The Myths of Rescheduling

The Myths of Rescheduling

 

Talk of rescheduling marijuana under the Controlled Substances Act has been rampant lately, especially in light of recent statements by Attorney-General Holder and then by his resignation.  Most agree that the placement of marijuana in Schedule I, along with heroin and various psychedelics, which prevents it from being prescribed or distributed through commercial and pharmaceutical channels, is incorrect and should be changed.  But quick action is unlikely.  Many of the shortcuts to rescheduling bandied about today will not work.

Three myths are being proposed, but they are all faulty.  But before dispelling those myths, an understanding of the legal framework for scheduling is necessary.  My earlier post, “MJ, DEA, and APA” outlines the legal and procedural requirement for that process.

The first myth to be dispelled is that the Attorney-General may directly reschedule a drug with the stroke of his pen.  While the DEA is administratively with the Justice Department, it functions under its own statutory authority and the law gives the DEA Administrator sole authority to schedule drugs.  While the A-G may request (or possibly even order) the DEA to initiate a rescheduling process, he may not usurp the Administrator’s authority and dictate what the determination will be.  If the A-G disagrees with the Administrator’s actions, he may ask the President to fire that Administrator and appoint a new one (subject to Senatorial consent) more agreeable to him, or he might restrict the agency’s funding in future budgets.  The Attorney-General’s control over the scheduling process is only indirect.

The second myth is that the Department of Health and Human Services can reschedule marijuana through its own actions.  Although current regulations (not statutes: an important distinction) require the Secretary of HHS to provide a report on the “medical value” of marijuana to the DEA in any proceeding to reschedule, this requirement is much less than it appears for two reasons.  First, while HHS is required to submit the report to the DEA, it is not conclusive or binding on the Administrator; he need only give it due consideration.  The hearing is still governed by the substantial evidence rule (see the earlier posting noted) and the Administrator need only base his finding on substantial evidence, not a preponderance.  So long as the Administrator has even a single credible (based on his determination) witness that marijuana has no substantial medical use, then a court must uphold his finding of continuing Schedule I placement.

The HHS report has another, more serious flaw.  HHS is required to report on the “medical value” of marijuana, but the DEA is constitutionally barred from deciding medical value.  For about ninety years – since 1925 – the Supreme Court has held that the federal government cannot regulate the practice of medicine, which includes determining what is or is not a medicine (most recently in 2008).  Few realize that the FDA does not regulate medicine; it only approves labels for drugs; and if a drug is sold without that approved label, the sale is deceptive and misleading and the seller can be punished civilly and criminally.  Likewise, the DEA cannot determine if a drug is effective (or has medical “value”).  The statute limits the DEA into determining whether the drug has “substantial medical use”.  In other words, it can only ask what doctors and patients, in fact, do with marijuana.  A medical “value” report would be irrelevant to that determination.

The third myth – that rescheduling will significantly contribute to marijuana law reform – is partially true.  Rescheduling would make marijuana more available to researchers and could lead to improvement in therapies and the development of marijuana-based medicines, but it would do little, if anything, to improve patient access.  Remember, morphine, Oxycodone, cocaine, and amphetamines are all Schedule II drugs; but they all have FDA labelling approval – all of which pre-date the CSA.  Without FDA marketing approval, normal drug distribution channels would still be closed[1].  Federal criminal laws against distribution or possession are based on the identity of the drug, not its scheduling (cocaine and methamphetamine are the best examples).

Rescheduling would do little or nothing to correct the real costs of Prohibition – the fostering of a violent black market, corrupt and abusive law enforcement, over-imprisonment.  Forty years of effort (the first rescheduling petition was filed in 1972) have failed to overcome the almost overwhelming legal obstacles to rescheduling, and have diverted effort and resources from more direct efforts at reform.  At best rescheduling is a palliative, at worst, it hinders effective reform efforts.

The route to reforming marijuana laws lies through the source of that disastrous law.  Reform must come through Congress and our efforts must focus on bringing that institution to act in the public good.  

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[1] I pose a question to those more knowledgeable about FDA law: If marijuana were moved from Schedule I, could a practitioner or clinic with its own production facility directly dispense marijuana to its patients even without an approved NDA?

XXIst Amendment: Model for Reform?

XXI^st Amendment: Model for Reform?

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

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

In 1933 the American people removed the Prohibition of alcohol that they had imposed by the XVIIIth Amendment to the Constitution only fourteen years earlier in 1919.  They did so by ratifying the XXIst Amendment.  Today as the nation struggles to get out from under the burden of drug Prohibition (especially that of marijuana) can that amendment provide a model for accomplishing this?

First, the good news.  Alcohol Prohibition was created by a constitutional amendment, requiring another amendment to undo it.  Other the other hand, drug Prohibition is only statutory and can be removed by the simple legislative process.

