Some people say that if we legalize “drugs” in this country, everybody’s going to get high all the time. They might even point to Netherlands and tell you how the rates of marijuana users spiked after weed there was decriminalized. Well, that’s true – nobody really knows what would happen if marijuana or other drugs ever become available legally. But – we can try and project.

First of all, lets look at Netherlands: if there is any place that can provide at least a vague idea what might happen after an illicit drug starts being sold in coffeeshops – Netherlands (so far) would be it. It is true: after marijuana was decriminalized, the number of people using it went up. But – here’s an interesting detail: weed in Holland was decriminalized in 1976… and the rise in use didn’t occur until 1984. So what happened in the early 1980s? Coffeeshops were allowed to proliferate and advertise. Here’s what MacCoun and Reuter have to say about it:

We hypothesize that the dramatic mid-1980s escalation in Dutch cannabis use is the consequence of the gradual progression from a passive depenalization regime to the broader de facto legalization, which allowed for greater access and increasing levels of promotion, at least until 1995 when the policy was revised. In short, it reflects a shift from a depenalization era to a commercialization era.

Source: MacCoun, Robert J., Reuter, Peter, Drug War Heresies, Cambridge University Press, 2001, p. 259

In the 1990s though, the Dutch passed a series of regulations restricting advertisement of marijuana – and the number of marijuana users leveled out (and currently remains much lower, percentage-wise, than in the United States).

So – it seems like it’s not necessarily the availability of something that sells it, it’s the advertising! Well, any advertising executive could have told us that, right? And, governments seem to recognize it as well – just look at all the restrictions of advertising cigarettes and alcohol. Make a drug available to responsible adults, just don’t allow ads, which would convince and encourage people to buy it.

P.S. Would the First Amendment allow such restrictive measures against speech, albeit commercial one? While there does exist a doctrine of “commercial speech”, I truly think it’s irrelevant for our purposes. I believe the existing patchwork of regulations and voluntary industry action that restrict advertising for alcohol and tobacco should work fine for other prospective legal recreational drugs. However, even commercial speech doctrine as it now stands would probably allow severe restrictions on recreational drug advertising. For a brief treatment of the doctrine by the Supreme Court, see generally Valentine v. Chrestensen, 316 U.S. 52 (1942), Central Hudson Gas & Electric Co. v. Public Service Comm’n, 447 U.S. 557 (1980), Board of Trustees v. Fox, 492 U.S. 469 (1989), 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495 (1996).

In a wonderfully informative primer, Why is Marijuana Illegal? A brief history of the criminalization of cannabis, Pete Guither writes:

Many people assume that marijuana was made illegal through some kind of process involving scientific, medical, and government hearings; that it was to protect the citizens from what was determined to be a dangerous drug.

The actual story shows a much different picture. Those who voted on the legal fate of this plant never had the facts, but were dependent on information supplied by those who had a specific agenda to deceive lawmakers.

Pete has touched upon a very important issue: way too often, our legislatures pass laws that are based on faulty data. The Drug War is just the most glaring manifestation of this phenomenon. Our elected representatives have no clue about many of the issues that they are called upon to regulate. As the result, we get a bunch of nonsensical laws – laws that we have to abide by, laws that govern our daily lives, laws that can send a person to prison for many years for doing something that likely doesn’t cause any major harm to himself or the society anyway.

Laws can be overturned if they are deemed unconstitutional; however, the Supreme Court exercises extreme deference to legislative opinion in most challenges. And, there is really no effective mechanism that would prevent legislatures from legislating on the basis of misinformation, hysteria or political agenda. As a result we are stuck with a plethora of laws and regulations that do more harm than good, and – most of these laws will be with us for a long, long time, simply because there is no mechanism that would evaluate them on the basis of effectiveness.

Well, you might ask, but what about the political leverage? If the society doesn’t like some law, its elected representatives will be forced to repeal or amend it, simply because they would like to get reelected. Ideally – yes, that’s how it should work. However, too often, the people simply don’t care or are just as misinformed about the issue as their legislators. The Drug War amply demonstrates that the society may welcome the most egregious and punitive laws even when credible information is available that proves that these laws do more harm than good.

The mere list of ideas on how to insure that we are governed by laws enacted on the basis of the most accurate information available can balloon this post to a barely readable length. I will try to outline a few of them in later posts and I encourage you to also think about how our system may be improved. Think about this: if Congress enacted laws based on the best available information the whole Drug War quagmire might have been avoided.

According to the statute, the substances listed in Schedule I (Title 21, Volume 9, Section 1308.11 of the Code of Federal Regulations) have “no currently accepted medical use in treatment in the United States.” 21 USC Sec. 812.

What exactly constitutes “accepted medical use in treatment in the United State” under the statute can be argued; however many people have already concluded that a bunch of substances that are currently placed in Schedule I actually do have medicinal value. There are not many people in this country who are not aware about the raging debate about medicinal properties of marijuana, and it is an open secret that plenty of oncologists across the country have been recommending it to their patients as treatment for nausea and vomiting resulting from chemotherapy. Indeed, that would likely satisfy Judge Young’s “significant minority of physicians” test in determining what constitutes “accepted medical use.” In The Matter Of MARIJUANA RESCHEDULING PETITION, US DoJ DEA, Docket No. 86-22 (overruled by the DEA Adminstrator).

But, I got distracted here.

