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 Morse v. Frederick (2007), a.k.a. the “BONG HiTS 4 JESUS” case, Justice Stevens, in his dissent, delivered the most remarkable quote, that, a few years ago, would have been virtually impossible to hear from someone that high up in the Establishment:

Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. The ensuing change in public opinion occurred much more slowly than the relatively rapid shift in Americans’ views on the Vietnam War, and progressed on a state-by-state basis over a period of many years. But just as prohibition in the 1920’s and early 1930’s was secretly questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our national experience with alcohol should make us wary of dampening speech suggesting — however inarticulately — that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely.

Lets see whether we see this kind of talk make its way into the Court’s majority opinions.

The most noteworthy development of 2007, as far as drug policy goes, is the substantive approach to the issues of (some of) the Supreme Court Justices in their opinions. In Kimbrough v. United States (2007), Justice Ginsburg continued to ponder the old issue of the degree of applicability of the Sentencing Commission’s guidelines to courts’ sentencing procedures; however, she was also willing to talk about the actual reasons behind the sentencing revisions:

Although the [Sentencing] Commission immediately used the 100-to-1 ratio to define base offense levels for all crack and powder offenses, it later determined that the crack/powder sentencing disparity is generally unwarranted. In a series of reports, the Commission identified three problems with the crack/powder disparity.

First, the Commission reported, the 100-to-1 ratio rested on assumptions about “the relative harmfulness of the two drugs and the relative prevalence of certain harmful conduct associated with their use and distribution that more recent research and data no longer support.”, see United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007), available at http://www.ussc.gov/r_congress/cocaine2007.pdf (hereinafter 2007 Report) (ratio Congress embedded in the statute far “overstates” both “the relative harmfulness” of crack cocaine, and the “seriousness of most crack cocaine offenses”). For example, the Commission found that crack is associated with “significantly less trafficking-related violence . . . than previously assumed.” 2002 Report 100. It also observed that “the negative effects of prenatal crack cocaine exposure are identical to the negative effects of prenatal powder cocaine exposure.” Id., at 94. The Commission furthermore noted that “the epidemic of crack cocaine use by youth never materialized to the extent feared.” Id., at 96.

Second, the Commission concluded that the crack/powder disparity is inconsistent with the 1986 Act’s goal of punishing major drug traffickers more severely than low-level dealers. Drug importers and major traffickers generally deal in powder cocaine, which is then converted into crack by street-level sellers. […]

Finally, the Commission stated that the crack/powder sentencing differential “fosters disrespect for and lack of confidence in the criminal justice system” because of a “widely-held perception” that it “promotes unwarranted disparity based on race.” 2002 Report 103. Approximately 85 percent of defendants convicted of crack offenses in federal court are black; thus the severe sentences required by the 100-to-1 ratio are imposed “primarily upon black offenders.”

Previously, the Justices largely avoided discussing the “real-word” ramifications of the legislative approaches to tackling drug use and trafficking. It seems like some of them are actually willing to address the actual issues in drug policy. It comes as a welcome break from the usual formalistic approach that tended to characterize some of the Court’s previous decisions involving drugs.

Originally written on March 26, 2008

Most of the time, the subject matter of this blog is marijuana and/or narcotics, or, in other words, opiates. That is pretty much consistent with the two primary threads that the drug policy debate predominantly adheres to. However, in this post, I would like to digress a bit towards the hallucinogens.

The primary reasons why hallucinogens don’t get as much spotlight from the debaters of drug policy is simply because they are simply (1) not as popular as marijuana – less than 10% of Americans older than 12 tried LSD at least once, as opposed to almost 40% of Americans who tried weed; and, (2) as compared to opiates, the addiction potential of hallucinogens is practically non-existent.

I think hallucinogens merit some discussion simply because they pose some unique issues of their own. Despite being non-addictive and non-toxic, the psychological impact of, say, ingestion of LSD cannot be underestimated. So far, the policy approach to LSD poses more questions than answers. Should LSD use be regulated at all? If yes, then, how? Most psychologists think that LSD use can be very beneficial in a controlled environment. Furthermore, they feel that LSD can be a very effective psychotherapeutic tool.

But – if you are nodding your head after reading the above couple of sentences, think about this: after reading about taking LSD in controlled environment, one of my friends said: “Anybody, who ever tripped on LSD would tell you that that’s complete bullshit! Imagine me tripping on acid surrounded by doctors and hooked up to machines… sounds to me like *the* recipe for a ‘bad trip’!” So, wouldn’t we actually be doing more harm by providing supervised environments for acid trippers? Basically, I am writing about this to demonstrate the rudimentary level of drug policy discourse when it comes to hallucinogens – even the most benign and unquestioned notion about hallucinogen regulation can seem ridiculous upon the slightest reflection. I wonder if there is any solid body of work that tries to tackle these issues? If not, this is definitely something for drug policy addicts to think about.