 Second, the model uses broad policy strokes, avoiding contentious legislative fights over the details and fine print of reform.  It avoids locking into place regulations that are either destructively rigorous or so loose as to invite pandemonium.  Its focus on federalism and local choices allows for experimentation to allow the evolution of the most appropriate controls.

The Amendment has only two operative sentences.  The first simply repeals the Prohibition Amendment.  The second, drawing on the Commerce Clause of the Constitution, makes transportation of alcohol across a state border in violation of that state’s laws a federal crime.  (This interstate transport provision is similar to the old Mann Act, making the interstate transport of a woman across a state line for “immoral purposes” a federal crime, or the presumption of interstate movement to enable FBI jurisdiction in kidnapping cases.)  These two simple provisions, together with an excise tax on alcohol have provided sufficient regulation of alcohol for over eighty years.

Would the same two-step process -- first, remove direct federal control, but provide federal assistance to states whose laws differ from their neighbors -- be enough to end marijuana[1] Prohibition as well?   Although the general plan would be effective, the broad scope of the federal anti-drug laws add some complexities.

The second part would be easy enough.  A simple statute would make a federal crime of transporting drugs into or through the territory of a state if possession, transportation, distribution of that drug is a violation of that state’s law.  An exemption should probably be created to allow travelers with medical marijuana permissions under home state laws immunity for carrying small amounts for personal use.  The only problem would be to determine the penalty level.  The greatly reduced level of enforcement would justify closing down the policing part of the DEA and assigning the remainder to ATFE, which has over eighty years of enforcing similar alcohol provisions.

The first part – repealing the current federal anti-marijuana laws -- is more problematic for two reasons. First, marijuana Prohibition has metastasized throughout the federal code.  Marijuana possession or sale is penalized, even if not directly criminalized, in laws affecting eligibility for public housing, both student aid and aids and grants to educational institutions, banking regulations, the tax code, employment drug testing, and many others.  Close research of the federal code will be necessary to insure that the repeal language is broad enough to include all of these civil, indirect, or implicit restrictions.  Broad legislative factual determinations and statements of legislative intent to remove all penalties should probably be included for regulatory and judicial guidance in applying the repeal law.

The other side of the coin is that some federal regulation will need to be preserved, and possibly even strengthened.  Marijuana is, at base, an agricultural commodity.  USDA and EPA regulation of water use, fertilizer and pesticide use and run-off control, erosion control of croplands, and USDA inspection of crops to be consumed are essential. Since so many current marijuana farmers have been operating outside the law, heightened efforts may be necessary to bring them into compliance.

Since almost all marijuana is ingested, by smoking, eating, drinking, transdermally, or anally, it should be subject to existing regulations for food products under the FDA, FTC, and USDA.  If the amount of insect parts or rat feces in grain products are limited, so should those in marijuana be.  Marijuana edibles should be subject to the same purity, processing, packaging, and labelling standards as other edible products are.

A primary use for marijuana today, and one of the strongest drivers for law reform, is medical use; but medical use is also the area in which the need for continued federal regulation is strongest.  While the goal may be for the DEA and NIDA to fade away and ultimately go extinct, FDA regulation of medical uses of marijuana will remain strong.  However, this regulation should recognize a distinction between use of the unaltered plant and the use of extracts, derivatives, and synthetics.  The use of unaltered plants could be simply and adequately managed if Congress moved those uses from the Controlled Substances Act to the Dietary Supplements Act[2].  Recognized strains with stable genetics should be given protection under either trade name recognition or plant patent protection.  Derivatives and extracts should remain under the full scope of the Food, Drugs, and Cosmetics Act.  Some extract processing incorporating the use of flammable or explosive arguments require the imposition of the FDA’s best manufacturing standards.

These should all be required to complete the New Drug process, but that process presents a severe problem.  The chemistry of marijuana is well known, and many of the therapeutic uses have histories now decades long; and this history prevents patenting of molecules or procedures.  Without patent protection, no private party will invest the millions (often several hundred millions) to pursue a New Drug Application.  Some kind of fast-track process will be necessary.  Either Congress must provide it or the FDA can act administratively as they have done in the past.  When the governing law was changed to require prescriptions for many drugs and again when it was changed to require proof of efficacy, the FDA used administrative panels to authorize the use of drugs (the GRAS and GRASE lists) based on the history of their use.  The same could be done for many, but not all, uses of marijuana and extracts.

The XXI^st Amendment provides a model for reforming federal marijuana law, but only a model.  The current law is much more complex than that of 1933, and a more sophisticated approach is necessary.  However, the basic federalism approach of delegating regulation to the states, which can once more be the laboratories of democracy, provides an approach that is both effective and cautious.  The approach is relatively quick and nopn-disruptive.  We should start applying it now.

 

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[1] While marijuana is the logical first step, and may be an essential one, the same approach should work for other drugs as well.

