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October 29, 2002 2:30 p .m. The Pot War Boiling Is marijuana-law reform far away?

s often as not, democracy sucks. But on the question of marijuana laws, the good sense of the people is doing yeoman work. Time magazine explores the marijuana question in a cover story which ends by saying that in America, "politics has leaped well ahead of the science, meaning voters will decide long before physicians whether medical marijuana is an oxymoron."

That of course — does marijuana help some people who are sick? — is a narrow part of the question. Forty-seven percent of the public have tried marijuana at least once (that figure was 31 percent 20 years ago), 80 percent think adults should be able to use marijuana legally for medical purposes, and 72 percent believe that people arrested for possessing small amounts of marijuana should be fined, not jailed.

Reflect on the interchange in the last two figures, and on another figure not given. If 80 percent of Americans believe that THC should be legal for sick people, and almost as many (72 percent) think it should be penalized for use by non-sick people only by fine, not prison, or electrocution, how many probably believe, or are about to believe, in legalization? If the public takes so solid a move in the easygoing direction away from prison sentences, is reform far away?

The major battleground next week is in Nevada, where people will vote on Question 9. If the vote is affirmative, in 2004 a constitutional ratifying amendment will be on the ballot which would legalize pot, which is to say, permit 3-ounce packets of it to be sold with impunity. How much is three ounces? On that point, as on so many others raised by Question 9, there is disagreement. The pro-pot people claim that the allowance is only enough to make up 80 joints. The antis insist it's enough to make 250 joints. That quarrel is in the nature of a liquor law that would permit 6 pints of booze per purchase or 18.

Although Nevada's Question 9 is most prominent, 8 states already allow the use of medical marijuana, 22 are oriented in that direction, and several have ballot initiatives which are relatively permissive. The movement presses against our northern frontier. Canada has relaxed its law on medical marijuana, as also Great Britain — and of course Amsterdam, which permits everything, including killing babies and old people.

There are two problems that don't disappear. The first is constitutional. In 1970, Congress passed the Controlled Substances Act, which forbids the possession or sale of marijuana. What then happened was referendums simply proceeding as though the federal act had never been passed. Such referendums authorized medical marijuana. Inevitably, the feds moved in, as in California, and got a ruling to the effect that the federal law outpoints the state law.

What came then was a kind of DMZ, the feds affirming the sovereign authority of their own law, California nodding its head and simply declining to arrest transgressors. An unspoken compromise was reached: The feds agreed to subsidize a scientific investigation into the palliative properties of marijuana, and while this goes on, the voters move at their own pace in the direction of de facto legalization.

The second problem is moral, the deep conviction by Christian men and women that to take marijuana is to commit sin. Many of those who take that position also vote for liquor prohibition, and give us here and there a dry county, or would vote for prohibition if it were once again offered as a constitutional amendment. What these people need to learn is that eschewing marijuana and forbidding it with the leverage of jail terms are two different things. The probability is that the fundamentalists will temporize in due course, as they run out of allies among the voters, who include the 47 percent who once tried it, mostly in their youth.

Taking pot can be risky, and stoned-while-driving should never be permitted. The scientific question — does pot harm? — is simply unsettled. It can be said that its ingestion has negative effects, and that there are positive effects. But experience is overwhelming the discussion, and it is teaching that however ill-advised it may be to take the drug, it is less well-advised to continue to arrest ten thousand people every week for a practice or indulgence of such exiguous social consequence.