Tidbits on Drug Policy

Another two cents thrown in

Taking Morality out of Drug Use

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Just got back from a month-long stint in Eastern and Western Europe(s). Of course, because of my interest in the field, I took some time to study the drug policy on the ground – talked with some people from both sides of the barricades and read some studies.

Of course, one cannot bundle together the drug policy approach of Eastern European countries such as Russia, Ukraine or Georgia and say, Netherlands. The law enforcement in Russia and Ukraine use the extremely punitive drug legislation as a tool in ensuring that they would be able to arrest anybody at any time simply by planting some “evidence” on the (un)desired person. The harm reduction approach is virtually dead. I will write a bit more about drugs and Russia/Ukraine sometime later.

Now, I mainly want to point out one thing that the drug policies of countries such as Great Britain, Italy, Spain, Portugal, Switzerland and Netherlands have in common: the absence of any moral component in decisions involving drug policy. The stress is made on harm reduction. That’s why Netherlands doesn’t persecute simple possession and its heroin addicts can safely shoot up in specially designated places (often located at or near police precincts).

If you, the reader, are from the United States, you might feel, if not indignation, but maybe, a certain discomfort, a feeling that there might be something wrong with that scenario. That’s your morality talking. We’ve been conditioned to believe that drug use is simply wrong – and, unfortunately, it largely colors the public discourse in this country concerning recreational drugs and recreational drug use. After all, when something is wrong, morally wrong, it is really beside the point whether or not it is good or bad for you. The objective reasons don’t matter.

The Dutch approach may have resulted in a marked decrease in overdoses and a general decrease in young hard drug addict population (the average age of a Dutch heroin addict has risen to 37!) – but it is morally wrong and thus, is completely unacceptable on our shores. Unfortunately, I am not being sarcastic. Until the public learns not to view drug use as one of the “vices,” we are bound to be hindered in our common sense judgments by our righteousness.

The Ethics of Heroin Maintenance

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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.

How Does Prohibition Affect Drug Use?

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Our current Prohibition isn’t very successful at stopping drug use, for many obvious and not-so-obvious reasons. However, in order to sharpen our focus on this issue it is helpful to list the social effects that prohibitionist policies have on drug use. Here we go:

  • Deterrence or the fear of legal sanctions
    This mostly concerns expected legal risks (Example: the likelihood of the punishment for the prohibited activity in the eyes of a typical Joe Public.)

  • Informal self and social controls
    (a) Morality or legitimacy; (Example: Many people won’t try drugs if the society considers drug use to be something shameful and despicable.)
    (b) Forbidden fruit effects; (Example: Teens rebelling against the authority might be tempted to try drugs simply because the mainstream tells them not to.)
    (c) Community norms; (Example: Very religious rural communities create an environment that is less conducive to drug use than, say, a large cosmopolitan urban area.)
    (d) Informal or extra-legal social sanctions. (Example: The fear of being ostracized or being labeled a drug addict by friends and neighbors.)

While the economic laws of supply and demand make sure that the prohibitionist action-based policies are bound to fail, the prohibitionist propaganda (that was so prevalent during the Bill Bennett years) that tries to frame drug use as a social and moral taboo can be more successful. If the society believes that drug use is immoral, any rational argument for or against it becomes pretty irrelevant. Notice how in the list above, every type of social control mechanism (except the forbidden fruit effect) would work towards hampering activities associated with drug use in a drug-intolerant society.

(One of the reasons) why marijuana is still illegal

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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?

On Legal Formalism

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Legal Formalism is a doctrine that reflects the wishful thinking of many legal theorists that judges should apply law in a sort of mathematical fashion without any regard to “real-life” normative or policy issues. (I think, in this country, Langdell was the originator of the formalistic school of thought in jurisprudence.)

Anyway. Under the doctrine, the judges should not concern themselves with whether the law is good or bad, just or biased, sound or nonsensical – all those issues are for the legislatures to decide. The idea is that a law should yield an unequivocal decision regardless of the substantive nature of the underlying fact pattern. There are many proponents of this doctrine, as well as many opponents (I, personally, happen to belong to the opposing camp) – but this post is really not about the merits of legal formalism, but rather about Supreme Court Justices hiding behind it, whenever they chicken out of truly addressing the issue before them on its merits.