[2] See my earlier post “Marijuana: Drug or Herb? “

 

Droning On

Droning On

 

Drones (unmanned aerial vehicles, UAVs) have been prominent in the news lately.  Amazon rolled out its plan for almost-instantaneous home delivery using drones.  The NY Mets got in trouble with the FAA for using a drone to take overhead pictures during spring training (their response was that pop flies went higher than the photo drone), and a California medical marijuana dispenser proposed using drones to deliver his medical herbs to patients’ homes.  Drones are one of those technologies that have potential for major social and economic advances, and in the short run, they can radically change the War on Drugs, speeding the move to the end of Prohibition.

Many of the world-changing technologies affect transportation or communication – printing, railroads and steamships, telegraph, and motion pictures are good examples.  The contrasts between the life of a pre-Gutenberg European and a nineteenth century American, eating beef shipped from the West and dressed in New England clothing while reading a morning paper from a high-speed steam press is startling.  But these first generation technologies underwent transformations even more amazing. 

First they went from being bulk carriers to serving individuals.  The telegraph, with central offices and trained intermediaries for every transactions was replaced by the telephone under the direct control of the user.  Trains were superseded by automobiles and trucks and 1,000-passenger ocean liners by smaller, faster, more flexible airplanes.  Movies were shoved aside by radio and television.

Leaps forward became gigantic bounds when they combined with each other.  Movies were a combination of photography and electric lights and motors; and in turn, television combined radio and movies.  When these early jumps joined with the leaps of the late twentieth century – computers, space flight, and the internet – the leaps became revolutions.  Modern weather forecasting was a child of the telegraph, but only when it was combined with satellite visualization, hurricane airplanes, computerized radars, and broadband communications did it become a truly reliable part of daily life and business.  The modern smart phone bears little resemblance with Grandma’s black, wired to the wall, one-to-a-house rotary dial model.  Even tv dinners zapped in microwave ovens far surpass the canned foods developed for Napoleon’s armies.

Drones stand on top of four legs of these modern revolutions: transportation, communication, networking, and space technology.  The Amazon proposal is a good example.  Amazon would receive orders by mobile telephone or the internet and process payment through networking computerized banks.  Final delivery to the purchaser would be by drone guided by satellite-based GPS navigation.  Other recent examples are wide-spread.  Photographers are using drones for everything from the Mets publicity pictures mentioned above to new angles on wedding spreads.  Farmers use them to inspect their crops and herd livestock.  Soon they will replace manned aircraft for crop straying.  Wildlife biologists do animal and habitat surveys quicker and more accurately than by hand.  They could often replace television news helicopters which have horrible safety records.  Drones are beginning to appear in law enforcement contexts.  The full scope of their use is almost unimaginable.

Drones could cause major changes in the War on Drugs in the next few years, making it less dangerous and violent and hastening the end of Prohibition.  Drones actually have a long history in drug trafficking.  In the 1980s stories surfaced of Mexican drug smugglers using radio-controlled model airplanes to move kilogram-sized loads of cocaine across the Rio Grande into Texas.  They could not be spotted on radar and could not be seen or heard from more than a few hundred feet away.  They could land on very small open spots and then left to sit until the receivers were sure they had not been detected.  With radio controllers on both ends of the flight they could be sent back for reuse, but were cheap enough to be disposable. 

Over time those model airplanes have morphed into both large military drones with payloads measured in tons and small computerized tools that can go anywhere; both have the capability to remove most of the risks of drug trafficking.  Drug traffickers face risks at three times: when crossing the American border, while carrying drugs in transit, and while making an actual sale.  Drones could minimize all three of these risks.

Just like the model airplanes, large military-style drones (costing less than the jet airplanes or even large trucks now used) could cross the U. S. borders from Canada, Mexico, or anywhere along the sea coast with little risk of detection; and if detected or intercepted, the smugglers – not at the scene – would avoid arrest.  Those same drones, flying low below radar coverage, away from major roads, and landing in isolated areas, could ghost shipments within the country as well.

Street-corner sales, both to the consumer and small-scale wholesale is where the small drones will come into their own.  Flying just above street-light level and below rooflines, they will be practically undetectable.  Guided from a third- or fourth-floor window, they can deliver to a single customer almost instantaneously.  To the extent payment can be mediated electronically via cell phone, no actual seller-buyer contact will be necessary.  These transactions will eliminate undercover purchases and sting buys since the purchaser would have no contact with, or ability to identify, the seller.  Even street surveillance by police would be of little use.

The gains to police from the use of drones will be of much less utility.  They are already using large drones for border inspection, but those will be of less value against smuggler drones than they currently are against surface transportation or manned aircraft.  Since small drones will move drug dealers off of the streets, small police drones will have little to see.  Use against grow-houses or processing plants are indoors and will continue to require the police to follow warrant procedure.

Drones should appear in drug transactions quickly, and their use will expand even faster.  They will have the effect of shifting the advantage from the police to the drug marketers, making enforcement harder.  The War on Drugs will be even more futile.

