Marijuana Musings and Drug Law Diversions

Marijuana: Drug or Herb? (Part II)

2011-12-20T13:43:00.000-08:00

Marijuana: Drug or Herb? (Part II)

While I was writing “Marijuana: Drug or Herb?” (posted 12/11/11), a small idea started nibbling at the far corners of my mind. That nibbling has grown into a constant gnawing, so with a large measure of diffidence, I am sharing that idea with you. I warn you that this idea goes far beyond my areas of competence, but my hope is that someone with greater knowledge than mine (a very low standard) of the production, distribution, and prescription regulations of the Drug Abuse Control and Prevention Act, FDA practice, and regulation of dietary Supplements will either shoot it down completely or flesh it out into a viable theory.

Rescheduling marijuana out of the totally prohibited drugs of Schedule I has been a major effort of drug law reformers for more than forty years – longer than the professional lives of most of those concerned. In the last few years many of those reformers have become concerned about what will happen if marijuana is rescheduled. The consensus has been that, if it is to be legally distributed, marijuana will have to pursue a New Drug Application through the FDA – an arduous and costly procedure. But is that consensus necessarily correct? Answering this question requires looking at the total federal scheme for regulating drugs.

Speaking broadly (and ignoring literally dozens of amendments), federal drug regulation rests on four statutes: the Food, Drug and Cosmetics Act (FDCA), the Drug Abuse Control and Prevention Act, Part I (DACP), the Controlled Substances Act (CSA, which is Part II of the DACP), and the Dietary Supplement Health and Education Act (DSHE). These acts were passed over a sixty-year period and contain many overlaps while allowing gaps to remain in their coverage.

The FDCA controls the marketing of all drugs affecting interstate commerce. Any drug without an FDA approved label will be presumed misbranded, and therefore its sale would be deceptive and misleading. That label must include information about at least one medical use for which the drug has been proved, to the satisfaction of the FDA, to be both effective and safe. Because it is constitutionally barred from regulating the practice of medicine, the FDA cannot require doctors to use those drugs for their proven uses nor can it bar doctors from prescribing those drugs for other, non-labeled uses. This latter practice of off-label prescribing is wide-spread. Hair restoration was originally an off-label use of Rogaine.

Two exemptions to FDA jurisdiction are recognized. The Supreme Court has held that Congress intentionally exempted alcohol and tobacco (two truly dangerous drugs) from regulation by the FDA (and by implication, from the DEA). The DSHE conditionally exempts dietary supplements, including herbs, from FDA regulation. The FDA only retains what may be called “watching jurisdiction”. If sufficient evidence exists that the supplement is misbranded or marketed in a deceptive or misleading fashion (normally by making health claims), the FDA may remove the product from the market until the distributor has obtained an NDA.

The DEA has the authority under the CSA to find that a drug has a potential for abuse. If it so finds, the DEA may bar its manufacture, distribution, or possession (by placing the drug in Schedule I) or regulate the method by which it is distributed (by placing it in Schedules II – V).

Once a drug is in Schedules II –V, the DACP controls the way in which the DEA (originally the BNDD) regulates the manufacture, inventory, and distribution of that drug. If the FDA has ruled the drug to be available only on prescription, the DEA also regulates the manner in which that prescription is processed and filled. Neither the FDA nor the DEA may require or forbid a doctor to employ a drug other than those in Schedule I; and only the FDA – not the DEA – may determine that a prescription is required for the dispensing of a drug. But the DSHE exempts dietary supplements, including herbs, from pre-sale FDA jurisdiction. The FDA can intervene in the distribution of supplements only if the distributor has violated the statutory restrictions imposed by that act.

What if marijuana were rescheduled – either by agency action or by court order (see “The Cornerstone of American Drug Policy”, posted 12/1/11)? The most logical placement of marijuana would be in Sched. V, but placement in Sched. II, in the uncomfortable company of morphine, fentanyl, methadone, cocaine, amphetamine, methamphetamine, and Ritalin, is more likely.

As a scheduled controlled substance, marijuana producers and distributors would be subject to more (if Sched. II) or less (if Sched. V) stringent requirements for security, storage, inventory, transportation, and reporting. But purchasers and end-users would only have to deal with state requirements. In the sixteen jurisdictions with medical marijuana laws, those meeting the medical needs requirements could purchase freely without the necessity of a prescription. No prescription could be required (unless imposed by state law) because the DEA is without power to require prescriptions (it can only regulate the methods by which prescriptions are handled) and the FDA would have to recognize that, marijuana being an herb, it could only act after distributors violated the limits imposed by the DSHE. No NDA or proof of efficacy and safety could be required.

So far, all that has been demonstrated is that I still possess the Law Professor’s uncanny ability to construct complex and implausible hypothetical cases with which to confuse – and possibly enlighten – the class. Now it’s your turn. Can the real lawyers out there either point out the fatal flaws in the hypothetical or build it into a useable theory? Let’s see what you can do!

Marijuana: Drug or Herb?

2011-12-11T14:14:00.001-08:00

Marijuana: Drug or Herb?

The main focus of the drug law reform movement for over forty years has been to force the DEA to move marijuana from Schedule I, making unlawful any production, distribution, or possession, to one of the less stringent schedules (II-V), in which it could be made available for medical use. However, many have lately realized that merely rescheduling marijuana would not make it available to patients in need; its sale or distribution would still be totally blocked by lack of FDA approval for movement in commerce as a drug.

Students of classical logic or rhetoric will recognize this situation as placing marijuana on the horns of a dilemma. One of those horns impales marijuana on DEA prohibition, while the other gores it with the lack of FDA approval. In either case, the medical use of marijuana is impossible.

But that same student knows that the resolution of a dilemma is to go between the horns – to find a third solution, avoiding the bad outcomes threatened by the two choices presented. Congress has already set up a third solution that would allow marijuana to avoid both DEA prohibition and FDA regulation. Congress should recognize that, according to its own regulatory scheme, marijuana is not a drug: it is an herb.

Federal law provides three systems for regulating physiologically active substances. The most comprehensive is the regulation of the marketing of drugs in or affecting interstate commerce by the FDA. The sale of any drug not bearing an approved FDA label is deceptive and misleading, and therefore forbidden.

Those drugs with some potential for abuse (not defined in the statute) are regulated by the CSA. Those with no medical use (Schedule I drugs) may not be lawfully produced, sold, or possessed. Drugs in the less restricted schedules (II-V) have some demonstrated medical use and may be sold, but only under the regulation of both DEA and FDA. The many drugs legally sold under dual regulation by DEA and FDA include morphine, OxyCotin, cocaine, methamphetamine, and Ritalin.

However, not all products meeting the definition of drugs under the CSA and FDCA (briefly, a substance ingested for the purpose of affecting bodily or mental function) are subject to these two agencies. In 1996 congress enacted the Dietary Supplement Health and Education Act. That act allowed the marketing of dietary supplements, herbal preparations, and vitamins without FDA prior approval so long as no health claims were made on the packaging or in the advertising of the product. The preparations covered by this act include St. John’s wort and kavakava, both taken for their supposed psychoactive effects. These effects should otherwise bring them under the CSA and DEA control.

(Congress has apparently created a fourth category of drug regulation as well. In ruling against the FDA’s proposed attempt to regulate cigarette marketing, the Supreme Court held that the failure of congress to expressly include tobacco and alcohol in either the FDCA or the CSA established a clear congressional intent not to regulate these drugs. This fourth category containing of drugs that are not regulated consists of two of the most dangerous and addicting substances people have ever ingested.)

The question then becomes whether marijuana is a drug, a controlled substance, or a dietary supplement. Of those three categories, marijuana (and possibly psilocybin mushrooms and mescaline cacti) seems to best fit as a dietary supplement. Supplements are statutorily defined as:

`(gg) The term `dietary supplement' means a food for special dietary use, as defined in section 411(c)(3), that--

`(1) includes--

`(A) a vitamin;

`(B) a mineral;

`(C) an herb;

`(D) an amino acid;

`(E) another ingredient for use by man to supplement the diet by increasing the total dietary intake; or

`(F) a concentrate or extract of any ingredient described in clause (A), (B), (C), (D), or (E); and

`(2)(A) is intended for ingestion in a form described in section 411(c)(1)(B)(i); or

`(B) complies with section 411(c)(1)(B)(ii).'.21 U.S.C. 411.

These naturally occurring substances are significantly different from the single-molecule drugs normally covered by the stricter FDCA and CSA. Congress, in the Dietary Supplement Health and Education Act has already provided a model of this kind of restructuring:

(b) EXCLUSION FROM DEFINITION OF DRUG- Section 201(g)(1) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)) is amended by adding at the end the following new sentence: `The term `drug' does not include a dietary supplement or an ingredient described in clause (A), (B), (C), (D), (E), or (F) of paragraph (gg)(1) in, or intended for use in, a dietary supplement.'.

That section could be amended to read: “…Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(g)) and Drug Abuse Control and Prevention Act of 1970[1] are amended by adding at the end the following new sentence: `The term `drug' does not include a dietary supplement, including any plant or parts of plants of the genus Cannabis,…”

This reform might be more feasible than either decriminalization or legalization. A member of congress would be merely streamlining regulation to make it more reasonable. He would not have to face voters in defending his “soft on crime” vote to legalize dope and free hordes of fiends on the highways and around the school yards.

Marijuana is only an herb like St. John’s wort and kava, not a drug like heroin or methamphetamine. It is time to treat it like one. Please pass the cannabis brownies.

[1] Which included the Controlled Substances Act as Part II

The Cornerstone of American Drug Policy

2011-12-01T09:47:00.000-08:00

The Cornerstone of American Drug Policy

The cornerstone of American drug policy is the Controlled Substances Act of 1970, and the cornerstone of that act is the scheduling scheme. That act divides controlled substances into five categories, or schedules. Drugs in Schedule I, which include marijuana, heroin, LSD, peyote, and MDMA among others, may not be manufactured, distributed, or possessed by anyone. The definition of Schedule I drugs is therefore the cornerstone of the scheduling process.

To be classified in Schedule I, a drug must have a high potential for abuse, have no currently accepted medical use in treatment in the United States, and cannot be used safely under medical supervision. None of these three primitives are defined in the act and have not been clarified by the courts. But the problematic element is the second. What is “currently accepted medical use in treatment in the United States”?

Two meanings of this phrase are possible. The first is to treat the language as requiring the DEA to look into the actual medical efficacy of the drug as shown by medical science. This meaning has been followed by the Drug Enforcement Agency in proceedings to reschedule marijuana and MDMA since 1972. The courts have never examined this definition, all but one of the appeals on marijuana having been decided on procedural grounds. Even in original NORML case, the court never reached the substantive issues.

The second possible meaning is that the issue is strictly one of demographics. Under this theory, the DEA has no competency to examine the scientific and medical questions, but must limit itself to determining what, in fact, doctors do in the course of treating patients. In other words, the question becomes one of whether a substantial number of doctors treat marijuana or MDMA is a therapeutic agent when dealing with their patients and whether other doctors approve or disapprove of that use.

An examination of the development of the regulation of both legal and illegal drugs indicates that the second reading, limiting the DEA to the question of what doctors do in practice, is more consistent with current constitutional law. That story began soon after the enactment of the Harrison Narcotic Tax Act in 1914.

That act criminalized a doctor’s dispensing or prescribing an opiate to a patient outside of the normal course of medical practice. The government began prosecuting doctors who furnished morphine or heroin for the purpose of maintaining their habits (much like methadone is used today), claiming that maintaining addicts in a stable, functioning life was not part of the normal practice of medicine.

The Supreme Court considered that question three times before deciding that Congress had no constitutional authority to say what was “the practice of medicine”. In Linder (1925) the Court held that medical practice was not part of interstate commerce and, consequentially, the power to regulate medicine, including determination of what is or is not medicine, is reserved solely to the states.

While the Supreme Court has discussed medical marijuana in over twenty opinions, it has not directly dealt with this problem of interpretation of the CSA. However, in Conant v. Walters (2002), the Ninth Circuit applied this reasoning in holding that the federal government, acting under the CSA, could not prevent a state-licensed doctor from recommending the use of marijuana to a patient. So far the DEA has not presented the issue to another circuit.

Congress was faced with this exclusion of the federal government from the regulation of medicine when it created the Food and Drug Administration through the Food, Drug, and Cosmetics Act in the1930s. The purpose of the act was to insure food and drug safety, but since Congress could not regulate drugs directly, indirect action was called for.

Consequently, the FDA was not given power to approve drugs, but instead, it was empowered to prevent drugs from being sold in a deceptive or misleading manner. A drug sale would be misleading and deceptive unless that drug bore a label approved by the FDA. That label would be approved only if it were substantiated by valid scientific tests that the drug was safe for the intended use.

That method of regulating drugs by controlling their marketing was continued as the FDCA was amended, first in the1950s to separate prescription and over-the-counter drugs and then in the 1960s to require scientific proof of efficacy for at least one medical use before a label could be approved. The Supreme Court has approved this distinction in cases involving the rights of doctors to prescribe drugs for “off label” uses, treatment of conditions not included on the label, although manufacturers have been punished for publicizing or advertising those uses. Doctors distributing drugs which they themselves had produced and furnished to their own patients as part of a broader therapy and not using the instrumentalities of interstate commerce have also been held to be outside the jurisdiction of the FDA. The most recent case, Gonzales v. Oregon (2005), prevented the DEA from taking action against doctors acting under Oregon’s assisted suicide law.

A determination of "efficacy" seems very close to determining medical utility - since efficacy seems to imply "effective in treating a disease" "relieving symptoms" "boosting health functions" etc. What is the difference?

This constitutional derivation strongly favors the interpretation that the DEA is limited to asking only what doctors are, in fact, doing and is barred from inquiring into the medical or scientific value of the drug. The statutory language itself reinforces this interpretation. The statute specifies “currently accepted medical use”; Congress could have easily used “medically effective” or “substantial medical value” if the intent had been to empower the DEA to conduct independent scientific investigations. Congress did, in fact, empower the FAA, FCC, and NTSB with those kinds of direct powers in regulating airplanes, broadcast stations, and trucks and buses: all direct instrumentalities of interstate commerce.

The DEA’s own Administrative Law Judge applied a “medical use” standard in the first two contested scheduling proceedings under the CSA: the first marijuana petition and the proceeding for the emergency scheduling of MDMA. The politically appointed Administrator reversed his recommendations in both cases. In the MDMA proceeding, the Administrator rejected the ALJ’s findings, equating “medical use” with “approved by the FDA”. The Court of Appeals (Grinspoon, First Circuit,1987) rejected this interpretation and remanded the case for further consideration.

If the courts were to require the DEA to use a medical use standard instead of a medical value standard, rescheduling of marijuana and MDMA would necessarily follow, allowing them to be sold through normal medical channels; and the rescheduling of psilocybin, LSD, mescaline, and possibly heroin and ibogaine would be likely. These drugs, while having no, or little, current medical use, could be covered by a “but for…” argument. Each of them had thriving medical use and widespread favorable medical reporting before they were classified as Schedule I drugs. But for that classification, their medical use would probably be common today. Heroin, for instance, is routinely used in many countries with developed, sophisticated medical systems. This information would be probative in a rescheduling action. If coupled with expert opinions about the scope of its use by American physicians and pharmacologists, it should be persuasive.

Since the passage of the CSA medical use of marijuana has blossomed even while forbidden. Thousands of refereed medical papers have been published, its effectiveness. Sixteen jurisdictions have enacted medical marijuana laws, and well over a million patients now regularly use medical marijuana under those laws. The undercover illegal use by patients in other states could easily double that total.

Marijuana has now met the statutory requirements that necessitate its removal from the absolute prohibition of Schedule I. It has been shown to be qualified as a drug available for a doctor’s prescription just like OxyCotin, cocaine, and methamphetamine. All that is necessary is for the DEA to apply the law as written.

Gun Prohibition Won't Work either

2010-09-18T13:48:00.000-07:00

Gun Prohibition Won’t Work Either

Violence in the Mexican drug war is soaring to unprecedented highs. Latest estimates claim that at least half of the guns used in that conflict were purchased in Texas and smuggled into Mexico, which has outlawed personal ownership of firearms. The United States government has announced that it will step up its efforts to interdict those weapons at the border and prevent their movement into Mexico.

However, this gun prohibition will not work. It suffers from the same flaws that prevented prohibitions against alcohol, drugs, gambling, prostitution, or even against counterfeit Gucci bags or pirated movies from working. The harder interdiction is imposed, the higher the price for the contraband soars, and the more ruthless the dealers attracted to the trade become. The result is not suppression of the prohibited trade; it just becomes more expensive, corrupt, and violent.

The only effective means to suppress or moderate a functioning market are those that operate on the demand side of that market. The market for tobacco provides a good example. The number of tobacco users has decreased by about 60 per cent (from over half of the adult population to about twenty per cent) through the use of three techniques: research into the psychology and physiology of tobacco use, education of users and potential users, and limitations on advertising.

While those tools against tobacco use have taken about fifty years to work, in Mexico, the United States has a much stronger tool than any of these to use against the demand for guns. The United States government has total control over the more than $30 Billion that, each year, is spent by American users and fuels the Mexican drug wars. That sum is a conservative estimate of the amount that the U.S. drug laws pump into the Mexican economy annually: an amount that is one of the top four sources of foreign money in the Mexican economy.

This money generated by the American drug laws has two effects on the demand for guns in Mexico. The most important is that control of that money is what the cartels are fighting over and what allows them to fend off the Mexican government. The second is that the money is necessary for the purchase of the guns themselves.

While Mexican society has always had a machismo strain of violence dating back to at least the time of the Spanish conquest, the current cartel wars have multiplied that violence into a different phenomenon. The best comparison, although on a smaller scale, is the way civil unrest exploded in Colombia with the growth of the cocaine market in the 1980s. Mexico’s violence is similar to – but much larger than – the gang violence that erupted in Chicago when millions of illegal alcohol dollars flooded the city. Greedy, ruthless men fought and killed to get their share of the loot. Without the money, violence in Mexico would quickly fade to the much lower historical levels, just as it did in Chicago with the repeal of prohibition.

If large amounts of money were removed from the equation, the demand for guns would decrease for a second reason: guns cost money. And the military-grade arms now in demand cost a lot of money. A single rifle like a Kalashnikov can cost up to a thousand dollars. Machine guns and rocket launchers go for much more. Without the illegal drug money, the cartels would be limited to guns more typical of a street criminal than the Pentagon quality arms they now use.

However, this proposal rests on two other questions: can the United States afford to purge its laws of drug prohibition and how much would those changes affect the Mexican cartels?

The U. S. not only can, but should, change its drug laws from ones based on prohibition to a new approach based on regulating and lowering demand. Almost no one doubts that the current prohibition approach – now ninety-five years old – has been an abject failure. More people are addicted to opiates today than were addicted in 1914; and marijuana, used by fewer than 100,000 people in 1937 when it was outlawed, has been used by over 40% of today’s adults. The latest FBI data shows over 1.6 million drug arrests in 2009, but anyone in America can easily buy any drug in any community in the country. The War on Drugs has cost over $1 trillion, and the only results are increased drug use, the highest imprisonment rate in the world, and high levels of violence and corruption. When one finds himself in the bottom of a deep hole, he should stop digging and look for a way out.

Would changing American drug laws put the Mexican cartels out of business? Replacing prohibition with regulation would hurt the cartels in two ways.

First, illegal drug prices are at least ten times as high as the equivalent legal prices would be. The risk premiums associated with prohibition are the lure that attracts violent gangsters to the business in the first place. Legal heroin was sold for the same price as aspirin. Legal cocaine was cheap enough to be used as an ingredient in Coca-Cola and tooth powder. Marijuana is no harder to grow and process than broccoli. If ninety per cent or more of the money were withheld from the cartels, they would probably get out of the business. But even if they continued as dealers, they could not afford to buy black market military-grade arms.

More important, the very market supporting the cartels would probably disappear. Local American farmers can out produce and undersell Mexican competition. This displacement is already happening in California. Walgreens could buy legal cocaine directly from Colombia, bypassing the Mexican middlemen entirely – or they could grow and process it themselves in Hawai’i. Pharmacists already sell methamphetamine under the trade name Desoxyn. Mexican sources are just not needed.

The way to stop the arms traffic into Mexico is not to erect another form of prohibition scheme guaranteed to fail like all prohibitions must fail. The wise approach, instead, is to replace the current destructive prohibitions that fuel that traffic with a system of demand-oriented regulation controlling the demand side of the market.

A Bottomless Pit of Death

2010-08-13T20:45:00.000-07:00

A Bottomless Pit of Death

“Bottomless Pit of Death” headlined a recent Houston Chronicle article about finding many bodies in an abandoned Mexican silver mine”. That headline could serve as a perfect title for the American War on Drugs, or for that matter, any form of prohibition.

The Volstead Act, instituting national alcohol prohibition, went into effect in January, 1920. Less than a week later, unidentified gunmen fired multiple shots at one of the new bootleggers on a crowded street. All of the shots missed him, and luckily missed all of the by-standers as well. Two days later gunmen killed him on another crowded street, and one of the most violent decades in American history began.

Chicago was the Juarez of its day. Mobsters introduced the Thompson submachine gun – a weapon not then used by either the army or the police. Speeding black automobiles with a Tommy chattering from the window as they drove down the street were a weekly occurrence. Bomb blasts and grenades were even more common. Mass killings with six or eight victims were frequent; and many victims were either by-standers or misidentified innocents.

Virtually all of this violence disappeared overnight in 1933 when Prohibition was repealed. Al Capone and Bugs Moran were replaced by Budweiser and Millers beers, and they have not used guns or bombs in any of their marketing disputes in the intervening seventy-five years.

But the street-corner heroin markets of the inner cities showed the same violence on a smaller scale. It returned in a big way with the flood of Colombian cocaine through Miami and later in the crack gangs of the mid-eighties.

What about these markets is so conducive to violence? First, the amounts of money involved are almost beyond imagination. The daily profit from Chicago’s alcohol was probably close to a million dollars a day, not corrected for later inflation. Current estimates have the Mexican drug traffickers grossing over $30 Billion a year.

And a very large part of that money is profit. Heroin, when legal, sold for the same price as aspirin. Now it sells for $100,000 a kilogram on the street. Marijuana is a simple annual herb that should cost no more than parsley or broccoli, yet it sells for more than $200 an ounce. If these drugs were legalized and sold through normal, regulated markets, at least ninety per cent of the traffickers’ money would disappear, and with it would go the reason for the violence and the money to buy the weapons and hire the assassins.

The other problem that illegal traffickers face is that they have no police or courts to protect them. The Chicago bootleggers discovered they did not have to brew their own beer: they could simply hijack the other bootleggers’ trucks, which in turn had to be armed to fight off the hijackers. The seller of a bad batch of hooch or a purchaser who didn’t pay could not be sued, only shot. Marketing wars were not fought with advertising campaigns and discount coupons, but with machine guns and bombs. The same processes are seen in Mexico today.

Illegal, but popular, markets with lots of money lead to crooked cops. One of the latest stories from Juarez is about actual fighting between police units on different sides of the struggle to market drugs. With both sellers and buyers willing participants, traditional police measures are ineffective against black market transactions, and police are led to cooperate with criminals to develop informants and stings. The large amounts of money – and the normally low wages for police – make it a question of whether the police are buying informants or the marketeers are buying protection.

The police also become more violent, substituting direct physical punishment for that which they know the courts will not provide. In one of the most notorious examples, two of the killers in Chicago’s Valentine’s Day Massacre were wearing police uniforms. This crime, in which eight members of the Bugs Moran gang were machine-gunned, was never solved: no killers were identified and no one was ever arrested. Even today when the crime is discussed, experts are divided about whether police were actually among the killers. They all do agree that, in Chicago at that time, a policeman-murderer would not have been unusual. The common saying, with slight, understandable exaggeration, was that Capone had the entire Chicago police force on his payroll.

Conviction of police for crimes of violence have continued non-stop throughout the era of drug prohibition. In 1999, the keynote speaker at the National Association of Police Chiefs said that corruption was the major problem then facing police administration. Convictions in Texas have included police officers caught providing armed escorts to large drug shipments.

Police are also recipients of prohibition violence. In Houston, a major drug transshipment point, a shoot-out involving an undercover operation gone wrong is an almost weekly occurrence. Usually the smugglers are shot, but in a large number of these cases, either the police or bystanders are injured.

One of the major reasons for repealing drug prohibition is to eliminate this resulting violence. Now is the time to replace these modern-day Capones with a pharmaceutical version of Budweiser and Coors. Dispute settlement by gun should be replaced by resolution by the judge’s gavel.

A Bus Named FURTHUR

2010-07-16T20:44:00.000-07:00

I sometimes cannot prevent myself from committing poetry. This time I'm going to inflict it on you:

A Bus Named FURTHUR

In memory of Aldous Huxley, the trailblazer and guide who has led the way, opening the

Doors of Perception for many to take the trip to

Furthur.

1939 International Harvester

1960s sound and film

Day-Glo paints,

Mandalas smeared and loppy.

Destination sign reads “Furthur”.

Are you on the bus –

-- or off the bus?

Neal Cassady’s driving:

Dean Moriarity On The Road again.

Foot down hard, going fast;

Hands in air – he steers by mental force.

Non-stop monolog – Beat rap now decades long enchanting all around but the traffic cop who gets confused and slinks away silently

– not on the bus.

Merry Pranksters careering thru deserts and down to Houston;

Stop at McMurtry’s door:

Larry dazed and enraged

At Blanket Girl naked on his lawn.

You’re either on the bus –

-- or off the bus.

On to Gotham: McMurphy’s on the stage

And foiling Ratched – who missed the bus long ago.

Sometimes a Great Notion: on to Millbrook

And enlightened Guru Tim.

But Tibet chants and Book of Dead are just a killing bore.

Tim’s dropped out --

– and off the bus.

Back on the bus – and furthur west:

The Fillmore waits; Garcia has the band.

Light show flicker/flows and Owsley spikes the brew:

Orange Sunshine for the trip.

If you pass the Acid Test, no need to use the bus.

Your mind’s enough:

The trip is always FURTHUR.

Legalizing Marijuana -- But How?

2010-06-18T17:47:00.000-07:00

Legalizing Marijuana – But How?

