Legal and a Crime Too

Ever since November, when California and Arizona voters overwhelmingly approved propositions allowing the medical use of marijuana, the Clinton administration has been scrambling for ways to reconcile state laws with federal law, which holds that marijuana is a highly unsafe drug lacking “any accepted medical use.”

On Monday, the administration finally announced its conclusion: Doctors who prescribe marijuana, said federal drug czar Barry McCaffrey, could be prosecuted under federal law or removed from the federal registry that allows them to write prescriptions.

The Justice Department believes that prosecutions would provide the most cost-effective means of curbing any drug abuse arising from the California and Arizona propositions. However, the strategy seems bound to lead to legally credible (and thus expensive) court challenges from any physicians brought to trial. Federal law permits the Justice Department to strip doctors of their prescription licenses if they act in a way “inconsistent with the public interest,” and government prosecutors are insisting that “it’s inconsistent with the public interest to prescribe or recommend marijuana.”

Voters seem to think otherwise. A solid majority in California and Arizona declared by their ballots that marijuana should be offered to patients at doctors’ discretion.

Physicians in California and Arizona may try to shield themselves from prosecution by pointing out that the federal policy announced on Monday seems to directly conflict with a directive issued earlier this month. That federal regulation said HMO doctors cannot be “gagged” to keep them from recommending to their patients any treatment they deem medically necessary.

When California’s anti-affirmative action initiative, Proposition 209, was approved in November, the Clinton administration joined a court challenge on the ground the measure clearly conflicted with provisions of the U.S. Constitution. But Proposition 215 is not so worded, and this appears to preclude such a challenge.

Perhaps a more sensible strategy is one we have suggested before: that the federal Drug Enforcement Administration conduct a public review of its prescription policies. Current law places marijuana in the category of most dangerous drugs. A review of those policies could make marijuana available by prescription in limited and controlled circumstances.