The Pot Proposition; Living With Medical Marijuana
By Michael Pollan
The New York Times Magazine, July 20, 1997
One morning in May, Sgt. Scott Savage of the San Jose Police Department’s narcotics unit paid a visit to the newest tenant in the modest one-story professional building at the corner of Meridian and San Carlos: the Santa Clara County Medical Cannabis Center. Sergeant Savage, who has the upbeat demeanor of a young suburban cop (think “Adam-12″) and wears polo shirts to work, has one of the more unusual jobs in American law enforcement. He is responsible for developing a set of regulations and procedures to govern the distribution of medical marijuana in San Jose, work he likes to describe as “very creative” and “a thinking man’s game.”
Since November, when voters in California overwhelmingly approved Proposition 215, the Compassionate Use Act of 1996, it has been legal under state law for any “seriously ill” Californian to obtain marijuana upon the recommendation of a physician. Ballot initiatives are a famously messy way to make law, however, and the language of Prop 215, which took shape in the marijuana-smoke-filled rooms of San Francisco’s notorious Cannabis Buyers Club, is even wispier than most. It doesn’t explain exactly how the marijuana is supposed to find its way from the field to the patient without breaking state laws not addressed by Prop 215. During the campaign, California’s Attorney General, Dan Lungren, had predicted “legal anarchy” if Prop 215 were to pass.
Sergeant Savage’s job is to make sure that doesn’t happen, at least not within the San Jose city limits. Which is what brings him to Suite 9 of this professional building, crouched amid the low-slung sprawl of bungalows on the north side of town. He has come to present the Police Department’s new “Medical Marijuana Dispensary Regulations” to Peter Baez and Jesse Garcia, the proprietors of what will soon be the nation’s first municipally licensed medical-marijuana dispensary. (Clubs like the one in San Francisco operate with the tacit approval of local authorities.)
Unlike many of the other cannabis dispensaries that have sprung up since the passage of 215, San Jose’s has nothing clublike or countercultural about it: no Grateful Dead tunes on the sound system, and not even a whiff of marijuana smoke in the air. “This is a no-smoking building,” Peter Baez explains, and Baez, a slender 33-year-old colon cancer patient who smokes marijuana to relieve the effects of chemotherapy, is dead earnest about playing by the rules—both the old ones, and the new ones.
San Jose’s District Attorney has called Baez and Garcia “the Eagle Scouts” of medical marijuana. As Baez tells it, this is not a particularly easy role to play. “I’ve got growers calling every day offering me free bud”; in exchange, they want a piece of paper designating them as “medical-marijuana growers,” which may or may not afford them some legal protection—no one really knows. The center, which is not-for-profit and operates on a shoestring, could surely use the free pot, but Baez is reluctant to do business with what he calls “the criminal element.” When it’s not growers looking to make a deal, or the occasional forged prescription (which Baez dutifully reports to Sergeant Savage), it’s all the “Vinnies from New York” phoning in their extravagant offers of start-up capital—for what could make a better organized-crime front than a licensed marijuana dispensary?
And then there are the new rules that Sergeant Savage has come to discuss. Most of the Police Department’s regulations seem straightforward enough, if somewhat cognitively dissonant in the midst of a drug war that has made marijuana a prime target. (Six hundred thousand Americans were arrested for marijuana crimes in 1995, an all-time record.) The new rules cover such things as the approved way to inventory marijuana plants; the maximum amount of marijuana a client can buy in a week (one ounce) and the provision of childproof containers. There is only one regulation that troubles Baez: the city has decreed that all marijuana dispensed by the center must be grown on the premises.
Savage explained to Baez and Garcia that “we can’t have you driving down from San Francisco with your trunk filled with marijuana. Prop 215 didn’t address the issue of transportation, so that’s still a felony. Which means you’re going to have to grow it all here.” Baez and Garcia had been driving their marijuana down from San Francisco, where they bought it wholesale ($3,200 a pound) from Dennis Peron, the controversial pioneer of California’s medical-marijuana movement and the proprietor of the San Francisco Buyers Club. Peron’s club is exactly the sort of operation –a loosely run, round-the-clock pot party that sells 20 to 30 pounds of marijuana each week—that gives the city fathers of San Jose nightmares. Savage and his superiors seem genuinely committed to making Proposition 215 succeed, but they insist on going by the book, such as it is.
“I told Scott gardening wasn’t my forte,” Baez recalls, “and that we don’t have the space to grow on site.” Savage wasn’t about to yield, but he did want to be helpful. So he mentioned that as part of his recent research into marijuana he had toured NASA’s Ames Research Center in nearby Mountain View, where engineers are developing “some very sophisticated hydroponic growing systems for the space program. They showed us how you can now go from seed to head of lettuce in 17 days.” Savage, who is almost boyishly enthusiastic on the subject of marijuana cultivation, mentioned that the NASA engineers were willing to help Baez and Garcia design a state-of-the-art marijuana grow, and had estimated it could be built for about $50 a square foot. He gave Baez a number to call.
But Baez had other worries besides horticultural know-how. “What about Flower Therapy?”
Flower Therapy is a new cannabis club in San Francisco that operates with the approval of the city’s District Attorney and Department of Public Health. The club also grows marijuana on site—or at least it did until early one morning in April, when Federal agents of the Drug Enforcement Administration kicked down the door, confiscating more than 300 plants and the equipment used to grow them. Baez said to Savage: “You’re telling me I have to grow marijuana on site, when the D.E.A. is raiding clubs for doing exactly that. Flower Therapy had 331 plants chopped up—I can’t afford to lose all my medicine like that.” Today, playing by the book in San Jose means breaking the law in Washington: under Federal law, which is undisturbed by Proposition 215, the crime of cultivating 100 marijuana plants carries a five-year mandatory minimum sentence. (Provided, of course, a Federal prosecutor could win a conviction from a California jury. Which may explain why the U.S. attorney has so far declined to bring any charges against the proprietors of Flower Therapy, two of whom are AIDS patients.)