Many now advocate legalizing marijuana – several surveys indicate that a majority of the population does. The idea is so vaguely worded that it presents two questions: what does legalization mean and how can it be done? The first can be clarified rather easily, but the second presents a tangle of complication.

Those advocating marijuana reform fall into three camps: decriminalization, medical use, and legalization. Decriminalization means removal of criminal penalties from possession for personal use while maintaining criminal laws against growth, distribution and sale. About twelve states have taken this approach (with most retaining small civil fines for possession), as have The Netherlands, Portugal, Germany, Mexico, and Brazil. Other European nations have simply quit enforcing laws against possession. Fourteen states and the District of Columbia allow possession for medical use by those with a doctor’s recommendation, several of these also establishing approved production and distribution systems. The federal government has announced that it will respect these programs. Canada and most of Western Europe also allow medical marijuana. In most respects, recognition of medical use is a form of decriminalization.

The most comprehensive reform being advocated is legalization, or removal of all criminal penalties for growing, processing, distributing, or possession. This would be accompanied by laws regulating places and methods of sale, age of users, and liability rules for misuse or abuse. Taxation would probably follow. Legalization would result in a system much like that used for alcohol today.

Current nation-wide polls show that over sixty per cent, and possibly eighty per cent, of adults favor recognition of medical marijuana, while about forty-five per cent favor legalization. These surveys usually do not distinguish between legalization and decriminalization. Some kind of national reform looks likely, but the methods are problematic.

The major problem comes from the federal structure of the American government. Both the national government and the state governments (all fifty of them!) have independent jurisdictions to make and enforce laws against marijuana. If the federal law is reformed, a person would still be restrained by the law of whichever state she was in; and if a state reformed its law, its residents would still be in jeopardy from federal enforcement. The current efforts of states to allow medical use of marijuana illustrate this problem. Even though today’s national administration has pledged to respect the state laws, the effect of the federal laws on banking, marketing of medicines, education, employment, and other areas of life prevent full implementation of those laws. Federal and state laws must both be changed if reform is to be effective.

Under these circumstances, three approaches are possible. Reform in the states may be pursued first before challenging the federal law; federal law can be confronted first, followed by the states; or the two can be assailed simultaneously.

Groups are currently active on both the state and federal level, but with little coordination between them. The major defect in this approach is that it dilutes resources, scattering people and money among dozens of groups with minimal cooperation between them. The major advantage is that these many groups can create widespread public attention and enthusiasm.

Federal reform could be pursued first, allowing the states to follow at their own rates. This approach was the one followed in the repeal of alcohol prohibition, with some states still retaining prohibitory laws some eighty-five years later. The result is a confusing patchwork of laws across the country, but it does allow localities to control their own destinies.

The third approach is to concentrate on the states first. Pending referenda in California and Washington are examples of this approach. If enough states reform their laws, the federal government will be forced to follow. Federal law, even during alcohol prohibition, was forced to rely on state and local agencies for enforcement. A national police force large enough to enforce drug laws would be prohibitively expensive and most people would refuse to allow that level of federal policing in everyday life.

Even if marijuana were legalized, federal law would need changing to allow medical use. Ending prohibition under the Controlled Substances Act would still have medicinal marketing banned by the Federal Drug Administration. The FDA’s administrative approval for marketing as a drug is practically prohibitive. Normally, approval of a new drug costs several hundred million dollars and takes many years. However, the safety requirements for approval of marijuana can be met from current information, and at least one new study showing the effectiveness of marijuana for pain relief claims to satisfy FDA requirements for a Phase III study (a number of Phase III clinical studies are required for approval), possibly making approval more likely. If marijuana is approved for even one use, the doctrine of off-label prescription means that physicians can prescribe it for any therapeutic purpose and pharmacists may fill those prescriptions.

The question remains about whether to attack DEA scheduling of marijuana as having no medical use, which would allow sales subject to FDA regulation, or to first seek FDA approval, which would force DEA rescheduling. Currently both are being pursued in parallel.

However, a third approach is possible. In the 1990s Congress established a separate method for regulating herbal remedies and dietary supplements. This system allows products to be sold without prior approval but subject to FDA after-market supervision for both safety and misleading claims. Marijuana clearly fits into the definition of many products now subject to that law and is safer than many of them that are also psychoactive like St. John’s Wort and Kava. Congress could easily move marijuana from the CSA to coverage under this system without facing the stigma of legalizing drugs.

Some kind of reform of marijuana laws is probable. However, the route to that reform is more complex than most people assume. More thinking about the best path to reform is necessary.

Screening Children

2010-06-11T12:18:00.000-07:00

Screening Children

The American Academy of Pediatricians (AAP) has recommended that doctors screen all of their young patients for alcohol use starting in middle school, the Wausau Daily Herald reported May 15. The AAP Committee on Substance Abuse released a revised policy statement on youth alcohol use on May 1. "A remarkable amount of brain development is still occurring for young people through their 20s," said report lead author Patricia Kokotailo of the University of Wisconsin School of Medicine and Public Health. "This policy statement provides better evidence about how alcohol affects the brains of young people and why it is important to screen children."

Those worried about problems of drug abuse and dependency should approve of this policy. So should those who know that the most effective public health programs focus on prevention and detection, not simply on developing after-the-fact cures.

Alcohol is, without a doubt, the most dangerous drug in society. Long-term alcohol-related diseases cause over 100,000 deaths a year in addition to several thousand acute intoxication deaths, most of these in young people. Over 15,000 die each year in car wrecks involving drivers who have been drinking. Alcohol is the only drug the consumption of which has been causally connected to violent crimes. Domestic violence is the most prominent of these, but homicides and aggravated assaults are also common. Alcohol abuse is also responsible for a significant part of lost productivity (including absenteeism) and workplace injuries.

What should screening accomplish? About two-thirds of the population consumes some alcohol and around ten to fifteen per cent of those develop a dependency on it. Those with alcohol dependencies display most of the abusive behavior, causing the problems described.

Early alcohol use is one of the factors with the highest correlation with later dependencies and abusive behavior. Screening will provide opportunities for intervention and possibly prevent later abuse and dependency. It will also allow long-term longitudinal studies of alcohol use for the first time, creating the data to determine the ways in which alcohol use develops in the individual.

One side effect of this screening may prove almost as worthwhile as the direct benefits. It should also provide a means for studying, predicting, and intervening in the abusive and dependent use of other drugs.

Early use of alcohol has been shown to be antecedent to excessive use of other drugs. Virtually all of those who use other drugs in a destructive fashion first began using alcohol by the age of ten or twelve. Although marijuana is often accused of being a gateway drug – a claim thoroughly rebutted in the 1995 Institute of Medicine report on medical marijuana -- the correlation of early use of alcohol with later abuse of other drugs is much higher than is that of any other activity, significantly higher than that of marijuana use for instance. Identifying, and intervening with, those children using alcohol by their middle-school years should greatly decrease the number of those abusing other drugs as these children mature.

While the number of users of other drugs is miniscule compared to alcohol, it is high enough to raise legitimate social concerns. Excluding tobacco and marijuana, less than ten per cent of the population uses drugs other than alcohol. Of those users, like alcohol users, only around ten per cent develop dependencies or use abusively.

Tobacco use has decreased from a majority of the adult population in the 1950s to around twenty per cent today. However, a much higher percentage – possibly as high as twenty per cent – of the tobacco users become dependent, and diseases causally related to tobacco result in over 400,000 deaths annually.

Many more people use marijuana than use any other illegal drug. Among the young, rates of marijuana use may approach those of tobacco. However, marijuana users develop dependencies at a much lower rate than the rates for other drugs, and those dependencies are much weaker and easily broken. The best estimate is that only about three per cent of marijuana users ever show any signs of dependent or habitual use. Marijuana use has few, if any, health consequences for the user and marijuana has not been shown to have a causal relation to any consequential social harm.

Surprisingly little is known about drug dependency from a medical standpoint. So far debate still rages about whether it is a disease, a disorder, or merely a cluster of symptoms that may evidence other underlying diseases or disorders. Only a few rules of thumb have been agreed on. As already mentioned, early alcohol use is an almost universal precursor. Most of those dependent on drugs, including alcohol, experienced physical or sexual abuse as children. A large majority come from broken or dysfunctional families. Some genetic component or components are probably involved. Attempts at rehabilitation (except in the case of marijuana) are unsuccessful, with the best ones failing at a rate of over eighty percent, a rate that has not changed measurably since first determined among heroin addicts at the Federal Narcotics Farms in the 1930s.

Wide-spread screening of middle school children for alcohol use becomes important for several reasons. It identifies those likely to develop problems with all drugs (including alcohol) before dependencies and patterns of abusive use develop. It provides opportunities to intervene and prevent those dependencies from developing in the first place and to develop effective means for that intervention. But the most important benefit is that it will provide the data from large numbers of longitudinal studies that will eventually provide the scientific and medical knowledge necessary to prevent dependency and abuse problems in the first place.

The Way it Is Sold

2010-06-04T11:46:00.000-07:00

The Way it Is Sold

On May 4, Washington, D.C., Assistant Police Chief Peter Newsham was quoted

in the Washington Post as saying, “People don’t feel marijuana is dangerous,

but it is because of the way it is sold.”

A doctor prescribes Desoxyn for a ten-year old patient diagnosed with ADHD. The prescription is filled routinely at a large chain drugstore like Walgreens or CVS at the chain’s standard price of $4.00 for a month’s supply of a generic drug. No one worries about the strength or purity of the drug because it was manufactured and distributed by a factory certified as following Best Manufacturing Processes and inspected by the FDA. Some of the pills will be turned over to the school nurse who will see that the child takes them when scheduled during school hours.

On the same day in the same city, a teenager tried to buy some crystal meth from a street dealer. When a police officer approached, the seller drew a gun and tried to run. The shoot-out ended with both the dealer and his young customer dead. When the police lab analyzed the drugs, they were found to be contaminated with several toxic substances. A search of the dealer’s motel room found a portable meth lab and some of the dangerous substances used in its manufacture.

The first of these stories is the outline of events occurring in the United States each week. The second is a composite of factors common in episodes also occurring daily in this country. The factor they have in common is that they both feature the same drug: methamphetamine.

Methamphetamine was invented almost a century ago, and from about 1940 until the mid 1960s was one of the leading prescription drugs. The amphetamine-like stimulants (amphetamine, methamphetamine, and Ritalin) as a group were the drugs most often prescribed during this period. They are grouped together not only because they are chemically similar, but because users cannot normally tell them apart. Today these drugs are primarily prescribed for attention spectrum disorders, extreme obesity, and some sleep disorders. Some doctors also prescribe them for the off-label use of increased mental functioning, or “brain-boosting”. Professor Rasmussen estimates that, counting these three drugs together and combining legal and illegal users, the percentage of the population using them today is roughly the same as in their heyday of the 1960s.

Meth for illegal use comes from three sources. A large amount, although only a small part of the total, is diverted from legal sources. Some of that comes from pharmacies, either through fake prescriptions or through burglaries. Holders of legitimate prescriptions provide a larger share by giving or selling some of their drugs to friends or through children rifling their families’ medicine cabinets.

By far the largest part of illegal meth is smuggled into the country. Most of that comes from small, unregulated factories in Mexico, but a portion comes from South and Southeast Asia. Mexican meth is a smaller trade than is the marijuana, cocaine, and heroin from that country, but it still contributes to the overheated competition between the drug cartels now causing so much damage in that country.

A very small part of the illegal meth in this country is produced in small “cookers” for local use. Many of these are set up in temporary locations like motel rooms and produce less than a pound of the drug. However, these cause damage greatly disproportionate to the amount of meth they produce. The people operating them are usually untrained in chemistry, trying to follow unreliable recipes they have gotten from the Internet or from other cookers. Their attempts often catch fire or explode, and the dangerous chemicals used and produced are thrown away so that intense local environmental damage results. Cleaning up these small disasters is tedious and expensive and exposes the responders doing the cleaning to great personal danger. If all of these small meth cookers were to disappear, the drug supply would not be appreciably diminished except in a few small isolated localities, but the dangers and harms to the surrounding communities would disappear with them.

Nothing about this portrait of a drug market should surprise anyone. It could also apply in detail to the market for alcohol during Prohibition.

Just as with Desoxyn, a legal market for potable alcohol existed. Doctors (including dentists and veterinarians) could prescribe up to a pint a week, and many drugstores became nothing but outlets for medicinal brand name whiskeys. Walgreens went from 20 stores to 525 during the decade. A family could have up to ten gallons a year of sacramental wines, and priests and rabbis were vested with authority to procure and distribute it. Since no official registry for rabbis existed, Jewish congregations sprang up in surprising neighborhoods with unexpected ethnicities. Farmers (meaning any householder) could “preserve” up to 100 gallons of their fruit crop by fermenting it. The market for grapes exploded, with California vineyards making more money shipping grapes than they had ever made selling wine.

Most of the market for alcohol was met by imports, although the primary source was Europe, not Mexico. While some of this liquor was the reliable brands people had long purchased, most of it was counterfeit: flavored grain alcohol with fake labels pasted on. One German company even marketed Black and White Horse Scotch.

And local cookers poisoned and polluted their neighborhoods as well. The South had a long tradition – dating back to the eighteenth century – of making moonshine. Their bootleggers stepped up production to meet the demand with sub-standard product, burning down the forests for fuel for their stills and dumping their wastes in the streams.

In the cities small distilleries presented the same kinds of problems that meth cookers create in rural areas eighty years later. Bootlegging gangs would pay tenement dwellers to operate small stills in their apartments. The five to fifteen dollars a week those stills brought in was a major incentive to these amateur operators, but these operations caused real problems to the neighbors in these crowded dwellings. The constant odors and heat and the continuing foot traffic were bad enough, but the frequent fires and explosions in the firetrap buildings became a serious public safety concern.

The sad fact is that the same stories can also be found two hundred years earlier when the British Gin Acts of the 1730s tried to impose prohibition on London. Einstein defined insanity as repeating the same experiment but expecting different results. Our current attempts to prohibit sales of drugs can only be seen as insane.

Federalism and Fiscal Policy

2010-05-31T09:58:00.000-07:00

Federalism and Fiscal Policy

One objection to modifying state marijuana laws is that the state cannot act contrary to federal law. While that proposition may be correct as a general rule, the principles of federalism, or the allocation of power between the federal government and the states, are more nuanced than that broad statement would indicate. One part of the problem is what effect the enactment of a federal criminal statute has on a state’s ability to legislate on the same subject.

On the most fundamental level, the Supremacy clause of the Constitution requires that when congress enacts a criminal statute, all people in the country must obey it, including state officials and agents. A governor cannot have his own private stash of cocaine and a professor in a state university may not experiment on marijuana without a federal license to do so.

One major consequence of this principle is that state law may not overrule federal law and make it inapplicable within the state. Therefore, a state law legalizing marijuana would not nullify the application of the Federal Controlled Substances Act within the state. A state resident, even if in conformity with a valid state statute could still be convicted in federal court for possession or delivery of marijuana.

State laws may not hamper the execution of any federal project. When I was young, I was amused to find out the truck I drove for the Post Office had no state license plate and I could not be required to have a state driver’s license to operate it. (We were required to obey most local traffic laws because the Post Office ordered us to, but the local police could not give us tickets.) Likewise, local law cannot require federal law enforcement officers to get warrants from state courts before conducting searches or making arrests and the state cannot require federal officers to wear uniforms.

The states ordinarily are not obligated to enforce federal laws. Local police do not pursue counterfeiters nor screen people on the streets for illegal aliens. Likewise, federal officers are not in the business of catching murderers or pursuing speeders.

In some areas, state and federal responsibility may overlap. Robbing a bank is a state crime, and robbing a bank with a federal charter is a federal crime. Kidnapping is local, but if it crosses a state line it becomes a federal crime as well. In these cases, both sets of police agencies are active and usually cooperate with each other.

A major part of this separation of policing is fiscal. If the federal government were able to co-opt local police agencies, then the national government would, in effect, be determining how state and local governments allocate their tax dollars. This control would have the potential to allow the federal government to control all aspects of local government.

(When the federal government does need local assistance, they reverse this equation. It uses federal dollars to make grants to states and cities that fulfill the conditions imposed on those grants. This approach has mandated things like uniform national speed limits and drinking ages.)

While a state may follow the federal government by criminalizing the same conduct, making it a state offense as well as a federal one, the states do not have to do so. The Texas Court of Criminal Appeals once ruled that it was unconstitutional under the state constitution for the legislature to delegate its authority by enacting a statute that would automatically make illegal possession of any drug declared illegal by the federal government. The state was required to exercise its own judgment on the issue.

The most famous example of a state’s refusal to copy the federal law occurred in 1923 when New York rescinded its own alcohol prohibition law and directed its law enforcement personnel not to enforce federal prohibition. The result was widespread drinking and a flourishing entertainment industry in spite of the actions of the federal revenue agents.

Many states are considering a similar action today. They are examining legalization of marijuana under state laws. While this legalization would not nullify federal law, it would remove state law enforcement and courts from acting against marijuana users or suppliers, saving those states very large sums and allowing the closure of some prisons. Those states would only be following the trail blazed by New York over eighty years ago.

If populous states like California, Texas, or New York were to change their laws in this way, national marijuana prohibition would probably end as well. The federal government has never been able to enforce its prohibition laws –alcohol or drugs – but has relied on the states for enforcement efforts. The DEA and FBI together do not have as many officers as some of the large municipal police forces. Any large city processes more criminal cases each year than do the federal courts, and the federal prison system holds fewer inmates than do several of the large states. The federal government would have to increase the size of the Department of Justice to a size comparable to the Department of Defense, and with a similar budget, to maintain the current level of drug law enforcement. A major question would be whether the citizens would accept a federal police force as large as their local police in their cities. That presence would be a revolutionary change in American politics.

If the states want to change their drug laws to be less comprehensive than the federal law, they have the right and ability to do so. The ultimate effect of those changes could be far-reaching and beyond what most of us can predict.

APA: Drug Test Results Often Flawed

2010-05-24T11:43:00.000-07:00

This is the first time I have posted an article from somewhere else, but this one is so important that it needs the widest exposure possible (i.e., show it to your school board, your boss, and your congresscritters)

APA: Drug Test Results Often Flawed

By Kristina Fiore, Staff Writer, MedPage Today

Published: May 23, 2010

http://www.medpagetoday.com/MeetingCoverage/APA/20253

Reviewed by Robert Jasmer, MD; Associate Clinical Professor of Medicine,

University of California, San Francisco and Dorothy Caputo, MA, RN, BC-ADM,

CDE, Nurse Planner

NEW ORLEANS -- That poppy seeds can lead to false-positive results on tests

for opioid abuse is not just an urban legend, researchers said here.

Amounts as small as a teaspoon -- at least the amount on a poppy seed bagel

-- can trigger a positive finding, and can last for two to three days after

consumption, according to Dwight Smith, MD, of Boston Medical Center, and

colleagues.

The example is one of many suggesting that drug-abuse tests often give

inaccurate results, according Smith's presentation here at the American

Psychiatric Association's annual meeting.

Another example is that most standard drug tests don't screen for the opioid

drug oxycodone, as well as a handful of other opioids including methadone

and fentanyl, Smith noted. Physicians must specifically order these assays.

"There are gaps in our understanding of the science behind drug tests, and

how that leads to our interpretation of testing results," Smith said. That's

one of the reasons he and colleagues conducted a review of the literature on

drug tests, their scientific background, and potential clinical concerns.

The latter are particularly important because drug screens are so common,

Smith said. Last year, about 150 million drug tests were conducted in the

United States.

"We drug test everyone in the states nowadays -- our students, our

athletes," he said. "It's a condition for employment in many federal and

private agencies."

Still, many physicians may not be aware that ordering a general "drug test"

won't cover all their bases, or that half of patients who are abusing

substances will be missed.

One study in the review found 88% of physicians were unaware of the need to

request the specific oxycodone assay, and half did not know about the

false-positives associated with poppy seeds.

Opioid tests screen for morphine and codeine, which are two of the most

common metabolites of many -- but not all -- opioids. They're not

metabolites of oxycodone, methadone, fentanyl, tramadol (Ultram), and

buprenorphine (Subutex, Suboxone), Smith said.

"You need to order the specific assays in order to accurately interpret

those," he added.

Similarly, only certain metabolites of benzodiazepines are detected on most

assays. That means diazepam, nordiazepam, and oxazepam (Serax) will be

detected, but alprazolam (Xanax), lorazepam (Ativan), and clonazepam

(Klonopin) aren't frequently screened.

Part of the problem is that there are no federal guidelines for minimum

negative threshold levels for a positive test, Smith said. Plus, each

laboratory has its own guidelines and procedures for dealing with test

sensitivity and specificity.

In their review, the researchers found that drug tests generally have a

sensitivity of 90% to 95%, and a specificity of 85% to 90%. These numbers

are a "pretty good basis" for making clinical decisions, Smith said, but

that means "one in 20 [tested patients] are going to have inaccurate

results, and those are more likely to be false positive than false

negative."

By comparison, confirmatory tests such as gas-chromatography

mass-spectrometry have a sensitivity of 99% and a similar specificity, but

they are more expensive.

Physicians "trust in science, and we believe [sensitivity and specificity]

are going to be higher than that when they're not," he said. "We really need

to get tests confirmed."

Many substances aside from poppy seeds cause these false-positives. Cold

medications can give a positive read on amphetamines, as can bupropion

(Wellbutrin) and tricyclic antidepressants.

Sertraline (Zoloft) and oxaprozin (Daypro) can alert physicians to a

benzodiazepine problem when there is none.

The HIV medication efavirenz (Sustiva) can come up as a positive for

marijuana use, and dextromethorphan, rifampin, and quinolones could show as

an opioid problem.

"If a patient does test positive, you need to take a careful medical

history," Smith said.

Smith also did some myth-busting, finding that there's no possibility of a

false positive resulting from passive inhalation of marijuana or cocaine --

unless they are exposed to an excessively concentrated amount of smoke.

"If a patient comes in and blames it on any of these scenarios, you can say,

'Unless you were in the van with Cheech and Chong, that's not what

happened,'" Smith said.

As far as false-negatives go, Smith said physicians should be wary of the

methods for diluting samples used in drug tests -- an issue he calls "the

elephant in the room."

On average, such strategies appear to work 50% of the time. These include

bleaching urine or adding the household cleaner Drano or the eye lubricant

Visine to it.

Others have gone to great lengths to design battery-powered devices that

keep urine warm, and offer a prosthetic device "in three or four skin tones"

for the most cunning of drug test cheaters, Smith said.

A fail-safe would be to screen the urine for its standard specific gravity

of <1.003, or standard creatinine under 20 mg/dL.

Yet no studies have been done to show exactly how prevalent drug test

cheating is, Smith said, adding that the area urgently needs research.

His advice to physicians who want to know the quality and the specifics of

the drug test reports they receive: "Become friends with the toxicologist in

charge of the lab. It's particularly helpful if the results of the test are

unexpected."

The review was based on studies found via a PubMed search between Jan. 1,

1980 and Sept. 1, 2009.

Ronald Bugaoan, MD, medical director of High Point Treatment Center in

Brockton, Mass., who assisted in the study, said urine tests do indeed have

the longest window of detection for most substances.

However, gas-chromatography mass-spectrometry is the "gold standard" for

drug testing, and added that patients enrolled in the Massachusetts health

plan can get tests using it for only $12 apiece.

The researchers reported no conflicts of interest.

--

Primary source: American Psychiatric Association

Source reference:

Smith D, et al "An update on testing for drugs of abuse: Scientific

background and practical clinical concerns" APA 2010; Abstract NR7-05.

http://www.medpagetoday.com/MeetingCoverage/APA/20253

Alcohol and Marijuana

2010-05-17T12:22:00.000-07:00

Alcohol and Marijuana

When Prohibitionists argue that we don’t need another legal intoxicant or when legalizers claim that pot is not as bad as alcohol they are both building on the public’s idea that all intoxicants are alike. The fact is that alcohol and marijuana have nothing in common except for their both being used in social situations.

Marijuana is not alcohol. This statement looks obvious, but both sides of the marijuana legalization debate regularly conflate the two. The result is debates that are heated and emotional but that do little to clarify the social issues at stake.

One of the more common arguments advanced by the anti-marijuana advocates is based on the problems with alcohol. They point out deaths among alcohol users – both acute poisoning and long-term illnesses caused by alcohol – and deaths caused by alcohol users in car wrecks and domestic violence. From there, they may go on to workplace problems: absenteeism, decreased productivity, and increased injuries and deaths. They then make the (unwarranted) assertion that marijuana is an intoxicant like alcohol. The next step is to combine the two to support the assertion that legalizing marijuana would create a second legal intoxicant – another alcohol as it were – and greatly increase the incidence of the social evils enumerated.

Both of these arguments share two faults. The most fundamental one is that alcohol and marijuana have almost nothing in common except for their use in social situations. The other is that they prey on the public’s ignorance of any altered conscience than that caused by alcohol.

The second problem is what makes the first one so vicious. Most people today have seen or dealt with someone who has had too much to drink. The local news highlights a drunk driver almost every night. If anyone has not had to deal with an alcoholic in the family, they will probably have coped with one at work. On the other hand, few have had encounters (at least that they knew about) with someone impaired with any other drug. The exception might be those who have experienced a slight high from nitrous oxide (laughing gas) at the dentist’s office or seen someone groggy after a night on sleeping pills. When the majority tries to imagine the effects of any drug used socially, the only experience they can call on is the one that they have derived from drinkers. The result is that when most people hear “legal marijuana” they see hordes of drunken – or at least tipsy – pot-winos staggering around. And this vision points out the major problem with these arguments.

The first difference between them is that alcohol is a deadly poison and marijuana is virtually harmless. Drinking leads to over 100,000 deaths a year from consequences of alcohol-related diseases and several thousand deaths from acute intoxication. Marijuana has never been identified as the cause of a single death resulting from consumption. Long-term studies, some covering over forty years, involving thousands of patients, show no measurable health differences between marijuana users – even heavy daily users – and those who do not consume it.

The second major difference is in their relations to violence. Alcohol-related car wrecks kill over fifteen thousand people a year in the United States. Studies by four national governments, including the National Transportation Safety Board of the U’s., show that drivers who have consumed marijuana are a safe as unimpaired drivers. While marijuana does impair scores on laboratory reaction tests, since it does not impair judgment, drivers are conscious of that impairment and adjust for their slower reactions.

