, the district attorney for Maricopa County (which includes metropolitan Phoenix), was perhaps the most incisive of those who testified before a Senate Judiciary Committee hearing early this month. While four other witnesses criticized the duplicity of “pro-drug” forces and the naiveté of the voters, Romley bluntly identified the central choices facing law enforcement: go after doctors, federalize marijuana enforcement, go to court, and get a strategy.

The options are not that attractive.

It’s not clear that many doctors will prescribe marijuana, but some surely will. Professional groups such as the American Medical Association reject the notion of medical marijuana, but caregiver organizations like the American Public Health Association and the National Association of People With AIDS support it. Romley and John Walters, former staff director of the drug czar’s office, want the feds to step in.

“Nothing in the law prevents DEA from moving unilaterally against the small number of pro-pot physicians who would likely recommend marijuana for their patients,” Walters testified. The DEA, he added, “should prepare to do so.”

That may sound like a good idea from a Washington policy-maker point of view. From the perspective of a mayor or state legislator it sounds like a public-relations debacle: The sight of federal agents cuffing some beloved Marcus Welby for recommending a marijuana cigarette for kindly Uncle Sebastian suffering from AIDS will not go over well with voters.

The federalization of state marijuana prohibitions would also impose some real costs on Washington. The problem today, from the point of view of cops in California and Arizona, is that low-volume marijuana traffickers are likely to say in court that they are handling medical marijuana. That would not be a permissible defense in federal court, but federal prosecutors don’t pursue traffickers unless they are handling substantial quantities. For example, in California’s Central District, the feds won’t take a case that involves less than 200 kilograms (420 pounds) or 200 plants. “Dealers will be smart enough to keep their operations under the federal threshold,” observed Orange County Sheriff Brad Gates.

Will the U.S. Attorney’s Office in the Central District of California lower its threshold policy so as to discourage marijuana entrepreneurs posing as medical suppliers? A spokesman for the office declined to discuss threshold policies and referred all questions to the still-silent Justice Department in Washington.

The most forthright response to the initiatives comes from California Attorney General Dan Lungren. He told 300 cops in Sacramento last week that “the people have spoken,” and counseled grudging cooperation with the forces supporting medical marijuana. (Lungren made national news last August, when he authorized a police raid on a San Francisco “buyers’ club” that was openly supplying marijuana to AIDS patients and, the police charged, to many others who just wanted to get stoned. For his vigilance, Lungren was lampooned in Doonesbury.)

“We must realize voters meant that marijuana should be used only as an occasional exception for someone who is seriously suffering and under the direct supervision of a physician,” Lungren said. “The state’s voters did not want to start this state down the slippery slope toward the legalization of marijuana.”

But the “just say no” party can’t seem to get traction on that slippery slope. The public now seems unswayed by its message. Leading prohibitionist spokesmen like McCaffrey and Lungren campaigned vigorously against the propositions. Public opinion didn’t change much.

The drug enforcers’ claim that the drug reformers are some duplicitous, self-interested cabal is also growing less plausible. A civic cause that includes self-described “limousine liberal” billionaire George Soros, retired Reaganite statesman George Shultz, and Gail Zappa (widow of counterculture hero Frank) is not exactly narrow or shady sounding.

And the conclusion that the voters are fools, while always tempting to spurned politicians, is usually unwise. When Arizona Sen. Jon Kyl recently said he was “embarrassed” by the voters’ collective decision, he promptly got roasted by most callers to Phoenix’s two top-rated talk radio stations and had to issue a clarification.

On the other hand, the reformers have not shown that they can consistently win the confidence of the public, which remains very wary of legalization of any drug–even marijuana.

“The reality is that we have won a very small victory that is not readily convertible to any other area of drug policy,” concedes Dave Fratello, a spokesman for Californians for Medical Rights, the umbrella group that successfully promoted the medical-marijuana bill. Rob Kampia of the Marijuana Policy Project, a pro-reform group in Washington, says the legislative focus will remain on medical marijuana. He claims to have pledges from legislators in 23 states to introduce medical marijuana bills in 1997. Meanwhile Steve Dnistrian of the Partnership for a Drug-Free America says he and his allies will be contesting the reformers everywhere and promises that next time, drug-prohibition forces will be “better prepared and organized.”