Sergeant Savage acknowledged that he couldn’t do anything about the D.E.A., but he wouldn’t budge on the issue of on-site cultivation: “This is going to be the rule in San Jose.” He did offer to fax a letter to the D.E.A. saying that the Santa Clara club was in full compliance with zoning and police regulations, but couldn’t make any promises it would work.
Like characters in an improbable hollywood buddy movie, Peter Baez and Sergeant Savage, the pot dealer and the cop, have been thrown together by Prop 215, as they both struggle to chart a course through the peculiar new landscape created by legalized medical marijuana. The path these two have chosen is notable for its almost punctilious legalism, and many communities in California are looking to San Jose as a model. But there are others –most notably San Francisco’s Dennis Peron—who are heading off in a different direction, and who regard San Jose’s attempt at legitimacy as quixotic. “Some people are trying to forget that, even with 215, dispensing medical marijuana is still an act of civil disobedience,” Peron told me. “Isn’t that the message of Flower Therapy?”
All three would agree, however, that they’re standing together on a kind of frontier, a decidedly gray area where the old rules of engagement in the drug war have been suspended (sort of), but where the new rules are still being worked out, sometimes painfully. That’s mainly because the process is playing itself out under a cloud of Federal disapproval: the Clinton Administration—contending that medical issues should not be decided by referenda, and concerned about pot smoking by teen-agers—is working hard to insure the failure of California’s experiment with legal marijuana. Washington is worried that California will serve, as it often has, as a bellwether for the rest of the nation. Already Proposition 215 has forced the issue of medical marijuana onto the national agenda. A half-dozen states are likely to cast votes on similar initiatives in 1998, and another half-dozen State Legislatures are currently debating medical-marijuana bills. Moreover, as the Administration recognizes (and as medical-marijuana advocates will acknowledge, though mostly off the record), much more is at stake here than the provision of an herbal remedy to a handful of sick Californians. California’s experiment with medical marijuana could well turn out to be a turning point in the drug war, if for no other reason than it is rapidly transforming what has long been a simplistic monologue about drugs—Just say no—into a complex conversation between the people and their Government.
So far, the most compelling voices in that conversation belong to the patients, the doctors, the growers and the cops who together are struggling to carve out a place for legal marijuana in the face of fierce opposition from Washington. I recently traveled to Northern California, the seedbed of the medical-marijuana movement, to hear what they were saying, and learn what their experiment might mean for the rest of us.
The stories of sick people have propelled the cause of medical marijuana. Proposition 215 was framed by its supporters as a question of patients’ rights, and their most effective television ads told the stories of cancer patients for whom smoking marijuana brought dramatic relief. “I’ve been a registered nurse for over 40 years,” began one spot, shot at a grave site, “but when my husband, J. J., was dying of cancer, I felt helpless.
“The nausea from his chemotherapy was so awful it broke my heart. So I broke the law and got him marijuana. It worked—he could eat. He had an extra year of life. Prop 215 will allow patients like J. J. to use the marijuana without becoming criminals. Vote yes on 215. God forbid, someone you love may need it.”
How do you argue with such a story without seeming heartless? The opponents of Prop 215, including the Clinton Administration’s drug czar, Gen. Barry McCaffrey, decided they couldn’t. They attacked the hidden agenda of the medical-marijuana movement (“a stalking horse for legalization,” McCaffrey called it), the deep pockets of their out-of-state backers (including George Soros and Laurance Rockefeller) and, above all, the “wrong message” that legalizing medical marijuana would send to children. But they consistently refused to appear with or debate medical-marijuana patients. Thus the patients framed the political narrative.
Before the Prop 215 campaign, Americans had focused exclusively on the victims of drugs; now they were meeting victims of the war against drugs, and these people looked a lot like people they knew. The old stories of children with drug problems were suddenly displaced by stories of dying parents in need of pain relief. And these stories resonated with the experience of voters, a third of whom told pollsters they personally knew someone who used marijuana for medical reasons.
In California I met scores of patients who credit marijuana with dimming their pain, quelling their nausea, firing their appetites and quieting their seizures; I also met a handful of people who believe marijuana is keeping them alive. Keith Vines is one patient who has no doubt on that score; nor does his doctor. Vines told me his story over a 16-ounce rib-eye steak at Harris’ Restaurant in Pacific Heights. I mention the detail because Vines is an AIDS patient afflicted with wasting syndrome; for someone in his situation, polishing off a big steak (along with a Caesar salad, scalloped potatoes, sugar snap peas and a slab of pastry) counts as an accomplishment.
Keith Vines has had to “come out” three separate times in his 46 years. The first time was 16 years ago, when he told his wife –the mother of his 2-year-old son—that he was gay, a fact he realized he’d been repressing since high school. At the time, he was an Air Force captain, working for the military as a malpractice lawyer at Scott Airbase Medical Center in Belleville, Ill. Soon after coming out he moved to San Francisco, where he went to work for the city as an assistant district attorney. For two years he served on the Federal Narcotics Strike Force, successfully prosecuting what at the time had been the second-biggest drug case in the city’s history.