There are actually other Schedule I substances that appear to have medicinal properties. One of them is psilocybin, an active ingredient in magic mushrooms and LSD that appears to help cluster headache sufferers. Fred Reed wrote an article about psilocybin being used as a treatment for cluster headaches, obviously by cluster headache sufferers themselves. The reason why it caught my attention is because way back in college, a friend of mine actually suffered from cluster headaches and cured himself with a low doze of “shrooms.” From what I know about cluster headaches, the condition is so painful that sufferers have been known to literally bang their heads against walls. A low dose of magic mushrooms or LSD (a dose that is not sufficient to induce hallucinogenic effects) is claimed to be effective in aborting the cluster headache episode that’s in progress and extending remission periods. In his article, Fred Reed asks:

“When a seriously painful medical condition is cured by an illegal substance, the cure being substantiated by premier researchers at as good a medical institution as exists, what do we do?”

Source: Washington Times: When the Law Can Be Painful

Well, here’s what is generally done:

“Proceedings to add, delete, or change the schedule of a drug or other substance may be initiated by the Drug Enforcement Administration (DEA), the Department of Health and Human Services (HHS), or by petition from any interested party, including the manufacturer of a drug, a medical society or association, a pharmacy association, a public interest group concerned with drug abuse, a state or local government agency, or an individual citizen. When a petition is received by the DEA, the agency begins its own investigation of the drug.

The DEA also may begin an investigation of a drug at any time based upon information received from law enforcement laboratories, state and local law enforcement and regulatory agencies, or other sources of information.

Once the DEA has collected the necessary data, the DEA Administrator, by authority of the Attorney General, requests from HHS a scientific and medical evaluation and recommendation as to whether the drug or other substance should be controlled or removed from control. This request is sent to the Assistant Secretary of Health of HHS. Then, HHS solicits information from the Commissioner of the Food and Drug Administration and evaluations and recommendations from the National Institute on Drug Abuse and, on occasion, from the scientific and medical community at large. The Assistant Secretary, by authority of the Secretary, compiles the information and transmits back to the DEA a medical and scientific evaluation regarding the drug or other substance, a recommendation as to whether the drug should be controlled, and in what schedule it should be placed.

The medical and scientific evaluations are binding to the DEA with respect to scientific and medical matters. The recommendation on scheduling is binding only to the extent that if HHS recommends that the substance not be controlled, the DEA may not control the substance. (Italics Added).”

Source: Wikipedia: Controlled Substances Act

For example, a recently-approved study aiming to evaluate the efficacy of MDMA (Ecstasy) in treatment of post-traumatic stress disorder first had to get the FDA approval, then had to get approved by an Institutional Review Board (IRB) (because it involves research with human subjects) and, finally, had to obtain DEA approval, since it involves a Schedule I substance. If the study actually confirms therapeutic value of MDMA, would that mean that Ecstasy will be moved from Shedule I? I am not sure, but one article that I found suggests that it will:

“If Ecstasy proves to be an effective and safe treatment for post-traumatic stress disorder, therapists can sign legal prescriptions for the drug.”

Source: Wired: DEA Accedes to Ecstasy Test

Getting back to psilocybin, shrooms, LSD and cluster headaches, the good news is that a study of psilocybin and LSD in people with episodic cluster headaches is currently being developed. The bad news is that it will probably take years to clear all bureaucratic hurdles.

Generally, I believe that many substances currently listed in Schedule I have medicinal properties – albeit unknown to medical science in its current state. The dangers (or the perceived dangers) of these substances got them into Schedule I in the first place. It would be nice if the reports of possible medical benefits of these substances actually induced FDA, DEA and HHS to assume a more proactive stance in investigating these benefits. After all, the medical science would certainly benefit from having another tool added to to its arsenal of treatments.

Gabriel Sayegh of the Drug Policy Alliance in New York City wrote a good article about attempts to reform the New York State’s Rockefeller Drug Laws. For those who don’t know – we have one of the most draconian set of drug laws in the country.

Mr. Sayegh writes about the special interests that actually stand in the way of reforming the laws that are considered unjust virtually by everybody on both sides of the fence separating the sides in the drugs laws reform debate:

“From 1817 to 1981, New York built 33 prisons. But from 1982 to 2000, New York built 38 more prisons — all of them upstate. The unprecedented prison boom was largely an economic development plan meant to ameliorate the job loss upstate. Rural, white communities were clamoring to build and staff prisons. The Rockefeller Drug Laws delivered the bodies with harsh mandatory-minimum sentences for low-level drug offenses.”

and,

” More than 76 percent of the state’s prison inmates come from New York City. The U.S. Census Bureau counts them as residents of the upstate prisons in which they’re incarcerated, not as residents of the communities from which they came.

Why does this matter? According to the Prison Policy Initiative, if prisoners were not counted as “residents,” seven upstate Senate districts would be 5 percent short of their required population size, and thus have to be redrawn. This means that senators in those districts — all of them Republicans — would lose their seats, causing Republicans to lose their slim Senate majority. Unsurprisingly, Senate Republicans remain staunch opponents of repealing the Rockefeller Drug Laws.”

And, by the way, speaking of the Rockefeller Drug Laws, read about the history of their enactment in Edward Jay Epstein’s Agency of Fear: Opiates and Political Power in America. It’s only one short chapter and here’s the direct link:

Agency of Fear: Chapter 2 – Nelson Rockefeller

“Shocking” doesn’t even begin to describe what you’ll learn.

Originally written on May 5, 2007