Alcohol is the only drug the consumption of which has been linked to violent crime. While many criminals are high on stimulants when arrested, the drug use itself was not a direct cause of their criminal behavior. Those crimes committed for the purpose of obtaining drugs result from the economics of the drug laws, not from the action of the drugs themselves. Alcohol is a factor in a significant number of domestic violence cases, and entertainment venues serving alcoholic beverages are centers of many assaults, fights, and shootings. Marijuana, if it has any effect at all in these situations, tends to reduce aggression.

Alcohol has marked effects as a cause of workplace injury and decreased productivity from both absences and from lowered efficiency. None of these factors have been associated with marijuana.

Alcohol is also highly addicting. Around ten per cent of all drinkers become addicts, for whom withdrawal can even lead to death. Marijuana is not addictive, although a few users, around three per cent, develop habitual use that may require some slight help in stopping.

All of these differences stem from the differences in the way the two drugs effect the brain.

Alcohol is a sedative that decreases the functioning of all parts of the brain. It first lessens the activities of the pre-frontal and frontal cortexes, which are responsible for judgment and higher mental functions. One consequence is that one who has had a few drinks will think that he is a skilled race driver, not one too impaired to drive. Alcohol then hampers the motor centers of the brain, leading to slurred speech and uncoordinated movement. Ultimately, it will suppress consciousness and even respiration, leading to death.

Marijuana, on the other hand, affects only specialized cannabinoid receptors in the nervous system. This results in its effectiveness in treating pain, spasms, and nausea. Its other major effect is as a mood elevator, making the user more relaxed and more cheerful.

Both those wanting to legalize marijuana and those opposed to the idea can find some data to support their positions. But if they truly want to convince people that they are correct, their arguments should be based on fact and evidence. The most basic fact they must both deal with is that alcohol and marijuana are different and have almost nothing in common.

Medical Marijuana Needs Legal Marijuana

2010-04-30T12:29:00.000-07:00

Medical Marijuana Needs Legal Marijuana

Fourteen states have changed their laws to allow residents to use marijuana medically and at least five or six other legislatures are examining the issue. The federal government has announced that it will not enforce the federal drug laws against those acting in compliance with the state statutes.

As these laws have come into effect their shortcomings have been revealed. For medical marijuana users to obtain full relief, total legalization of marijuana, at both state and federal levels, is needed.

Medical marijuana’s shortcomings stem from two sources. First, these laws are structured as exemptions from the criminal law. Second, marijuana remains outside of the normal systems of oversight and regulation.

The laws against marijuana encompass much more than mere possession. Excusing medical users from the criminal sanctions still leaves them subject to many restrictions. Three examples illustrate this issue.

Medical marijuana users are subject to dismissal from jobs even if they do not use it while working or under conditions in which it could affect their job performance. For instance, all employers with federal contracts are required to test their employees for illegal drugs, including marijuana, and either fire those who fail those tests or force them into rehabilitation programs. Likewise, no exceptions are made for probationers or parolees so that testing positive for marijuana, even with a state medical marijuana card, will result in a revocation and a trip to prison.

Most colleges and universities have federal contracts or receive federal grants that require them to remove anyone possessing marijuana from student housing. Inability to live in dormitories places some students using medical marijuana at a disadvantage compared to those who may be using amphetamines for Attention Spectrum disorders or strong opioids for pain. While the student using medical marijuana may be barred, one receiving methadone maintenance for a heroin addiction is allowed in the dorm.

Local governments in California and Colorado have used the general illegality of marijuana as an excuse for using zoning or land use ordinances to deny permits or business licenses to marijuana distributors otherwise in conformity with state law. Local police have also used that excuse to conduct excessive surveillance of dispensaries or for stopping and searching medical users.

* * *

Medical marijuana users’ major problems arise because the plant, as illegal contraband, is excluded from normal oversight and regulation. Marijuana’s illegality shields it from most of the controls that govern the marketing of legal products.

First, those purchasing marijuana must deal with professional criminals somewhere in the distribution chain. The obvious dangers are that dealing with outlaws exposes the customer to violence and to enviromental harms from unregulated production methods. The other problems are less obvious.

Price is probably the greatest problem. Generally, contraband items sell for about one hundred times what the same product would bring legally. Good quality marijuana now sells for around $400 an ounce, while the legal price for it would be a few dollars at most. Even the quasi-legalization of medical marijuana in California has lowered prices by over twenty percent.

The purchaser of contraband never knows what he is buying. Legal consumables like food and medicines are required to have labels listing all of the contents. These goods are also tested to insure that they do not contain contaminants, including pesticides, bacteria, and fungi. While some dispensaries are labeling wares with THC content and varietal names, this practice is not uniform and is not regulated or supervised.

In licit markets consumers rely on brand names as assurance of effectiveness and quality. Manufacturers devote major efforts to building and maintaining brands and trademarks. In illicit markets manufacturers are fly-by-night and consumers have nothing to rely on. Even if they are able to build a trusting relationship with their immediate supplier, neither they nor that supplier can trust the source of his goods. The old maxim of caveat emptor applies with a vengeance, but the buyer has no reliable way to exercise that wariness.

The major defect of an illegal market for medical marijuana is its divorce from science. When the AMA’s representative testified to Congress in opposition to the 1937 Marihuana Tax Act, his major objection was that the law would hamper, if not totally preclude, further medical research on cannabis. The areas he suggested were those in which use of marijuana has become prominent: pain relief, control of spasms, and nausea control.

The seventy years since the passage of that act has been the golden age of pharmacology. The first two modern drugs, sulfas and amphetamines, had just appeared on the market and the first antibiotic was still a few years in the future. Medical drugs for management of psychological disorders were still fifteen years in the future. Several hundred research papers on marijuana have now been published and its basic medical value is no longer in question. One can only wonder what the situation would be if the pharmaceutical companies and medical schools had been able to attack the issue as aggressively as they did other drugs and botanicals in the 1950s.

State medical marijuana programs are a step forward, but they are only partial solutions. Legality at the federal level is the only way in which those relying on marijuana’s benefits can receive the best medical care and be assured that they will be protected in their homes, work, and lives.

Why Drug Testing?

2010-04-23T17:03:00.000-07:00

Why Drug Testing?

In large segments of American business one must pass a drug test before being employed and may be subject to random drug testing during the entire term of employment. Hundreds of local school districts require high school students to subject themselves to random drug tests. Thousands are serving multi-year prison sentences only because they flunked one drug test while on probation or parole. The only people exempt from these tests are elected officials, candidates for office, and police. What’s going on here?

Drug testing was instituted under the Reagan administration as part of the enhanced War on Drugs. Just like Nixon, Reagan had trouble being Tough on Crime because most street crimes are the states’ responsibility. Drug-dealing is almost the only common offense toward which the federal government can take action. His political problems were two-fold: first to build public concern about the drug “problem” and second to show the public that he was doing something about it.

Nancy’s “Just say ‘No’” program took care of the first part, especially with its stress on drug use by children. The army had found an answer to the second one.

In the early 1970s the army was shocked to find that many (some sources say as many as 25 per cent) of the troops in Viet Nam were using marijuana or heroin. The Defense Department instituted drug testing and required a clean test before anyone would be allowed to return to the States. To the surprise of almost everyone, virtually all of the personnel returning to America remained heroin free. The military then began requiring routine testing for all personnel.

Reagan used this model as a way to publically demonstrate his desire to eliminate drugs. He required testing on all employees in safety-related positions over which he had authority, both federal employees like air-traffic controllers and postal truck drivers and those in private industry over whom the government had regulatory authority. This group included airline pilots, railroad engineers, and interstate truckers and bus drivers.

However, the federal jurisdiction did not extend to most employees in the country, who were outside the reach of the interstate commerce powers. Congress stepped in and required insurance companies, which were subject to their regulation, to give discounts on workers’ compensation premiums to employers who tested their job applicants and employees. These discounts were substantial enough for employers to save money by testing.

The Department of Education got into the act by making grants to local school districts to pay for student drug testing. The Supreme Court held that this testing was constitutional if the school board found an existing significant problem of drug abuse and the testing was limited to students voluntarily participating in extracurricular activities like sports teams.

Further expansion of drug testing ran into legal problems. Most cities were precluded from testing members of police forces and fire departments by collective bargaining agreements. Public service unions have refused to renegotiate those provisions.

Louisiana tried to impose drug testing on candidates for public office. When one candidate challenged that law, the Supreme Court held that no relationship existed between the testing and qualification for office and held those tests to be an unconstitutional invasion of privacy.

Except for politicians, police officers, and firefighters, drug tests have become almost universal. What good have they done?

The answer is somewhere between minimal and none.

School drug testing has been examined thoroughly. Across the nation only about 1% of the tests are positive for drugs. Proponents argue that the low rate of positive results shows that the tests are convincing (or frightening) students not to do drugs. However, repeated surveys comparing testing school with non-testing schools show no measurable difference in drug use.

Employment testing is even more marginal. Only about 0.5% are positive. No adequate studies show the extent, if any, to which drug users are deterred from applying for jobs. The problem is that failing a drug test for anything other than marijuana is easy to avoid. Twenty-four hour abstinence before the test is usually sufficient. Opioids and stimulants (cocaine, amphetamines, Ritalin, etc.) are purged from the body in less than 48 hours, and alcohol is cleared in even less time. A Saturday night binge will be undetected by a Monday morning test.

No studies have been publicized showing that employers that test have safer work places than those that do not. On the other hand, early studies showed that productivity was lower in companies that tested than in comparable companies in the same industry that did not.

A major problem is that drug testing is not comprehensive. Alcohol is the only drug that has clearly been shown to adversely affect work place safety, but drug tests do not test for alcohol. Even airline pilots, who are barred by regulation from drinking for twelve hours before flying, are not tested for alcohol. Many people take legal drugs that are required to carry warning labels against driving or operating heavy equipment. These range from over-the-counter preparations like Benadryl to strong opiates like OxyCotin. Many of these drugs are not tested for. For others, including opioids and amphetamines, prescription users are exempt from testing.

Many of the strongest degraders of work place safety and efficiency are non-pharmaceutical. Talking on a cell phone while driving has been shown to have the same effect on driving ability as drinking four beers, and texting while driving is the equivalent of being legally drunk. Insomnia, strained domestic relations, financial worries, and other similar personal problems also measurably degrade performance.

An employer interested in improving work place safety or productivity would not use drug testing. Performance degradation tests, easily administrable in less than a minute at the beginning of a shift, would show actual decreases in ability and would cost much less to use. Some of these are descendents of the old pursuit-rotor tests and may be administered with a small computer or keypad. Of course, this solution presents the problem of what a bus company would do if a substantial percentage of its drivers were incapacitated because of fights with their spouses or aching teeth.

In short, employment and school drug testing is an expensive feel-good propaganda effort with no beneficial effects. They should be stopped and replaced by ability testing in those positions in which safe performance is critical.

Notes from The Broccoli File

2010-04-17T19:43:00.000-07:00

Notes from the Broccoli File

I have been interested in the question of what legal drugs should cost for a long time (see “Legalizing Marijuana II: The price of Drugs”, Aug. 11, 2009). The question is hard because no legal market has existed during the lifetime of any living person.

My starting point was to compare marijuana to other, legal plant-derived psychoactive compounds: coffee, tea, and tobacco. My conclusion was that $1.00 an ounce would be a reasonable price for legal marijuana. A recent PBS cooking show highlighted broccoli hand-grown on small organic plots for specialty restaurants in San Francisco. That broccoli sold for $3.50 a pound (about $0.20 an ounce).

Since then my motto has been: “Marijuana is Broccoli” and I call my collection of drug price information the “Broccoli File”. Here is a sample of Broccoli file entries, both current and historical. These are just raw data: I have attempted no analysis. I hope someone among the readers with more skills in economics and historical economics than I have (a frighteningly low level to meet) will attempt to give some meaning to them. The usual method for comparing historical prices is to use a ratio based on the daily or yearly earnings of an average worker, but that method is tricky when comparing the two ends of the twentieth century. The changes in productivity caused by advances in technology and automation have dramatically changed the structure of the work force, and those same technological changes have caused greatly different comparative changes in the cost of producing goods based upon the technologies used.

First are some gleanings from recent news stories:

-- Street prices for marijuana in Los Angeles dropped over 20% when the medical marijuana dispensaries opened and some dealers started offering home delivery.

-- Public meetings in Humboldt County, California (heart of the “Green Zone”) express concerns that state legalization will lower marijuana prices at least 50%.

-- Street quality dried and trimmed marijuana may be purchased in one-pound, plastic-sealed packages for $25 at the farms in the Mexican interior.

-- A story about the war in Afghanistan mentioned in passing that American troops in that country were buying hashish for $1.50 an ounce.

I have also gone back and mined some of the standard histories (primarily Musto, “The American Disease” (Expanded edition), Acker, “Creating the American Junkie”, and Tracy and Acker (eds.), “Altering American Consciousness”) for information about drug prices, both legal and illegal, in the 1900 – 1940 period:

--When the import of smoking opium became illegal with the Opium Exclusion Act of 1909, the price of a can of opium jumped from $4.50 to over $9.00. Two factors probably prevented from price from increasing more. First, smoking opium is very dilute, being only 5 -8% morphine while normal opium latex is about 10%, and second, opium, morphine, and heroin were all still available for open purchase. Heroin sniffing became much more popular after smoking opium was banned.

-- Bayer introduced heroin in 1898 and sold both heroin and aspirin at the same price during the period when heroin could be sold legally.

--An addict in 1919, when enforcement of the Harrison Act became rigorous, complained that a dose of 5 gr. of morphine that he used to buy from the drug store for 25¢ now cost $5 from the dealer. (For those as illiterate as I was in apothecary weights, 1 grain = 60 mg.)

--By 1921, when alcohol prohibition had been in effect for a year, a shot of whiskey that had cost 25¢ or 50¢ in a legal saloon had been replaced by a cocktail selling for $3.50 – 5.00 in a speakeasy.

--Dr. Charles Terry, director of the Jacksonville, Florida municipal narcotics clinic, mentions giving prescription for a “dose” of cocaine (probably an ounce) that could be filled for 50¢.

--The New Haven, Connecticut, clinic between 1919 and 1921, was showing a substantial profit dispensing heroin at 4¢ a grain.

-- Pennsylvania still had over 17,000 opiate addicts being maintained on compassionate exemptions to the Harrison Act in 1930. They received about 10 grains a day at a cost of under $4.

Let me end with one last modern case. I recently filled a prescription for a generic equivalent of Vicodin (hydrocodone with acetaminophen). I received twenty 5 mg. tablets for the chain pharmacy’s standard price of $4 for a generic prescription. Therefore, I received 100 mg. of hydrocodone – or 1 tenth of a gram – for $4. This amount is the equivalent of about 1.7 grains for comparison to the earlier prices.

A lot more examples of prices from this crucial 1900 – 1930 period are available for someone willing to do the digging. I hope someone will follow up on these clues and tell us more about the effects of the Harrison Act and the Volstead Act on prohibited substances.

Ain't No Such Thing as Dangerous drugs

2010-04-03T17:30:00.000-07:00

Ain’t No Such Things as Dangerous Drugs

For almost a century Americans have been warned against “dangerous drugs”. In this context, the term is usually synonymous with “illegal drugs”. However, this term as used is totally without meaning. It is strictly a propaganda tool. Even worse, this misleading concept has led to counterproductive, expensive, and dangerous public policies.

The problem with the misidentification of illegal drugs with dangerous drugs is that it leads to misconceptions in the formation of policy. These misconceptions arise mainly in three areas: that illegal drugs are a separate category, medically distinguishable from legal ones; that illegal drugs are a distinct category, related to each other physically and biologically; and that the dangerousness of drugs can be measured on some kind of absolute scale.

However, the only distinction between legal and “dangerous” drugs is the arbitrary delimitation drawn by Congress in a rather zigzag fashion. Two of the scariest dangerous drugs are cocaine and methamphetamine, but each of these is also a legal drug that can be prescribed by a doctor. Cocaine is used by doctors as a local anesthetic in some nose and throat procedures for which the synthetics are not as effective. Methamphetamine, under the trade name Desoxyn, is prescribed for children with affective spectrum disorders and as a diet pill for some cases of extreme obesity. For most people methamphetamine and amphetamine, also used for ADHD either directly or in a time-release form as Adderal, can be used interchangeably.

Heroin is the classic dangerous drug. Chemically, it is diacetylmorphine, and it is converted to morphine in the body. Experienced addicts cannot tell whether an injection they receive is heroin or morphine; the two drugs are indistinguishable to the user. The other opioids all have the same effects on the body although they may differ in strength, speed of onset, and duration of effect. These include the synthetics like methadone and fentanyl as well as the opiates derived from opium like OxyCotin, Percoset, and Vicodin. Surveys indicate that today the majority of new heroin users developed dependencies on prescription opiates and turned to heroin because it was cheaper and more readily available than the OxyCotin or Vicodin they had been using.

OxyCotin is a time-release formulation of oxycodone, one of the two active ingredients of Vicodin. Ironically, the other ingredient of Vicodin is acetaminophen, a “safe” drug available over the counter under trade names like Tylenol. Acetaminophen is actually the more dangerous of the two drugs, causing severe liver damage and resulting in more deaths each year than all of the opioids combined.

One surprising development of the past decade or so has been that many problems of dependencies and fatalities have involved legal prescription drugs like Valium, Xanax, and Paxil. Many seem confused by the idea that these “safe” legal drugs can cause such problems.

If the line separating legal drugs from illegal ones fades to invisibility when examined, the fence gathering the illegal drugs into one “dangerous” category never existed. When the Harrison Narcotics Tax Act was passed in 1914, it classified both opiates and cocaine as narcotics, and the confusion has worsened ever since. If heroin, cocaine, LSD, and marijuana, are taken as representative of the four major classes of illegal drugs – opioids, stimulants, psychedelics, and euphorants – one would be hard pressed to find any similarity other than legal status among them.

The opioids – along with legal drugs like alcohol, Xanax, and Valium – lead to classical addictions, with reward, tolerance, craving, and withdrawal. They can cause death by overdose, but have no other significant medical or behavioral consequences.

The stimulants, which include cocaine, the amphetamines, Ritalin, and caffeine, can lead to habitual dependency in heavy, frequent users, although this is not a classical addiction. They are frequently involved in binge usage, with paranoid behavior accompanying the binges. Death can result in users with pre-existing heart conditions. Long-term heavy use can result in psychotic episodes.

The psychedelics – which include LSD, psilocybin, and mescaline – are non-addictive and have little or no risk of overdose deaths. They induce visual hallucinations and some time distortions in users but do not interfere with normal intellectual functioning. Many of them have significant evidence of medical effectiveness.

The euphorants are marijuana and MDMA. They are non-addictive, although a small number of marijuana users develop weak habitual cravings. They are non-lethal, although in the early days of MDMA, a few users died of associated heat exhaustion. They elevate the user’s mood and may temporarily decrease muscular coordination and reaction.

The last irony is that no relationship exists between dangerousness and illegality. Danger in this sense includes both short- and long-term risks to the user’s health and risks imposed on surrounding non-users. Dangerousness is not an absolute measure, but is relative to the intended use. After all, a few dozen people die each year from water overdose, and over-the-counter pain relievers kill more each year than all of the illegal drugs combined. Many of the Drugs for cancer chemotherapy are deadly poisons that are used only in carefully controlled hospital settings, but as alternatives to certain impending death, most assume them to be reasonable risks.

By any measure, the most dangerous drugs are alcohol and tobacco. They cause deaths and injuries in numbers many times greater than any other drugs.

Over 400,000 people die each year from deaths medically related to tobacco consumption. Although tobacco is used primarily as a delivery mechanism for nicotine, tobacco is the main problem since most of the diseases come from ingestion of the smoke from burning tobacco, not from the nicotine. Acute overdoses from nicotine are rare. Most direct injuries are caused by fires started by negligent smokers.

Alcohol probably wins the title of most dangerous drug. Although the 150,000 or so deaths from alcohol-related illness are not nearly as many as those caused by tobacco, it presents two other risks. First, overdose deaths from binge drinking are significant. Second, alcohol use imposes severe social costs. Alcohol-related traffic deaths are around 16,000 a year – more than the total deaths from all illegal drugs. Alcohol is the only drug the use of which has been causally related to violent behavior, domestic violence being the prime example.

On the other hand, the risks associated with the illegal drugs are primarily the costs of their illegality. Almost all crime associated with drugs are crimes arising from the black markets in which they are bought and sold. Even the illnesses associated with illegal drugs are actually the illnesses of poverty brought on by the exclusion of users from normal economic activities.

Even the drug risks themselves are law-related. Opioid addicts in legal regimes, like heroin users in Switzerland or the Netherlands or methadone users in the U. S., practically never die of overdose and function normally in work and family.

These three misconceptions have led the country into a failed, expensive, and harmful set of drug laws. The time has come to recognize the failures of these policies and look for a new reality-based approach.

Source Suppression: Part II

2010-03-19T16:02:00.000-07:00

Source Suppression: Part II

Opium’s universality makes it hard to suppress. Attempts to limit the sources of other drugs add additional problems to that approach. Cocaine, marijuana, and amphetamines provide examples of these complexities.

***

Coca leaves have been used as a stimulant and appetite suppressant by the inhabitants of the Andes for hundreds of years, but cocaine was not separated from those leaves until about one hundred fifty years ago. Cocaine hit the world as a miracle drug in the 1880s. Doctors quickly became disenchanted with it, and it was displaced by safer synthetics like Procaine and Novocain for most – but not all – medical uses by 1900. The social world continued to be smitten by it until the 1920s when it faded from the scene. When cocaine resurfaced as a recreational drug in the 1970s, the American government was taken by surprise.

The government’s primary reaction was to try to eradicate the Andean coca bushes. Hundreds of millions were spent in the effort. The result? According to both the United Nations’ studies and satellite images, the acreage planted in coca remains about the same; and the growers have improved their plants and methods so that yield per plant is up over ten per cent.

By 2000, cocaine prices in the U. S. had fallen sharply and purity was much higher than it had been. Colombian cocainieros were diverting much larger shares of their product to Europe, where prices were still high and demand growing. These trends are evidence that the American market was saturated, not that the supply had been curtailed in any way.

The irony of the failed attempt to suppress coca is that, contrary to popular belief, the plant is not limited to the Andes. Shortly after 1900, the Dutch established coca plantations in the Netherlands East Indies (now Indonesia). From 1910 until the outbreak of World War II all of the world’s cocaine was manufactured by labs in the Netherlands, Germany, and Japan using East Indies coca leaves. The British also established successful coca plantings in the imperial territories in India and Ceylon (now Sri Lanka). But the Empire was having political problems shutting down Indian opium plantations as it voluntarily withdrew from the Chinese opium trade, and the Raj decided against commercial coca growing. Coca-Cola experimented with coca growing in Hawaii as well. The plants flourished, but governmental security requirements were so onerous that Coke abandoned its efforts and continued to rely on leaves imported from South America. Cocaine may not be as ubiquitous as the opium poppy, but if it were banished from the Andes, it could find a home in many other places.

***

Marijuana came to the U. S. with Mexican nationals fleeing the revolution of 1910. Until marijuana use ballooned in the 1960s, most of it still came from Mexico. After the failure of Nixon’s Operation Intercept, mentioned in the first part of this article, Gerald Ford convinced the Mexican government to cooperate with a program using U. S. planes and chemicals to spray large parts of the growing Mexican marijuana with herbicide. However, the growers merely speeded up their harvest and flooded the American market with paraquat-soaked weed. When the news leaked out, the Ford administration was accused of trying to poison American teenagers, and the program was cancelled.

But by the 1970s, American troops were returning from Viet Nam with samples of high quality marijuana from Thailand and Burma, and Colombian growers began exporting their cannabis to the north. In fact, most of the later cocaine smuggling routes were first pioneered by the marijuana traffickers.

U. S. efforts were primarily directed at tightening the southern borders, but Californians discovered that they could grow much better marijuana than they were getting from Mexico. Marijuana growing became a major industry in the rural areas of Northern California.

The DEA countered by staging major raids to uproot the crop just before harvesting season. These have become an annual ritual. Each fall the police confiscate hundreds of thousands of plants, generating headlines, but the majority of the crop continues to satisfy the market.

This Darwinian competition between Narc and grower had two other results. The competing growers developed cross strains that were more powerful and tasty and that grew into smaller plants. They also moved to indoor cultivation, pushing horticultural technologies to new highs.

Today marijuana cultivation is widespread across the United States. In some Californian communities, it has become the economic mainstay of entire towns. Jon Gettman’s studies claim that marijuana is one of the top four cash crops in the U. S., and is the leading crop in California and Kentucky. High technology indoor growing operations appear in every section of the country.

The growing demand has even increased international trafficking. British Columbia, Canada, now exports over $5 billion of high quality marijuana to the U. S. each year. While Mexico is no longer the most important source of American pot, about half of Mexico’s $30 billion in drug sales still consists of marijuana.

The cannabis plant is as universal as the opium poppy and easier to grow and harvest. But while attempts to eradicate the poppy encouraged growth around the world, attempts to suppress marijuana have created a major domestic industry. The U. S. had fewer than 100,000 total users according to government estimates when marijuana was first banned in 1937. Today government estimates show over 100 million adults who have used it at least once and over 15 million who currently use it more than once a month.

The government has also tried to suppress the supply of stimulants, especially methamphetamines. While the legal prescription supply of these drugs is somewhat limited, the sources for the street markets still exist. Most of the illegal methamphetamine now comes from factories in Mexico. A small, but significant, amount comes from small individual “cookers” in the U. S., whose careless methods present dangers of fire, explosion, and toxic chemicals in residential neighborhoods across the country.

Source suppression for drugs has never worked. Even the British Gin Acts of the 1730s were dismal failures. Parallels to all of the events described here were part of the attempts to prohibit alcohol in the 1920s. Drug control policy directed at suppressing the source will always fail.

Source Suppression

2010-03-06T17:41:00.001-08:00

Source Suppression

When Nixon began his War on Drugs in 1971, he based it on three legs: treatment and rehabilitation for users, increased domestic law enforcement, and suppression of illegal drugs at their source. Of these, source suppression was the least effective, most pernicious, and the most strongly supported even today.