Not long after arriving in San Francisco, in 1983, Vines was infected with H.I.V. By 1993, he had developed wasting syndrome, a little-understood metabolic change that causes patients to lose rapidly not only fat but also muscle tissue. It is often a death sentence. “In a matter of months I dropped from 195 pounds to 150,” Vines said. “You wouldn’t have recognized me; it wasn’t the death camps, quite, but close.” This was hard to believe: the man before me looked as robust and thickly muscled as a football player. “People at work started asking me about my health. So that was my second outing—as someone with AIDS.”
Like many AIDS patients, Vines takes 10 to 15 medications a day. Many of these medicines cause debilitating nausea and suppress appetite; and yet many of these drugs must be taken on a full stomach—and missing even a single dose can be disastrous. Vines was dying a slow death by emaciation when he managed to get into a experimental trial that was treating wasting syndrome with human growth hormone, a treatment that has recently been approved by the F.D.A. His doctors explained that for the new drug to have any chance of working, it was essential that he eat three meals a day—something he found impossible to do.
Dr. Lisa Capaldini, Vines’s primary physician, suggested he try Marinol to stimulate his appetite. Marinol is a synthetic form of THC—the principal active ingredient in marijuana. It was approved by the F.D.A. initially as an anti-emetic for chemotherapy patients and then, in 1993, as an appetite stimulant for AIDS patients. But like many people who take it, Vines found that Marinol took a long time to kick in and that, when it did, the effects were far too powerful and long-lasting. “One capsule would make me feel stoned for hours,” he said. “Sometimes I’d be too stoned to eat, or I’d just fall asleep.”
Opponents of medical marijuana often point to Marinol as an superior alternative; indeed, it appears that the Government speeded the development and approval of the drug as a way to relieve the political pressure to legalize medical marijuana, which was building in the wake of the AIDS epidemic. (Before AIDS, the F.D.A. actually administered a small, quiet medical-marijuana program in which a dozen or so patients received pot grown on a Federally run farm in Mississippi. But during the late 80′s the AIDS epidemic flooded the F.D.A. with applications that it would have been politically awkward to approve in the midst of the war against drugs. The program has since been closed down, though eight original patients still receive their monthly allotment of marijuana cigarettes.)
But many AIDS patients find, as Vines did, that the pills don’t do the job. When it became clear Marinol wasn’t working for Vines, Lisa Capaldini mentioned to him that many of her patients were getting better results from inhaled marijuana. They found they could more easily titrate, or control, the dose, simply by adjusting the number of puffs. This conversation took place two years before Prop 215; didn’t she feel funny recommending marijuana to a district attorney?
“Not really,” Capaldini told me. “Because when I looked at Keith I didn’t see a district attorney. I saw a patient who was dying.”
Vines didn’t find the decision to try marijuana particularly difficult, either. “I’m hanging off a cliff, staring at death, and my doctor’s telling me this might help,” he recalled. “It’s against the law, yes, but I’m not thinking of myself as a prosecutor. I’m a man fighting for his life.”
So Keith Vines came out for a third time, telling his colleagues in the D.A.’s office that he felt compelled to break the same drug laws he’d been working to uphold. San Francisco being San Francisco, everyone—including, eventually, his boss, District Attorney Terrence Hallinan—was supportive.
For Vines, the hard part was obtaining a supply of marijuana without finding his face in the paper. It’s difficult to imagine Vines, who probably would not object to my describing him as something of a square, riding up in the Jerry Garcia Memorial Elevator to the third floor of the San Francisco Buyers Club—a smoky loft done in High Crash Pad, circa 1969. This is where the club’s patrons place their orders from the marijuana menu board (Humboldt Green: $65 an eighth; marijuana lemon squares: $5 a piece) and, if they choose, light up and pass out. Keith Vines got his eighth to go, and went.
Vines had tried pot once or twice in college and R.O.T.C. (“I tried it and, yes, I inhaled,” a quip I must have endured three dozen times in California; the relation of the President’s past to his policy shadows every conversation about marijuana here.) But marijuana had never been a part of his life until now. He began taking a puff or two from a pipe right before dinner—just enough to make him hungry without getting stoned. It worked, and very quickly Vines began gaining weight. “I saw myself in the mirror literally coming back to life,” he said. “It was the growth hormone that put on the weight, but it would never have worked if the marijuana hadn’t given me back my appetite.
“I understand the drug laws, I know why marijuana is illegal,” Vines went on to say. “I certainly don’t want my 17-year-old son smoking it—we have a serious drug problem with our youth in this country.” He pointed out that legal opiates like morphine have done nothing to undermine the war against heroin, and suggested the same would be true for medical marijuana. “They can still have their war on drugs,” he said. “Just take this out of it. This is medicine.”
If the F.D.A. ever does approve marijuana, it will probably be as an anti-emetic and appetite stimulant for people like Keith Vines. But of course Proposition 215 opened the way not only for them but also for anyone suffering from “any other illness for which marijuana provides relief,” and a whole assortment of Californians are squeezing through that door.
My notebooks are stuffed not only with the testimonies of cancer and AIDS patients who vouched for marijuana’s efficacy, but also with those of people suffering from paraplegia; multiple sclerosis; insomnia; post-traumatic stress disorder; anorexia; anxiety; psoriasis, and even drug addiction. The place to interview these less conventional patients is the San Francisco Buyers Club. I spent a couple of hours there one morning, observing the “patient intake” procedure at the club; it was risible.