The effect of introducing drones into the drug market will grow from a buzz to a drone to an uproar – a blare that will help trumpet the end of Prohibition.

Is it Time for Hemp?

Is it Time for Hemp?

Agriculture Secretary Tom Vilsack has suggested that the United States assist the Ukraine by purchasing hemp seeds, but wouldn’t letting American farmers grow their own be a better idea?

Go to any supermarket and read the labels carefully: a surprising number of foods contain hemp seeds or hemp oil – even hemp milk for that bowl of cereal.  In the drug store look for cosmetics, shampoos, and soaps containing hemp-seed oil.  Entire shops sell only hemp clothing.  A few years ago, a car fueled only by hemp-seed oil circumnavigated the United States.  But none of that hemp was grown by American farmers.  It was all imported from Canada, Europe (including the Ukraine), and China.

Why don’t American farmers grow this versatile crop?  It’s because Congress has made it illegal, treating it like a dangerous drug, and growing it could land the farmer in federal prison for a long stretch of years.  In 1937 Congress passed the Marihuana Tax Act, which included all parts of the plant Cannabis Sativa in its definition of marihuana; but in response to the complaints of fine-art paint manufacturers who used hemp seed oil instead of linseed and bird seed manufacturers complaining that caged canaries would not sing without hemp seed in their diet(the fore-runners of today’s rock musicians?), congress allowed their importation of sterilized hempseeds.  That exemption, which also included allowance of the importation of processed hemp products, was continued in the current law, the Controlled Substances Act of 1970.  The result is that American canaries can eat hemp bird seed, American food processors can include hemp in their products, American clothiers can sell hemp garments, and American cars can run on hemp fuel.  Only the American farmer is barred from participating in that market.

Are hemp and marijuana the same thing?   As the federal government recognized, both hemp and marijuana are variants of the same species, Cannabis sativa, (marijuana also includes C. indicia, but that plant is rarely used for food or fiber) just like Saint Bernards and Chihuahuas are both members of the same species, Canis lupus familiaris .  The difference between hemp and marijuana is primarily the content of THC, the primary psychoactive chemical in marijuana.  Hemp contains less than 0.5% THC, while marijuana has anywhere from 6 to over 20 per cent.  The old saying is that one would have to smoke a joint as big as a telephone pole in less than fifteen minutes to get high from hemp.  I have found no record in over three thousand years of history of anyone getting high from consuming hemp.

The government’s insistence on conflating hemp and marijuana is based on the claim that law enforcement officers will not be able to distinguish a hemp field from a marijuana patch and their efforts would be hampered.  The problem with that argument is that the two plants require totally different cultivation methods, making their growths highly distinctive from as far away as they can be seen.  Hemp is planted as close together as possible, forcing them to grow high with little or no branching, to produce the longest fibers possible.  Marijuana plants are widely spaced and pruned relatively low to encourage branching for maximum flower production.  The collateral fear expressed is that a marijuana patch would be hidden by placing it in the center of a field, surrounded by the taller, more thickly planted hemp stalks.  However, marijuana grown that way would be useless.  The plants would be pollinated by the hemp, producing seeds and lowering the THC content to a uselessly low level.  Over two hundred years ago, the great biologist Carl Linnaeus recognized that hemp and marijuana (then called “Indian Hemp”) were the same species and observed that the cultivation methods prevented hemp from being psychoactive.  The police can quickly learn to tell the two varieties apart, just as they have no problem preventing millions of gallons of ethanol from being diverted to bootleggers.

Hemp has a long and central, if largely unsung role in American history.  British law required most farmers in the American colonies to grow hemp to supply the royal navy; George Washington and Thomas Jefferson were hemp farmers.  The Declaration of Independence and the Constitution were circulated on hemp paper, and all U. S. currency was printed on hemp from the Civil War into the 1930s.  The U.S.S. Constitution, “Old Ironsides”, was rigged with miles of hemp rope and acres of hemp sails, as were all the China clippers, New England whalers, and almost all other sailing ships.  Even during World War II, the federal government exempted hemp growers from the drug laws to ensure the navy would have the ropes it needed for that war.

Secretary Vilsack should not only buy sterilized hemp seed from the Ukraine, he should fight to change the law so that he could buy fertile seeds as well.  The law should be changed so that American farmers can regain their place as leaders in the production of this versatile crop.

Capping or Branding?

Capping or Branding?

 

Once upon a time long ago (no, not the Stone Age, only 1978) I took a course in Chinese legal systems at Harvard Law School, and one item in particular has stuck with me ever since.  Professor Jerome Cohen told us that, in contrast to Anglo-American legal traditions that spoke of someone being branded a felon, the classical Chinese idiom referred instead to capping him as a felon.  The differences are profound.