Eight grams of medical marijuana seized from a Garden Grove man during a traffic stop must be returned to him, according to an appeals court ruling directing local law enforcement to uphold state, not federal law.

Source: CBS2.com: Federal Court Rules Pot To Be Returned To Driver

Read the whole story by following the link above. The story is welcome news to anybody who prefers sensible drug policy. I managed to find the text of the decision online and, after reading it, here are my two cents:

The case is a triumph of sensible approach over the formalistic one. While the decision touches upon plenty of legal doctrines, such as standing, California medical marijuana laws, and even the 10th Amendment, the most striking feature about it is the willingness of the justices to use the aforementioned doctrines to render a decision on a very simple issue:

“…we are mindful this case involves an important issue related to California’s medical marijuana laws. As we explain below, those laws are intended to give qualified patients the right to obtain and use marijuana for medical purposes. But if the City prevails, the police could thwart that objective by withholding marijuana they have seized from qualified patients, even when the patient is no longer subject to state criminal prosecution. Whether, as the City contends, this is a necessary consequence of federal drug policy is a question of first impression and one that is of considerable importance to those who rely on cannabis for medicinal purposes.”

Source: THE CITY OF GARDEN GROVE v. THE SUPERIOR COURT OF ORANGE COUNTY

No legal training is required to arrive at a sensible decision in a case like this. I don’t really believe in modern-day precedent-based jurisprudence, simply because a smart lawyer is always able to either cite a precedent in support of his argument, or, if he or she happens to represent an opposing side, to distinguish it. In the present decision, the Justices cite a bunch of cases that don’t support their decision, yet easily distinguish them from the situation they are faced with. Similarly, the legal doctrines can be twisted any way one wants, and that’s exactly what the Justices do. Just consider the following example:

“…the City argues that in enacting the CSA, Congress intended to occupy the field of marijuana regulation so extensively that ordering the return of a defendant’s medical marijuana under state law would be absolutely anathema to congressional intent. We cannot agree.”

Then, Justices proceed to create a solid legal foundation underneath their opinion. However – once again – no legal training is required to spot the fallacy of the statement above. Anybody who is familiar with the history of the Drug War and Drug War jurisprudence would likely agree with me that Congress did indeed intend to occupy the field of marijuana regulation as extensively as possible.

Now, I am not saying that the opinion is legally suspect. All I am saying is that a smart lawyer can use legal doctrines to justify diametrically opposite opinions. Actually, I think that the 4th District Court of Appeal rendered an opinion that is amazingly objective in its treatment of what’s really at stake. In the words of the court itself:

“We confront here the facially anomalous request that we approve state confiscation of a substance which is legal in the circumstances under which it was possessed.”

Anomalous is a very mild description of legally suspect regulations that have sprung up during the War on Drugs. The court above was able to prevent the creation of a yet another anomaly.

Originally written on January 7, 2008

Two weeks after I wrote about studies demonstrating marijuana’s potential in treating cancer, the following article pops up on FoxNews.com:

A compound found in cannabis may stop breast cancer from spreading throughout the body, according to a new study by scientists at California Pacific Medical Center Research Institute. The researchers are hopeful that the compound called CBD, which is found in cannabis sativa, could be a non-toxic alternative to chemotherapy.

Source: Marijuana Compound May Stop Breast Cancer From Spreading, Study Says

Let me remind you, that marijuana remains a CSA Schedule I drug, which means, according to the Act that:

The drug or other substance has no currently accepted medical use in treatment in the United States. (Italics added)

That’s despite dozens of studies like the one above and that almost half of the nation’s oncologists recommend their patients obtain marijuana, despite its illegality, in order to alleviate their suffering. I mean, if that’s not currently accepted medical use, I don’t know what is. (By the way, speaking from a purely legal standpoint, this practice of recommending marijuana would fall under the Respectable Minority doctrine used in some states to refute malpractice claims! Or, if put otherwise, this would constitute a legitimate medical practice.) And yet – drug warriors continue to avoid finding medical utility of marijuana, despite pretty much overwhelming evidence to the contrary. One example of how they manage to do so comes from a decision in United States v. Oakland Cannabis Buyers Coop. (2001), where Justice Thomas writes:

In the case of the Controlled Substances Act, the statute reflects a determination that marijuana has no medical benefits worthy of an exception (outside the confines of a Government-approved research project). Whereas some other drugs can be dispensed and prescribed for medical use, […] the same is not true for marijuana. Indeed, for purposes of the Controlled Substances Act, marijuana has “no currently accepted medical use” at all. (Italics added)

Imagine Congress passing legislation that puts aspirin into Schedule I. Now, if this classification is challenged in the Supreme Court, the Court may do the sensible thing, analyze the evidence and address the issue on its merits – namely, should aspirin really remain in Schedule I – or, it could duck the issue by saying that “for purposes of the CSA, aspirin has no currently accepted medical use.”