The staff was eager to show off the new “safeguards” put in place to weed out illegitimate patients—nifty things like photo ID’s with bar codes on them. But if you believe, as Dennis Peron, the club’s proprietor, famously does, that all marijuana use is medical (except by children), the process of evaluating “patients” is bound to lose some of its precision. Even a faded, years-old letter of diagnosis, its type rendered chubby by generations of photocopying, will get you in here. I watched an M.S. patient secure a membership card on the strength of a letter not even from a doctor but a social worker. When I pointed this out to the intake staffer, he gave the letter a closer look. “Good point. Not an M.D. But would you please just look at this man?” The man was pretzeled into his wheelchair, his arms and hands too badly bent to sign his name to the application form. “I’m sorry, but we’re just too compassionate here to turn a man like this away just because he lacks the proper paperwork.”
What I was witnessing here was something other than medicine—it was, in fact, a lot closer to religion. Peron is California’s evangelist of marijuana, and he has drawn around him a following—people sick in body or soul—who come to his church, many of them daily, to be healed by the laying on of smoke.
I spoke to one 31-year-old regular, Robert Boe, who will never be a poster boy for medical marijuana. He is a moist-eyed man who introduced himself to me as a “masseuse-painter-poet-artist”; he comes to the club every day, and evidently finds some form of relief from his torments. He told me he has had “intractable pain” since 1995, when he was stabbed in the chest during a mugging and suffered “permanent nerve damage”; the pot helps, Boe said, “but I come here for the community too.” Today he has brought a poem he wrote in honor of Peron’s birthday.
Dennis Peron may well be the world’s biggest pot dealer, but he is also, I think, perfectly sincere in his conviction that “all marijuana is medicinal,” the logic of which seems a shade less absurd the longer you spend in his smoky tabernacle. (The smoke could have something to do with it.) It all depends on how you define medicine, what you mean by healing. When I ask Dennis Peron about all those people I’ve known who smoke marijuana strictly for fun, he asks me to consider: “But what is fun? Why do they need it? It’s obvious: something is missing from their lives.”
Peron’s “practice” of medicine may be a joke, not to mention an insult to people like Keith Vines, who is not smoking marijuana to compensate for “something missing” in his life. But if he’s a charlatan, to many in California he’s a heroic one. It was Peron, after all, who was willing to sell Keith Vines the marijuana his doctor said he needed when doing so was still a crime.
Mention “December 30″ to any physician in the state of California and he or she will know precisely what you’re talking about. That was the day when Gen. Barry McCaffrey, flanked by Attorney General Janet Reno, Secretary of Health and Human Services Donna Shalala and a D.E.A. official stood before the television cameras to deliver an unprecedented threat to the doctors of California. According to a statement issued at the news conference, “a practitioner’s action of recommending or prescribing Schedule I controlled substances”—like marijuana—. . .”will lead to administrative action by the Drug Enforcement Administration to revoke the practitioner’s registration.” Though doctors are licensed by the states, without a D.E.A. registration they cannot prescribe medicine—cannot, in effect, practice. The new policy also threatened to criminally prosecute doctors who recommend medical marijuana, and to exclude from Medicare and Medicaid.
Exactly how the Clinton Administration would deal with the passage of Proposition 215 had been a lively subject of speculation. The Administration took a hard line during the campaign, which surprised none of Prop 215′s proponents: Clinton could scarcely afford to appear “soft on drugs” at a time when Bob Dole was getting some traction with the issue. One of the Dole campaign’s most effective and often-run spots featured old footage of the President muttering that he regretted not having inhaled. Once Clinton was safely re-elected, however, some in the medical-marijuana movement held out hope the Administration would play down the issue, treat California as an anomaly or, possibly, an experiment.
But the history of the drug war is a history of increasing Federal power (it had its origins in Richard Nixon’s desire to “federalize” the crime issue), and Proposition 215 (along with a similar initiative that passed in Arizona) posed an unprecedented threat to that power that had to be turned back. Moreover, Clinton’s advisers reportedly feared that medical marijuana could become the “gays in the military” of his second-term transition—a tangential but distracting social issue that threatened to expose him to attack from the right. The Administration reportedly considered going to court to challenge the California law, but it discovered it had no constitutional leg to stand on—a state being free to amend its criminal code. The decision was then made to go after the doctors, the one group in California firmly under Federal control.
Coming in the middle of the slow news week between Christmas and New Year’s, the new Government initiative could not have made much more noise. At the news conference, the phalanx of officials laid out the Government’s case against medical marijuana. The passage of Proposition 215 (and Proposition 200 in Arizona) “poses a threat” to the Federal war against drugs, and the officials took pains to reassert the Federal Government’s powers, both to enforce the drug laws (“We want to make clear,” Attorney General Reno said, “that Federal law still applies”) and to regulate prescription drugs. McCaffrey spoke of the Federal Government’s special responsibility to insure the safety and effectiveness of medicine through a drug-approval process that had “prevented thalidomide and Laetrile and other nonsense substances from going in front of the American public.” Proposition 215 “is not a medical proposition,” McCaffrey told reporters. “This is the legalization of drugs we’re concerned about.”
McCaffrey made much the same point when I spoke to him earlier this month. He explained that “some very cunning people have displaced the argument for legalization—which Americans overwhelmingly reject—to one that is more acceptable.” He attributes support in California, and elsewhere, for medical marijuana to the fact that, understandably, “a lot of Americans are worried about pain management.”
McCaffrey went on to express concern about the referendum process that legalized medical marijuana. Proposition 215 “isn’t part of the medical process—there’s no physical exam, no prescription,” he says. “An aromatherapist, a ‘care giver,’ even a patient can grow their own in the backyard. We don’t tell people to grow their own heart medicine! We don’t decide flight rules for L.A. airport by plebiscite!”