The Chinese thinking was that people were not intrinsically bad or good, and that bad behavior was the result of improper learning and life.  While those whose acted badly had to be removed from society for the protection of others, their confinement should be used to re-educate them, teaching them to be proper and useful members of society, and it should last until, but only until, that goal was reached.  When they showed themselves to be rehabilitated[1], they would be released, shedding their prison garb (including the cap), and with the cap removed, rejoin society.  Professor Cohen’s analogy was a misbehaving school boy, forced to sit in the corner, but who, his lesson learned, would shed his dunce cap and rejoin the class.  Even after the Communist revolution of 1949, the Mao government, rather cynically, continued to pay lip service to this tradition by calling their brutal and repressive prisons “Reform Through Labor” camps. (Perhaps it was not totally cynical; after Mao’s death almost every one of the next generation of leaders had spent some time toiling in one of these camps.)

The English tradition, which later migrated to America, did not separate the act from the actor.  Compatible with the Christian view that Man was inherently sinful in nature, bad acts were seen as the visible sign of that internal evil and the purpose of the law was to remove the evil-doer to prevent his further harm to others.  At first, that removal was accomplished by outlawing him: all protection of the law would be denied to him.  Anyone providing food or shelter to the outlaw would themselves be punished, and any person could legally kill the outlaw.  His only hope of survival was to leave the kingdom.   As the legal system developed, outlawing was replaced by capital and corporal punishment, which included flogging and amputation as well as public abuse in pillories or stocks.  These punishments were usually accompanied with branding or mutilation so that, for the rest of his life, the felon’s appearance would warn others of his inherent criminal and sinful nature.  An A (arsonist), R (rapist), T (thief), or B (burglar) would be branded on his cheek or forehead; or an ear or nose would be cropped off as a more general warning.

By the time the American colonies were founded, England was moving away from corporal punishment to imprisonment, soon combined with banishment to penal colonies, although corporal punishment continued to a small extent in some American states until the twentieth century.  But the idea of criminal behavior as a symptom of an inherent character flaw continued.  American criminals continue to be symbolically branded even after they have completed prison sentences and been released from judicial supervision.  (Hester Primm’s big red A in Hawthorne’s The Scarlet Letter is a literary example of this kind of thinking.)  Even today in many states former convicts are barred from voting, denied student aid, cannot get public housing, and find themselves barred from many jobs.  Even if their faces are not scarred their pasts have branded them for life.

But America began to take faltering steps from branding to capping at an early date.  Dr. Benjamin Rush, one of the Founding Fathers and a leading medical practitioner of the time, advocated a new design for prisons that he called “penitentiaries”.  These would be places where a convict would have quiet and solitude to meditate on his sins, become penitent for them, and reconstruct himself as a new man.  By the middle of the nineteenth century most juveniles and some women were not flogged or imprisoned, but were sent to “reformatories” where they would be taught to lead proper lives.  Gradually some of these ideas were incorporated into prison doctrine: inmate education, pre-release programs, parole, half-way houses; but the programs remained primarily punitive and conviction remained a permanent stigma, not a lapse that could be remedied.  Convicts are still barred from voting, from jobs, from housing.

However, the last half-century, combining the War on Drugs and “tough on crime” has swelled the prison system to the breaking point.  Total federal and state inmates have almost reached the two-million mark, the highest rate in the world.  This American Gulag is peopled primarily by Black males and non-violent drug offenders.  Over half the federal prisoners are confined for simple commercial drug transactions, and these, like other prisoners are disproportionately men of color.  Almost one-third of all black men in America are under the supervision of the criminal justice system: on pre-trial detention or release, on probation or parole, or in jail or prison.  And the stigma of that incarceration remains for their entire lives – just like a brand.

This prison complex has become so blotted and inhumane that it can no longer be supported.  Ironically, one of the most hard-nosed of the tough-on-crime jurisdictions first realized this failure, and Texas has become a leader on penal reform – albeit under the force of federal court orders.  Community-based and education centered programs aimed at rehabilitation have emerged.  The federal government has also began backing away from some of the worst excesses of the War on Drugs and the New Jim Crow.  Federal Prosecutors have been ordered to avoid filing charges that require mandatory minimum sentences, and the Attorney General is starting to examine clemency for those previously sentenced under those laws.  He has also started to question state laws that disenfranchise felons who have completed their sentences.  Legalization of marijuana in Colorado has led to wide-spread calls to retroactively purge the criminal records of those who have previously been convicted for offenses now legal.

Change is in the air, and ending drug Prohibition is a prime driving force of that change.  The humanization of brutal, scarifying prisons is now under way.  Perhaps we are finally beating our branding irons into plowshares to till the fields of rehabilitation so that those who act badly can finally shed their felon’s caps and rejoin society.  

 

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[1]  An interesting word.  Rewriting shows its roots: re-habilitation would be installing new habits.

