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D.C.’s drive for medicinal marijuana creates a rift between local activists and national anti-drug forces.
It was June 1998 when Wayne Turner stood outside the gates of the White House with the corpse of his lover, Steve Michael. Turner reached into the open casket to stroke the long mane of his partner’s hair and then shouted about the ways in which President Bill Clinton had betrayed him and other AIDS activists.
The event was ostensibly a memorial service for Michael, but it was also Turner’s most dramatic effort to draw attention to Initiative 59—a ballot measure that intended to legalize the medicinal use of marijuana in the District of Columbia.
That June day was one of the movement’s better moments. D.C. councilmembers and political rainmakers elbowed each other for room at the podium. Hundreds of activists from all over the northeastern United States marched down Pennsylvania Avenue. The media ate it up.
Michael had died the previous week from the “wasting syndrome” associated with AIDS. It’s a torturous way to die—a combination of nausea, diarrhea, and a complete lack of appetite that prompts a slow deterioration. Wasting syndrome is just the sort of illness that supporters of medical marijuana say that the drug alleviates. They assert that pot settles the stomach, helps people eat, and dulls pain.
The publicity obtained by the memorial service/protest for Michael helped get ACT UP advocate Turner’s sputtering, yearlong push to place Initiative 59 on D.C.’s 1998 ballot on track. It also represented the beginning of the high water mark for the District’s medical-marijuana movement. After three lawsuits, two 17,000-signature petition drives, and Michael’s death, Initiative 59 not only made it onto the 1998 ballot but also passed overwhelmingly, winning 69 percent of the overall vote and a majority in every voting precinct and all eight wards.
As 2002 dawns, those heady days of a drug-reform ballot victory in the nation’s capital seem long past. On Dec. 18, the U.S. District Court for D.C. accepted the latest filing from patients in the District who want permission to smoke pot. The lawsuit, filed by the Marijuana Policy Project’s (MPP) Rob Kampia, a District resident; Candida Fraze, who lives with multiple sclerosis; and local HIV specialist Larry Bruni seeks to lift the current congressional ban on the city’s ability to vote on medical marijuana.
Standing in the wind in front of the U.S. Courthouse that morning, Kampia portrayed the new lawsuit, which petitions for a new local medical-marijuana referendum, as the first play in a dramatic scenario to bypass Congress and get medical marijuana into the hands of those who want it. But even Kampia, whose defense of drug-law reform has become a familiar presence on the national scene, didn’t seem completely confident in the new tactic.
Any trepidation proponents may feel is rooted in a sustained series of defeats for the movement in D.C.—an overwhelming victory at the ballot turned into not only a defeat but also a symbol of District residents’ powerlessness in the face of the U.S. Congress.
But one thing the people of D.C. have learned in the four-plus-year battle over their right to let sick people choose pot as a palliative is they’re nowhere near the end of the game.
Even the irascible Turner concedes that point. “Unfortunately,” he sighs, “it’s a long-term fight.” But it’s a fight that Turner warns will be even further prolonged if Kampia’s legal strategy to force a new initiative goes forward.
If there’s a villain in the battle to allow medicinal marijuana’s use in the District, it’s Rep. Bob Barr (R-Ga.). Before the 1998 election victory, Barr led the fight in Congress to attach an amendment to that year’s D.C. budget, forbidding the use of District funds to “conduct any ballot initiative which seeks to legalize or otherwise reduce penalties” for the consumption, possession, or distribution of marijuana. The law didn’t pass in time to keep Initiative 59 off the ballot, but the city’s Board of Elections and Ethics ruled that the congressional rider did preclude certification of the ballot results.
Turner promptly sued, challenging the amendment as an attack on free speech. Turner argued that Congress could not forbid the reduction of penalties for violation of drug laws without also forbidding their increase. Though many constitutional scholars agreed with Turner that Barr’s legislative scribes had written a flawed amendment, political observers knew the seemingly indefatigable ACT UP agitator had nonetheless crapped out in the battle over Initiative 59.
The reasoning behind this conclusion was ruthlessly political. Even if the federal courts nixed Barr’s amendment, Initiative 59 would still need the highly unlikely approval of the U.S. Congress to become D.C. law. The possibility that Barr would simply rewrite his poorly worded amendment and place it before Congress again also loomed. Medical marijuana, it seemed, had gone the way of domestic partnerships and needle-exchange programs—progressive District laws placed on the books but left unimplemented because of the objections of social conservatives on the Hill. The city’s politicians and activists moved on to the next burning issue.