McCaffrey is worried too about the effect medical marijuana will have on marijuana use among teen-agers. “As the fear of marijuana continues to go down,” he told me, “use among young people goes up.” Marijuana use among teen-agers has, in fact, been rising in recent years, though it has not reached the levels (35 percent and more) seen in the 70′s. “Kids are hearing that marijuana is a medicine, that it can cure these various illnesses. How can anything that’s medicine be that bad?” McCaffrey subscribes to the theory that marijuana is a “gateway” drug, and he cited recent studies that have found a statistical correlation between teen-age marijuana use and later addiction to harder drugs. Anything that diminishes the fear of marijuana should trouble us, he argues, which is why Prop 215 sends a “terrible message” to the nation’s youth.
But the loudest message of the news conference on Dec. 30 was the one delivered to the doctors of California, who heard the Attorney General of the United States tell them that the act of recommending marijuana to a patient could cost them their livelihood. And in the short term, the threat had the intended effect: doctors stopped writing letters of recommendation; many even stopped discussing marijuana with their patients, or returning calls from cannabis clubs seeking to confirm diagnoses. More than one doctor told me that patients had probably been better off before Proposition 215, when doctors had actually felt freer to recommend marijuana.
It is true that marijuana had been a quiet, relatively uncontroversial part of American medical practice for years before Proposition 215, though it’s hard to know exactly how commonly it was recommended. When, in the mid-80′s, a D.E.A. administrative law judge held hearings on rescheduling marijuana as a Schedule II drug so doctors could prescribe it, he concluded that marijuana already had an “accepted medical use,” especially among doctors treating cancer patients. (“Marijuana, in its natural form, is one of the safest therapeutically active substances known to man,” Judge Francis Young wrote in a 1988 decision that was promptly overruled by the D.E.A.) One Harvard Medical School survey of 2,000 oncologists conducted in 1991 found that 44 percent had recommended marijuana to their patients. I’m told it is not at all uncommon to smell marijuana smoke in the cancer wards of American hospitals.
Talking to doctors about marijuana, I heard little of the evangelical fervor I came to expect from patients. With the exception of AIDS specialists, few regarded marijuana as much more than a “second or third line treatment” for their “refractory patients”—the ones that don’t respond to conventional medicines. Many recognize the therapeutic value of THC, but are troubled by the “delivery system”—inhaled smoke that contains some 400 poorly understood compounds, several of which are carcinogens.
Dr. Debasish Tripathy, a prominent breast cancer specialist in San Francisco, told me he typically has a handful of patients for whom marijuana is the only drug that will quell the nausea induced by chemotherapy—nausea so debilitating that patients will sometimes choose to discontinue treatment rather than endure it. Tripathy regards marijuana as a treatment of last resort (though since Dec. 30 he has declined to recommend it even in those cases), but he also emphasizes just how important it is to have such drugs in the pharmacopeia. “The whole notion of a ‘best medicine’ is erroneous,” Tripathy explains, because patients vary so in their response to drugs. “Indeed, the phrase ‘best medicine’ belies the concept of individualized care.”
Like many of the doctors I spoke to, Tripathy seems somewhat mystified by the Government’s intransigence on the subject of marijuana, particularly in view of its comparative safety. “Marijuana is far less toxic than many of the medicines I prescribe to my cancer patients,” Tripathy points out. Doctors are accustomed to objectively weighing the benefits and risks of any treatment, and the unwillingness of the Government simply to let science decide the issue of medical marijuana is incomprehensible to them. Tripathy would like to see more studies, especially trials comparing the effectiveness of Marinol and smoked marijuana in combating nausea. Dr. Donald Abrams, an AIDS researcher at the University of California, San Francisco, has been trying to organize just such a trial for four years. Though the F.D.A. has approved his study, the D.E.A. and the National Institute of Drug Abuse have refused to give him access to the marijuana he needs to carry it out.
In the wake of 215′s passage, General McCaffrey began calling for “science not ideology” to settle the medical-marijuana debate. McCaffrey has ordered a comprehensive National Academy of Sciences review of the literature on the subject, but the timing of the study—it won’t be completed until shortly after the next round of ballot initiatives in 1998—prompts many advocates to dismiss it as a clever delaying tactic. Even so, McCaffrey’s call for more science is significant, for it initiates a process that might prove ineluctable. A similar review conducted during the Carter Administration wound up lending support to the medical use of marijuana. (Though it was suppressed as a result.)
For many California doctors, what the Government dismisses as “anecdotal evidence” for the efficacy of marijuana is of course just an unflattering name for their own clinical experience, which has already been encouraging enough to justify the drug’s use without waiting for large clinical trials or F.D.A. approval. This is perhaps particularly true among doctors who treat AIDS, a corner of American medicine that has been especially open-minded about experimental treatments and impatient with the traditional drug-approval process. “Many of us have been willing to work ahead of the data on AIDS,” Capaldini told me. “Much of the progress that’s been made in the last few years has come from our willingness to try nonstandard medicines.” She cited as an example the use of hormones to combat wasting syndrome.
Doctors who treat AIDS are by far the ones most enthusiastic about medical marijuana. Dr. Virginia Cafaro is a physician with the Conant Medical Group, the largest AIDS practice in San Francisco. Her first encounter with medical marijuana came seven or eight years ago, when her patients began reporting that smoking pot helped relieve their nausea and stimulated their appetite. “I looked into it and found it was being used by oncologists,” she told me, “so I began recommending it for cases where nothing else was working.”