To End the War on Drugs

To End the War on Drugs

 

My friend and colleague Dean Becker has been reporting on the War on Drugs for fifteen years, first on radio and more recently on television as well.  If you have attended a conference on Drug War policy in the last several years, you have probably seen him with his microphone and camera.  This work has resulted in an archive of over 40,000 pages[1].  Dean has taken excerpts from that archive and made them the basis of his new book, To End the War on Drugs: A Guide for Politicians the Press and Public[2].  Over 115 interviews are quoted.

The book is a great read for almost everyone.  Those new to the issues of drug law and reform will find most of the issues laid out in ways easy to understand.  Old timers in these issues will become acquainted with the names they have been hearing for years and also learn more about them individually and about what has motivated them.  It is structured with short excerpts (from a few paragraphs to a few pages) that, as well as contributing to the overall flow of Dean’s argument, stand alone so that the book will be welcoming to browsers to pick their way through it.  The sets of excerpts are tied together with essays by Dean that provide context and organization and tell a lot of Dean’s personal journey as well.

The scope of these interviews is breath-taking.  They range from people in law enforcement – police (mainly retired and members of LEAP as is Dean himself) to judges to a prison warden – through medical researchers and practitioners to medical marijuana patients and their families to victims of the drug war to those who have led the fight against it.  While this breadth leads to some repetition, even that repetition paints more details into a vast and vibrant landscape.

My major regret with the book is that Dean didn’t start early enough.  I would have liked to read the thoughts of the first cucaracha to bring his mota across the Rio Grande or to hear Dr. O’Shaughnessy talk about his experiences with cannabis in British India or learn what George Washington hoped for the commercial prospects of his hemp crop.  But maybe we will be lucky enough to hear his interview with the president just after he signs the act repealing drug prohibition.

This is a good book that will educate, hearten, and inspire you as it welcomes you into the community of those trying to make everyone’s life better.  Pick it up and read it.  You’ll be glad you did.

If you want more of Dean, in addition to his book, you can go to:

·         “Century of Lies” radio broadcasts, KPFT-FM

·         www.DrugTruth.net

·         Endthedrugwar.us

·         Archives, The James A. Baker III Institute, Rice University www.BakerInstitute.org

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[1]  Now at the James A. Baker III Institute of Rice University.

 

[2] Available at Amazon.com in both paperback and Kindle formats.

 

Get Shorty

Get Shorty

 

The Mexican Marines arrested “El Chapo” (Shorty) Guzman, reputed head of the Sinaloa drug cartel, and the DEA has been crowing like a rooster greeting an Alaskan spring dawn after a six-month sunless winter.  If the press is to be believed, Guzman certainly is a cold, violent, deadly career criminal who has earned a life-long tenancy in a federal Super-Max prison.  But there is much less about his capture than meets the eye.  It does not merit the gleeful celebrations of the Drug War bureaucrats.

Getting Shorty (I don’t call it an arrest because this military raid has little, if anything, to do with proper police procedure) fails to give cause for celebration for two reasons.  The minor one is its cost.  This kind of multi-national military and police operation extending over several days or weeks and involving two cities has to have cost several million dollars to plan and execute.  The other large cost, potentially much more serious, was only a probability that happily did not occur.  An large-scale armed raid on a man known to surround himself with professional killers was likely to end in a storm of gunfire.  To stage one in the middle of a large city whose streets teem with people around the clock was to invite injury or death to multitudes of innocent bystanders.  Do we really want scenes like those from the streets of Damascus staged in our cities?  By sheer luck, this incipient battle ended bloodlessly – this time.

The major shortcoming of the Get Shorty caper is that it did nothing to further the stated goals of the War on Drugs.  One way or another, the Cartels will continue their businesses.  One of El Chapo’s underlings will step in, or Sinaloa will split into separate parts each carrying on the trade.  The worst outcome would be for warfare to break out again among all the rival groups sensing a weakness in Guzman’s group.  That kind of warfare would increase the bloodshed in Mexico and possibly in Chicago.  And since wars cost money, the rivals would feel pressure to increase the volume of their sales.  The ascendancy of the Cali Cartel to control over Colombia’s cocaine trade after the killing of Pablo Escobar is a good precedent.  The Mexican cartels have much deeper and stronger roots than did the Colombian ones.  Some of the Mexican gangs have been in continuous operation since the days they were smuggling alcohol across the border in the 1920s.

While the marines and DEA were staging their circus act in Mazatlán, Colorado and Washington were quietly attacking the Cartels in the way that does the most damage:  by legalizing the production and sale of marijuana they are working to cut off the flow of money that is both the reason for the Cartels’ existence and the fuel that allows them to function.  Legitimizing the product removes the high contraband premium adds to the price of marijuana, probably dropping the price by at least ninety percent, and it also prevents the police agencies from enforcing and protecting the Cartel monopoly.  Guzman’s group can in no way compete with honest farmers.