Everyone except Turner, that is. He seized on the medical-marijuana cause’s alignment with the home-rule movement (in which he had long been active) and hunkered down for an annual fight against all the congressional riders attached to the D.C.’s budget. Turner says that he’s waiting patiently for enough sentiment on the Hill to defeat Barr’s 1998 amendment, and he notes that it took nine years of lobbying before Congress finally allowed the city’s domestic-partnership law to go through, in November 2001.
Kampia, however, believes that a new legal challenge can speed the process up. Ruling on Turner’s original lawsuit in September 1999, after 319 days, U.S. District Judge Richard Roberts sidestepped the constitutional questions raised by Turner’s challenge. Roberts ruled that the Barr amendment forbade the use of funds to conduct the initiative in the first place but that the amendment had no bearing on the certification process. Thus, the votes could be officially counted and certified, but they didn’t mean anything. The amendment’s impact on free speech was rendered moot.
Judge Roberts’ lengthy deliberation gave Barr time to go back and fix his mistake—sort of. His amendment to the fiscal year 2000 D.C. budget bill kept the questionable 1998 language, but it also added another clause explicitly blocking Initiative 59 from becoming law. Barr’s amendment has been attached to each subsequent D.C. budget bill before Congress.
Some argue that Barr’s patch still leaves a glaring loophole in his amendment. Kampia’s logic behind filing the new lawsuit is that a federal court will overturn the first clause of Barr’s annual amendment and allow activists to place a new, but essentially identical, initiative on next November’s ballot.
Kampia believes that the measure will pass again—making D.C. the ninth U.S. state or territory to allow patients limited access to marijuana—and he further predicts that his efforts will spark a renewed Congressional debate and push the drug-law-reform movement’s overall agenda forward.
“This is part of our national strategy. Eight states currently allow the medical use of marijuana,” Kampia explains, “yet we can’t get Congress to take this issue seriously.”
In Turner’s view, Kampia’s folding of the District’s medical-marijuana efforts into a national strategy illustrates its inherent flaw.
Turner believes that the 107th Congress is much too hostile to welcome such a challenge, and he warns that the MPP and the national drug-law-reform organizations will just make things worse locally if they push too hard to advance a national debate.
“This will have the effect of Congress going back and improving the language,” Turner says. “We worked so hard on this. I don’t want to see it killed off by pushing it up to a very bad Congress and going down in a ball of flames.”
Turner argues that ignoring the local effects of such a strategy means that the MPP and other groups are using D.C.’s patients as pawns. Despite his own central role in the campaign to date, Turner observes, the MPP didn’t even tell him about the suit until five days before filing it.
“This is a tremendous waste of resources,” Turner says of the MPP suit. “We have a lot of really good groups working in a concerted effort on the issue of these riders being imposed by Congress. That’s where the fight is.” In July, in fact, Turner talked California-based Americans for Medical Rights, which has financed and organized most of the successful medical-marijuana initiatives around the country, out of attempting just what MPP has now begun.
For its part, the MPP says that it kept the issue quiet so as not to tip off the government. Kampia argues that the new legal challenge is merely the next step in the fight. “The Marijuana Policy Project and other so-called national groups have tried [lobbying Congress],” Kampia explains, “and we failed. So rather than beating our heads up against the wall, we figured we’d try other things, too.”
The tug of war between Turner and Kampia illustrates a fault line not only in the movement to bring medical marijuana to the masses but in the District’s home-rule battle, as well.
Just as the debate over the medical use of marijuana has been caught up on the front line of the national drug war, it has also been alternately embraced and ignored by home-rule activists. A Washington Post editorial penned at the time of the 1998 elections summed up the perspective of most observers, stating, “The immediate issue is not whether District residents favor or oppose Initiative 59 but rather their right now denied by Congress to express their views on the measure.”
Past the politics—local and national—are patients such as Fraze, who see the issue purely in terms of medical marijuana’s ability to relieve their suffering.
Fraze was diagnosed with relapsing/remitting MS in 1993. As she describes it, this illness could be dubbed “invisible MS,” because as her condition worsens with each relapse, Fraze shows few outward signs of deterioration. “People who don’t know me very well don’t see my very painful symptoms,” she explains. But as she slowly makes her way to the press conference announcing her participation in the MPP lawsuit, carefully measuring out each step in order to minimize the joint pain that accompanies her motions, Fraze’s MS seems visible enough.
Fraze’s anger overtakes her otherwise unassuming demeanor as she talks about the struggle with Congress over the issue. She shakes perceptibly, tossing out words including “archaic” and “lacking compassion.”
The scientific community is more or less evenly divided on marijuana’s medical value. There is general acceptance that the drug can help patients manage a number of debilitating symptoms. But disagreement enters on the question of how much harm medical marijuana causes in the meantime. Marijuana smoke causes all the same problems as cigarette smoke, and some experts say that it causes even more damage. There are also concerns, though less significant, about the long- and short-term psychological side effects of marijuana use. Thus far, the National Institutes of Health’s official position is that more research is needed, particularly on safer delivery mechanisms for the drug.