But if the lack of big clinical trials and F.D.A. approval haven’t inhibited Dr. Cafaro from using medical marijuana in her practice, General McCaffrey’s Dec. 30 threat certainly has. “Since the threats by Federal officials,” she has written, “I have avoided directly broaching the subject of medical marijuana even with patients who could, in my judgment, obtain marked relief” from it. Other doctors have adopted a “tell, don’t chart” policy: they recommend marijuana, but don’t write the information down, either in a letter or on the patient’s chart. Some told me they now look askance at any new patient who inquires about marijuana, wondering if perhaps he might be an undercover D.E.A. agent.
The doctors’ paranoia was further fueled in January, when Dr. Robert Mastroianni, a family physician in Pollack Pines, near Sacramento, received an early-morning visit from two D.E.A. agents. They produced a letter of recommendation he’d written for medical marijuana after the passage of 215, and asked to see his D.E.A. registration number. The agents tried to interrogate him, but the doctor refused to answer questions without a lawyer present. A local pharmacist was also questioned by D.E.A. agents, who asked to review Mastroianni’s prescription records.
Later in January, Mastroianni and numerous other doctors supported a dozen California physicians (including Cafaro and Tripathy) who filed a class-action suit challenging the Government’s policy of punishing doctors who recommend marijuana. The suit argued that the threats made by General McCaffrey and others on Dec. 30 violated the First Amendment right of doctors to speak freely to their patients. The Government responded that doctors were free to “discuss” marijuana, but not to “recommend” it, which was tantamount to aiding and abetting a Federal crime. Federal Judge Fern Smith disagreed: “The First Amendment allows physicians to discuss and advocate medical marijuana even though use of marijuana itself is illegal.” In April the judge issued a preliminary injunction barring the Government from threatening or taking any action against doctors who recommend marijuana to their patients. The Government may eventually prevail at trial, but for the time being it has lost its principal weapon against Proposition 215. Perhaps it is merely a coincidence, but it was only days after Judge Smith issued her temporary restraining order against the Government that the D.E.A. raided Flower Therapy—a raid that gave Californians a striking reminder of the continued relevance of Federal power.
Even before Judge Smith’s injunction, the Administration’s tactic had begun to look like a strategic blunder. For one thing, it has politicized the medical establishment on medical marijuana in a way it hadn’t been before. Prominent medical journals leapt to the defense of California’s doctors, including the staid New England Journal of Medicine, which in January entered the debate with a uncharacteristically heated editorial that argued: “A Federal policy that prohibits physicians from alleviating suffering by prescribing marijuana for seriously ill patients is misguided, heavy-handed and inhumane.” In May the California Medical Association, which had conspicuously failed to support 215 last fall, announced its support for a bill in the State Legislature to expand the Compassionate Use Act by establishing a medical-marijuana research center at the University of California that would conduct clinical trials.
The Government’s war against doctors may also have played into the hands of its opponents in the drug-policy reform movement. “Going after doctors is the only thing they could have done that was dumber than going after terminal patients,” a leading pro-marijuana strategist told me. “From the beginning our thesis has been that the medical-marijuana issue will get people to start questioning the larger war on drugs. It opens up a contradiction between what the Government has been saying about drugs and what people feel is correct. Dec. 30 opened that contradiction even further. Because how can you really say the drug war is about Americans’ health when you’re going after their doctors?”
“Are you kidding? It’s going to be a gold rush out there!” That’s how a pot grower named Jake put it when I asked him if he thought there’d be a lot of marijuana planted in California this summer. Already marijuana is the state’s biggest cash crop, estimated in the early 1990′s at $1.4 billion a year, almost twice the value of the next most lucrative crop, cotton. Proposition 215 has not only expanded the market but also conferred a kind of quasi respectability on marijuana growing that appears to be drawing new legions into the field. They may be in for a rude surprise.
I met Jake at the Oakland Cannabis Buyers’ Cooperative, where he’d come to drop off two pounds of marijuana grown at an indoor site in California’s Central Valley. Jake, who is 30, just finished up at Berkeley after a stint in the Marine Corps. He’s a tanned, square-jawed, 6-foot-plus jock, California-division, dressed in shorts, rugby shirt and Ray-Bans. Today he has come to market with a harvest of “Bubblegum,” a strain named for its unusually sweet smell, and the scene in the back room of the Oakland co-op has a definite El Exigente flavor to it.
The El Exigente role is played by Jeff Jones, the co-op’s curly-haired 23-year-old proprietor, who uses a loupe to expertly examine the grower’s buds. Magnified, the cannabis flowers are encrusted with yellowish-orange crystals and packed tightly around the stem. Jones is also looking for signs of fungus, a particular concern among his AIDS clientele. He pronounces himself delighted with the quality of Jake’s product, and everyone smiles.
During the winter Jake and his partners grow indoors, both in the Central Valley and Oakland, but in the summer months he moves up to his 40-acre plot in the mountains to the east, to grow outdoors and enjoy nature. Last summer a forest fire swept through, and his 80 plants were discovered by firefighters. They alerted the county narcs, but Jake was able to talk his way out of an arrest. “We just hit it off. It was a male-bonding thing. I told them it was medical marijuana, and that I was growing it for the clubs.” One imagines California law-enforcement officials will be hearing that quite a lot this summer. Indeed, there don’t seem to be any ordinary pot growers left in the state; everybody’s moved into medical marijuana.