So, what Justice Thomas was basically saying in that opinion is that “marijuana has no accepted medical use because the legislature says it has no accepted medical use.” He may have been staying within the currently accepted boundaries of judicial review; however, Thomas’ formalism steers far from common sense. No sane person would in all earnest claim that the Earth is flat simply because the legislature made such a determination.

Jack Herer, the author of The Emperor Wears No Clothes writes:

In 1974, Virginia Medical College in Richmond, Virginia did research on tumors of the lung, brain, liver and kidney using mice and rats. Incredible things were done. The cancer stopped growing and in most cases even reversed itself 100 percent. Some of the mice who were given cancer and treated with cannabis actually lived longer than some of the controlmice who were not even given cancer! It was found that marijuana is the best thing to treat cancer of the lungs, brain, etc. After that they were stopped from doing anymore research at all by first Nixon and then Ford.

Source: Jack Herer’s Home Page

Well, I was sort of skeptical – but then, I found the link to the Virginia the study that he mentions. The synopsis indeed shows that

Lewis lung adenocarcinoma growth was retarded by the oral administration of delta9-tetrahydrocannabinol (delta9-THC), delta8-tetrahydrocannabinol (delta8-THC), and cannabinol (CBN), but not cannabidiol (CBD).

Upon a further search, a study done in Spain in 2000 turned up:

Here, we show that intratumoral administration of Delta9-tetrahydrocannabinol and the synthetic cannabinoid agonist WIN-55,212-2 induced a considerable regression of malignant gliomas in Wistar rats and in mice deficient in recombination activating gene 2. Cannabinoid treatment did not produce any substantial neurotoxic effect in the conditions used.

Finally, the pilot study involving nine patients suffering from glioblastoma – a type of brain cancer, concluded that

Delta(9)-Tetrahydrocannabinol inhibited tumour-cell proliferation in vitro and decreased tumour-cell Ki67 immunostaining when administered to two patients. The fair safety profile of THC, together with its possible antiproliferative action on tumour cells reported here and in other studies, may set the basis for future trials aimed at evaluating the potential antitumoral activity of cannabinoids.

Basically, that’s strong evidence that THC may indeed be effective in treating certain types of cancers. Something like that – I would think – would get plenty of media attention; however there wasn’t much apparently, since even myself, who actively looks for these types of news, wasn’t aware of this.

Suppressing the results of the Virginia study… ignoring credible results of European studies… obstructing studies into THC’s medicinal properties… the amazing consistency of government’s resistance to acknowledging the therapeutic value of marijuana really makes me wonder: it can’t be just about the desire of the anti-drug warriors to retain the lion’s share of their budget. There has to be some compelling reason behind this: a reason so sinister, that the government doesn’t want to disclose it out of concern for our feeble minds… But – I don’t usually subscribe to conspiracy theories – the ugly and banal truth is likely that it is all about the money. Apparently, the well-financed moral posturing is more important than a chance to save lives and alleviate suffering of thousands of people.

Heroin maintenance programs have been used in some European countries (notably, Switzerland and Great Britain) with relative success for many years. The gist of these programs is providing an addict with a dose of pure heroin and a supervised setting in which to inject it. But this post is not about the relative merits or drawbacks of heroin maintenance, but rather about an ethical concern regarding heroin maintenance best expressed by Robert J. MacCoun and Peter Reuter in their wonderful RAND study, Drug War Heresies. I will quote the passage in full:

Feasibility [of heroin maintenance programs] is not desirability. Heroin maintenance has a contradiction at its heart. Having chosen to prohibit the drug, society then makes an exception for those who cause sufficient damage, to themselves and to society, as a consequence of their violation of the prohibition. Society’s decision is setting the damage level that entitles a user to access. It can require that an addict cause a lot of damage to gain access, which is expensive (in terms of crime and health risks) and inhumane. However, if it sets the barrier low, then access to heroin becomes too easy, and the basic prohibition is substantially weakened. That contradiction alone does not make maintenance bad public policy, but it does raise a fundamental ethical concern.

Obviously, this is not the only precedent when our society ultimately rewards an individual for a persistent violation of its laws. Take illegal immigration: migrants who are enterprising enough to overcome the obstacles (physical and otherwise) that the United States erects around its borders are often able to naturalize. Illegal immigration is a perfect example of an extra-legal status-quo: illegal aliens are tolerated because the U.S. is addicted to cheap labor.