Five drugs were of major concern at that time. Of those five, three – marijuana, heroin, and cocaine – were imported; and each of them seemed to come from a single geographical source. Heroin came from Turkey, cocaine from Colombia, and marijuana from Mexico. Each of these drugs was produced from a plant growing in that area. The idea was that if the plants could be destroyed or greatly reduced in number, then the related drug would either be removed from the American markets or become so scarce with a price so high that buyers would be unable to purchase it.

Amphetamines and barbiturates were treated differently. These were synthetic drugs, manufactured by highly regulated American pharmaceutical companies and distributed by prescription. The government did not consider foreign sources to be a problem with these drugs.

Nixon’s first move predated his War on Drugs. In 1969 he instituted Operation Intercept, stopping and searching each person and vehicle entering the U.S. from Mexico. Delays immediately arose, with even the simplest border crossing taking over 24 hours. Complaints led to cancellation of the program after only two weeks. During that time, not a single shipment of marijuana was detected, but the supply on American streets continued to grow. The smugglers merely moved a few miles away from the entry points and crossed the largely unpatrolled border.

The first application of the War on Drugs was more successful. Turkey, except for a brief period during WWII, had always been the major source of opium and opiates in America. Nixon reached an agreement with the Turkish government so that Turkish farmers were paid a bonus to destroy their opium and were given seeds, equipment, and training to grow different crops. The government arranged to transport these to market; and the farmers were paid a supplement to make up for the lower prices of their new crops. Turkish opium disappeared for all practical purposes.

But the American heroin market never lost a sale. The tribes in the Golden Triangle of Southeast Asia immediately stepped in. They not only supplied the heroin labs in France that had traditionally converted Turkish opium into heroin smuggled through America’s east coast, they also set up their own, new routes across the Pacific Ocean into California and through Mexico. Mexican farmers, whom the American government set up in opium growing when the U. S. lost access to Turkey for medical opium during WWII, continued producing heroin for Americans as well.

The attempt to excise the cancer of Turkish opium had only caused it to metastasize. In the 1980s, the Afghan tribesmen financed their resistance to the Russian invasion by growing opium. When the Soviet Union withdrew and American aid to these nationalist fighters stopped, they became aligned with the Islamic fundamentalists and rapidly increased their opium production. By 2000, Afghanistan was producing over 90% of the world’s illegal opium.

Additionally, the Andean cocaine traffickers decided to diversify their business in the late 1980s. They started growing opium poppies along with the coca bushes and requiring their cocaine purchasers to become heroin distributors as well. Anyone wanting to buy 10 kilos of cocaine was forced to buy one kilo of heroin as part of the deal. This kind of tying arrangement appears in any unregulated monopoly market. For the first time, American heroin distributors had a choice of suppliers. They could get Afghani heroin shipped through Central Asia, Golden Triangle product coming in through the West Coast, black tar heroin grown and processed in Mexico, or the new Andean dope as well. The market was becoming competitive, and as the twenty-first century opened, prices fell and purity increased.

The prospect of suppressing opium is even more futile than this brief sketch has suggested. Poppies will grow in almost any arable land outside the polar regions. Legal poppies for medicinal opium are now grown in Australia, India, Turkey, France, Spain, and at least two of the eastern European republics. Canada is about to begin legal culture of a high theobaine, low morphine poppy for medicinal use.

In prehistoric eras, opium was found in China, the Indian sub-continent, Greece, and central Europe. People in the Fens district of England grew poppies in kitchen gardens for use in a steeped tonic.

The United States has its own history as a source of opium. Thomas Jefferson grew poppies as part of his diversified farming operation. During the Civil War, the Union blockade cut the Confederate States off from their usual sources of opium. They met their army’s demands for medical opiates by growing their own.

In 1872, the Massachusetts State Board of Health complained that opium growers in Vermont and New Hampshire were flooding Boston with several hundred pounds of their surplus product. They also noted some opium from commercial growers in Florida and Louisiana coming into the state, while the center of the opium industry was in California and Arizona. An Arizona farmer, they said, could produce 1200 pounds of opium a year from only ten acres. The opium poppy became the state flower of California.

The poppy seems to be a plant that can grow anywhere in the world, and hopes of suppressing it are futile.

In the next installment, we will examine attempts to suppress coca and marijuana and take a look at suppression of the synthetics, amphetamines and MDMA. We will also draw some conclusions about the idea of source suppression itself.

William Stewart Halsted, M.D.

2010-02-28T10:56:00.000-08:00

William Stewart Halsted, M. D.

Imber, Gerald, M. D., Genius on the Edge: The Bizarre

Double Life of Dr. William Stewart Halsted,

Kaplan Publishing, 2010 (355 pp. and end materials)

Dr. William Halsted is known as the “Father of Modern Surgery”. Many of the techniques and devices he invented are still in use. He was one of the founders of Johns Hopkins Hospital and Medical School, where he was chief of Surgery for some thirty years.

And he was also addicted to morphine and cocaine during the whole period. He continued to use those drugs until his death at the age of seventy in 1922.

A new biography by Gerald Imber, M. D., thoroughly discusses the interplay between his genius and dedication to scientific medicine with his dependence on these drugs. It places both within the context of his times. In addition to being a biography of Halsted’s professional life, it is also a good introduction to the birth of modern surgery and medical education and tells the story of the world’s introduction to cocaine.

Halsted was a fresh rising star on the New York medical scene when cocaine appeared as a new miracle drug. He began experimenting with it and developed the technique of local anesthesia, including the concept of nerve blocking. His oral injection sites are still used by dentists today.

As was usual at that time, he experimented on himself and his students. Unfortunately, his experiments were so enthusiastic that he – and several of his students as well – became addicted. Halsted’s cocaine use became so excessive that his work deteriorated to an embarrassing level.

His mentor, William H. Welch, intervened to save his protégé. He took Halstead on a sea voyage to withdraw him, but that trip ended in scandal when Halstead broke into the ship’s medical locker. The next step was to admit Halsted to Bishop’s Hospital, an institution specializing in cure of addictions.

Bishop’s used the best and most medically accepted medical cure of that time for cocaine addiction. They treated Halsted with large, regular doses of morphine. The result was that Halsted, while not totally able to abstain from cocaine, was able to limit his use to binges during vacation times for the rest of his life. However, he also developed an addiction to morphine, injecting himself two or three times daily (totaling about 130 mg. per day).

Welch had become head of the new Johns Hopkins hospital and would soon organize the Johns Hopkins medical school. At that hospital he brought together the four men who would create modern scientific medicine and medical education: Welch, Osler, Halsted, and Kelly.

He knew about Halsted’s morphine addiction (it is unclear whether he knew about the continuing cocaine use), but hired him as chief of surgery anyway. After all, about ten per cent of the medical profession at that time regularly used morphine or opium.

“Osler’s concern at that time was Halsted’s dose management, and not his ability to function. In that regard, morphine was significantly less destructive than alcohol. Halsted’s condition, and his struggle to contain it, were seen as both tragic and heroic, but not incongruent with a productive life. To Osler and Welch, Halsted was a professional equal with a chronic, but not debilitating, disease. Halsted announced his shame by working to hide all evidence of his problem.” (page 181)

Halsted arranged his life so that his drug dependency did not interfere with his professional activities. He scheduled surgery, clinical rounds, and writing during the times he was most alert and lived privately the rest of the time. During the academic year, he refrained from cocaine, but from May through September, he left the hospital. He would spend several weeks at his wife’s family farm in North Carolina, growing prize dahlias, riding horses, and serving as veterinarian to the neighbors’ animals. He would then travel to the surgical centers of Europe. During these travels he would disappear for extended periods. These times are probably when he indulged in cocaine binges, but no direct evidence has surfaced.

This discipline enabled Halsted to stay at the pinnacle of his profession for over thirty years. He was still chief of surgery at Hopkins at his death in 1922. By any measure his career was outstanding.

And what a career it was. Halsted developed the doctrine of aseptic surgery, making possible invasion of the body cavity in that age before antibiotics. Every doctor or nurse who has donned scrubs or worn rubber gloves is following the rules first laid down by Halsted. He then devised radical mastectomy for breast cancer and the repair for inguinal hernia that was used until the invention of the laparoscope. His non-crushing clamps for blood vessels still fill the instrument trays in every operating room. He painstakingly developed the anatomy and physiology of the aorta through years of research, and while the supporting technology did not allow him to repair aortal aneurisms, his work was the basis of Dr. DeBakey’s success in the 1950s. His residents became surgical professors and chiefs of service at the schools in the forefront of modern medical education. “Father of Modern Surgery” is a reputation Halsted clearly earned.

However, he was fortunate to live when he did. Although the Harrison Narcotics Tax Act of 1914 allowed people to possess opiates and doctors to prescribe them, only in 1919 did the Treasury officials adopt the thinking of the alcohol prohibitionists and begin trying to prevent personal use or possession of opiates. In 1925, three years after Halstead’s death, they forced the closure of the last opiate maintenance clinic in the U. S., and then made the status of being an addict a crime (a statute held unconstitutional in 1962). Had Halstead lived two decades later, he would have likely ended up in prison or on the streets.

Imber’s book is a fascinating and informative look at an unusual man and a critical period in the history of medicine and drug policy. And for today, it makes us take a hard, critical look at the current attempts to regulate drug use. I recommend it for everyone.

Answers to Trivia Quiz

2010-02-21T13:09:00.000-08:00

Answers to Trivia Quiz

Here are the answers to the Trivia Quiz I posted earlier. Each question is reposted so that you don’t have to click back and forth, and it is followed by a short answer, and usually, a brief annotation.

Some of you posted your answers as comments or sent them to me privately. Everyone did very well, all of you individually outscoring the class of graduate students answering as a group. But no one was perfect. Relax: grades will NOT be posted!

So here are the answers. I hope we learned a little bit. But mainly I hope we had some fun. Enjoy.

Questions and Answers

1. In his first term, President George Washington led federal troops against rebels in western Pennsylvania. Which psychoactive drug was at the root of the controversy?

Alcohol

The new government placed an excise tax on distilled spirits to pay off Revolutionary War debts. Western farmers grew corn, but had no roads to get it to market. They converted it to whiskey, which could be transported in barrels slung on horseback. They were afraid the tax would put them out of business, and grabbed their guns in rebellion.

2. In the period 1790 – 1805 the U.S. fought a war against the Barbary Pirates in North Africa. Why were American ships in the Mediterranean at this time?

Turkish opium was one of the most valuable cargoes brought to America before the Civil War.

Before the Civil War almost everyone needed opium for toothaches or water-borne intestinal diseases. Then, by about 1820, Yankee traders were buying opium in Turkey, selling it in China in competition with the British, and then selling Chinese silks, porcelain, and tea in New England. Many of the old Boston maritime fortunes were based on opium.

3. During the Civil War, where did the Confederate Army get its medical opium?

They grew it themselves.

Opium is easy to grow and grows almost anywhere. Jefferson probably grew some on his plantation. By 1872, the Massachusetts Board of health was complaining that Vermont, New Hampshire, and Connecticutt growers were flooding Boston with hundreds of pounds and that commercial growers in Florida and Louisiana were also shipping in large amounts. They said that California and Arizona Territory were the center of the trade and that a farmer with 10 acres in Arizona could produce 1200 pounds a year.

4. When and where was the first U.S. law against marijuana passed?

El Paso, Texas, 1915

El Paso may win by a technicality, being the first to use the term “marihuana” in their ordinance. I have found one source suggesting that California had banned “Indian hemp” a couple of years earlier, but I haven’t been able to track it down. Does someone with better access to California records have more information?

5. How many doctors testified to Congress concerning the proposed Marihuana Tax Act of 1937? Were they for or against the Act?

Only one doctor testified. The representative of the AMA said that the law was unnecessary and that it would block needed medical research.

The government’s only scientific evidence came from a pharmacologist who testified that all of his research was on dogs because, with a Ph.D. and not an M.D., he could not experiment on humans. The government later fired him when, testifying as an expert for the defense in a criminal case, he testified that he had taken the “active ingredient” in marijuana, turned into a bat, flew around his lab, and dived into an ink bottle.

6. How many people had used marijuana in 1937 according to the Government’s testimony to Congress?

100,000

This was Anslinger’s figure. He said the users were composed of Black jazz musicians, Puerto Ricans, and Mexican farm laborers.

7. What were the Government’s estimates of the number of people using marijuana in 2008?

Over 44% of adult American residents (over 100 Million people) had used marijuana at least once:

Over 15 Million used marijuana at least once a month

These figures come from voluntary questionnaires, and at least since the days of Kinsey, pollsters have known that surveys about illegal or disreputable activities under-report those activities.

8. Switzerland began providing free heroin to addicts in the mid-1990s. How many people in Switzerland have died of opioid overdose in Switzerland since then?

Zero [see comment]

Opioids are actually very safe drugs. Even overdoses develop slowly, allowing ample time for medical intervention. In the U.S., many of the so-called overdose deaths are law-related. They are caused by adulterated drugs, drugs of unknown potency, substitution of unknown drugs for the one the user expected, or reluctance to seek medical assistance.

9. How many people were arrested for simple marijuana possession in the U.S. last year?

Over 800,000

10. California adopted state medical marijuana by referendum in 1996. How many states now have medical marijuana laws?

14

Trivia Quiz

2010-02-19T11:31:00.001-08:00

Trivia Quiz

I recently did a guest lecture spot in a graduate sociology class, and rather than merely subjecting them to just a boring history lecture, I started with a little trivia quiz. Those graduate students didn’t do too well on it and I thought you might do better. Have fun with it, and I’ll post the answers in a few days.

1. In his first term, President George Washington led federal troops against rebels in western Pennsylvania. Which psychoactive drug was at the root of the controversy?

2. In the period 1790 – 1805 the U.S. fought a war against the Barbary Pirates in North Africa. Why were American ships in the Mediterranean at this time?

3. During the Civil War, where did the Confederate Army get its medical opium?

4. When and where was the first U.S. law against marijuana passed?

5. How many doctors testified to Congress concerning the proposed Marihuana Tax Act of 1937? Were they for or against the Act?

6. How many people had used marijuana in 1937 according to the Government’s testimony to Congress?

7. What were the Government’s estimates of the number of people using marijuana in 2008?

8. Switzerland began providing free heroin to addicts in the mid-1990s. How many people in Switzerland have died of opioid overdose in Switzerland since then?

9. How many people were arrested for simple marijuana possession in the U.S. last year?

10. California adopted state medical marijuana by referendum in 1996. How many states now have medical marijuana laws?

Prohibition –Theory and practice: Part 3: Law Enforcement

2010-02-12T12:03:00.000-08:00

Prohibition –Theory and practice: Part 3: Law Enforcement

A recent sociological study of street prostitutes in Chicago showed that 3% of their tricks were “freebies” performed for Chicago police officers. Both parties to these transactions considered them to be a “business tax”, paid by the women as the price for conducting their business unmolested. This case is a routine, if somewhat benign, effect of a prohibition on law enforcement.

Prohibition always has a corrosive, corrupting effect on law enforcement. These effects come in four forms. The large, unaccounted-for sums of money created by prohibition markets co-opt law enforcement personnel either as agents of the providers or as independent suppliers themselves. The lack of complainants in prohibited transactions leads enforcement to depend on untrustworthy and frequently untruthful methods like undercover operations and informants. The futility of attempting to quash prohibition leads to disinterest and slacking by those who see their efforts as useless. Contraband markets are always accompanied by an increase in violence, with police agents find themselves on both the delivering and receiving ends.

Traffickers run the double risks of arrest and violence. Fortunately for them, prohibition adds a premium of at least 90% to the price of the illegal commodity, providing them with ample funds to protect themselves.

As I have discussed previously, prohibition does not remove the prohibited good from the market. It does, however, increase the costs of providing that commodity by adding, among other costs, the risks of violence and imprisonment to those incurred by the supplier. A rational supplier will look for ways to offset those costs and will use the increased funds available from prohibitory prices to avoid them.

One simple way to avoid those costs is to purchase police officers. These purchased police may act directly by providing intelligence or protective services to the traffickers. They may also act indirectly to subvert the judicial process by destroying or suppressing incriminating evidence or providing false exculpatory evidence. During the brief thirteen-year life of the “Great Experiment”, over thirty per cent of the federal prohibition agents were convicted, fired, or forced to resign because they were corrupted. In 1930, the director of the Prohibition Bureau resigned when the public learned that both his son-in-law and his nephew were employed by Nicky Arnstein, one of New York’s biggest bootleggers and the man who first arranged heroin smuggling routes from Europe. In the mid-1930s, the Secretary of the Treasury was forced to step in and fire one-third of the Narcotics Bureau who were in the pay of drug smugglers. When the same thing happened in the 1960s, the Bureau was moved to the Department of Justice and became the Bureau of Narcotics and Dangerous Drugs. One week later, the head of the Miami office was caught taking a bribe and forced to resign.

This corruption is not just ancient history. The Border Patrol, responsible for interdicting both contraband drugs and illegal aliens, has a continuous history of agents convicted of corrupt acts. When Homeland Security began its new program of placing Sky Marshals on domestic flights, two of its first marshals dispatched from Houston were arrested for attempting to smuggle cocaine on their flights. Both had just transferred from their earlier jobs as DEA agents.

The chain of corruption has extended upward from field officers to elected sheriffs and prosecutors. Even one federal district judge was convicted and removed from office for accepting bribes from traffickers. As a series of investigative reports on the New York police, beginning with the Wickersham Report in the 1930s and continuing until the Serpico affair in the present, show, no police agency, large or small, has been exempt.

The combination of ready money and the relative impunity of drug dealers has tempted many police officers into going into business for themselves. Every police department has had problems of drugs, money, and guns “disappearing” from secure evidence lockers or less drugs and money turned in after arrests than the arrestees claimed to possess. Police have used this diverted contraband themselves, as planted evidence in other cases, or as merchandise to sell themselves.

When Texas banned smoking in prisons, cigarettes became the new contraband. The twenty cigarettes in a pack, then costing about two dollars, could be cut into thirds, each selling for five dollars. That opportunity to turn a two-dollar investment into three hundred dollars of tax-free income was more than many $20,000 a year prison guards could resist. The firings and convictions have continued at a steady pace. Studies in prisons have shown levels of drug use inside to be the same as those outside – circumstances that would be impossible without the cooperation of corrupt staff members.

Neither the seller nor buyer will file a complaint or willingly testify in a typical drug transaction. The police therefore are impelled to use undercover agents or informants to make cases. These methods carry with them three major vices.

Informants are inherently untrustworthy. They are providing evidence in return for either money or leniency in their own cases. A scandal in the Boston FBI office involved agents turning a blind eye to murders committed by their informants in return for information about organized crime. Maybe all informants do not lie every time they open their mouths, but lies are by far their most common product.

The same pressures to produce evidence exist for undercover police. Three major drug task force scandals in Texas – Tulia, Hearne, and the Dallas Drywall cases – all involved undercover police making up evidence to make cases. In Tulia, one lying cop convicted 37 innocent people before his scheme unraveled. All were ultimately pardoned on the basis of actual innocence. Forty years ago when I started practicing law, the cynical courthouse joke was to speculate about how many times the same matchbox full of marijuana was introduced into evidence.

Violence is the third major risk of undercover operations. Often the officers are not good enough actors to sell their performance to wary dealers, and the deal goes sour. Alerted dealers, facing decades in prison, frequently try to shoot their way out of trouble. The result in many cases is dead or wounded police officers or innocent by-standers.

A civil society cannot exist with a corrupt law enforcement system – or even one that is merely perceived to be corrupt. Ineffective prohibition schemes like bans against some drugs or prostitution lead inevitably to the visible corruption of law enforcement. While the vast majority of police officers, prosecutors, and judges remain honest, the handful who succumb to these corruptive influences is enough to destroy both public confidence in law enforcement and public confidence. The only way to preserve the integrity of law enforcement is to remove the prohibitory laws that are eroding it.

In the Dark Depths of Winter

2009-12-26T21:59:00.000-08:00

The winter solstice is here: the day on which the night stops growing and the days start lengthening with their promise of eventual spring. From the beginning of history, cultures in the European tradition have marked this date with festivals of hope and renewal. The Romans had their Saturnalia that the Christians turned into their Christmas. The heathens and Druids – and the modern Wiccans – celebrate this date with lighted fir trees and mistletoe. They all looked forward to a growing light and a hopeful future.

Those drug law reformers who have found themselves in the deepest chill of winter since the early 1980s may finally passed their solstice and find the warming rays of dawn breaking early. The thaw seems to be on the horizon.

The first ray of light was California’s adoption of a medical marijuana referendum in the mid-90s, now followed by thirteen other states. Two more states have passed medical marijuana bills, only to see them vetoed by recalcitrant governors. At least six states now have bills under active consideration.

By 2004, California had seen the need to regulate a system for the medical marijuana the people had mandated. The legislature created laws governing marijuana dispensaries. In Los Angeles today medical marijuana dispensaries outnumber McDonalds or Starbucks. Three other states – Colorado, New Mexico, and Michigan also have dispensaries operating, and Rhode Island and Maine have passed a law enabling them, although the first one is yet to open in either state. At least one governor has vetoed a dispensary bill. Their rate of growth in Colorado seems to be following that in California.

Public opinion has followed the spread of medical marijuana. By 2005, opinion polls nationwide had swung so that medical use was favored by a majority of voters. The favorable opinion has continued to grow since then. Michigan voters in 2008 approved medical marijuana by 62%.

Opinion also is swinging toward legalizing the possession of marijuana even without medical need. Surveys now consistently show around 45% in favor of legalization; and in California, where legalization will probably appear on the 2010 ballot, 56% of the voters are in favor.

In fact, state action on legalization is the hot topic of conversation. In addition to the referendum petition, the California legislature has a legalization bill before it this session. A similar bill, but with more sponsors, has also been filed in Oregon. Passage of either of these bills is unlikely, but they have generated editorial page conversations across the country. This topic was unheard of just a few years ago, and now it is discussed as a routine matter, with a surprising part of the comments being favorable.

Massachusetts is a bit of a wild card when it comes to legalization. It decriminalized possession of less than one ounce through a 2008 referendum. All of the other states that have decriminalized did so in the mid- to late-1970s, so one has trouble deciding whether Massachusetts is showing a liberalized attitude tending toward legalization or a retrograde move to the past.

But the real crack in the cold grip of Drug War winter is happening in Washington, D.C. Both the executive and the legislature seem to be loosening their death-holds on prohibition.

The executive branch has moved on three fronts. Shortly after his appointment, the new Attorney-General announced that the United States would abstain from prosecuting those acting in compliance with state medical marijuana laws and followed that with a formal memorandum so instructing U.S. Attorneys. So far, the USAs seem to be acting in compliance with that memorandum. The new head of ONDCP quickly announced that the concept of “War on Drugs” would no longer be used. So far, he has refused to go further in public, but his new assistant director has a professional background in treatment and rehabilitation, not in enforcement. The State Department has also lowered the temperature of discourse and seems to be looking at international alternatives to the failed source suppression policies.

The administration’s main failure has been its neglect in filling judicial vacancies and replacing U.S. Attorneys. However, Obama’s reluctance to face Senatorial filibuster battles over these lower level appointments is understandable.

Congressional action this year has been the most surprising. With no fanfare and little dissent, both houses approved funding for needle exchange programs as part of the pending health care bill and removed the legislative obstacles to medical marijuana in the District of Columbia. Both houses have pending bills to establish National Commissions, the Senate bill covering penal law and policy, including drugs; and the House bill aimed specifically at drug policy. In addition, bills have been filed in the House to decriminalize possession of personal amounts of marijuana and to recognize state medical marijuana laws. Some of this activity should result in some kind of more progressive drug legislation in this session.

The solstice of the long winter of drug prohibition has passed. Light is creeping back into some of the dark corners of oppression. Soon spring will be here. It is time to celebrate.

Happy holidays!

Drug-Free Communities?

2009-12-19T14:11:00.000-08:00

One of the callers to my television show this week asked what those people like him who wanted to live in drug-free communities should do. I brushed him off by pointing out that every known human society (except for some Arctic groups living in extremely impoverished environments) has used some kind of intoxicant. But then as I was driving home and passed a municipal sign declaring the town to be a “drug- and gun-free zone”, I started wondering what these people mean by “drug-free community”.

They can’t mean it literally. An inspection of their houses would almost certainly turn up aspirin or acetaminophen and some kind of cold or sinus remedy. Most of the houses would have at least one bottle of prescription drugs. The kitchens would have (unless the residents were members of the Latter Day Saints) coffee, tea, chocolate, and cola drinks. Their children are vaccinated and most of them got flu shots this year. When these drug protesters go to the dentist, they are probably grateful for his use of nitrous oxide and the follow-up prescription for Vicodin. The children most likely attend schools where almost ten per cent of the students take stimulants (including the methamphetamine the DEA scares everyone with) to treat some Attention Spectrum Disorder. Their world is far from drug-free.

Perhaps they mean free from dangerous drugs. But that can’t be true either. All of the communities from which my call might likely have come allow the sale of alcoholic beverages in restaurants, clubs, and bars; and cigarettes, beer and wine are sold in their grocery stores and drug stores. Alcohol and tobacco are by far the most dangerous drugs in our society. (And I say “tobacco” rather than “nicotine” because the smoke inhaled from burning the whole plant is much more problematic than is the nicotine it contains.) Tobacco-related illnesses cause over 400,000 deaths each year. Alcohol only kills about 150,000 by alcohol-related illnesses and acute intoxication each year, but it manages to score another 15,000 or so deaths in alcohol-caused car wrecks. These drunk-driving deaths each year total more than the deaths resulting from all of the illegal drugs combined. Alcohol is also the only drug whose consumption has been causally connected to any violent crimes. Aspirin and acetaminophen can’t even reach 1 % of the number of alcohol deaths, and yet they kill more than any of the so-called dangerous drugs. Marijuana has never been shown to have caused a single death, and Switzerland has not had an opiate overdose death in the ten years that the Swiss have been giving heroin to addicts.