Jake says he sells exclusively to the clubs, under contract. Contract marijuana growing is a decidedly curious practice spawned by Proposition 215. A club issues a piece of paper to a grower designating him as a “care giver.” The language of 215 gives patients and their care givers the right to cultivate marijuana; whether a grower unknown to a patient can, in any meaningful sense, be that patient’s care giver seems arguable at best, but that is the operative legal fiction. A typical contract requires growers to sell exclusively to the club; to cultivate fewer than 50 plants; to grow organically, and to fly the Geneva cross over their garden. The price for contract-grown medical marijuana in California is $3,200 a pound, compared with between $5,000 and $7,000 for the other kind. Growers told me the new price was established almost single-handedly by Dennis Peron, who buys enough marijuana to move the market. “If you’re looking for more than $3,200, Dennis won’t even take your call,” one grower grumped to me.
Why are growers willing to accept such a deep discount on a crop the cultivation of which is probably still a state crime, and is undoubtedly still a Federal one? Jake’s experience with his local narcs suggests an answer. Proposition 215 “created an opportunity to grow without being completely paranoid,” he says. Indeed, Jake is feeling so confident these days that he’s thinking of simply notifying the local authorities of his marijuana plot this season to avoid any hassles.
“It’d be nice to be a proper garden,” he says, “and not a covert operation.”
The closest thing to a truly legitimate marijuana garden I saw in California was Valerie Corral’s, tucked into the hills above Santa Cruz in a grove of redwoods overlooking the glittering Pacific. Valerie is herself a medical-marijuana patient, and though her garden was twice raided in the years before 215, the city of Santa Cruz has consistently declined to prosecute her. Indeed, the Mayor of Santa Cruz recently honored Corral by proclamation in appreciation of her work growing marijuana and giving it away to indigent patients through her nonprofit Wo/Men’s Alliance for Medical Marijuana, or WAMM. In Santa Cruz Corral is the Florence Nightingale and Johnny Appleseed of medical marijuana rolled into one.
Corall has suffered from epilepsy since being injured in a freak automobile accident 24 years ago. Doctors put her on a regime of drugs that only partly quieted her grand mal seizures, and marooned her in a permanent narcotic stupor. When her husband, Michael, read an article about a study claiming marijuana smoke controlled seizures in laboratory animals, she gave it a try—and says her seizures stopped completely. Today marijuana is the only drug she uses, taking a puff or two whenever she senses the “aura” that many epileptics experience in the moments before a seizure; without fail, she told me, the mental storm is averted.
Corral was instrumental in persuading the drafters of Proposition 215 to include the provision allowing patients and their care givers to cultivate marijuana. “Unless people can grow their own medical marijuana it’s going to be too expensive,” she explained, as she showed me around her garden late one afternoon. On the terraced hillside surrounding her tiny house, she and Michael tend a menagerie of exotic fruits, vegetables and herbs: tea, figs, Thai basil, guava, passion fruit, ginger and, at one time or another, some 32 varieties of marijuana. Corral offers WAMM members free seedlings so they can grow their own.
The most important reason for growing one’s own marijuana, Corral says, is to stay out of the black market, “where you never know what you’re getting.” The quality of medical marijuana matters deeply to the Corrals. They scrupulously preserve the genetics of the various strains they’ve collected over the years and are working to hybridize new ones geared toward specific ailments.
There are many California growers who, along with smaller growers like Jake and the Corrals, would like nothing better than to see marijuana legalized, this despite the fact that prices would plummet and competition would increase. The cost of doing business would also decline: growers today are forced to maintain a number of small, inefficient gardens at widely dispersed locations in order to protect themselves against crop loss and mandatory minimum sentences, which kick in whenever more than 99 plants are seized. Peter Gorman, the veteran executive editor of High Times, the magazine of marijuana devotees, told me that “the good growers would take it”—legalization—”in a second. They’re confident of their skills and of their genetics—that they’ve got the best product. Sure, if pot were legalized it’d take a lot more work to make the same amount of money, but just think—you could grow it at home, and invite people over to see your garden.”
After Jake finished up his business at the Oakland co-op, he offered to give me a lift to my next appointment, which happened to be at the Oakland Police Department. I’d come to interview Lieut. Pete Peterson, who has the job of implementing Proposition 215 in that city, and when I asked him whether a hypothetical grower like Jake would be protected by from prosecution by his contract and red cross, he laughed. “A lot of growers are in for a big surprise this summer,” he said. “If we found anyone in Oakland with 80 plants, we would take them down.” He told me he had no idea where the Oakland co-op was getting its marijuana, but guessed “it’s being grown up in Mendocino, probably by a bunch of hippies my age.”
Peterson, who’s 49 and works in plaid shirt sleeves in a dismal, hot basement office, has been working closely with Jeff Jones over at the co-op to make sure medical marijuana doesn’t become a law-enforcement problem in Oakland. His first visit to the co-op had been memorable: “As soon as you get off the elevator that smell hits you, and all you can think about is, Where’s a door to kick in!” Like Scott Savage, his counterpart in San Jose, Peterson believes the clubs, even though they are not mentioned in Proposition 215, are probably the best way to manage medical marijuana in California. “From a law-enforcement perspective, it’s a lot easier to deal with a single club than with a lot people on the street claiming to be medical-marijuana patients.”
Peterson is a member of the California Narcotic Officers’ Association, which led a fierce campaign against Proposition 215 by statewide police organizations. But now that it is the law, the attitude of the state’s law-enforcement community has mellowed. “I think most law-enforcement people feel pretty comfortable with it now,” I was told by Thomas J. Gorman, the association’s spokesman on medical marijuana. “We don’t have to like it, but we’re going to try to make it work—it’s the law.”