Classical mythology tells of the Hydra, a hideous flesh-eating monster.  Hydra was thought to be invincible because when its head was cut off, it immediately grew two more.  Heracles solved the problem by ignoring the threatening heads and going straight for its heart, killing the Hydra with a single sword thrust.  By going after Guzman, the DEA is merely hacking at the Hydra’s head: legalization, by stemming the life-blood flow of money, is thrusting into the monster’s heart.  The time has come to quit flailing around blindly and to start cutting surgically by removing the Prohibition heart of the monster.    

Death By Heroin

Death By Heroin

 

Philip Seymour Hoffman died last week, his death apparently heroin-related.  He was a popular Oscar-winning film actor, and since his death closely followed substantial outcroppings of opiate-related deaths around the country, the news media have gone wild with the story.  But was his death a consequence of heroin use or of the laws against heroin?  Answering that question involves looking at three issues: the safety of opiates, including heroin, themselves; the kinds of deaths suffered by opiate users; and the effects of the drug Prohibition laws on those deaths.

The opiates are incredibly safe drugs.  Their use goes back at least 4,000 years.  In the last fifty years before their Prohibition (c. 1860 – 1914) opiate use – primarily opium but also morphine and heroin – was widespread and compulsive use was viewed as a significant social problem, but overdose deaths were extremely rare.  These opiate-related deaths started becoming common only after the major maintenance clinics were closed in 1925.  Even now, pure heroin overdose deaths are rare.  Experienced users can build remarkable tolerances.  One addict at the Lexington Narcotics Farm was recorded as using over 1,600 mg. a day – about ten times the lethal dose; and Fentanyl, a synthetic opioid up to one hundred times stronger than heroin, is routinely administered for several chronic pain in doses equivalent to 3,000 mg of heroin daily.  The only side effects of opiates are constipation and the risk of withdrawal symptoms roughly equivalent to the flu if use is stopped.  An addict maintained on pure heroin can lead a long, normal life.  The lives of three men are illustrative of what a heroin addict’s life can be.  Dr. William Halsted became addicted to heroin and morphine before age thirty and used them daily until his death in his seventies.  In that time he became “The Father of American Surgery”, helping form n Hopkins, served as chief of staff, instituted the use of rubber gloves, and developed the techniques still used for hernia repair and mastectomy. William Burroughs used heroin regularly from his thirties until his death in his seventies.  His novels written during that time included Junky and Naked Lunch, and he is viewed as a major influence on modern American literature.  Philip Hoffman serves as a bridge between the ability to function as an addict and the dangers imposed by suppressing heroin into an underground market.  He was a heroin addict before age twenty-two, and before his death at forty-six, had appeared in over fifty movies, been nominated for Tony awards, and won an Oscar.  His death with a needle still dangling in his arm raises the issues in the next section.

Many heroin users die from opiate-related causes, but few of them die heroin-caused deaths.  Many become homeless because of the pressures of living in a black market and paying Prohibition-fueled premiums for a cheap commodity.  They die from malnutrition, exposure, or violence endemic to life on the streets.  Most of the other deaths are caused by impurity, adulteration, or substitution common in unregulated drugs or from the consequences of unsterile injection techniques.  Almost all of the recently reported deaths involve mixtures of heroin and Fentanyl, a hundred times stronger than heroin as noted above.  These are probably overdose deaths – but overdoses of Fentanyl, not heroin.  A heroin user unknowingly injecting Fentanyl is trying to take a sip of water from a fire hose.  For several decades heroin users have died when their suppliers substituted Fentanyl for the heroin they expected.  As an illegal market, heroin’s supply has wavered from drought to flood, and when it is scarce Fentanyl steps in and death results.    Other adulterants or substitutions can also be fatal.  A large number of Dallas teenagers died after injecting a heroin mix called “cheese”, which was a combination of heroin and Tylenol RM that contains diphenhydramine (Benadryl).  The required label for diphenhydramine lists death in adolescents as a possible side effect and warns that combination with opiates can strengthen the actions of the drug.  Autopsies showed low or moderate levels of heroin and high levels of diphenhydramine.  Another episode near Houston resulted in the deaths of about twenty men.  They bought and injected what they thought were usual doses of cocaine, but the drug was actually 60% pure heroin: what would have been their expected high if were cocaine was a fatal amount of heroin.  Poor injection technique can also be deadly.  Injection of air bubbles or solid contaminants can cause embolisms or thromboses, either of which can cause instant deaths.  When the body is found with the needle still imbedded, that is usually the marker of this kind of flawed injection.  Overdose, which takes over an hour at the least, allows plenty of time for the user to remove the needle.