Perhaps they are making the lesser claim that they are keeping illegal drugs out of their community. But that claim doesn’t stand up to scrutiny. Making drugs illegal does not make them unavailable. It just makes them more expensive and less pure and makes society more dangerous and corrupt. Stimulants (amphetamines and Ritalin) are now used, legally and illegally, by at least as many people as they were in their legal heydays of the 1960s. The percentage of the population addicted to opioids today is greater than it was before passage of the Harrison Act in 1914. Millions of doses of MDMA – outlawed by a panicked congress in 1986 – are used in the U.S. each week. And marijuana? The government claimed that fewer than 100,000 people used marijuana when it asked congress to outlaw it in 1937. Now the government claims that over 100,000,000 people have used marijuana and that almost 15 million use it at least once a month. These numbers add up to a lot of drugs being used in communities that claim to have banned them.

These statements of “drug-free communities”, whether made as claims of fact or as aspirations for the future, are doomed to be false. The problem is that they all use the term “drug” to refer to harmful chemicals with biological effect. They seem to be creating a dichotomy between drugs and medicines.

The chemicals themselves are neither good nor bad: they just are. Some can be used beneficially; some (often the same ones) can be used detrimentally. The methamphetamine the DEA has been scaring people with for years is the same Methadrine that is prescribed for kids with ADHD and substantially the same as the Dexedrine the Air Force gives to its combat air crews for increased performance. One recent survey showed that twenty per cent of working scientists used these or similar “brain boosters” to improve their work.

Medical practice would be severely hampered without morphine and other opioids to control pain. But heroin (diacetyl morphine) is converted back to morphine in the body. In fact, long-term experienced addicts cannot distinguish between injections of these two drugs. Heroin can be used as a pain killer in some patients who are allergic to morphine.

In addition to heroin, the DEA has many other “evil” drugs in Schedule I, classified as having no significant medical use. Of these, marijuana, LSD, MDMA (ecstasy), mescaline (peyote), and psilocybin (magic mushrooms), among others, have well-documented histories of medical research and use.

Both the drug-free community wishers and the law because they focus on the chemicals instead of the users. The first American drug laws – the Pure Food and Drug Act of 1906 and the Harrison Narcotics Tax Act of 1914 – were reasonably effective in decreasing both drug dependency and harms resulting from drug use. But when alcohol was prohibited in 1920, the emphasis shifted from the users to the chemicals themselves; and the heroin acts of the 1920s started the country down the disastrous road of drug prohibition.

Now is the time to recover from that disastrous, vicious, and corrupting attempt to create drug-free communities, and instead start looking at the users. Now is the time to create communities free from the harms of irresponsible drug users.

Where Are the Bodies?

2009-12-10T21:05:00.001-08:00

Where Are the Bodies?

For more than forty years Drug Warriors have argued that smoking cigarettes causes lung cancer and that since marijuana is also smoked, it must cause cancer too. The most effective response to that argument has been to ask: “Where are the bodies?” because there are no bodies. Thirty-five years of documented heavy marijuana smoking by millions have not produced a single case of lung cancer that doctors are willing to attribute to marijuana. That statistic conclusively rebuts their argument.

Another Drug Warrior argument is now ripe for a “Where are the bodies?” rebuttal.

Prohibition zealots, from the very beginning have argued that drugs must be made illegal because drug use is associated with increased crime. The more rabid even repeat the 1930s “Reefer Madness” idea that a single puff on a joint will send a nice, innocent young man off on a rampage of rape and murder with a wild glint in his eye. The less extreme still show up at city council meetings and write letters to the editor protesting medical marijuana dispensaries because they will increase crime in the area. They don’t seem clear about whether all marijuana users, including those who use it to combat illnesses, are criminals who will knock over a convenience store when they pick up their meds or whether marijuana itself is a crime magnet that, by its very presence attracts all the miscreants who learn of its location.

Enough hard data now exists to rebut this argument. It’s time to start looking for the bodies.

California now has had legal medical marijuana for over a decade and several years of open operation of marijuana dispensaries. Colorado, Oregon, and Michigan also allow dispensaries, although for shorter periods of time.

Almost all of those dispensaries operate in towns or cities that participate in the FBI’s Uniform Reports of Major Crimes. For even finer scale analysis, police reports in most towns and cities are either open to the public or available through some kind of open records request. These reports show every crime reported to the police and even the address at which it occurred.

In cities like Los Angeles, San Francisco, or Oakland, with large numbers of active dispensaries, longitudinal comparisons within the cities can be made. How was crime different in San Francisco in 1980-89 and 1999-2008? Comparing a decade before medical marijuana with one after it has been established should show whether it has affected either the rate of crimes or their locations. Los Angeles, like many cities, has followed New York in basing its police posting procedures on weekly statistical reviews of incident reports around the city. Those reports should be available and should provide a detailed picture of the relationship, if any between marijuana distribution and the incidence of crime.

Comparisons between cities could be even more telling. While Los Angeles and San Francisco have been liberal in their approach to medical marijuana, San Diego has resisted allowing any legal marijuana outlets of any kind. Comparing the crime report data between San Diego and the other two cities should be very revealing.

Other sources of data should be available as well. Numbers of court-ordered admissions to marijuana rehab programs is one statistic that should be available over an extended period of time. The number of marijuana-related DUIs should be publically available and is probably a surprisingly low total.

Local regulation of marijuana dispensaries is creating civil litigation in both California and Colorado. All of these public safety records should be obtainable through the discovery process, and their use as evidence would require the same kinds of statistical analysis discussed below.

These kinds of data are almost meaningless in their raw state. Intensive sophisticated statistical analysis is necessary to make them meaningful. That kind of analysis is normally done in universities. But certainly some sociology professor is looking for a tenure piece, and the data holds the potential for many Ph.D. dissertations. The mountain of numbers will provide meaningful employment for generations of graduate students. Universities are, as a rule, also experienced in open records access and are willing to fund the search for them.

Although this kind of detailed statistical analysis may take years, the where’s-the-body argument is useful now. The “Marijuana causes crime” argument belongs to the prohibitionists. Since they advance that argument, they also have the burden of proving it. And they cannot. Anytime that argument is advanced, the response should be: “What do the crime reports show?” One can point out that the police have the data and can provide the answers. A city council can be pushed to study their own records to determine the truth about crime and marijuana. They can be asked to delay repressive actions until the records are examined.

Health care has made fantastic advances by insisting on evidence-based medicine. Now is the time to insist on evidence-based laws as well. Facts are the sharpest tools in any reasonable argument. The facts are on the side of ending prohibition. It’s time to wield them vigorously.

Mammograms, Drug Tests, and Bayes

2009-11-29T17:47:00.000-08:00

Mammograms, Drug Tests, and Bayes

The nation has been bombarded with hysteria about the new recommendations for mammograms for the last week or so. The real concern behind the recommendations was the high incidence of false positive results and their costs to the people involved.

As I listened to the debates, I realized two things: first, no one had any idea about the numbers involved in the analysis of the problem; and second, the same mathematics are crucial in the debate over drug testing in schools and the work place.

The crucial problem in both issues is that of false positive results in the testing: a mammogram showing that a healthy woman has breast cancer or a drug test showing that an abstinent subject has used drugs.

That problem can only be analyzed through the application of a subtle and sophisticated branch of advanced mathematics known as Bayesean analysis, or conditional probability.

The issue, and why it is a problem, can be demonstrated through a simple example that uses nothing more complicated that addition, subtraction, and decimal arithmatic.

However, if anyone gets the urge to present this information to a school board, get a statistics or probability instructor from the local college to help you. Very few high school math or science teachers are familiar with it, and the chance of finding a school board member who knows anything about it is about the same as that of finding a penguin on Miami Beach.

* * *

Assume that a drug test is to be given to 10,000 high school students. Before the test is given, two things are known:

1. The test is 95% accurate, or on the average, out of every 100 tests given, 5 of the results will be wrong. (Most of the available tests are advertised as 99% accurate, but that figure is derived from rating the test in carefully controlled laboratory situations with randomized samples. In real life, with poorly trained part-time administrators, poorly handled specimen cups, bad sanitation conditions, sloppy records, uncalibrated lab equipment, and out-of-date or impure reagents, almost all of them will perform at less than a 95% level).

2. Only 5% of the group to be tested will have used the drug in question. (In actuality, only marijuana use will have reached the 5% level -- and it presents other, different problems). No other illegal drug is use levels nearly that high.

Based on these assumptions, of the 10,000 people tested, 9,500 will be non-users and 500 will be drug users.

When the 500 drug users are tested, 5% of the test results, or 25, will be incorrect. The other 475 results will be correct. The result is:

475 true positives (drug users found to be drug users)

25 false negative (drug users found to be non-users).

These results, by themselves, are harmless and probably acceptable. But what happens when the test is administered to the non-users?

The 9,500 tests administered to non-users will also be right in 95% of the cases, or 9025 correct results. Wrong results will appear in 5% of the cases, or 475 cases. The results of testing the non-users are:

9025 true negative (non-users identified as non-users)

475 false positives (non-users identified as users).

Now combine the two sets of results:

475 true positives (drug users correctly identified as drug users)

475 false positives (non-users incorrectly identified as drug users).

In other words, if someone fails the drug test, she is just as likely to be a non-user as she is to have used drugs. This result is the same as that one would get by tossing a coin – and the coin toss costs less and doesn’t invade anyone’s privacy. Any test that can get a student kicked off the football team, forced into rehab, or even expelled from school should be more reliable than a coin toss.

The story of mammograms is more complex. The consequences of false negatives – undetected cancers – and of false positives – anxiety, more testing, or even surgery, chemotherapy, or radiation – are much more severe. The test itself is not a simple yes/no like the drug test and the reliability is much less than 95% and depends partially on the skill and experience of the examiner. I will have to leave the full explanation to a professional statistician in another forum.

Toward a More Civil Government

2009-11-20T17:36:00.000-08:00

Toward a More Civil Government

For well over a decade the nation’s government has been scarred by acrimony, distrust, bitterness, and strident partisanship. The result has been a marked decrease in the quality of society. Something needs to be done to reconstruct civility. I have a idea…

What if all politicians – both candidates and holders of elective office at all levels – were required to spark a j and mellow out before any public appearance or meeting? No longer would speeches be interrupted by angry shouts of “You Lie!” At worst, there would be giggles and “Love ya, Bro.” The Capitol dining room could quit serving Senate Bean Soup and just put out bushel baskets of Kit Kats and every flavor of Doritos. Think of the difference in senators’ opening statements in committee hearings. They would still be long and rambling, but they would not be harsh, self-serving and untruthful.

The work would still get done. The pols don’t trouble themselves with the details anyway. All the work is done by staffers and attorneys, who would still have to stay sober during work hours. Committee meetings and debates would still be lively, but less rancorous. The risk would be that they could degenerate into food fights. Probably the Democrats should be limited to Ho-Hos and the Republicans to Twinkies so the television cameras could keep things straight. (I originally assigned the snacks arbitrarily, but if someone wants to assign symbolic values to them, that is The Reader’s choice.)

When I first broached this idea, one colleague objected on the grounds that susceptibility to marijuana is genetic and some people would not mellow out. But that’s actually another ground for insisting that candidates toke up in public. What better way is there to exclude congenital curmudgeons and eternal pessimists from positions in which their nay-saying can create major harms?

What is sauce for the congresscritter should probably be applied to those testifying in committee as well. The O.S.S. was testing weed as a truth drug as early as the 1940s. Anyone who has been there knows how hard it is to tell a convincing lie while wasted. Turning a witness on should be at least as effective as making them swear to tell the truth. The problem would be that the truth would be buried under an endless stream of babble. Imagine three wasted automotive executives trying to explain why they flew three private jets to Washington so that they could ask congress for money to help their broke companies.

If congress is mellow, so should be the broadcast political commentators who talk about them. A mellow Bill O’Reilly might make more sense, but the world may not be ready for a stoned Glen Beck. The Limburger could be more believable if grass were substituted for his Oxy. Who would be liable if a wacked Lou Dobbs tried a faint smile and his face shattered into a thousand granite shards? Keith Olberman? I suspect he is already following the program at least part of the time.

The rule would have to include Sunday morning talk shows – hosts, guests, and panelists. The schedule for these shows would have to be extended to accommodate the much more drawn out questions and answers, but they don’t have much competition in those time slots anyway. The panelists present a different problem. My mind boggles at even the idea of a giggling George Will. Perhaps if that frozen-in-place hair were a little mussed and that little bow tie somewhat askew (and who can tie one of those damn things anyway?), a real human might emerge from that bloodless automaton.

This kind of radical change could cause social and economic changes as well. Recent studies indicate that increased marijuana use is coupled with decreased alcohol use. If the Washington power class becomes a stoner caste, what will happen to their booze consumption – now at astronomical levels? Will the top-tier watering holes become taco stands? Will Jack Daniel have to ask for a federal subsidy to avoid bankruptcy? Will K Street become the world’s largest AA group?

If the plan works for the political side of government, perhaps it can also be applied to parts of the administration. The top administrators of the DEA and ONDCP need to be more familiar with the subject matter of their jobs if they are to do them well. As soon as they are confirmed, these top people should be put through a training program in which they experience recreation-level doses of at least the four most common drugs subject to their administration: marijuana, heroin, cocaine, and the amphetamines. These doses should probably be administered over the course of a month to avoid the shock that a more concentrated introduction would cause. These people don’t have the resiliency of teenagers any more.

The training for working DEA agents should be more intense, including at least some of the psychedelics. This training should help to weed out the inherently paranoid and overly suspicious, resulting in a more compassionate and cooperative force. One beneficial side effect could be substantial revenue to the government. Just imagine the earnings of that new reality tv show: “Narcs on Acid.”

Okay, you’re right. This is just a pipe dream. But I think I’ll hold on to the fantasy just a bit longer. As Axl Rose told us, when you’re high, “you never ever wanna come down, come, down, come do-ow-ow-own!

Fig-Leaf Legalization

2009-11-14T18:04:00.000-08:00

Fig-Leaf Legalization

In my last posting, I referred to California’s medical marijuana system as “fig-leaf legalization”. The more I think about it, the better that idea looks.

The idea, as pointed out in a recent issue of Fortune among other places, is that the limits and qualifications of the Californian medical marijuana program are so liberal that virtually anyone can qualify. The result is that the medical dispensaries are in fact nothing but retail marijuana outlets – pot shops.

Several factors contribute to this laissez faire operation.

The first is that the state law places no direct limitation on the medical conditions for which a doctor may recommend the use of marijuana. A doctor may recommend its use, not only for relief of chronic pain or adjunct therapy for cancer patients, but for minor conditions like headaches, mild insomnia, or even mild feelings of malaise. (In its first life as a legal medicine before 1937, two of the main uses of cannabis were for migraine headaches and PMS, two conditions for which newer drugs often provide insufficient relief.)

The second factor is that, in American law in general, only a doctor exercising his professional judgment in the treatment of a patient may determine what does or does not have medical value. Subject only to state licensing and disciplinary rules and malpractice laws, that doctor may recommend, dispense, or prescribe any substance or course of treatment he thinks will be of value to the patient. A small exception exists in the case of heroin, which the federal government persuaded many states to ban outright in the 1920s and 30s.

California doctors are now charging $150 for a consultation for a marijuana recommendation. The consultations usually last no more than ten minutes and rarely involve an actual physical examination. They have become a ready source of additional income for a large number of California doctors.

The third factor is that the federal government has no jurisdiction to determine the medical value, or its lack, of any substance. This limit on federal power has been recognized since the mid-1920s and was reaffirmed as recently as Gonzales v. Oregon. (2006) Three major federal statutes are concerned with the way in which drugs are marketed – The Food, Drug, and Cosmetics Act (as amended), which establishes the Food and Drug Administration, The Controlled Substances Act, which regulates the way in which scheduled drugs are marketed, and the Dietary Supplement Health and Education Act of 1994, which grants the FDA oversight of the marketing of herbal remedies and dietary supplements – but none of these authorize any federal agency to determine whether or not any substance has medicinal value.

Many think that the FDA “approves” new medicines, but it does not. The FDA, acting under the Interstate Commerce clause, prevents misleading or deceptive marketing of drugs by requiring that each drug bear an approved “label” [1] .

Once the drug is sold, the FDA has no control over how doctors use that drug. A doctor may then prescribe the drug for other diseases, a practice known as “off-label” uses. For instance, amphetamines are approved for the treatment of narcolepsy, a rare disease, but physicians prescribe them for attention spectrum disorders as well; and now some doctors are prescribing them for patients to use as “brain-boosters”.

The Dietary Supplement Act is also a marketing act, preventing deceptive or misleading marketing of supplements, vitamins, and herbal preparations. The distinction is that the FDA may intervene only after a product is marketed using methods that make unsubstantiated health claims.

Contrary to popular perception, the Controlled Substances Act is also a marketing control act, not one determining the medicinal value of any substance. It divides all drugs with psychoactive effects into two broad categories: Schedule I and Schedules II-V. The Drug Enforcement Administration establishes regulations for the ways in which doctors may prescribe drugs in Schedules II-V (duplicate forms, non-refillable, limits on amounts for each prescription, etc.), but it may not limit the uses for which a doctor may prescribe that drug.

Schedule I drugs seem to be an exception to the general scheme in that those drugs (including heroin, marijuana, MDMA, and most psychedelics) may not be manufactured, distributed, or possessed. However, a close reading of the statutory language reveals that Schedule I drugs are not defined by their medical effectiveness (reserved by the Constitution to the states), but by whether they have “currently accepted medical use in the United States.” In other words, the DEA is not to determine medical effectiveness, but is only allowed to conduct a survey as to whether the drug is currently used by doctors.

In the first rescheduling action (MDMA), the Administrative law Judge recommended placement on lower than Schedule I on the grounds that the drug was in fact used by doctors with the approval of reviewing peers. The Administrator refused to accept the petition and placed the drug in Schedule I. In that case and the two other cases decided by the Courts of Appeals that issue was not presented to the court and the courts made no finding on that definition. The Iowa Supreme Court, using this interpretation of equivalent language in the state law, has ordered the State Board of Pharmacy to reconsider the scheduling of marijuana. The first federal law suit based on this interpretation is now pending in the U.S. District Court in New Mexico. The result could be to force the federal government to follow the lead of the states.

If that legal interpretation controls, the federal government will have no legal force against state medical marijuana, and the AG’s decision not to prosecute compliant medical marijuana distributors suggests that it has also lost its moral and political backing.

One result is appearing that, at first sight, looks surprising, but is predictable in hindsight. With the risk premium for unlawful conduct removed from their cost structure, medical marijuana distributors are lowering their prices. Market rules apply here as they do elsewhere. Reports show some illegal street dealers lowering their prices by up to 20% in order to compete. Illegal dealers have inherently higher cost structures than do legal ones; the illegal dealers and distributors will be forced from the market. Al Capone cannot compete with Anheiser-Busch.

Colorado is rapidly following in California’s footsteps, and three other states have approved distribution systems. Legislative action on medical marijuana is heating up to unprecedented levels, with nation-wide popular support running over 70% in recent polls. Editorial support is also uniformly high.

Outright legalization of marijuana is still too frightening and too radical for many, and therefore probably politically impossible in the immediate future. Decriminalization has its fans and provides some relief for the consumer, but it does nothing to combat the violence, corruption, and harms of the black market; it may even strengthen them by increasing demand. Fig-leaf legalization, following in the steps of California and Colorado, may be an acceptable compromise. It furnishes an excuse to those whose morals may be offended by a pleasure-driven search for chemical happiness while also furnishing a loosely regulated market, avoiding the excesses and harms of full legalization. Paying a hundred dollars a year for a license from a doctor is a small price to pay for demolishing a major part of the War on Drugs.
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[1] The label is all of the text, and only that text, which the FDA has approved and which must be included when the drug is sold or advertised. The label must include at least one medical use for which the drug has been scientifically shown to be safe and effective. The label is actually several pages long and is presented as the package insert, which the pharmacist will give to you if you ask for it. It is also included in compendia like Physician’s Desk Reference.

…but with a Whimper

2009-10-29T19:03:00.000-07:00

…but with a Whimper

Many who have been advocating for drug law reform have visualized the War on Drugs ending in an Armageddon-like battle. We can see weeks of heated debate in both houses of congress with the media following and commenting like it was the super Bowl. We can visualize a signing ceremony in the East Room with Ethan Nadelman getting the souvenir pen and the Congressional Medal of Freedom being given posthumously to Brownie Mary. We can even dream of DEA and ONDCP officials shaking their cups on street corners as they ask for spare change.

But it’s beginning to look like we will win, but without the fireworks. The War on Drugs is ending, not with a bang, but with a whimper.

The Attorney-General’s memo to U. S. Attorneys this week shows the change in strategy. A-G Holder has directed the USAs not to initiate prosecutions involving state medical marijuana laws unless the cases involve more or more of a list of earmarks:

• unlawful possession or unlawful use of firearms;

• violence;

• sales to minors;

• financial and marketing activities inconsistent with the terms, conditions, or purposes of state law, including evidence of money laundering activity and/or financial gains or excessive amounts of cash inconsistent with purported compliance with state or local law;

• amounts of marijuana inconsistent with purported compliance with state or local law;

• illegal possession or sale of other controlled substances; or

• ties to other criminal enterprises.

The important feature of this list is that, with a partial exception of the fourth element, all of the elements require a criminal act in addition to the mere distribution or possession of marijuana. The fourth – financial – element is too vague to serve as a defense for the decision to prosecute except for the inclusion of money laundering. And rest assured, the import of this list is the pressure it puts on USAs to justify any decisions to prosecute with evidence tied to this list.

Anyone who stays reasonably close to state law and who avoids state prosecution probably is safe from federal prosecution unless they adopt an outrageously expensive and public life style.

Many have remarked that, in California at least, medical marijuana has served as a fig leaf, disguising outright legalization. If true, that situation will probably expand to other states; Colorado is giving indications of going the same direction. With the feds ignoring California, the roadblocks are down.

California is beginning to like the taste of marijuana taxes and is getting hungry for more. Other states also face the same kinds of budget crunch.

Many California growers are committed to growing as a matter of principle, and not just for profit. As they have been able to act more publicly, their prices have come down and they have diverted sales from the criminal cartels, who are unwilling, and probably unable, to cut prices. Law enforcement will soon begin to see a resulting savings, and the people will see a decrease in violence and environmental damage.

In approximately fifteen years, fourteen states have enacted medical marijuana laws, either through referendum or legislation. New Hampshire came close this year, with a bill passing in the legislature, but when the governor vetoed it, the state senate failed by two votes to override the veto. Connecticut has twice passed similar legislation, only to have the governor veto it each time.

Iowa presents a curious situation. The Iowa Supreme Court has ordered the Iowa Pharmacy Board to reexamine the classification of marijuana based on medical use in the United States considered as a whole. Testimony at the Board’s hearings, both medical and lay, seems to be overwhelmingly in favor of rescheduling.

This year, Wisconsin, Illinois, Ohio, Pennsylvania, New Jersey, New York, and Massachusetts all have bills pending. All three candidates for governor in New Jersey have pledged to sign the bill if the legislature passes it. In Massachusetts, which decriminalized possession of less than one ounce of marijuana by referendum last year, the latest poll shows 81% of the voters favor medical marijuana. Depending on the results of these legislative attempts, Texas could remain the only state with large population refusing to recognize medical use of marijuana.

Congress is also beginning to take notice. For several years, nation-wide polls have shown more than 70% of the population favoring recognition of medical marijuana. This term four bills have been filed and are awaiting committee action. Three of which would make federal law recognize state medical marijuana laws and the fourth would decriminalize possession of small amounts under federal law. If the easy passage of expansion of the federal hate crime law to cover sexual orientation and the lack of reaction against it are any indication, congress may be more comfortable with changes in this other morally sensitive area as well.

A reasonable prediction is that the end of the current legislative and congressional sessions will have medical use of marijuana nationwide accepted and legal. Details will have to be cleaned up as states with no current legislative sessions come into conformity, but those actions should be somewhat routine.

As California, and to some extent Colorado, is revealing, medical use can lead to more commonplace use. The first dominos have toppled, and the rest of the line is now shaky.

All Drug Use is Self-medication -- Not

2009-10-17T12:14:00.000-07:00

All Drug Use is Self-medication -- Not

Anyone following the drug law reform debate for very long will run into the slogan: “All drug use is self-medication.” The problem is that not only is this claim not supported by fact, it also works against several more legitimate claims.

The first issue is to look at the basis of this assertion. I have found no researcher who has claimed this proposition as the result of his studies. One generally accepted proposition is that a significant number of those with drug dependencies or who abuse drugs also have some personality, mood, or character disorder that causes them some degree of discomfort and for which they seek, consciously or unconsciously, some form of relief. (I use this weasely “significant number” as an admission that the data do not tell us whether that number is ten per cent, ninety per cent, or somewhere in between) Extending this proposition to the assertion that all drug use is an attempt to alleviate some mental disorder is unwarranted.

If this exaggeration stood alone, it could be shrugged off as the kind of rhetorical over breadth we all commit from time to time. But this concept has the effect of delegitimizing several other valid claims for recognition.

Drug use as a religious exercise is one of the claims competing against this self-medication concept. Religious use of psychoactive substances dates back to pre-history. Modern claimants use a variety of substances. Federal law recognizes the use of peyote by the Native American Church and yagé, or ayahuasca, by O Centro Espirita Beneficiente Unido do Vegetal and Santo Daime. Even the old Volstead Act allowed Christians and Jews to procure and use alcohol for religious purposes. The Rastafarians and Coptic Zionists are seeking legal recognition for their religious use of cannabis (so far only recognized by the U. S. Court of Appeals for the Ninth Circuit [Guam Terr.]).

Many of those using psychedelics do so for the purpose of enlightenment or self-awareness. While this claim may look similar to both the medical and the religious, it is really quite different. It is epistemological in nature, asking the questions “What can I know of the world and how can I know it?” During the 1950s and 60s, large numbers of outstanding figures in arts, literature, science, medicine, and politics tried – and many used repeatedly – psychedelics for this purpose.

By far the most popular use of drugs is for social or recreational purposes. While the beer with buddies after work or the joint when one gets home may serve to relieve some stress, their primary function is pleasure. A joint with a movie and a bowl of popcorn or Ecstasy pills shared by a couple at a dance club are used to enhance pleasure, and for no other purpose. Cocaine in its heyday was primarily a social drug, with lines being shared at parties.