Fraze has smoked marijuana to deal with her pain in the past, but she found the risky process of acquiring it illegally was more than she could deal with. When the local medical-marijuana campaign first began, there was an established underground “buyers club,” where people like Fraze could get the drug easily.
The person who ran it, however, was felled by AIDS only a few months after Michael’s death. When Judge Roberts’ inconclusive decision on Initiative 59 made the long-term outcome of the struggle clear, another group of patients banded together to create a similar infrastructure. One person buys large quantities, about 2 to 4 pounds a week, and distributes it at cost to a network of patient-dealers. Those individuals, most of whom deliberately do not know one another, then also sell it at cost to their circle of friends. This way, patients can get an ounce that would cost around $400 on the street for between $75 and $125.
John (not his real name) is among the second tier of distributors. He says he sells to approximately 20 other patients, mostly people living with AIDS whom he has met in support groups over the years. John and his partner tested positive for HIV in 1988. At the time, he was a leader in his faith community, working on political causes through his denomination’s national office. When he tested positive, he began pushing other religious leaders to advocate on behalf of people with AIDS.
John’s first experience with medical marijuana came in the early ’90s, when his partner developed AIDS-related cancer and had to undergo chemotherapy. The associated nausea made eating nearly impossible. The partner ultimately died in 1993, but not from wasting. “He tried all the other medications,” John recalls, “and nothing else worked. With marijuana, he was at least able to maintain some weight.”
When it comes to cannabinoids, the active ingredients in marijuana, “all the other medications” amounts to a pill called Marinol, which is derived from cannabis. John and other patients say that the problem with Marinol is its inflexibility. A small dose leaves patients feeling the effects for hours, and for many of the people with AIDS who take Marinol to stimulate the appetite, its potency makes it difficult for them to endure the subsequent fasting required by their AIDS-drug regimens. Others complain that Marinol impairs their functioning at things, such as driving, that their pain prevented them from doing in the first place.
This was John’s experience when he developed wasting syndrome, in 1995. “The advantage of medical marijuana,” he argues, “is that you can control the dose. Often, with just half a cookie if you’re using baked goods, or, if you’re smoking, with a couple tokes on a bowl or a hit on a joint, you will be able to eat a meal. And then after you eat, you come down and you can function. On Marinol, you cannot function.”
John has continued to use marijuana to manage the nausea and lack of appetite that his present AIDS medications cause. The graying, clean-cut 49-year-old hardly fits the stealth-drug-warrior image.He’s even given up AIDS advocacy, preferring to focus on leading his support group and serving as a deacon in his church. Still, John considers his buyers club to be a form of civil disobedience.
“I had to do something,” he explains, showing an anger that echoes that of Fraze at her press conference. “Even though it’s illegal, I was tired of seeing the people I came into contact with risk their lives by purchasing it on the street, in the dead of the night risking arrest on the street, risking mugging on the street.”
Some in the medical-marijuana-advocacy community fear that obtaining the drug is about to get much more risky. With a few notable exceptions, patients using marijuana in D.C. simply weren’t pursued by law enforcement under the tenure of former U.S. Attorney for the District of Columbia Wilma Lewis. Asked about this enforcement policy, U.S. Attorney’s Office Chief of Staff Channing Phillips quickly notes that it wasn’t because Lewis didn’t prosecute those cases; there just weren’t any arrests. But Phillips concedes that the office wasn’t pushing local police to make such arrests.
Turner fears this posture will change under the leadership of President George W. Bush’s appointee to the post, Roscoe Howard.
Phillips tries to console. “There’s no reason to expect change,” he insists. But he also acknowledges that the office does “take instruction from the top.” At the top of the Bush law-enforcement chain are Drug Enforcement Agency head Asa Hutchinson and U.S. Attorney General John Ashcroft, both of whom have spoken out strongly against allowing the medical use of marijuana.
To Kampia, this means the medical-marijuana movement can’t afford to spend the nine years it took to get D.C.’s domestic-partnership law through Congress on this issue. But Congress aside, Kampia’s plan faces serious hurdles even if the ban is overturned. To qualify for the November ballot, his initiative would have to be turned into the Board of Elections with 17,000 signatures by mid-May. Even with a quick ruling from the court, that would not be an easy feat. Turner says that he had to collect nearly double the required number of signatures—more than 32,000—before he found 17,000 valid ones.
“This is an example of people coming to D.C. and using it as a national platform,” Turner charges, “which in and of itself is not a bad thing. But I just don’t think it’s in the long-term best interests of the patients of D.C.” CP