If this analysis is correct, countries with legal heroin available should have much lower opiate-related deaths than those that Prohibit the drugs.  Four examples support this assumption, and, to the best of my knowledge, none show contrary results.  As mentioned previously, opiates were freely available In the U. S. before 1914 and habitual use was recognized as a problem, but opiate-related deaths were virtually unknown.  Incidentally, before the Harrison Act heroin was generally snorted, smoked, or taken orally; injection only became common after tight regulation made pure drugs hard to obtain.  Switzerland has distributed free heroin to addicts for almost two decades and the Netherlands has recently joined them.  Deaths have virtually disappeared, related property crimes have gone down, and the rate of use has not increased.  The best example is England, which started allowing doctors to distribute heroin to addicts in 1914.  They continued to do so until the Thatcherite regime stopped the process in the 1980s.  Both the number of deaths and the rate of drug-trafficking crimes shot up.  The English resumed supplying opiates to addicts and the death and crime rates dropped.  In comparison, Scotland continued strict Prohibition and continues to have death and crime problems.

This year marks one hundred years since the passage of both the Harrison Narcotics Tax Act and the first Hague Convention on narcotics.  They have created a century of Death By Heroin.  If a society can learn from its history, the world should have realized by now that Prohibition does not stop drug use, but it does impose an unconscionable toll of death, misery, and crime.  One hundred years is enough.  Stop this failed experiment and end Prohibition now.

Legalizing It

Legalizing It

 

The news media have been alive with talk about legalizing marijuana for some time now, especially since the 2012 votes in Colorado and Washington.  But no one is really sure what legalizing marijuana means.  The easiest way to answer this question is to just apply the words literally.  It simply means to apply rules and regulations to an already existing lawless market, thereby bringing safety and order to that market.about

The marijuana market exists now.  It existed before the Marihuana Tax Act was passed.  Many in states along the Mexican border were using it by 1915 (The federal government issued its first large study before 1920). Use in the military was so common that the Army Surgeon-General issued a report in 1932 (His conclusion: marijuana presented no risk to effectiveness, discipline, or health and no regulations were needed). Musicians in Chicago and Kansas City used it in the 1930s (Louis Armstrong was arrested for possession in Los Angeles) and it was common in Harlem and Boston.  And it will continue to exist whether its Prohibition ends or continues.  Federal government surveys show that more than 15,000,000 people use each month.

But that market is different from the market for prescription drugs or automobiles or blue jeans.  Because of Prohibition the marijuana market is law-less.  It operates in the dark where the law cannot reach: a black market.  Legalization does not mean creating a market – that already exists; it only means applying the usual rules and regulations to that market: bringing it into the light.

Markets without regulation are always expensive and destructive at every step in the process.  Manufacturing or processing the goods are hazardous both to the consumer and to the neighborhood.  Before the Pure Food and Drug Act, millions died from spoiled meats or adulterated foods; and bathtub gin, denatured alcohol and jakeleg killed or crippled tens of thousands during alcohol Prohibition.  Most of the deaths attributed to heroin are actually due to adulterants, substituted drugs, or unexpected potency; the same can be said for all of the reported MDMA deaths.  Marijuana has also had its purity problems with herbicide, pesticide, and fertilizer contaminants.  These poisonings have been almost eliminated from food and drink (including alcohol) by modern regulation and inspection.

Preparing drugs illegally also creates unnecessary hazards.  Bathtub gin stills exploded, burning down crowded tenement apartments.  Illegal meth cookers spill hazardous chemicals and explode in populated neighborhoods.  Marijuana growhouses burn from improper electrical installations and innocent passers-by have been killed by booby traps at illegal grows.  But Jim Beam and Jack Daniels have been safely distilling whiskey for generations; and licensed pharmaceuticals have safely manufactured methamphetamine (yes, it is a legal prescription drug) for eighty years.  Legal marijuana would be grown and processed as safely as tomatoes.

The most dangerous part of an illegal market are the people who run it.  The combination of artificially high prices and high risks of imprisonment or death attracts only the most ruthless and violent to compete in it.  During alcohol Prohibition, modern organized crime got it start in the mobs that ruled Chicago and New York with tommy guns and bribes.  After repeal lowered prices and overt regulation forced these gangs from alcohol into the other Prohibition-based markets of prostitution, gambling, and drugs.  The height of the cocaine era was dominated by first the Colombian, then the Mexican Cartels, who elevated violence to military levels.  They have also been prevalent in the marijuana trade.  These Cartels combine with local street gangs at the retail level of the market.  Repealing Prohibition replaced the murderous gangs by law-abiding breweries and distilleries.  Legalization and regulation by repealing marijuana would accomplish the same transformation.

The marijuana market existed before the passage of the Marihuana Tax Act; it has not only continued, but has flourished and grown since; and it will continue into the foreseeable future.  The only question facing Congress and state legislatures is whether that market will continue to fester in the dark of a criminalized black market or will it be brought out into the healthy sunlight of a legal market kept well and strong by rules and regulations – rules that protect not just the consumers in that market but also the by-standers whose lives, homes, and livelihoods are jeopardized by the Prohibition parasites that repressive laws foster among them.  Legalizing the marijuana market will protect everyone.