One recent claim is related to, but distinct from, medical claims. Many are now using stimulants, particularly Ritalin and amphetamines, as “brain boosters”, or drugs to make them smarter, more alert, and more fatigue-resistant. Doctors and nurses discovered this effect of amphetamine when it was first introduced in the 1930s and by the 1940s, armed services around the world were using them, as they still are today. For at least a half a century truck drivers have used amphetamines to extend their driving hours. Today’s brain boosters are college students, professionals, and middle-management who get their drugs legally through doctors’ prescriptions, and some have been using them for over a decade. While traditionally medicine has been viewed as remedying a disease, disorder, or deficiency, this use of drugs does the opposite. It is aimed at helping the user attain the superior, not just to return to the normal. It is more like an athlete using steroids or human growth hormone or an aspiring starlet getting breast augmentation in order to outdistance the competition.

One claim I almost forgot because it is so far removed from the world of medicine. The Controlled Substances Act defines the prohibited drug marijuana as being any part of the plant Cannabis sativa, which includes the extremely low THC-content varieties grown as hemp for use as fiber, oil, or food. No matter how many hemp shirts one wears, they will have no medical effect.

In fact, the claim that all drug use is an attempt at self-medication is a claim for more, not less, regulation of those drugs. Diagnosis is a notoriously difficult art, and diagnosis of mental disorders particularly so. The prescription of anti-depressants is, at best, a trial-and-error process, with doctor and patient often going through as many as five or six different drugs before finding one that is effective and without unacceptable adverse consequences. The rate of failure of self-diagnosis and treatment, as evidenced by the high rate of resultant dependency, calls for more professionalism in the diagnostic process, not less.

The Jeffersonian appeal to the right of each to determine what food or medicine he ingests does not negate the intervention of medical professionals in the process. The growth of modern medicine since the days of Jefferson, with its potential for great help – and great harm – requires mitigation of an extreme libertarian interpretation.

We can all join together to seek the rights of those advocating medical, religious, enlightenment, and social uses of drugs as well as the right to grow and use hemp. In this struggle facts and rationality are the strongest weapons. We only hurt ourselves when we resort to easily falsifiable propaganda like the utility of self-medication.

White Rabbit Redux

2009-10-09T12:55:00.000-07:00

White Rabbit Redux

Dust off your old Jefferson Airplane albums. Acid may be making a comeback.

Scientific American reports that two new clinical studies are underway examining the use of LSD in psychotherapy [1]. One of these is in Switzerland, funded by Multidisciplinary Association for Psychedelic Studies. The second is at U. C, Berkeley, funded by the Beckley Foundation of England.

The 1950s were the glory days of psychedelic research. Hundreds of studies, involving thousands of patients and hundreds of thousands of doses of LSD were published [2]. Mescaline (peyote) and psilocybin (magic mushrooms, or ‘srooms) also received a lot of attention.

The study of psychedelics blossomed in the ‘50s. Investigators flourished in literature, art, medicine, basic science and politics.

Aldous Huxley led the way in literature. His Doors of Perception was seminal. He introduced Dr. Hofman to mescaline and psilocybin, resulting in their synthesis. He then took LSD to Harvard, where Leary was researching with psilocybin and also introduced Leary and Allen Ginsburg to each other. William Burroughs failed with his Texas marijuana farm and moved to Mexico, where he lured Ginsburg onto his South American quest for yagé. On the West Coast, Ken Kesey met LSD as an experimental subject at a mental hospital where he worked. When One Flew Over the Cuckoo’s Nest made it big, Kesey and his Merry Pranksters tried to turn the Nation on with their “acid tests”.

(FUN SIDE NOTE: Neal Cassady was the model for Dean Moriarty in On the Road, the novel that introduced many of us to the idea of drugs. He was also the driver of Kesey’s bus, named “Furthur”, when the Pranksters made their cross-country voyage to meet Leary. I have sometimes said that Kesey put a bunch of Beats on the bus, Cassady drove them around the country, and the first hippies disembarked.)

By 1950 Sandoz was sending samples of LSD to interested doctors – the standard way of testing new drugs and building markets for them before the FDA started requiring proof of efficacy in 1962. This surprising new drug created quite a buzz.

Several doctors, following the lead of the literary adventurers, tried to study the effect of acid on creativity and the arts. However, no good theories of the brain existed at the time, and modern methods of study, including scans, were still some thirty years in the future. So after watching painters paint while tripping and afterward and talking to poets who were buzzed, these experiments didn’t really lead to anything.

But the fifties was also the time when the first real psychopharmacological breakthroughs were made. Many doctors were therefore willing to try LSD as an adjunct to the kinds of therapy they were already doing. It demonstrated some success in several areas.

Grief and transition counseling was one of the most promising. Those who had experienced the loss of a spouse or close relative or those facing a terminal diagnosis in themselves or a family member seemed to cope with the situation much better after one or two counseling sessions involving acid.

Couples therapy, or working with those having relationship problems, also progressed better when the work involved doses of acid.

Therapists working with disorders now classified as Post Traumatic Stress, panic disorder, and obsessive-compulsive disorder also tried using LSD with their patients. These efforts, too, showed marked success.

Researchers in Canada used LSD in treating alcoholics who had not been successful in earlier attempts at treatment. They reported cure rates without relapse of around fifty per cent, levels no other therapy has reached.

Over all, several thousand studies were published. First, they demonstrated the drug to be remarkably safe. Almost no significant adverse effects have been noted. They also indicated high levels of successful treatment. However, measured against the stringent standards for drug testing that have developed since 1962 under the changed FDA protocols, few of these studies would be considered sufficiently rigorous today.

But the dark side experimented with acid as well. Even before 1945, the OSS was looking at mind-altering drugs, and when the CIA took over the job, it continued the research. Both the CIA and Army Intelligence became interested in LSD early and started experiments that continued for over a decade. The CIA first tried acid as a truth serum. When that didn’t work, they experimented with the ideas of secretly dosing enemy commanders or politicians so that they would act crazy and lose credibility or with dosing water supplies so that populations would become uncontrollable. These experiments involved secretly dosing unknowing subjects, including drafted soldiers and hospitalized mental patients. Almost all reports of adverse incidents come from these experiments on unknowing subjects.

These failures led the military to pressure Congress to outlaw LSD. In 1968 acid became illegal under federal law. But doctors continued using mescaline and psilocybin until they were banned with the passage of the Controlled Substances Act.

Soon after that, MDMA became available, and doctors quickly adopted it with good results. When the DEA began its process to place MDMA in Schedule I, the CSA classification for drugs that have no medical use and which may not be possessed legally, over 250 therapists filed protests, stating that it was essential to their practice.

When the DEA placed MDMA in Schedule I, The Multidisciplinary Association for Psychedelic Studies was formed. Partly in response to MAPS’s urging, the FDA convened a Technical Panel in 1995 to establish guidelines for research on psychedelics.

Since then, research has picked up. Most of us are aware of the large number of studies on marijuana, but the other drugs have experienced resurgence as well.

MDMA has completed clinical safety trials, and Phase III trials on treatment of PTSD have been going on for several years. These look to be very successful.

Ibogaine is being tested in Mexico as an adjunct to treatment of opioid addiction. This use look similar to the work using LSD with alcoholics conducted in Canada in the 1950s. Incidently, those researchers were the ones to coin the term “psychedelics”. Also, the Native American Church has had very good results working with alcoholics in its peyote rituals. The active ingredient in peyote is mescaline.

So, the bus is freshly painted, and Jerry and The Dead are cued up on the iPod. Get those wildly colored outfits out of the back of the closet and dust them off. Let’s all get on the bus: it’s time to go "Furthur".

[1] Stix, Gary, “Return of a Problem Child: LSD makes a comeback as a possible clinical treatment”, Scientific American, October, 2009, p. 18. See also Marsa, Linda, “The Acid Cure”, Discover presents The Brain, Fall 2009, p. 54.

[2] Lee, Martin A. and Bruce Shlain, Acid Dreams: The Complete Social History of LSD: The CIA, the Sixties, and Beyond, Grove Press, 1994, is the standard history of LSD studies, although much significant information about the CIA has come to light since its publication. I recommend it to anyone looking for more information on the topics I cover here.

Marijuana Comes to the Americas

2009-10-04T10:57:00.000-07:00

Marijuana Comes to the Americas

If you read my postings on “The Prehistory of Marijuana”, you know I presented two theories of how marijuana came from the old world to the new: from sub-Sahara Africa to Brazil with slaves or from North Africa with Moorish sailors on Spanish ships. You also know I was not enthusiastic about either of them.

I have now stumbled over a third theory that fits the facts much better. Indian hemp came to the Americas from (drumroll) India . I found it in Grim, Ryan, This Is Your Country on Drugs: The Secret History of Getting High in America, Wiley (2009), pp 44-45. Grim is a journalist, now writing primarily for Slate. He also spent a few years working for MPP. This book is a fun and informative read.

Great Britain eliminated slavery in all of the British Empire in the 1830s. The Jamaican sugar plantations had been highly profitable, but they needed large amounts of cheap labor to continue their operations. Relations within the Empire made India the best place for them to find workers.

Those Indian workers brought their families with them when they immigrated to Jamaica. And they also brought Indian hemp for relaxation, medicine, and religion. As their numbers grew, they expanded into the coastal areas of Central America, especially Panama.

This theory explains some mysteries and makes good connections with known historical points.

The “aha” moment for me was that this theory explains why Jamaican cannabis is called “ganja”, an Indian name. If the other theories were correct, one would expect the use of “hashish” from North Africa, “cannabis” or “hemp” from Europe, or some name from Southern or Central Africa. We do know from the debates leading up to the criminalization of marijuana in the U.S., that most Americans at that time were not aware of the identity of cannabis, hemp, and marijuana.

When the U.S. began work on the Panama Canal, it brought large numbers of workers from Jamaica and Cuba, believing them to be more resistant to yellow fever. These workers mingled with North Americans working on the canal. Panama became the direct source of three of the marijuana routes into the U.S. and the indirect source of the fourth.

Sometime between 1900 and 1920, marijuana became common in the Port of New Orleans. From the time of the California gold rush starting in 1849 (about when Indian workers first started appearing in Panama), a large part of New Orleans shipping originated in Panama, and as the Canal was being built and finally opened, that traffic increased.

In the early 1940s, Detroit Red (later Malcolm X) was selling reefers in New York to musicians. His source of supply was crewmen on Caribbean freighters, most of which came from New Orleans or Panama.

The army stationed troops in Panama beginning in 1904. The use of marijuana by these troops grew to the point that the Surgeon-General of the Army did a study of it in 1931, leading to publication of his report on marijuana use in 1932, in which he concluded no regulation was needed.

The fourth source of American marijuana, and the largest, was Mexico. Historically, Mexico has always had a strong flow of immigration from Central America, a migration that still continues. Mexico is probably where the name “marijuana” – “Mary Jane” arose. The turmoil of the Mexican Revolution of 1910 led to a large increase of people moving across the border into the U.S., where they found work, primarily as agricultural laborers. The presence of these Mexican immigrants led to the first anti-marijuana laws, beginning with the infamous El Paso ordinance.

This India-Jamaica connection is the most satisfactory one I have seen so far. I have begun looking for sources to try and nail it down. If any of you know of, or run across, anything that might bear on this issue, please help me out.

Drug Law Top Ten

2009-09-29T20:35:00.000-07:00

Drug Law Top Ten

Judge James Gray, in his recent Los Angeles Times Column proposed a list of what he believes most people would agree are the top ten goals of our drug laws. Bearing in mind his cautions that not everyone will agree to all of these and that they are in no particular order, here are his drug law top ten:

1. Reduce the exposure of drugs to and usage of drugs by children;
2. Stop or materially reduce the violence that accompanies the manufacture and distribution of drugs, especially to police officers and innocent by-standers;
3. Stop or materially reduce the corruption of public officials, individual people and companies, and especially children that accompanies the manufacture and distribution of drugs;
4. Stop or materially reduce crime both by people trying to get money to purchase drugs and by those under the influence of drugs;
5. Stop or materially reduce the flow of drugs into our country;
6. Reduce health risks to people who use drugs;
7. Maintain and reaffirm our civil liberties;
8. Reduce the number of people we must put into our jails and prisons;
9. Stop or materially reduce the flow of guns out of our country and into countries south of our border;
10. Increase respect for our laws and institutions.

While I was teaching Controlled Substances Law, I prepared a shorter list of reasons why we have drug prohibition. My question “Why do we have…?” is slightly different from his “What do we expect them to do?”, and mine is shorter and less nuanced since it was intended to spur a discussion among naïve students in the first class of the semester, but the lists overlap a lot. My list of reasons why we have drug laws:

1. Eliminate, or greatly reduce, the presence of intoxicating drugs in our society;
2. Prevent drug users from harming other people;
3. Preserve the health and well-being of those who would use drugs;
4. And establish and proclaim a moral standard which people should affirm even if their behavior does not conform to it.

The big differences (other than the amount of detail) between the lists are that Judge Gray focuses on the behavior of those affected by the law and I focused more on the motivations of the legislators. And he focuses on those affected by the law, while I believe that Congress focused on the drugs as if they were the actors and ignored those affected.

The judge is diffident about the accuracy of his list (unnecessarily so: his thirty years experience in the daily application of those laws probably makes him one of our leading experts on what they actually do), but it really doesn’t matter. His list is a wonderful tool.

In many ways, the reformer’s biggest task is to convince the people he comes in contact with daily. Somewhere on his list – which is marvelously non-confrontational – is something that you and your audience can agree on. I don’t matter if your audience is a friend sharing a beer or a Sunday School class or a Rotary Club. Once you have agreed that one or more of these goals is important, then a discussion about how to achieve it becomes easy. Most groups can come up with a list of solutions, many of which are more effective and less expensive than is drug prohibition. Your goal is accomplished indirectly (remember The Art of War?) and without confrontation.

My list highlights the usefulness of this approach by comparison. I was dealing with a small group of students in a classroom situation where I could compel them to participate, even if unwillingly; and I was working under the time pressure of a single class period. I could use confrontation, anger, and even embarrassment as tools (does this reveal something about your profs you didn’t know?). In voluntary situations like we have in reform attempts, those tools are not available. The judge’s list, by allowing us to play nice, is much better.

Once a goal is selected for discussion, what do you want to do with it? Ultimately, you want to answer three questions, even if the approach is indirect:

1. How well does the current drug law achieve that result?

2. What costs does the use of drug prohibition impose? Be creative here: My own personal pet peeve is the requirement that I show ID and sign a register every month when I am “allowed” to buy less than a month’s supply of decongestant – and that law really doesn’t affect the amount of methamphetamine on the street at all.

3. What are the alternatives and what would they cost?

This kind of structured argument can be very effective. First, it is positive and goal-directed. Second, it can be very specific and concrete, avoiding sloganeering by either side. Third, it provides people with a plan of action.

The judge has given us a great tool with his list. Let’s all learn it thoroughly and start using it to frame our own arguments.

[My list included the use of law to state desired moral principles. Discussing that was out of place in this piece, but soon I will compose an entire screed on the baleful and malicious effects of religion and religiosity on politics, government, and law. BCT]

What if they had a war...?

2009-09-20T10:52:00.000-07:00

What If They Had a War…?

About fifty years ago, our country got involved in a highly unpopular war that incited considerable protest and civil disobedience. One of the slogans of that period was: “What if they had a war and nobody came?”

I was reminded of that slogan when the September 28 issue of Fortune ran a cover story, “How Pot Became Legal”, by Roger Parloff. It’s starting to look like the Government is having a War on Drugs, but no one is coming.

(But, first, a modest little claim of priority. Several months ago, I started spreading the idea that “The people have already legalized marijuana; when will the government catch up?”)

The idea was that, while politicians and generals may declare wars, they depend upon the peoples’ compliance in serving as cannon fodder to fight them. As far as the War on Drugs is concerned, it really looks like the people have become either draft resisters or conscientious objectors.

In the seventy years since the federal government outlawed marijuana, the government’s own estimate of the number of Americans who have used it has grown from 100,000 to over 100,000,000. That’s a lot of people sitting out the War – and they haven’t even had to go to Canada or Sweden.

Even the courts have dropped out. Government officials now proclaim that almost no one (but, unfortunately “almost no one” is not the same as “no one”) goes to jail for a first-time possession of a small amount of marijuana. But, one may ask, if they are not going to put anyone in jail, why were about 800,000 people arrested for marijuana possession last year? Just last year, Massachusetts joined the thirteen states (why does the phrase “thirteen states” resonant with me?) who had acted in the 1970s, and decriminalized the possession of a small amount of marijuana. Some of the police officials and prosecutors screamed that the end of civilization had arrived, but the people just yawned – and lit another joint.

Congress itself is starting to relent. Last week the House of Representatives, in reauthorizing Pell Grants in Aid for college students, voted out the provision barring grants to those convicted of any drug offenses, including marijuana possession. The injustice, which has lasted for ten years, is that students were not barred from receiving grants by other convictions, including those for violent crimes or financial crimes.

The Fortune article claims that California has decriminalized marijuana under the rather transparent fig leaf of authorizing the medical use of the herb. In California, a patient may use marijuana if a physician certifies that, in his medical opinion, use of the drug would be beneficial. Determination both of the existence of a medical condition and of the benefit of marijuana is left to the professional discretion of the doctor. Conditions diagnosed have included headaches, muscular or joint pain, loss of appetite, PMS, insomnia, and even general malaise or disphoria.

If any doctors could use some additional income, consider the numbers. The usual fee for a consultation and issuing of a certificate good for one year is $200. These consultations rarely last longer than ten minutes. A doctor spending an additional thirty minutes a day for 200 days a year would see 600 patients, increasing his income by $120,000 per year.

The federal government has said it will not interfere, and while a few local governments are resisting the opening of dispensaries in their communities, most seem satisfied with the situation. Fortune claims that there are about three times as many marijuana dispensaries in Los Angeles as there are McDonald’s – even more dispensaries than Starbuck’s.

Both Colorado and New Mexico are allowing dispensaries this year, and Rhode Island has passed a law authorizing them. The California model seems to be spreading.

Thirteen states now recognize the medical use of marijuana, and five or six more have bills under consideration. Fourteen states have decriminalized possession. Even allowing for a large overlap between these two groups of states, a substantial part of the American population now lives in a jurisdiction in which marijuana use is legally accepted. Two companies – Oaksterdam University and Cannabis Tech -- now run commercial operations teaching people how to grow and market marijuana.

When I talk to young people, high school and college age, they accept marijuana as a normal part of life even if they don’t use it themselves – and most do not. The law against it rarely enters their consciousness, but when it does, it appears as a minor inconvenience, not a deterrent. A common sentiment is that if a police officer finds them with marijuana, he will just take their stash and send them home. At worst, they think they face a few months easy probation.

I started this piece with a metaphor comparing the War on Drugs to the Vietnamese War, but now I wonder if that was the best choice. Our government finds itself on the losing side in both instances, looking for a way out, but we have been engaged in this war for our entire lives, and opting to sit on the sidelines seems a cowardly choice.

Perhaps a better comparison would be Shaw’s Chocolate Soldier. When forced to war, he threw away his cartridges and filled his ammunition box with chocolates. Maybe we should try to kill the drug warriors with sweetness.

But the best fit may be the major of nursery rhyme fame (Attention, Source Scouts: help me track down this image that remains just out of memory). He’s the one who marched all his men up the hill and then marched them down again.

At any rate, it’s time for the politicians to listen to the people. The war is over. Marijuana is legal. Deal with it.

[Nota bene: Some commentators have asked for my views on the effect of marketing if drugs are legalized and on the role of the U.S. in the international drug trade. It has taken some time to put my thoughts in order and to do a little (ugh!) research, but you can expect to see something on this topics and further parts of my Theory and Practice of Prohibition, interspersed with random brain droppings, in the near future. Let me know if you have other ideas for me to talk about. BCT]

Happy Birthday to Us (or U.S.)

2009-09-16T12:32:00.000-07:00

Happy Birthday to Us (or U.S.)

Join me tomorrow (September 17) in celebrating our most important national holiday: Constitution Day. The anniversary of the signing of the Constitution is the least celebrated, and probably the least known, of our holidays, but that is where it all began.

Constitution Day has a better claim to being our birthday as a nation than does Independence Day. On the Fourth of July, we proclaimed that we were no longer British. Only after a bitter war and frustration under the Articles of Confederation, did we draft the Constitution that identified us as Americans. On that day, we became one people – one nation – where before we had been the mutually suspicious and quarrelsome citizens of thirteen separate sovereigns eyeing each other warily across borders.

And the Constitution has made us the model to the world. We were the first: now almost every government has a written constitution, must drawing inspiration, if not actual wording, from ours. We have truly shown the way.

But, as Ben Franklin said on that day, we created a Republic, but only we can keep it. Jefferson said that eternal vigilance is the price of liberty.

For several years I have followed the practice of rereading the Constitution as a whole each year at this time. Even after some forty years of practicing and teaching law, I find something new each year. I invite you to join me in this tradition; that’s why I have posted the entire document on this blog. If you have read the document as a whole at any time since high school civics class (if then), raise your hand. Look around – is any hand up? I thought so. Now is a good time to correct that oversight.

Those of us working for drug law reform know that the law must spring from, and be based on sound constitutional principles. Unless we know and love that document, we have no roadmap out of the wilderness.

Happy Constitution Day! Maybe next year we can have birthday cake and fireworks.

U.S. Constitution: Prohibition and Repeal

2009-09-16T11:16:00.000-07:00

U. S. Constitution: Prohibition and Repeal

Prohibition of Alcohol

AMENDMENT XVIII

Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1.

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2.

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

[Note: Proof that even We the People can make mistakes. A mere thirteen years later came Repeal. The total repeal process took less than eleven months. The Repeal Amendment is the only time Congress has specified the use of conventions rather than leaving the process up to the state legislatures. BCT]

Repeal of Prohibition

AMENDMENT XXI

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.

The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Section 3.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

U.S. Constitution: Rights Amendments

2009-09-15T12:50:00.000-07:00

Constitution of the United States:

Amendments Affecting Citizenship, Personal Rights and Liberties

Bill of Rights

The Preamble to The Bill of Rights

Congress of the United States

begun and held at the City of New-York, on

Wednesday the fourth of March, one thousand seven hundred and eighty nine.

THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

Note: The following text is a transcription of the first ten amendments to the Constitution in their original form. These amendments were ratified December 15, 1791, and form what is known as the "Bill of Rights."

[Note: The absence of a Bill of Rights was a major source of contention during the Ratification debates on the Constitution and several of the states included a call for one in their ratifications. The First Congress proposed twelve articles as amendments and ten of them, now known as the “Bill of Rights” were ratified. An eleventh one was ratified in 1882 as the XXVIIth amendment. BCT]

________________________________________

Amendment I

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

________________________________________

Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

________________________________________

Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

________________________________________

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

________________________________________

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

________________________________________

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

________________________________________

Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

________________________________________

Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

________________________________________

Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

________________________________________

Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Civil War Amendments

[Note: Slavery was the flaw that the Founders were unable to conceal. From the 1820s through the 1850s, it dominated Federal politics until Civil War broke out. These three Amendments were proposed by Congress at the end of that war, and acceptance of them was a requisite for readmission of the seceding states. BCT]

AMENDMENT XIII

Passed by Congress January 31, 1865. Ratified December 6, 1865.

Note: A portion of Article IV, section 2, of the Constitution was superseded by the 13th amendment.

Section 1.

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Section 2.

Congress shall have power to enforce this article by appropriate legislation.

________________________________________

AMENDMENT XIV

Passed by Congress June 13, 1866. Ratified July 9, 1868.

Note: Article I, section 2, of the Constitution was modified by section 2 of the 14th amendment.

Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age,* and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3.

No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4.

The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.

*Changed by section 1 of the 26th amendment.

________________________________________

AMENDMENT XV

Passed by Congress February 26, 1869. Ratified February 3, 1870.

Section 1.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude--

Section 2.

The Congress shall have the power to enforce this article by appropriate legislation.

Other Amendments Affecting Rights and Liberties of Individuals or Rights and Privileges of Citizenship

AMENDMENT XIX

Passed by Congress June 4, 1919. Ratified August 18, 1920.

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXIII

Passed by Congress June 16, 1960. Ratified March 29, 1961.

Section 1.

The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation

AMENDMENT XXIV

Passed by Congress August 27, 1962. Ratified January 23, 1964.

Section 1.

The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

AMENDMENT XXVI

Passed by Congress March 23, 1971. Ratified July 1, 1971.

Note: Amendment 14, section 2, of the Constitution was modified by section 1 of the 26th amendment.

Section 1.

The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2.

The Congress shall have power to enforce this article by appropriate legislation.

Constitution: Articles IV - VII

2009-09-14T12:59:00.000-07:00

The Constitution of the United States:

Articles IV – VII

Article. IV.

Section. 1.

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section. 2.

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Section. 3.

New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Section. 4.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.

________________________________________

Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

________________________________________

Article. VI.

All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

________________________________________

Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

The Word, "the," being interlined between the seventh and eighth Lines of the first Page, the Word "Thirty" being partly written on an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty third Lines of the first Page and the Word "the" being interlined between the forty third and forty fourth Lines of the second Page

[Note: the Signatures – they made it happen. BCT]

Attest William Jackson Secretary

Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of the United States of America the Twelfth In witness whereof We have hereunto subscribed our Names,

G°. Washington

Presidt and deputy from Virginia

Delaware

Geo: Read

Gunning Bedford jun

John Dickinson

Richard Bassett

Jaco: Broom

Maryland

James McHenry

Dan of St Thos. Jenifer

Danl. Carroll

Virginia

John Blair

James Madison Jr.

North Carolina

Wm. Blount

Richd. Dobbs Spaight

Hu Williamson

South Carolina

J. Rutledge

Charles Cotesworth Pinckney

Charles Pinckney

Pierce Butler

Georgia

William Few

Abr Baldwin

New Hampshire

John Langdon

Nicholas Gilman

Massachusetts

Nathaniel Gorham

Rufus King

Connecticut

Wm. Saml. Johnson

Roger Sherman

New York

Alexander Hamilton

New Jersey

Wil: Livingston

David Brearley

Wm. Paterson

Jona: Dayton

Pennsylvania

B Franklin

Thomas Mifflin

Robt. Morris

Geo. Clymer

Thos. FitzSimons

Jared Ingersoll

James Wilson

Gouv Morris

self-medication

2009-09-14T12:55:00.000-07:00

This was originally a response to a private email, but it looks good enough to share generally:

I'm not sure which of my many blatherings you're referring to, but you may be confusing two different things.

