Bad Medicine?

"For me, the law is about the promise of justice," John Ashcroft confessed in his opening statement to the Senate Judiciary Committee during his confirmation hearing in the early months of 2001. "All men and all women, all people are equal."

And so -- judging by the actions of the attorney general after that statement was issued -- are drugs. Although a wide expanse of independent and government-funded research into cannabis has proven the drug to be less dangerous than sometimes-lethal, but nevertheless legal, substances such as alcohol and tobacco, that accumulating body of evidence did nothing to shrink the growing impasse over marijuana (cannabis).

In fact, barely two years later, and in the midst of a frenetic Department of Justice scramble to secure America against the sort of terrorists that assaulted us on 9/11, there stood Ashcroft and his colleagues, announcing the arrest of...Tommy Chong. For selling -- what else? -- bongs.

Although Chong's son Paris was the chief architect of the company Chong Glass -- as well as its Nice Dreams series of smoking pipes -- it was Tommy (the stoner icon that helped make Cheech and Chong one of 20th-century counterculture's funnier experiments) that "was the more responsible corporate officer, because he financed and marketed the product," U.S. Attorney Mary Beth Buchanan told LA Weekly. The punishment came down on Chong, ironically enough, on September 11, 2003: Nine-month prison bid, $20,000 fine and more than $100,000 in personal assets seized.

And while some may not blink at that sentence, it's fair to rewind the clock some before moving onward into America's continuing war on weed.

In the mid-'90s, when Dan Burton, Jr., son of the virulently anti-drug U.S. Rep. Dan Burton (R-IN), was busted in Louisiana for transporting almost eight pounds of marijuana, and was found a scant six months afterwards in his Indianapolis residence with 30 cannabis plants and a shotgun nearby, the feds declined to prosecute the case. Instead, Burton was ordered by a Louisiana judge to engage in community service. (This is the same Rep. Burton who tried to pass a bill that would subject some drug traffickers to the death penalty, and who obsessively helped rake President Clinton over Monica Lewinsky's coals.)

When Republican congressman Spencer Bachus' son Warren was apprehended in 1993 for possession of cannabis -- as well as possession of the kind of drug paraphernalia that cost Tommy Chong nine months of his life and a suitcase full of $100 dollar bills -- the younger Bachus wasn't even convicted. In fact, he was set free after paying $56 in court expenses.

Fast forward several years later and nothing, as far as the Drug Enforcement Agency (DEA) is concerned, seems to have changed on the cannabis front.

Unless you ask the 500 law enforcement and child welfare service agencies across the 45 states that participated in the National Association of Counties (NACO) recent survey on drugs, in which over 58 percent of those polled argued that meth -- not marijuana -- is the nation's top drug epidemic. In fact, less than 20 percent polled named cocaine as a major culprit, and an even smaller contingency laid the blame at the feet of cannabis. All of which seems to conflict with the arguments of the DEA and Office of National Drug Control Policy (ONDCP) -- which is managed by the nation's drug czar, John P. Walters -- who contend that cannabis is still the nation's de facto drug problem.

This attitude seems to fly in the face of scientific facts, whether they are provided by cannabis anti-jail groups like the Marijuana Policy Project (MPP) and National Organization to Reform Marijuana Laws (NORML), or hard-science advocates like the nonprofit Institute of Medicine (IOM), a component of the National Academy of Sciences which conducts research and dispenses advice to the nation-at-large on medicine, biology and health.

"Both the DEA and ONDCP[‘s missions are] to make sure that marijuana remains illegal," argues Keith Stroup, NORML's executive director. "ONDCP regularly puts out press releases and runs public service ads claiming marijuana is the number one drug problem we face in America today. Keep in mind, alcohol kills 50,000 people each year; tobacco kills 430,000 people each year. Marijuana has never killed anyone from an overdose in the history of mankind."

Stroup's assertions are supported by evidence from far and wide. Regarding the ONDCP's so-called public service announcements, the drug czar's online bio proudly claims Walters is responsible for "ads linking drug trafficking with terrorism," as well as those "focusing on the harms of marijuana," although there is no specific mention of how such controversial methods have decreased cannabis use. In fact, the bio only claims that Walters' cannabis tactics "have been credited with helping change youth attitudes and behavior toward drugs," although it doesn't mention how.

Furthermore, the DEA's April 2005 release on the dangers of cannabis -- entitled "Marijuana: The Myths are Killing Us" and penned by top administrator Karen Tandy -- argues first that "America is not suffering from anything that the truth can't cure," before launching into a sloppy critique of medical marijuana that it freely admits "three-fourths of Americans over the age of 45 support." How sloppy, you ask? The first paragraph of the release, which is invested in disseminating (as Tandy argues) the "truth" about cannabis, tells the tale of a 14-year-old Californian who died not from marijuana, but from ecstasy. The weed connection? Her young friends thought they could save her by stuffing cannabis leaves in her mouth.

It gets worse. Tandy goes on to frame the argument in the type of "Myth/Fact" binarism that plays well in medical brochures, but lapses immediately into obfuscation in the first example: — "Myth: Marijuana is Medicine" -- by following it with "Fact: Smoked marijuana is not medicine" (emphasis added). By shifting the spotlight from cannabis to its more popular ingestion system (inhalation by smoking), Tandy erects a guilt-by-association condemnation of marijuana that continues for eight paragraphs. Not exactly hard science.

By the time she gets to a landmark IOM study, conducted in 1999 and funded by none other than the ONDCP, Tandy wanders aimlessly off the reservation, claiming that IOM "researchers who conducted the study could find no medical value to marijuana for virtually any ailment they examined, including the treatment of wasting syndrome in AIDS patients, movement disorders such as Parkinson's disease and epilepsy, or glaucoma," although the IOM's release on the study claims that "Marijuana's active components are potentially effective in treating pain, nausea, the anorexia of AIDS wasting, and other symptoms, and should be tested rigorously in clinical trials."

