Prescribing marijuana is under fire

Published Dec. 24, 1996|Updated Sept. 21, 2005

Struggling to limit the effect of recent ballot initiatives in California and Arizona that relax restrictions on the medical use of marijuana and other illegal drugs, federal officials say they plan to prosecute and strip prescription licenses from doctors who help supply such drugs even to seriously ill people.

The officials said that after an intense and sometimes unwieldy debate over the past six weeks about how the federal government should respond to the new state laws, the Justice Department has decided against filing suit to try to block either of the measures in court.

Instead, officials said, the Clinton administration will undertake a public-relations offensive to reiterate the health dangers of illegal drugs, will leave it to state and local police to arrest people for marijuana possession, and will focus federal law enforcement efforts on the doctors who help provide otherwise illegal drugs and on the dealers who distribute them.

"I think we are going to end up with a smaller group of these physicians than we ourselves once expected," the head of the Drug Enforcement Administration, Thomas Constantine, said in an interview. "And we are going to take very, very serious action against them."

The plan to move against the doctors _ both by revoking the DEA registration needed to prescribe controlled drugs and, in more serious cases, by prosecuting them _ is the centerpiece of a package of measures that were recommended to President Clinton on Friday by his drug policy chief, Gen. Barry McCaffrey, officials said. The plan was based on the recommendations of a half-dozen Cabinet departments.

A formal announcement of the administration's approach is not expected until early January. But while Clinton has yet to approve the package, several officials involved in its creation said some basic elements of the federal response to the state measures were almost certain to go ahead as proposed.

McCaffrey and other administration officials contend that the two initiatives represent a significant threat to the nation's drug-control strategy. They complain that at a time when drug use among teenagers is rising sharply, the state laws send a resonant message that marijuana is not only less than harmful, it may be medically valuable.

"I would have preferred to see a straight-up vote on legalization, because it would not have won in either state," McCaffrey said. "When it came up under the guise of the "compassionate use' of marijuana, we got the worst of both worlds."

The Arizona law, which opponents are vowing to amend or repeal in the Legislature next year, allows sick people to receive illegal drugs for pain relief or the treatment of certain illnesses if two licensed physicians concur on its use and offer scientific research to show that it is appropriate. The California measure, which is at once less precise and more difficult to overturn, decriminalizes the possession of marijuana by patients and caregivers if its use is "recommended" by a physician.

"It sounds like they are retreating," Sam Vagenas, coordinator of the campaign for the Arizona measure, said of the federal plan. "Barry McCaffrey has been saying that the Arizona initiative was in conflict with federal law. Now they're saying they're not going to file suit against it, and they're not going to go after people for possession. We consider that a major victory."

Law enforcement officials said the government also will not challenge other key parts of the Arizona initiative, Proposition 200, which, if fully implemented, would limit the prison sentences that can be applied to certain drug offenders.

Officials familiar with the memorandum sent to Clinton on Friday by the general's Office of National Drug Control Policy said it did call for the Department of Health and Human Services to wage a campaign to discredit the notion that smoking marijuana has medicinal benefits _ a campaign for which they said there is ample scientific evidence.

Also, the officials said, McCaffrey's office recommended that government agencies remind Americans that the medical use of marijuana and other drugs will not be accepted as an excuse in the application of drug-testing laws to airline pilots, truck drivers, members of the armed forces and others. Transportation Secretary Federico Pena issued the first such warning last week. But some law enforcement officials say that the planned message is unlikely to be forceful enough.

Officials acknowledge that the two initiatives, which the voters approved in November by comfortable margins, took the Clinton administration by surprise.

While wealthy supporters of the measures poured money into television advertisements that emphasized compassion in California and policy reform in Arizona, state and federal officials opposed to the propositions admit that they campaigned only intermittently and, for the most part, ineffectively.

"I'm not sure anyone really recognized how these laws developed and what their impact would be," Constantine said.

For weeks after the initiatives passed, the confusion continued, several officials said. While some in the administration vowed to impose federal drug laws whatever the states did, U.S. attorneys in California and Arizona cautioned that unless the prosecutions were chosen carefully, they could swamp courts and jails with minor possession cases and make martyrs of seriously ill people who would insist that marijuana helped to relieve their pain.

Federal agents and prosecutors in fact pursue only a small fraction of the country's drug cases. In most districts, officials said, U.S. attorneys bring federal charges only if a marijuana case involves the cultivation of at least 500 plants grown indoors, 1,000 plants grown outdoors, or the possession of more than 1,000 pounds.

Federal law enforcement officials said they will prosecute large-scale marijuana distributors, including buyers' clubs like the one in San Francisco that was raided by state agents last summer. They say they will also seek out doctors who become the source of drug recommendations for many patients, using surveillance and informants if they cannot identify suspects by word-of-mouth, news articles and the Internet.

Federal law enforcement officials said doctors could be prosecuted under laws against conspiring to distribute drugs, drug possession and improper record-keeping.

Administration officials acknowledged that their proposed strategy relies on state and local officials, some of whom support the new laws, continuing to arrest people for drug possession. Those arrested with small amounts of marijuana will be able to argue in court that they had a medical authorization for the drugs; they will then have to identify their doctor.

The Federal Controlled Substances Act allows the attorney general to deny, suspend or revoke a license to prescribe controlled substances from any physician who acts in a manner "inconsistent with the public interest." The sanction would not necessarily affect a doctor's license to practice medicine.

Although some doctors advocate the use of marijuana for patients suffering from nausea caused by chemotherapy, eye pressure related to glaucoma and the wasting that often afflicts people with AIDS, national medical and health associations generally reject its use.

Federal law requires that doctors prescribe a drug only if it has a proven medical purpose. In a 1992 brief, the drug agency ruled there was none for marijuana _ as opposed to its medically available derivative, THC.

The California attorney general, Daniel Lungren, a strong opponent of Proposition 215, welcomed the federal plan to focus on doctors and distributors. But he said he still harbored some doubts about whether it made sense for state and local officials to target drug users who seek the protections of the new law.

"The fact of the matter is that small-scale use of marijuana is a very difficult thing to ferret out and a very difficult thing to prosecute," Lungren said in an interview. "That's not going to change."