Yes, I'm in favor of self-medication. My cabinet includes, among other things, ibuprophen, aspirin, and two different anti-histamines. If I wanted to run the legal risks, I would have mj available for insomnia, but my position is rather exposed.

On the other hand, I am not competent by training for more sophisticated diagnosis and can't do the blood tests needed for more powerful medication. I'm happy to have both doctors and the FDA handy for my use. But they need not be exclusive.

I am opposed to two things.

The claim that all non-doctor-mediated drug use is self-medication is bogus. A lot of drug use -- alcohol, marijuana, ecstasy, cocaine, 'srooms -- is strictly recreational and social. Some -- mainly caffeine and other uppers -- is work-related like combat aircrews on amphetamines, "go-fast pills". Some is religious -- mj for Rastas and Coptic Zionists, wine for Christains and Jews, psychedelics for self-awareness. Some is simple curiousity.

These claims are just as valid as claims of medical use.

Second, a lot of self-medication is mis-directed and counterproductive. If taken for the wrong disease or disorder they, even mj, may increase the disorder rather than alleviate it. Even marijuana can make some conditions worse.

In short, I would say too things:

1. While everyone should have the right to self-medicate, over the last half-century both medical science and pharmacology have become so complex that only a fool would use self-medication for more than the most simple and routine disorders, and

2. Over-stating the claims that use of marijuana or other street drugs is always self-medication denigrates and denies the legitimacy of uses for recreation, productivity, spirituality, and even experimentation.

There's room for everybody.

Constitution: Articles II & III

2009-09-13T21:14:00.000-07:00

Constitution of the United States: Articles II and III

Article. II.

[Note: creates the President and Vice-President and established their responsibilities, powers, and limitations. BCT]

Section. 1.

The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years, and, together with the Vice President, chosen for the same Term, be elected, as follows:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot for two Persons, of whom one at least shall not be an Inhabitant of the same State with themselves. And they shall make a List of all the Persons voted for, and of the Number of Votes for each; which List they shall sign and certify, and transmit sealed to the Seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing the President, the Votes shall be taken by States, the Representation from each State having one Vote; A quorum for this purpose shall consist of a Member or Members from two thirds of the States, and a Majority of all the States shall be necessary to a Choice. In every Case, after the Choice of the President, the Person having the greatest Number of Votes of the Electors shall be the Vice President. But if there should remain two or more who have equal Votes, the Senate shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice President, declaring what Officer shall then act as President, and such Officer shall act accordingly, until the Disability be removed, or a President shall be elected.

The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.

Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:--"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States."

Section. 2.

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Section. 3.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

Section. 4.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors

Amendments Primarily Affecting Article II

[Note: Judging strictly by the number of Amendments, this has been the most problematic part of the constitution. BCT]

AMENDMENT XII

Passed by Congress December 9, 1803. Ratified June 15, 1804.

Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.

The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; -- the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; -- The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. --]* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.

AMENDMENT XX

Passed by Congress March 2, 1932. Ratified January 23, 1933.

Note: Article I, section 4, of the Constitution was modified by section 2 of this amendment. In addition, a portion of the 12th amendment was superseded by section 3.

[Note: Although the National Archives classifies this Amendment as modifying Article I and Amendment XII, I have chosen to place it with Article II, since most of us today organize the political year around the presidential term. BCT]

Section 1.

The terms of the President and the Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.

Section 2.

The Congress shall assemble at least once in every year, and such meeting shall begin at noon on the 3d day of January, unless they shall by law appoint a different day.

Section 3.

If, at the time fixed for the beginning of the term of the President, the President elect shall have died, the Vice President elect shall become President. If a President shall not have been chosen before the time fixed for the beginning of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect nor a Vice President shall have qualified, declaring who shall then act as President, or the manner in which one who is to act shall be selected, and such person shall act accordingly until a President or Vice President shall have qualified.

Section 4.

The Congress may by law provide for the case of the death of any of the persons from whom the House of Representatives may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any of the persons from whom the Senate may choose a Vice President whenever the right of choice shall have devolved upon them.

Section 5.

Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

AMENDMENT XXII

Passed by Congress March 21, 1947. Ratified February 27, 1951.

Section 1.

No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2.

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.

AMENDMENT XXV

Passed by Congress July 6, 1965. Ratified February 10, 1967.

Note: Article II, section 1, of the Constitution was affected by the 25th amendment.

Section 1.

In case of the removal of the President from office or of his death or resignation, the Vice President shall become President.

Section 2.

Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.

Section 3.

Whenever the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that he is unable to discharge the powers and duties of his office, and until he transmits to them a written declaration to the contrary, such powers and duties shall be discharged by the Vice President as Acting President.

Section 4.

Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.

Thereafter, when the President transmits to the President pro tempore of the Senate and the Speaker of the House of Representatives his written declaration that no inability exists, he shall resume the powers and duties of his office unless the Vice President and a majority of either the principal officers of the executive department or of such other body as Congress may by law provide, transmit within four days to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office. Thereupon Congress shall decide the issue, assembling within forty-eight hours for that purpose if not in session. If the Congress, within twenty-one days after receipt of the latter written declaration, or, if Congress is not in session, within twenty-one days after Congress is required to assemble, determines by two-thirds vote of both Houses that the President is unable to discharge the powers and duties of his office, the Vice President shall continue to discharge the same as Acting President; otherwise, the President shall resume the powers and duties of his office

Article III.

[Note: Creates the Supreme Court and provides for the Federal judiciary. BCT]
Section. 1.

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State,--between Citizens of different States,--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

Section. 3.

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted

Amendments Primarily Affecting Article III

AMENDMENT XI

Passed by Congress March 4, 1794. Ratified February 7, 1795.

Note: Article III, section 2, of the Constitution was modified by amendment 11.

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Constitution: Article I

2009-09-12T18:18:00.000-07:00

The Constitution of the United States

[Note: My notes will appear in square brackets […] in italics. BCT]

Article. I.

[Note: Article I creates the Congress and defines its powers and limits. BCT]

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Section. 2.

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

Section. 3.

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

Section. 4.

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

Section. 5.

Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

Section. 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

Section. 7.

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

Section. 8.

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

Section. 9.

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to the Ports of one State over those of another; nor shall Vessels bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

No Title of Nobility shall be granted by the United States: And no Person holding any Office of Profit or Trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10.

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States; and all such Laws shall be subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Amendments Affecting Primarily Article I

[Note: The Amendments are traditionally listed in order of ratification after the entire text of the Constitution. I have chosen to place them functionally for easier understanding.]

AMENDMENT XVI

Passed by Congress July 2, 1909. Ratified February 3, 1913.

The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.

AMENDMENT XVII

Passed by Congress May 13, 1912. Ratified April 8, 1913.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

AMENDMENT XXVII

Originally proposed Sept. 25, 1789. Ratified May 7, 1992.

[Note: This amendment is one of twelve first proposed by Congress as the original ill of Rights. It was not ratified at that time BCT]

No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.

Prohibition, Theory and Practice, Part II: Ineffectiveness

2009-09-11T21:05:00.000-07:00

Prohibition, Theory and Practice, Part II:
Ineffectiveness

Prostitution has been prohibited in most of the United States (all except for a small part of Nevada) for over a century, but prostitutes can be found working in virtually every town and city in the country. In the cities they even work openly and advertise their services. The police have given up trying to suppress the activity and instead limit their efforts to preventing disruptions of neighborhoods, control of sex slavery and underage prostitutes, and providing a flurry of activity when a member of the city council goes on a morality kick.

The Soviet Union tried to keep its citizens from being exposed to Western “propaganda”. It not only prohibited import or possession of European, American, and Japanese video tapes, it also developed a different format for video tapes and mandated that all video recorders and playback devices use only the Soviet format, meaning that they could not show foreign tapes. The result was the creation of not one, but two black markets: one dealing in smuggled foreign VCRs and the second creating and selling pirated copies of Western tapes copied into the Soviet format. The demand for Western information was so great that entire books were circulated through single copies laboriously retyped with multiple carbons.

One of the most perverse results came from the prohibitory import tax the British imposed on French watch works early in the nineteenth century. The goal was to raise the price of French watches so high as to exclude them from the English market, giving English watchmakers a protected market in which to develop their craft and become competitive. The results were disastrous. Far from driving French watches out of the market, the extremely high price made them a desired prestige item when placed in fine jewelry mounts. The English watchmakers did not use their protection to improve their products, but merely raised prices on the same shoddy goods. The French and Swiss were able to achieve economies of scale and improve production methods so that, even with the excessive tax, they could undercut the low-quality English goods. Today Swiss watches are a world standard and English watches are unknown.

Going down the entire list of prohibitions in Part I would only produce a dreary list of similar failures. One example will begin to make the reasons for these failures clear.

By 1820, both Great Britain and the U.S. had embargoed the international slave trade, and all ships carrying slaves between Africa and the Americas (primarily Brazil and Cuba) were subject to capture and forfeiture. Their officers and crew faced criminal sanctions. Even as late as the 1850s, over 25,000 Africans were transported for sale in Cuba each year. A ship solid and fast enough for the trade could be purchased for under $15,000 or leased for even less. Such a ship could buy slaves for $40 – 50 in trade goods and load about 900 of them. Around 750 would survive the trip and be sold for $1,000 – 1,500 each in Havana, totaling over $750,000[1]. Four or five voyages would allow a captain to retire, fixed for life; and backers or ship owners could easily write off the cost of ships captured by the governments. These numbers are similar to, but less extreme than, those of the drug trade today.[2]

Why do all these attempts at prohibition have such untoward outcomes? They are actually a predictable result of the relationship between supply and demand.

Most prohibitions worked as intended by greatly increasing the price of the commodity affected. But they ignore the radically different effect that the change has on sellers and buyers.
These laws impose penalties, often criminal, on sellers and impose greater costs, including making goods harder to find, transport harder, and risk of injury or death greater due to the increased violence of the business. But they also increase the returns to not only compensate for these increased cost, but also to provide profits much greater than would be possible in a legal market. The imposed sanctions also serve as entry barriers to would-be sellers unwilling to bear the risks of sanctions or injuries. Limiting entry is a form of cartelization that segregates rentes to those sellers who decide to participate. As a result, probably fewer outlets sell illegal drugs, for instance, than sell legal ones, but the illegal sellers are protected at profit levels that would entice many new competitors in a licit trade.

While prohibition can provide strong incentives to certain sellers, its effect on the demand side of the market is much less dramatic. Although prohibition can greatly increase the cash price of the good, the cash price is often only a small consideration to the purchaser. Both the value and the cost of a good must be determined subjectively: from the buyer’s viewpoint.

The example of the high price English taxes imposed on French watchworks is instructive. The expense created an incentive to purchasers who could combine the expensive watch with an even more expensive jewelry case as an item of conspicuous consumption, gratifying the bearer. Looking at the extensive history of sumptuary laws – and their failures – shows how strong the impulse for ostentatious display can be. A modern American driving a Ferrari while wearing Armani clothes, a Piaget watch, and thousand-dollar sunglasses with large designer logos is a good example.

The way to determine the value of a good – and therefore the price a purchaser is willing to pay –- is to look at what that purchaser will forego in order to obtain it. The most striking example is the hard-core heroin addict who is willing to eat out of dumpsters and sleep under bridges – giving up food and shelter -- in order to get his daily fix. No price would be too high for him to pay. In terms of the current market for illegal drugs, hard-core and addicted users probably consume around eighty per cent of those drugs and the large majority of users consume the rest. In terms of policy, that vast majority of users has little effect on the market.

The substitution analysis for those casual users is very different from that for the addict. A social marijuana user will probably make purchases of around a quarter of an ounce, which even at today’s astronomical prices, will cost fifty dollars or less. This expense is no more than the cost of two or three alcoholic drinks with a companion or taking a date to a movie with snacks. Shared joints at home with a DVD movie and popcorn is very competitive with that movie date. If the choice is between marijuana and saving for retirement or next summer’s vacation, the value of those savings when reduced to present value is less than that of the marijuana. As far as medical marijuana is concerned, marijuana is both cheaper and more effective than the six hundred dollars a month that legal Marinol (synthetic THC, marijuana’s primary active component) costs.

Prohibition does not stop the market from continuing. It does criminalize the sellers, making them more violent and unscrupulous and increases the money cost to the purchaser, but the sales still continue.

The next installment will start looking at the unintended consequences of prohibition, and after that, we will look at the effects on law enforcement and the justice system.

[1] Data is taken, passim, from Soodhalter, Ron, Hanging Captain Gordon, NY, 2006. Soodhalter estimates $100 in 1850 to be the equivalent of $4,000 today.

[2] I intend to return to this situation in a later installment on unintended consequences of prohibition.

Where it all begins

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We the People of the United States,
in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

These few words may be the most important sentence ever written. It was signed and presented to the public on September 17, 1787.

As a result, September 17 is now what I consider to be our most important, if also the least known, of all our holidays. In many ways, September 17, not July 4, is really America's birthday.

I have developed the habit of reading the document anew each September. Even after practicing and teaching law for 40 years, I find something new each time. I strongly recommend the practice.

to help you adopt the same habit, I will post the entire Constitution for your consideration over the next few days.

Keep it strong and it will keep us well.

The Prehistory of Marijuana, Part II: 1800=1900

2009-09-07T13:21:00.000-07:00

The Prehistory of Marijuana, Part II:
1800 – 1900

In 1800 Europe and the United States were still living in a world of hemp. In addition to ropes and sails, the American Declaration of Independence and Constitution were both printed on hemp paper, as was all paper money until the 1930s. However, hemp was about to lose its dominance over the world of cannabis.

Napoleon over-extended himself by trying to expand his French empire into Egypt. The British destroyed his fleet at Alexandra and he was unable to fight his way home through the Levant. He sneaked home, leaving the army behind in Egypt. When they straggled home, they brought hashish – the psychoactive resin of the cannabis plant – with them. And with it, they brought the legend of the Assassins.

According to the legend, The Old Man of the Mountain was the ruler of a small citadel high in the mountains of Asia Minor who used hashish to control a band of thugs and murders by dosing them with hashish – hence the name “Hashishins” – to go out and raid and kill on his orders. The story is implausible to anyone familiar with hashish, although it does resonant with the stories a century later of drug fiends high on marijuana. A fuller version of the story discovered later is that the Old Man would dope boys with hashish until they fell asleep. He would then move them to his secret, lush garden, where they would awaken to beauty, bird songs, wine, and beautiful maidens. With the promise of greater rewards in heaven and similar hash-fuelled revels after missions, they would do his bidding. Here, the resonance is with current day jihadists and suicide bombers who carry out their missions with promises of virgins in the afterlife.

At any rate, by 1820, hashish had become the center of several of the most stylish Parisian literary and social salons, and most of the lions of French arts and literature participated. The hashish was usually consumed as an ingredient in confections. This fad did not last long, most Parisians preferring wine or absinthe, with its hallucinatory wormwood extract, but a few persisted in using hashish and some rare hashish houses operated in New York in the decades after the Civil War.

One American devotee wrote a memoir of his experiences, Confessions of a Hashish Eater. The book is, frankly, a rip-off of the earlier and better known Confessions of an Opium Eater, an English work that supported its author through multiple editions for over fifty years. The Hashish Eater did, however, recognize the identity of hashish and cannabis and he tells of his first, early experiments as a college student in a local druggist’s shop. He moved from college to the big city and from cannabis elixirs to hashish confections.

Where did the Hashish Eater get the cannabis he experimented with? In the 1830s, a doctor named O’Shaunessy was serving with the British army in India. Toward the end of the ‘30s he wrote two articles for the British Medical Journal about the use of cannabis in native Indian medicine. This age had already discovered quinine in an indigenous tree-bark remedy and isolated morphine from opium poppies. People were ready to hear about other native cures and soon cannabis preparations were common at druggists on both sides of the Atlantic.

Cannabis’ time in the spotlight was short-lived. The active chemicals are fat-soluble, making alcohol-based elixirs problematic and making dosage irregular, depending largely on the state of the patient’s digestion at the time. (This problem still makes oral preparations of cannabis hard to use.) By the end of the Civil War, injectable morphine was readily available for the treatment of both pain and gastric disorders. In 1913, Congressional investigators working on the proposed Harrison Narcotics Tax Act recommended that cannabis not be included. They found only six or seven cannabis preparations for sale and only two of those were not for external use. The primary use of cannabis was in corn plasters. Although it remained in the U.S. Pharmacopeia until 1942, its medical heyday was long past.

Hemp also ran into hard times. The onslaught of steam ships in the second half of the nineteenth century destroyed hemp’s main market. Cheap methods for making woodpulp paper in continuous rolls for the new steam presses drove hand-laid hemp paper from the market. Hemp also required large amounts of hand labor for production, and effective machines were not developed until the 1930s. When the hemp growers lost the use of slave labor, costs made hemp an uneconomic product. The final blow was when the U.S. acquired the Philippine Islands after the Spanish-American war, and cheap Philippine sisal replaced expensive American hemp.

By 1900 cannabis had almost disappeared from the U.S., but a rebirth was waiting in Mexico. As a small child in West Texas, I learned the innocent little folk song, “La Cucaracha”. But I was an adult before I learned that the verse
La cucaracha, la cucaracha,
ya no puede caminar
porque no tiene, porque le falta
marihuana pa' fumar.

Translated into English as “The cockroach cannot walk/ because he has no/marijuana to smoke”.

How marijuana got to Mexico is a mystery. The primary theory is that it came with salves from sub-Saharan Africa who had used it at home. The main problem with this theory is that the slaves were stripped totally naked before being loaded on ships and were not allowed to bring any possessions. My hypothesis looks instead to North Africa. Many sailors on both Portuguese and Spanish ships were from North Africa – Columbus’ first voyage carried several. Hashish was common in both Morocco and Algeria, and those sailors could have carried their private stashes, including seeds.

In either case, whether cannabis came up the coast from Brazil or into the Caribbean and Mexico from North Africa, Mexico is where their traditional method of using tobacco – smoking – was applied to cannabis and it was given the new name “marijuana”.
From Mexico, as recounted in the earlier piece “End of an Era…?”, smoked marijuana entered the U.S. through the two gateways of Southwestern agricultural labor and the docks of New Orleans. The rest, as they say, is history.

Prehistory of Marijuana (Part 1)

2009-09-04T12:57:00.000-07:00

The Prehistory of Marijuana (Part I)

I recently wrote about what I called “the dark ages” of marijuana history from about 1900 until 1970 and the Foundation Myth [1], pointing out how sketchy the record is. Now I want to look at the earlier period, before 1900, where hard facts are almost non-existent. The record is so sparse, especially before about 1820, that I call it marijuana’s prehistory. Searching this era calls less for the skills of the historian and more for those of the anthropologist, ethnologist, or even the archeologist.

One of the surprising features of this story is that, before about 1900, the tale of marijuana looks more like the story of four separate plants instead of one about four uses of one plant. Hemp (fiber), hashish (cannabis resin as intoxicant), cannabis (medicine), and marijuana (smoked cannabis) came into Western life through separate routes and before at least 1850 no one seems to recognize these to be different uses or cultivars of the same plant.

Cannabis seems to be a native of the steppes of Central Asia, from which it spread in both directions. It was used medicinally, religiously, and recreationally in both China and the Indian Subcontinent as early as the middle of the second millennium BCE. But the first mention in the West came in 430 BCE, when Herodotus described the Scythians (a nomadic horse people of the Steppes) inhaling the fumes from hemp seeds burned on braziers inside tents. I have found no other reference to hemp or cannabis as a medicine or intoxicant in European literature until the middle of the seventeenth century CE.

Islam exploded out of Arabia and spread from Western China through West Asia and North Africa to the Iberian Peninsula in the seventh and eighth centuries CE. Islam forbade the use of alcohol, so cannabis became the intoxicant of choice through most of this territory. Islamic rulers remained in Iberia until the end of the fifteenth century and used North African Berbers as their military force for most of this time, but no record of cannabis in Iberia exists. It seems to have stayed in Africa.

From the last days of the Roman Empire until the middle of the nineteenth century hemp was the face of cannabis known in the European world. Wind-driven ships were the engine of both commerce and war during this period, and hemp drove these ships. They were rigged with hemp ropes and hemp sailcloth; and a single ship would have miles of rope and acres of sails. The word “cannabis” comes from the Dutch word for canvas. This hemp was so important that, in the reign of Elizabeth I, England started requiring all farmers to grow hemp, and that law extended to the North American colonies. At least three American presidents – Washington,
Jefferson, and Madison grew hemp commercially.

Some extrapolate from these facts and argue that these men also used cannabis as an intoxicant, but that use is unlikely. Modern hemp variants of cannabis are so low in psychoactive cannabinoids that they cannot be used as intoxicants. One expert has claimed that it would take a hemp cigarette as large as a telephone pole to get one high. Our ancestors, while not modern geneticists, were excellent farmers. With well over a thousand years of experimentation, they would have developed strains of cannabis favoring fiber over cannabinoids, just as they had already developed maize and wheat from unpromising grasses; and historical hemp (the precursor of modern hemp plants) would have had its psychoactivity bred out of it hundreds of years ago.

This assertion is supported by strong negative evidence. I have found only two European references to the medical or intoxicating effects of cannabis before 1800.
Richard Burton, in his Anatomy of Melancholy (1638, originally in Latin), makes passing reference to the beneficial effect of hemp on his melancholy, but his language is so indirect and metaphorical and the reference is so casual that explication of what he means is practically impossible. Identification of his drug with the fiber hemp plant is at best problematic. Most important is that none of his contemporaries identified his hemp with the fiber plant.
Robert Hooke, in his diaries for 1689, makes two mentions of a sea captain held captive in Ceylon for twenty years who talked about the Indian use of a hemp-like herb and seed called “Gange” in Portugese and “Banga” in Chinese[2]. Hooke reported those conversations to the Royal Society that December, but then the subject drops from the record. Hooke, the first secretary of the Royal Society, carried on an extensive correspondence with all of the leading scientists and medical scholars in Europe and England. He was also an infamous hypochondriac and delighted on dosing himself with all kinds of medicine. If anyone in Europe had suspected any relationship between Gange and European hemp, Hooke almost certainly would have at least tried it, and probably, conducted serious experiments. Here the silence of the record screams that no one recognized the identity of the two plants.

The only sustainable conclusion is that the use of cannabis as an intoxicant traveled no further west than the Scythians, and from 430 BCE until after 1800 CE, Europe had to do with alcohol, opium, and tobacco as intoxicants.

After 1800, Napoleon’s army returned from Egypt bearing hashish to Paris and Dr. O’Shaunessy informed the British medical society about the medical use of cannabis in India. Our story will continue with those tales.

[1] See “End of an Era…?”, August 15, 2009
[2] Hooke, while one of the prominent scientific writers of his age, was notoriously lax with the language in his diary. The actual text paraphrased here was “the intoxicating herb & seed like hemp by the moors called Gange is in Portuguese Banga; in Chingales.”

Prohibition: Theory and Practice (Part I)

2009-08-31T18:50:00.000-07:00

Prohibition: Theory and Practice,
Part I

When I first started studying American drug laws, like many other people, I looked for comparisons to the earlier alcohol prohibition. While strong differences exist – primarily in the structure and enforcement methods of the laws, these were overshadowed by the similarities between them – especially in the unintended consequences.

As my search extended, I found many other laws that followed similar patterns and resulted in similar consequences. Many of these, usually criminal laws, had religious or moral bases. These are often called “victimless crimes”. Others, often regulatory, were civil and based on economics or health. Always, though, the results of their attempted enforcement were the same.
My studies have focused on modern law – eighteenth century and later – and American and British law with some excursions into Western Europe, but I have looked at some earlier examples and some from the rest of the world. The similarities remain.

The resulting collection is amazingly eclectic. Although most of them deal with sex or intoxicants – the British Gin Acts of the 1720s are the first modern prohibition, and the American ban on abortion is one of the more recent – many try to protect local industries, to promote health, or to regulate professions. The list, taken from English and American federal law or the laws of individual American states, is long:

· British Gin Acts (1720s – 30s)
· American whiskey excise tax (1790s)
· British import tax on French watch works (early 1800s)
· State alcohol prohibitions (1840s – present)
· State anti-prostitution acts (starting 1870s)
· State anti-abortion acts (starting 1870s)
· State cigarette bans (1900 – 1920)
· Intellectual property laws (patent, copyright, trademark)(1715 – present)
· Anti-slave traffic (1809)
· Federal Alcohol prohibition (1919-1933)
· Unauthorized Practice of Medicine (1840s), but not Unauthorized Practice of Law
· Federal Drug laws[1]

And one whose nature I just recently recognized: the ban on human dissection, lasting from about the 14th Century until the middle of the 19th.

A few examples from outside the modern Western tradition will round out the picture:

· Chinese ban of opium (1830s)
· Soviet ban of Western video tapes (1970s)
· Iranian ban on cable and satellite television (1979).

These examples are enough to develop a rough definition of a prohibition law. What are the common factors?

All involve attempts to impose a legal impediment – criminal, civil, or fiscal – into a functioning market consisting of multiple, replaceable buyers and sellers negotiating for a reasonably obtainable good or service. This definition includes all the listed examples and distinguishes them from other laws, like those against murder or bank robbery, that do not include these market elements.

The market requirement is best illustrated by the distinction between the limitations on the unauthorized practices of medicine and law. Legal services are not readily obtainable: layers function only as distributors for the services of the governmentally supplied courts. Even those legal functions like will-drafting, estate planning, and corporate services ultimately rely on court enforcement. Even alternatives like arbitration or mediation depend on court enforcement for effectiveness. Without access to the courts, a lawyer has no service to offer. The government monopoly is so strong that no alternative supplier is possible.

Medicine, on the other hand, is much less dependent on hospitals. Many medical services can be offered without them. The unofficial (or, at best, semi-official) medical market teems with naturopaths, chiropractors, herbalists, midwives, curanderos, and faith-healers. Even among the recognized medical practitioners, the lines are blurred between esthetician and dermatologist, masseuse and orthopedist, and trainer and physical therapist. The market for medical services is open to many suppliers.