Further, when the IOM took on the task of affirming the popular myth that marijuana is a so-called "gateway" drug, they were unequivocal in their assessment that "there is no conclusive evidence that marijuana acts as a 'gateway' drug." Tandy, meanwhile, had no room for conclusion and evidence: "Marijuana is a gateway drug," she baldly claimed in the release. Her evidence? "Rarely do we meet heroin or cocaine addicts who did not start their drug use with marijuana."

When asked to comment on the discrepancy, the IOM's media officer Christine Stencel was noncommittal, albeit in a pointed fashion. "I'm sorry, but I cannot offer any theories or explanations for statements made by any other groups or organizations. We stick to stating facts as supported by evidence, not conjecturing about others' interpretations or reasonings."

Fair enough; it's all about the facts with the IOM. So I moved on to the DEA to ask about the inconsistency, and was passed on to Rogene Waite, a DEA public information officer with an AOL email address. Rather than tackle any of my questions head-on, Waite responded by arguing that, "Congress enacted laws against marijuana in 1970 based in part on its conclusion that marijuana has no scientifically proven medical value, which the U.S. Supreme Court affirmed in 2001 in United States v. Oakland Cannabis Buyers' Cooperative." She neglected to mention that her statement was lifted directly from Tandy's press release -- which also appeared in the March 2005 issue of Police Chief magazine.

Further, when asked to explain the U.S. vs. Oakland Cannabis Buyers Cooperative case, or the more recent (and controversial) case of Gonzales vs. Raich (previously known as Ashcroft vs. Raich), Waite broke from her script to explain via email that the "DEA has NEVER [emphasis hers] targeted the sick and dying, but rather, criminals engaged in drug cultivation and trafficking."

But, again, the evidence shows the contrary: Far from being a "drug trafficker" of any sort, Angel Raich is, according to a declaration filed under oath by her doctor, Frank Henry Lucido, a violently ill patient allergic to conventional medicine, one who will "suffer imminent harm without access to cannabis."

Indeed, Lucido claimed, "it could very well be fatal [for Raich] to forego cannabis treatments." To combat her terminal illness, Raich procured cannabis from a series of caregivers, which is legal under California law yet maddeningly illegal under a federal law called the Controlled Substances Act. As a result, the DEA raided her home in 2002 and destroyed all cannabis plants in her possession. If that's not targeting the "sick and dying," I'm sure Raich is still waiting for an explanation for what is.

Invoking the Controlled Substances Act as a basis for their seizure and destruction of Raich's property didn't work well as an excuse when the 9th Circuit Court of Appeals granted Raich and her co-plaintiff Diane Monson a preliminary injunction to prevent the federal government from interfering with her life, arguing along the way that they found "that the appellants have demonstrated a strong likelihood of success on their claim that, as applied to them, the Controlled Substances Act is an unconstitutional exercise of Congress' Commerce Clause authority" (otherwise known as the oft-abused Article I, Section 8, Clause 3 of the U.S. Constitution that empowers the Congress "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes").

"They said, 'Hold on! What we're doing is within California, it's completely non-commercial, we're not selling anything,'" explains Bruce Mirkin, communications director for the Marijuana Policy Project. "'There's no interstate commerce here, so the feds should have no authority. That was a perfectly reasonable common-sense look at the situation." But in the end, that common sense was not so common, and the Supreme Court ruled 6-3 that Raich and Monson had indeed violated the Commerce Clause.

"Unfortunately," Stroup explains, "the Supremes made ... a drug exception to the line of recent cases in which they had limited the power of the federal government to legislate, based on the interstate Commerce Clause. Because the subject was marijuana, the court found the federal government could legislate, even when the marijuana had never crossed a state line, and no money had traded hands. What an intellectually embarrassing decision! I knew we were in trouble when I found myself agreeing with the dissenting opinion of Clarence Thomas."

Indeed, although Sandra Day O'Connor put forth the persuasive federalist argument that the Supreme Court's "overreaching stifles an express choice by some States, concerned for the lives and liberties of their people, to regulate medical marijuana differently," it was the much-maligned Thomas who seemed most confused by the decision, explaining that "In the early days of the Republic, it would have been unthinkable that Congress could prohibit the local cultivation, possession, and consumption of marijuana."

He's right: according to Martin Booth's exhaustive book Cannabis: A History, "both George Washington and Thomas Jefferson -- who were landowning farmers -- cultivated hemp as an important cash crop." In fact, Jefferson was known to prefer growing hemp to tobacco.

In other words, the DEA, ONDCP and DOJ can try invoking the U.S. Constitution as proof that Congress has the ability to regulate marijuana cultivation and usage, but that is a case even the Founding Fathers would not make. And though the criminalization of cannabis continues to be marred by labyrinthine legalese and the sloppy condemnations of Tandy, and even though, according to Booth, cannabis has been cultivated since "prehistory, [and] it may have been among the first plants to be farmed" -- the trend toward legalization, and perhaps not just for medical purposes, is a runaway train that cannot be stopped.

"We're seeing an increasing number of organizations from all sides of the political spectrum starting to question these policies," explains Mirkin. "We've had reports just in the last six months or so from the Sentencing Project, which tends to be on the left side of the political spectrum, as well as the American Enterprise Institute and Citizens Against Government Waste, who are much more on the conservative side. But they are all essentially saying the same thing: This doesn't make sense. We're pouring money down a rat hole and very possibly doing more harm than good."

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