Similarly, heroin maintenance programs involve a trade-off: despite general prohibition, some addicts who are “persistent in their addiction” are allowed access to heroin. In return, the society receives the aggregate benefits of lower health costs (no more diluted black-market heroin, no needle-sharing, not as much overdosing), lower crime-fighting costs (addict doesn’t have to resort to crime to finance his habit at black market prices) and a possibility of social re-integration of an addict back into the community.

But wait! Despite the benefits of the program, the ethical dilemma is still there! But only until one realizes that an exception to the rule does not always involve a compromise with ethics. This particular case involves a prohibition regime that is largely detrimental both to addicts and to the society at large. Any hole punched in this regime that moves it towards harm reduction and more sensible drug policy can be considered ethically suspect only on a purely logically-abstract level, insofar as it represents a contradiction with the existing policies.

Another, fairly straightforward way of removing the contradiction would be either shutting down heroin maintenance programs (not a correct choice, in my humble opinion) or legalizing heroin. Of course, the problem with that solution (in addition to the obvious political ones) is that nobody is really sure what’s going to happen: some say that if we legalize, we just might end up with a much greater number of addicts. It is a valid argument – there is no firm basis on which one could confidently argue that a spike in addiction won’t happen. On a theoretical level, one trick to avoiding mass heroin addiction in a legalization regime is a fine line between making access to heroin hard enough so that only the determined seekers of the drug would bother, but not making it so hard that it is easier or cheaper to obtain it in the black market. Drawing that fine line would not be easy; however, we did it with illegal immigration: the amalgam of border patrols, fences, regulations and penalties makes sure that we are not flooded with migrants; however the restrictions are not draconian enough to prevent our economy from getting its regular injection of cheap workforce.

This nation smokes far more pot than uses any other illicit drugs. For example, almost half (47.8%) of all high school seniors tried it, as compared with the next runner-up – all of hallucinogens, at 12%. Source: Monitoring the Future Study (2002). The numbers are similar for general population drug use – marijuana users represent an overwhelming share of drug users in general.

This information generally requires no specialized knowledge. Similarly, by now it has become apparent to the point of becoming common knowledge, that the dangers of marijuana smoking are seriously overstated, to say the least. Some even call marijuana “the safest therapeutic substance known to man.” Who?? None other than Administrative Judge Francis Young of the DEA in In The Matter Of MARIJUANA RESCHEDULING PETITION (Docket No. 86-22). It is very likely that even the most stalwart DEA officials don’t really believe in the dangerousness of marijuana.

So, how come it remains in Schedule I?

The answer lies in the first paragraph. Removing marijuana from the list of “evil” illicit drugs would substantially reduce this nation’s drug problem: without marijuana the number of drug users – other drug users – would drop significantly. A dramatically smaller drug problem wouldn’t justify tens of billions of dollars in funding that the DEA currently receives. Regardless of the objective pros and cons of marijuana use, the DEA will always oppose the rescheduling of marijuana simply because they want to retain their allowance.

In order to request an addition, deletion or a change in the schedule of the drug, one must petition the DEA. When a petition is received by the DEA, the agency begins its own investigation of the drug. Then, the investigation goes through some more motions, until the DEA Administrator reviews all available data and makes a final decision whether to propose that a drug be controlled and into which schedule it should be placed. I wonder how objective you would be in making a decision that has a potential to deprive you of a substantial majority of your budget?

Here is an interesting argument against medicinal marijuana, mainly on the grounds that smoking a therapeutic substance isn’t a safe and uniform method of administration:

“If marijuana has therapeutic potential, it should be required to pass muster with the F.D.A. like any other medicine. We have considerable experience with making drugs from plant material, including the opium poppy. We don’t authorize patients to smoke ( or vaporize ) opium for medical purposes; rather, we require that opiate products, including morphine for pain relief and paregoric for diarrhea, be standardized, controlled for quality, fully tested, delivered in an appropriate manner and shown to be safe and effective. Why should marijuana be any different?”

Source:: NYT OPED: Crackpot Legislation

The author’s reasoning is medically sound; however, as far as I understand, the problem is that no marijuana derivative (i.e.: Marinol) in existence has been found just as effective as smoking marijuana. Smoking pot definitely has all the drawbacks that are described in Henry I. Miller’s article – but it still remains the only truly effective method of alleviating symptoms of many debilitating conditions. So far, there hasn’t been a single recorded death attributed to marijuana. Thus, it is no wonder that many patients choose an admittedly imperfect, but a relatively safe treatment over no treatment at all. Legalizing marijuana would certainly allow more research into its therapeutic effects and will allow development of medications that will better address Henry Miller’s concerns.