Availability of goods is crucial. When books were printed on paper and recordings pressed into shellac or vinyl, copyright was a practical monopoly. When digital reproduction and internet distribution became possible, a black market blossomed.

While many of these prohibitions are based on religion or morality – prostitution, abortion, drugs (including alcohol), to name a few, some are merely economic or are based in politics. Intellectual property law is economic; regulation of medicine is both economic and based in public health.

The main commonality among these prohibitions is that they are ineffective, and all are accompanied by thriving black markets. Alcohol flourished during prohibition, and drugs are readily available today. Bootleg DVDs and counterfeit Guccis are in every flea market.
They all also share disastrous collateral effects like dangerous products, violence, and corrupt law enforcement.

Later installments will examine first, the ineffectiveness, and then, individually, the collateral effects of these prohibitions.

[1] Including Smoking Opium Ban (1909), Harrison Narcotics Tax Act (1914), 2 Heroin Acts and criminalization of addiction (all 1920s), Marihuana Tax Act (1937), Boggs Act (1952), Narcotics Control Act (1957), LSD ban (1966), Controlled Substances Act (1970), and various amendments to CSA, including Amphetamine Control Act, Club Drug Anti-proliferation (cstasy), mandatory minimum sentences, crack cocaine sentencing, etc. (mainly in 1980s).

Drugs, Environment, and the Law

2009-08-23T12:29:00.000-07:00

Drugs, Environment and the Law

The headline screams that [unidentified] marijuana growers for a Mexican cartel [also unnamed] were responsible for a 600,000 acre California brushfire. This story comes after several years during which the mass media have been incessantly beating the drum about environmental harms caused by illegal marijuana farmers throughout that state.

And these stories, in turn, follow a continuing hysteria filling at least a decade about the harms caused by illegal meth cookers. I have no doubts about explosions and fires resulting from amateurs trying to do advanced chemistry in a motel bathroom or about the dangers of the chemicals left behind by don’t-give-a-damn meth entrepreneurs who sloppily mix together a witch’s brew. I do suspect that all the meth cookers together don’t add up to one of the hundreds of brown sites left by pre-1970 industrial sites the EPA has inherited.

Before meth, the story was the illicit cocaine processors in the Andean Republics. They dumped large quantities of chemicals, including kerosene and hydrochloric acid, into previously pristine Amazonian streams, destroying substantial tracts of the rain forest (but not as large as those devastated by loggers and cattle ranchers).

Even earlier were illegal alcohol stills. As Prohibition spread in the 1920s, the mobsters would pay marginal families – often immigrant -- $5 a week to put small distilleries in their bathrooms, making up to five gallons of “bathtub gin” (Yes, this is where that name came from) each week. Like the later meth cookeries, these had a nasty habit of exploding, causing injuries and fires. The crowded tenements of New York and Chicago were plagued by these distillery fires for the entire decade. And the tax-avoiding moonshiners in the South dumped (and still dump) their toxic wastes in the streams just like the later cocainistas.

The tale has jumped from the crowded big city tenements to the rainforests of Amazonia to the trailer-towns of rural America to the pristine forests of California. It has included alcohol, cocaine, marijuana, and amphetamines. Do these widely scattered stories have anything in common?

The common feature is that all of the activities described are against the law. Can the law, then, become the cause of these destructive activities?

The answer lies on the other side of the record. It’s time to flip it over and find out what side B has to say.

Jim Beam and Hiram Walker have produced whiskey for decades without turning their communities into brown sites and without explosions. Farmers provide thousands of tons of barley and rice to Anhauser-Busch, Millers, and Coors without any more environmental damage than their neighbors raising wheat or cotton. Millions of gallons of ethanol for fuel (denatured to keep it from being drunk) come each year from corn grown in compliance with all the environmental regulations. Alcohol, per se, doesn’t cause the harm.

German and Dutch pharmaceutical firms produced hundreds of tons of cocaine each year from about 1900 until the war closed them down in 1940; they were as kind to the environment as any other industries of that time. (The weaselly language is necessary because any real environmental laws were still a generation in the future when they closed.) One U. S. company meets all the country’s need for legal cocaine as a by-product to providing Coca-Cola with decocainized coca leaves for flavoring, and has been doing so for a century. It is a good environmental citizen.

Amphetamines were introduced to American medicine in 1935 in the form of Benzedrine. All three forms – Benzedrine, Dexedrine, and methamphetamine – were among the top-selling pharmaceuticals from the 1940s through the 1960s; and Dexedrine and methamphetamine are still prescribed to children with Attention Deficit spectrum disorders. The manufacturers have always complied with good manufacturing practices and environmental laws.

Thousands of acres of Cannabis, grown for hemp, are farmed in Canada and Europe. Those farms are just as clean and safe as the wheat crops adjoining them.

Yes, legality does make a difference. A clean, safe activity becomes a pestilence when forced outside the law. At least three factors come into play.

One is relative cost. A person facing decades in prison and torture or murder by competitors will not be deterred by the threat of an administrative fine for violating environmental regulations. His risks and costs are far different from those faced by a legitimate business person.

A second is the lack of investment commitment. A wheat or cotton farmer views his land as a life-long investment, to be protected and even improved for his descendants. An illegal marijuana grower has to treat his field or grow house as an expensive item. It is likely to be destroyed or confiscated by the police during the current crop cycle. In these circumstances, money or effort spent in protecting or conserving it is thrown away. Johnson may have said that the prospect of being hanged focuses ones mind, but the threat of a DEA raid makes one terribly short-sighted.

Illegality also carries the need for secrecy. Plants must be minimal (chemical vats in many cocaine labs are merely holes in the ground lined with plastic sheeting). Additional trucks or piping to dispose of waste or additional labor to keep things clean heighten the risk of discovery. Quick and dirty becomes safer.

Environmental damage, then, is an unintended, but inevitable, consequence of prohibition. Amazonian jungles and California forests are part of the collateral damage of the War on Drugs.

Is Rush Really an idiot?

2009-08-18T21:33:00.000-07:00

Is Rush Really an Idiot?

Al Franken a few years ago wrote a book titled “Rush Limbaugh is a Big, Fat Idiot”. At the time, I, like most people, shrugged it off as an exercise of comedic license. But some recent news stories are making me reassess that judgment.

First, let me refresh your memory. Rush got into serious trouble and had to scramble for a plea bargain that involved some time in rehab. It seems he had bullied his housekeeper into illegally buying OxyCotin for him. The investigation revealed that he had also done some doctor shopping and obtained multiple prescriptions for the drug.

This week, the Celebrity Sphere (and some of the more legitimate media as well) was full of pictures of Patrick Sweazy toking up on marijuana as an adjunct to his treatment for pancreatic cancer. The pictures reminded me that Montel Williams has been broadcasting his use of medical marijuana for years. To the best of my knowledge, neither of these gentlemen has even raised a prosecutor’s eyebrow.

Then other recent stories came to mind. Michael Jackson’s death was the most recent. Apparently he had been using mammoth amounts of controlled substances, including at least one sedative rarely used outside of controlled hospital settings, for years. His resident personal physician prescribed them and those prescriptions were filled by licensed pharmacies. Michael had his legal problems, but these didn’t include drug problems. But now that he is dead, the DEA is taking a hard, cold look at the doctor. Why didn’t his massive Schedule II prescriptions draw the Feds’ attention while he was still living in the penumbra of Michael’s stardom?
Michael’s story is a reprise of that of Anna Nicole Smith, but while he earned his stardom by singing and dancing, she was famous for having big boobs, and a willingness to show them, and a propensity for marrying aged oil tycoons. She died of a massive overdose of opioids, as had her son a few months earlier. After she was safely dead and buried, the authorities started investigating her lawyer and doctors about her sources for those drugs, which she had been using for years.

Heath Ledger’s use of and access to sleeping medicines raised no questions. But when he died of an overdose, everyone suddenly wanted to know where he got them.
Hollywood has presented a dreary series of drug-filled lives ending in scandalous deaths ranging through John Belushi’s speedball to Marilyn Monroe’s end in the ‘50s, which still sparks debates about misadventure, suicide, or homicide. Even some of the notorious deaths in Hollywood’s first cocaine binge in the ‘20s can probably be included.

Rock musicians don’t have to die to be exempt. Mick Jagger and Keith Richards were arrested on drugs charges before the Rolling Stones were famous, but the charges were dismissed. Forty years later, many wonder what led Kefe (“I can avoid drugs as long as I have a quart of vodka and an ounce of cocaine every day”) to climb a tree and fall out of it. The Toxic Twins, Steven Tyler and Joe Perry of Aerosmith, were in and out of rehab for years – but never a jail cell. Eric Clapton, Nicky Sixx, and Slash have all written memoirs full of drugs, pushers, accommodating agents, and not one police officer.

Michael Vicks went to prison for staging dog fights, while Michael Phelps got his picture in the papers hitting a bong and losing some advertising contracts but not going to jail. Baseball players support a growth industry in steroids, but never miss a game.

I hope some of you ace legal researchers can help me. I have scoured the texts of the Controlled Substances Act and the Bill of Rights and traced the relevant case law. I have found no evidence of or reference to a celebrity exemption to the drug laws; but the evidence says it has to be there. If any of you are more successful in finding it, please let me know.

But this brings me back to my original question: What about Rush Limbaugh and his OxyCotin? Is Rush too noble and egalitarian to claim a celebrity exemption not available to Joe Public? Is he too cheap to hire a live-in personal physician to write prescriptions and provide him a cover? Or is he truly a big, fat idiot?

End of an Era -- or Birth of a Culture?

2009-08-15T21:12:00.000-07:00

End of an Era –
Or Birth of a Culture?

Les Paul, inventor of the solid-body electric guitar and multi-track recording, died this week. It is also the 40th anniversary of the festival at Woodstock.

Normally, the death of a noted innovator is marked as the end of an era. But in this case, we have to ask if this week commemorates, not the end of an era, but the coming of age of the marijuana culture.

The early history of marijuana in America is a mystery. The time from about 1900 until 1970 can be called the Dark Ages, with only a few beacons shining out. The main beacons are the El Paso city ordinance of 1912 – the first marijuana prohibition, Anslinger’s testimony to Congress supporting the 1937 Marihuana Tax Act, the Life magazine issue on the Beatniks, and the 1968 – 70 hat trick of Monterrey Pop Festival, Woodstock, and Altamont. All else is pretty well hidden.

In 1937, Harry J. Anslinger testified that there were less than 100,000 marijuana users in the country, mostly Mexican agricultural workers in the Southwest and Black jazz musicians in a few eastern cities (I am developing strong doubts about Anslinger’s numbers, but that’s a subject for another time). By the middle 1970s, pursuant to the Drug Abuse Control Act of 1970 (which included the Controlled Substances Act), Congress had funded the Monitoring the Future survey, administered by the University of Michigan, and the SAMHSA Household Survey, both trying to determine the levels of drug use in America. Both of these indicated that millions were using marijuana.

What happened in the intervening 40 years that led to a more than ten times increase in the number of users?

The answer to this question is likely to be complex. The period covered World War II, which included a dramatic shifting of the American population as well as economic upheaval and millions of men exposed to military life. Surely, large numbers of those men returned with Post Traumatic Stress Disorder, which was not really recognized until the Vietnamese War era and for which treatment is still under development.

It included the Fifties – that most complex American decade. On the surface it was suburbs, prosperity, television, and the first college generation. Underneath it had the communist witch hunts, the stirrings of the civil rights movement, the growth of psychedelics, and alienation and anomie.

The Sixties added the sexual revolution and the pill, civil rights activism, the war in Viet Nam and protests, and ended with three assassinations. The country seemed to split in two, and the rift has yet to heal.

But music played a large part in the spread of marijuana culture.

The traditional Creation Myth has marijuana spreading from the crews of Mexican and Caribbean ships in the Port of New Orleans to the bordellos of Storyville and then going up the Mississippi to Chicago with musicians like Kid Ory and Louis Armstrong. From there, Mezz Mezzarow, the Pied Piper of Pot, took his sax and some weed to New York in 1927, where he turned Harlem on.

The Creation Myth is true as far as it goes, and it does support Anslinger’s testimony. But it doesn’t tell the whole story.

Those musicians of the 20s and 30s were a peripatetic bunch. They toured the entire U. S. by train, bus, and car. Louis Armstrong’s only marijuana bust was in LA; Charlie Parker learned about dope and weed while touring by car out of Kansas City.

Detroit Red (later known as Malcolm X) made a living selling reefers to New York musicians in the early- and mid-40s and followed them on tour with his supplies up and down the east coast. His source was the crews of coastal freighters from the Gulf of Mexico berthing in war-time New York.

But the main problem with the Myth is that it leaves out the bluesmen that also spread from the Mississippi to Chicago and Kansas City and also to St. Louis, Houston, Los Angeles, and Atlanta. They carried their music and weed with them, but they also played the early electric guitars that gave Les Paul his inspiration.

During the 20s, 30s, and 40s, music was as segregated as the rest of American society. Separate labels published and distributed “Colored” records and “Colored” radio stations played them. But no one could control the music once it was distributed or aired. White people, especially young ones, listened to Colored music; and by the 50s, some disk jockeys were broadcasting it on “White” stations. By the mid-50s, a few publishers like Sun Records were finding White singers who could sound “Colored” – Elvis was the prime example, and some Black artists like Fats Domino, Little Richard, and Ike Turner were playing to white audiences.

Some of the biggest fans were in England, where the blues, especially, fuelled a new sound by groups like the Yardbirds and the Animals. Rock and Roll was here to stay.

The intelligentsia and the Beats had their jazz; the college crowds, their folk music; and the teens had rock n’ roll. The Civil Rights movement turned gospel and folk into songs of protest and rebellion. They all came together in the new urban youth culture in places like San Francisco and Greenwich Village.

And grown-up American stared in horror at this cuckoo’s egg hatching in its nest: a hatchling whose peeps were amplified by Stratocasters and Gibson Les Pauls through Marshall amps. This hatchling came of age at Monterrey, Woodstock, and Altamont.

We may never trace the exact sources of the taste for marijuana that blossomed during this time. The causes are multiple and obscure.

We can be sure, however, that the medium through which that taste spread from coast to coast, from rich to poor, from drop-out to Ph.D., was the new evolving music.

Now, excuse me while I go listen to Jimi Hendrix play “The Star Spangled Banner.”

legalizing marijuana II: the Price of Drugs

2009-08-11T19:38:00.000-07:00

Legalizing Marijuana II:
The Price of Drugs

If marijuana were legalized, what would happen to its price? Although many assume the price would go down, very few attempts to quantify that decrease have been made. At least four approaches are possible, even given the almost total lack of solid price or market data. Given the state of the data, these approaches give only rough approximations, but the similarities of their results suggest that they are reasonably reliable.
# # #
Marijuana can be treated as a commodity. In an efficient market, the price of a commodity approaches the marginal cost of production as a limit. The price of marijuana should be close to other commodities produced by similar methods. Coffee, tea, and tobacco are similar products that have slightly more expensive methods of production. Coffee, roasted and ground, retails for between $0.35 and $0.40 per ounce. Tea leaves, plucked, dried, shredded, and packed in tea bags is about $1.00 an ounce. A pack of cigarettes, about one ounce of tobacco leaves, hand-picked, cured, blended, and rolled into cigarettes, can be bought for $5.00, including over $2.00 in taxes. Hothouse tomatoes have been advertised for $0.79 per pound ($0.05 per ounce). Broccoli, probably the most directly comparable product is available for less than $2.00 per pound ($0.33 per ounce).
Based on these comparisons, a reasonable price for run-of-the-mill marijuana should be about $1.00 an ounce. A recent quotation of $0.85 per ounce for legal marijuana in Czechoslovakia confirms this estimate. This price is at least two orders of magnitude less than the $200.00 to $400.00 per ounce commonly cited for today’s marijuana.
# # #
Heroin and aspirin were both invented by the Bayer company in the 1890s and introduced on the market at the same time. During the forty years that heroin was widely sold in a legal market, Bayer sold the two products, manufactured by similar processes, at the same price.
Today, generic aspirin can be purchased for $1.00 for a bottle of one hundred 300 mg tablets, or about $35.00 per kilogram. Illegal heroin wholesales for almost $100,000 per kilogram, a difference of more than three orders of magnitude. Even allowing an economy of scale decreasing the cost of aspirin by a factor of two or three would not appreciably change this ratio.
# # #
Amphetamines (including Benzedrine, Dexedrine, and methamphetamine) were among the most widely used medical drugs in the 1960s. Any of them could be produced for less than one dollar for a thousand tablets. Since an typical dose is 5 mg, that cost equates to less than $1.00 for 5,000 mg (5 grams), or $200.00 a kilogram, or under $6.00 an ounce. This cost would be between two and three orders of magnitude under current street prices for illegal methamphetamine, which the government estimates to be above $14,000.00 per kilogram
# # #
Costs for legal cocaine are harder to calculate because it has had no significant legal market in the United States since 1900 nor little world-wide since 1946. (Cocaine, while a legal Schedule II drug, has been largely replaced medically by synthetics like Novocain and procaine.)
A rough estimate can be based on the current price of unprocessed coca leaves in the Andean countries, which includes those produced for legal use by the native inhabitants. Coca can be bought for around $2.00 per kilogram. Since coca leaves contain one or two per cent cocaine by weight, this price amounts to about $200.00 for raw, unprocessed cocaine.
The chemistry for producing cocaine is relatively simple, the main process being over one hundred years old, and can be performed by semi-skilled labor. A mark-up of 100% to pay for refining, shipment to South American ports, and profits for the producer would place a kilogram of pure cocaine on Colombian docks for $400.00. Doubling once again would move the cocaine to an American distributor for $800 a kilogram. A retailer could, then, show a reasonable profit retailing it for $1,600.00 per kilogram, or about $45.00 per ounce.
Street prices for illegal cocaine range upward from $100.00 per gram, or $100,000.00 per kilogram retail. This price is slightly less than two orders of magnitude greater than the estimated, but very generous, legal price.
# # #
None of these estimates can make any claim of exactness. The marijuana estimate, based on several comparable products, is probably close to reality; but the others are no better than my starting data.
The significance in these estimates is that, as rough as they are, they all converge approximately on the same range of values: that illegal prices are in the neighborhood of 100 times as high as the equivalent legal prices would be. The power of these estimates is in that convergence.
My hope is that this convergence will convince others with more skills than I in quantitative analysis to look at this issue, using much more of the available data. I look forward to seeing their results.

Legalizing marijuana I: the Users

2009-08-11T19:33:00.000-07:00

Legalizing Marijuana I
The Users

As the discussion about legalizing marijuana heats up, many express concern that legalization would open the floodgates, and the number of users and of related problems would greatly increase. Analysis of the economic, psychological, and social factors suggests these concerns are largely unfounded. A good estimate is that while casual and social use might increase significantly, problematic use – that causing harm to the user or others – and habitual or dependent use will increase little, if they increase at all.
Basic economics shows that when the price of a commodity decreases, demand increases; and if supply is able to increase to meet that demand, consumption will increase. The price of legalized marijuana will probably drop dramatically: possibly by two orders of magnitude[1]. A recent report from Czechoslovakia shows legal marijuana there at a retail price of $0.85 per ounce, compared to the $200 – 400 per ounce common in the United States.
But the price to the purchaser includes not only the monetary cost to the purchaser, but also the personal utilities and disutilities accruing to him. Most of the utilities accruing to the purchaser of an illegal drug would reverse polarity if the drug were legalized. Those utilities might also change in value or intensity.
Three major disincentives, or disutilities, face the consumer considering purchasing illegal marijuana. They are the risk of arrest and conviction and the disabilities arising from those, the reluctance of most people to break the law, and the disapproval of others for one doing a bad or immoral act.
The costs of being convicted are very high. Jail sentences can be as high as a year for possession of a small amount. If convicted, one can be denied educational benefits and have difficulty finding a job or place to live, a disability that can be life-long. Many, even if not ultimately convicted, are unable to make bail and remain in jail pending trial, which may also result in lost jobs or dwellings.
But the true value of a cost occurring in the future is determined by the expectation value of that cost The expectation value of a risk is the amount available if the risk occurs multiplied by its probability. Today, the probability of being arrested and convicted for possessing marijuana is incredibly small. SAMHSA estimates about 15 million monthly users. Between 700,000 and 800,000 are arrested for marijuana possession each year, or about 75,000 per month. The probability of being arrested, then, is 75,000/15,000,000, or 1 in 200 (these numbers are only approximate, but are close enough to be valid); a risk most people would probably ignore.
The social and psychological factors increasing the cost of illegal marijuana are primarily the reluctance of most people to break the law and the fear of social and peer disapproval of someone doing something that is “bad”, or socially disapproved or immoral. However, my many casual conversions with teenagers, college students, and youths in their twenties and thirties suggest that this group has, to a large extent, been treating marijuana and its users as if it were already legal and that definitely think it should be legalized. The attitudes of older people, while they have not changed nearly as much, seem to be trending in the same direction. These older people are not a major concern since they, for the most part, would not being new consumers of legal pot. I have not had opportunity to look for formal studies on these questions, but I am sure they exist.
Likewise, illegal marijuana has its own positive utilities, including the challenge of breaking the law, the attraction of the forbidden, and the frisson of rebellion. These, too, have been largely devalued as marijuana has become more accepted and commonplace.
The social and psychological factors contributing to the decision to purchase marijuana have been largely devalued, leaving only the monetary considerations. The users themselves must be examined to determine what effect a dramatic price drop would cause.
# # #
Would all marijuana consumers be affected equally, or do differences exist among them?
Current medical thinking divides marijuana (or other drug) users in three categories. The “Diagnostic Statistical Manual (DSM-IV), the standard for diagnosing mental disorders, recognizes two conditions: substance abuse and substance dependency (it also recognizes the parallel alcohol abuse and alcohol dependency[2]. By implication, then, a third category is created consisting of those users who are neither abusive nor dependent. Abuse (greatly simplified) is using the drug under conditions where the user knows that use might result in harm to himself or another. Dependency, likewise, is compulsively using the drug even if the user wants to quit or knows its use is harmful to him.
Historically, the percentage of users who become dependent is virtually constant for any drug. For the highly addictive drugs like tobacco and alcohol, that percentage is about fifteen. For the common addictive drugs like the opioids, stimulants, and benzodiazepines, it is around ten percent. For marijuana, it is well under ten per cent and may be as low as three.
Best evidence suggests that those likely to become dependent on drugs could be identified by the time they enter adolescence. Their propensity arises from a combination of genetic factors, psychological history, and current environmental pressures. Dr. Drew Pinsky, formerly head of a large in-patient addiction center of a large Los Angeles hospital, claims that all of his patients shared a history of physical or sexual abuse and came from dysfunctional families. These strong predetermining factors suggest the likelihood that a majority, if not most, of those susceptible to dependency are already getting drugs in the current illicit market.
Unfortunately, all of our somewhat reliable statistics on drug use come from times in which drug prohibition was in effect, making them somewhat uncertain when applied to a legal market. However, the roughly similar figures for legal alcohol and tobacco suggest that the ratios would be roughly the same. Caffeine statistics deviate from the others, but the extremely high percentage of the population using it skews the distribution so far as to make it unreliable as a predictor.
However, each drug seems to find a level of use at which that society finds compatible with its perceived harms. Caffeine is used by over eighty percent of the population. Alcohol is used by about two-thirds of Americans, significantly lower than its level of use at the time of the Revolution. In 1950, tobacco was used by a majority of adults, but that figure has now declined to just over twenty per cent and is still going down (tobacco is the greatest killer among the psychoactive drugs, with over 400,000 deaths each year attributable to it.). Non-medical use of opioids is about the same as it was in 1914, before they first came under regulation with the Harrison Act. Prof. Rasmussen claims that the level of use – legal and illegal combined – of the amphetamine-like drugs (amphetamine, methamphetamine, and Ritalin) today is approximately the same as it was in the 1960s, when it was one of the most widely prescribed and used drugs.
Marijuana seems to still be seeking its level. In 1937, the government claimed that less than 100,000 people used it; now SAMHSA claims that about 100,000,000 have tried it and over 15,000,000 use it at least once a month. Among very young users, it is more popular than tobacco.
Based on these considerations, an educated estimate would be that, if legalized, the regular users of marijuana might double or even triple, to around 45,000,000, or around fifteen per cent of the population. However, the number of dependent users would increase much less, probably not even doubling. A positive aspect of this increase is that some studies show that, as marijuana use increases, alcohol consumption decreases, lowering the number of alcohol-related diseases and deaths and decreasing drunk driving incidents and domestic violence. This change would be a welcome trade-off.
[1] See “The Price of Legalized Drugs”, posted here.
[2] I understand that a new edition, DSM-V is due in 2011 and that it may change the definitions of these disorders significantly.

Who am I?

2009-08-11T19:29:00.000-07:00

Controlled substances laws and their consequences have been the center of my professional life for over fifteen years. I host a public interest television program in Houston, “Drugs, Crime, and Politics”[1], produced by the Drug Policy forum of Texas, and have done so for most of its ten-year history. Before my retirement, I taught a seminar, “Controlled Substances Law” for many years at South Texas College of Law.
In this blog I intend to explore the features and consequences of those laws, especially the unintended consequences, and look at the need for, and possibility of, changing them. Don’t expect a lot of breaking news or current events, although there will be some. My approach will be more historical and theoretical. I hope to get a lot of criticism – good, bad, and otherwise – and to start some good, heated discussions. Please point out my flaws and help fill the enormous gaps in my knowledge and understanding. You might also let me know if I make an occasional extra-base hit.
Who am I? I grew up in Lubbock, Texas, and was educated at M.I.T., Texas Tech University --B.A. in philosophy, J.D. (honors) -- and Harvard Law School (LL.M.). I practiced law in Lubbock, having been licensed in Texas and Louisiana and the federal courts. After practice, I taught at Loyola Law School in New Orleans for four years, then at South Texas College of Law for over twenty before retiring. My teaching areas other than Controlled Substances that have some relevance include legal history, first amendment law, administrative law, law and technology, and law and sex.
Before law school I worked as a letter carrier, analytic chemist, and as a semi-pro actor. I’m a damn fine photographer and a decent cook.
Come along for the ride. I may not be as hallucinogenic as LSD, but I think we’ll see some interesting sights.
[1] Many of our recent programs are available on YouTube and links to them may be found at www.dpft.org .