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But Proposition 200 appealed to compassionate voters, too, because it allows ill people to get marijuana and other illegal drugs, provided they have the consent of two physicians who must cite research showing the benefit of the drug. It also requires first- and second-time offenders convicted of personal drug possession (as opposed to possession for sale) to receive court-supervised treatment and probation as an alternative to jail time. The new law also would make eligible for parole roughly 900 prison inmates currently serving time for possession, subject to the approval of the state Board of Executive Clemency; and would create a nine-member commission tasked with educating parents about drugs.
Mike Walz, a Phoenix attorney who specializes in defending marijuana-possession cases, agrees that the new Arizona law is "more of a symbolic change than a practical one" because it stresses treatment over incarceration. Walz notes that under the old system, a person with no priors busted with a small amount of pot or other drugs likely saw the sentence reduced to a misdemeanor, with the offender paying fines and surcharges of $750 to $1,200.
Under the new law, that same person would be forced into a treatment program. "The result is not more lenient," he says. "It's actually more onerous, in a way."
Chief among Proposition 200's critics is Maricopa County Attorney Rick Romley. His was among the loudest voices to speak out against the measure, though somewhat belatedly. And now that it has passed, he appears intent on making up for lost time.
On December 2, Romley testifed about Proposition 200 before the U.S. Senate Judiciary Committee. The hearing--hastily convened to address the Arizona initiative as well as California's Proposition 215, which gives physicians power to prescribe pot--received wide coverage.
Calling Proposition 200 "a nightmarish initiative," Romley told the committee that it could eventually lead to legalization of all the drugs listed on Schedule 1 of the federal Controlled Substances Act, including LSD, methamphetamine and heroin. (Schedule 1 drugs are deemed to have high potential for abuse, lack accepted medical uses or are unsafe for use, even under medical supervision.)
"By publicly mischaracterizing their initiative as being tough on violent drug offenders, while at the same time being compassionate to those who are seriously ill, these proponents of Proposition 200 engaged in a deception which was successful beyond their wildest dreams," Romley said.
He went on to say that Proposition 200 will present Arizona lawmen with a "Hobson's choice" when they come upon people carrying illegal drugs and a doctor's prescription.
Republican Senator Jon Kyl testified that he was "extraordinarily embarrassed" that Arizonans had been fooled into approving such a dangerous initiative, which garnered 65 percent of the vote, almost 10 percent more than Kyl received in 1994.
And the committee's chairman, Utah Senator Orrin Hatch, said the law empowered "pothead doctors" and flew in the face of medical science, which has yet to formally recognize marijuana as beneficial.
Marvin Cohen, a Phoenix attorney who served as treasurer and legal counsel for Arizonans for Drug Reform, also addressed the committee. He says Proposition 200's intent has been distorted by the media and politicians.
"The real thrust of this is not to prescribe drugs to the terminally ill," he says. "That's a marginal part of it. What we are saying is that a drug addict has a medical problem--not a criminal problem. And what we would like to do is go after the drug problem the same way we've been going after tobacco--on the demand side. Are the tobacco companies happy with that? No. And would a drug dealer be happy with that? Definitely not.
"The perverse thing is that Orrin Hatch is doing exactly what serves the drug dealers best."
Cohen says Arizonans should be embarrassed by Kyl's remark.
"He's telling you that you're not smart enough to figure out what you're voting for--that you're not intelligent enough to read it for yourself and reach your own conclusion," Cohen says.
The text of the amendment was plainly laid out on the ballot and in voters' guides. The only possibility for ambiguity lies in the definition of what a Schedule 1 substance is. Which begs the question: Why did Proposition 200's supporters include all Schedule 1 drugs, and not just marijuana, in the initiative?
"The emphasis is really on marijuana, which is probably the only Schedule 1 drug that will ever be determined to have any medical benefit," explains Sam Vagenas, who chaired Arizonans for Drug Reform. "We just included the others in case this issue came up again in the future."
Though the Arizona and California initiatives have been lumped together by critics, Arizona's law is far more restrictive. True, the California initiative only dealt with pot. But Proposition 215, approved by 56 percent of California's voters, comes much closer to de facto decriminalization of marijuana than Arizona's because it allows people to possess marijuana for personal use on the oral advice of a single physician.
It appears that California lawmen have resigned themselves to living with medical marijuana. On December 3, California Attorney General Dan Lungren, a Republican and a foe of medical marijuana, met with 300 county prosecutors, sheriffs and police chiefs in an effort to map the uncharted terrain of Proposition 215.