I asked Peterson if the “legal anarchy” predicted by Attorney General Lungren had come to pass. He smiled. Now and then cops will encounter a suspect falsely claiming to be a patient, but by and large, medical marijuana appears well on its way to becoming routine in Oakland. When a police officer picks up someone with a small quantity of marijuana claiming to be a patient, he calls the 24-hour 800 number on the back of the suspect’s Oakland co-op I.D. card; if Jeff Jones can confirm he is a member, he is simply released at the scene. This seems to be common practice in Northern California; in the southern part of the state, however, the police will often proceed with the arrest, forcing a defendant to raise the medical-marijuana defense at trial.
That approach is consistent with the state Attorney General’s official guidelines. Confounding his own predictions, Dan Lungren appears to be making a good-faith effort to implement the new law with as little turmoil as possible; the day after the vote, he issued a set of police procedures governing medical marijuana that, while stringent, certainly gave the lie to the idea that 215 was unworkable. Lungren is thought to be running for Governor, and probably sees no point in bucking the voter’s will on medical marijuana; also, it would do his political future little good if legal anarchy actually were to break out on his watch. No doubt law-enforcement problems lie ahead (especially with regard to cultivation and transportation), and much about 215 remains to be adjudicated (regarding the legal status of the clubs, and the question of whether a medical-marijuana defense should be raised at arraignment or trial), but so far the most extraordinary thing about medical marijuana in California law enforcement is just how quickly it is becoming ordinary.
One evening near the end of my trip to California, the subject of medical marijuana came up at a dinner with relatives in Berkeley. I noticed that my 12-year-old nephew was listening intently as I talked about the place of marijuana in the lives of people like Keith Vines and Valerie Corral; he looked perplexed, and I was deciding whether to drop the subject when he broke in: “Wait a minute. Marijuana medicine? I thought marijuana ruins your life. So how can it be also medicine?”
My nephew’s questions are ones many Americans will soon be weighing.
In the years since the 1982 speech in which Ronald Reagan declared war on drugs, marijuana—the only drug he mentioned by name—has moved to the very center of that war. Law-enforcement officials like to talk about their splashy victories over heroin and cocaine, but in fact the everyday, slogging battles that make up the modern drug war revolve largely around marijuana. The greatest number of arrests are for marijuana crimes, and those account for a significant portion of the asset forfeitures that Police Department budgets have come to rely on. Marijuana is the primary focus of drug-prevention efforts in the schools and drug-testing in the workplace. Indeed, it may not be possible to have a drug war on the scale we now do without illicit marijuana. Remove the millions of marijuana users from the ranks of illicit drug users and we would be left with “a drug abuse epidemic” involving roughly two million regular heroin and cocaine users—a public health problem, to be sure, but hardly one big enough to justify spending $16 billion a year.
Perhaps this explains why not only the Clinton Administration but also players on both sides of the drug issue—from groups like the Community Anti-Drug Coalitions of America (CADCA) to Americans for Medical Rights and the National Organization for the Reform of Marijuana Laws (NORML)—have decided that the future of the national drug war may well hinge on the issue of medical marijuana. For the first time since the 1970′s, when NORML had the ear of President Carter and a handful of states were decriminalizing marijuana, an actual, two-sided political battle has broken out around the issue of drug policy in America.
The passage of 215 has galvanized supporters of the drug war, who have recently scored victories over medical marijuana in Arizona (where Proposition 200 was all but gutted by the Legislature) and in Ohio, where a medical-marijuana bill that was
passed without controversy in the last legislative session was suddenly repealed. Anti-drug groups also came close to overturning a medical-marijuana defense on the books in Virginia. Supporters of medical marijuana view these setbacks as temporary, part of the inevitable backlash to 215. They recognize that while politicians still reflexively recoil from the charge of being “soft on drugs,” the voters are a different story. Which is why medical-marijuana proponents are focusing their efforts on ballot initiatives, in Oregon, Washington State, Colorado, Nebraska, Ohio, Florida and Maine. Nationally, their strategy to is create a checkerboard of “medical-marijuana states” that will eventually bring pressure on Congress to change its laws. So far public opinion appears to be on their side: in May, an ABC News poll found 69 percent of Americans support the legalization of medical marijuana.
Even so, the new crop of initiatives—most of which are modeled on California’s—will face stiff opposition, from General McCaffrey (who is seeking to spend millions on a public-service advertising campaign on marijuana) and from politically powerful grass-roots groups—groups that, it should be noted, are now eligible for Federal funds under the Drug-Free Communities Act signed last month by President Clinton. More than 80 percent of Americans oppose legalization of marijuana, and it is legalization, not marijuana’s medical uses, that the Clinton Administration wants to have frame the issue.
All concerned understand they are fighting a shadow war; the “slippery slope” is a metaphor that shapes the thinking on both sides, for opponents and proponents alike are joined in the conviction that the country’s acceptance of medical marijuana as something ordinary would in time undermine the very foundations of the drug war. So General McCaffrey may be on to something about medical marijuana when he suggests that it sends the “wrong” message; indeed, it contradicts a quarter-century of official messages about drugs. Medical marijuana sends the message that there are different kinds of drugs and different reasons for taking them, that drug use and abuse are not necessarily the same thing and that the Federal Government may not have the last word on the subject. It resumes a conversation about drugs as a public health issue that the modern drug war, with its cry of “zero tolerance,” tried to silence—a conversation in which the words of doctors and scientists count for as much as those of politicians and moralists.
The passage of Proposition 215 marks the end of “Just say no”—and the beginning of Americans saying a great many other things about drugs. It is a conversation that the war on drugs may not survive.