For example, in Gonzales v. Raich (2005), observe Justice Stevens resorting to legal formalism in ruling upon an issue that is clearly about the right of gravely ill persons to, legally (under the state law) receive their medicinal marijuana without harassment by federal agencies:

“The case is made difficult by respondents’ strong arguments that they will suffer irreparable harm because, despite a congressional finding to the contrary, marijuana does have valid therapeutic purposes. The question before us, however, is not whether it is wise to enforce the statute in these circumstances; rather, it is whether Congress’ power to regulate interstate markets for medicinal substances encompasses the portions of those markets that are supplied with drugs produced and consumed locally. Well-settled law controls our answer. The CSA is a valid exercise of federal power, even as applied to the troubling facts of this case.”

Hey, it’s just about the blind application of the Congress’ power to regulate interstate commerce, right? As a legal formalist would put it, clearly the Controlled Substances Act legitimately has that power – and that’s all that matters – how that power is applied is beyond the scope of the judiciary. Notice how under Justice Stevens’ approach, the “case is made difficult by respondents’ strong arguments” – meaning, how strong real-life arguments of real-life respondents interfere with his structurally sound, aseptic interpretation of the issues. Well, lets consult the dissenting opinion by Justice Thomas:

“On this traditional understanding of “commerce,” the Controlled Substances Act (CSA), 21 U.S.C. ยง 801 et seq., regulates a great deal of marijuana trafficking that is interstate and commercial in character. The CSA does not, however, criminalize only the interstate buying and selling of marijuana. Instead, it bans the entire market — intrastate or interstate, noncommercial or commercial — for marijuana. Respondents are correct that the CSA exceeds Congress’ commerce power as applied to their conduct, which is purely intrastate and noncommercial.”

Hmmm… Now we have two eminent legal minds, one ruling that the CSA is within the commerce clause’ power to regulate interstate commerce; another saying that it isn’t. Under the perfect conditions envisioned by the formalistic doctrine, it isn’t supposed to happen. Seems like either the Controlled Substances Act is deficient, the Justices understanding of the formalistic approach is lacking or Legal Formalism itself is faulty. It could be all three are correct. It doesn’t really matter – after all, hiding behind a questionable doctrine to duck important issues is a dubious tactic all in itself.

The drawbacks of treatment with medicinal marijuana

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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.

On Legal Paternalism

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The government may sincerely be trying to protect us from the harms of drug use. This is something that is known as legal paternalism. Legal paternalism is a belief that “[I]t is always a good reason in support of a prohibition that it is necessary to prevent harm (physical, psychological, or economic) to the actor himself.” (Joel Feinberg) The State sees itself as a concerned parent vis-a-vis its citizens. It views its citizens not as responsible adults, the subjects who possess independent free will, but merely as children, objects in the State’s care, which need to be protected from harm, especially from harm that they may inflict upon themselves. Concerned with the alleged harms of drug use (it doesn’t matter whether they are real or merely perceived), the State feels justified in punishing its children for conduct that it feels is more harmful than the punishment.

Consistent with the parenting role, is the notion of legal perfectionism, the idea that laws should play a role in positively shaping citizens for their individual benefit. The current militantly prohibitionist legal system may not be very effective in reducing drug use and trafficking; however, its role in cultivating “healthy” attitudes towards drug use amongst the constituency makes it ultimately justified.

Legal paternalism is a very prominent aspect of our legal framework. And, it seems that most citizens don’t mind. They want to feel protected, even from themselves, if need be. If Big Papa sometimes misguidedly causes more damage by punishing its children than can result from harm he protects them against – well, no system is perfect, right?

Was the Supreme Court a “loyal foot-soldier” of the Executive in fighting the War on Drugs?

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Is it still? This issue can definitely be debated. But, as I showed in the previous two posts, whenever a Supreme Court Justice comes out against blind judicial pandering to drug warriors, it usually happens in a dissenting opinion. And – vice-versa, a quote by a Supreme Court Justice expressing the evils of illicit drugs usually appears in a majority opinion. Well, here’s a quote (albeit, somewhat dated) from nothing less than a Supreme Court itself answering the question asked in the post title:

“In the years since Ross was decided [from 1982 to 1991], the Court has heard argument in 30 Fourth Amendment cases involving narcotics. In all but one, the government was the petitioner. All save two involved a search or seizure without a warrant or with a defective warrant. And, in all except three, the Court upheld the constitutionality of the search or seizure.

In the meantime, the flow of narcotics cases through the courts has steadily and dramatically increased. […] No impartial observer could criticize this Court for hindering the progress of the war on drugs. On the contrary, decisions like the one the Court makes today will support the conclusion that this Court has become a loyal foot soldier in the Executive’s fight against crime.”

California v. Acevedo (1991) (Justice Stevens, dissenting)

Well, at least we can be pretty certain what the answer is for the years from 1982 to 1991. Of course, the admission by Justice Stevens obviously also appears in a dissenting opinion…

A few quotes from the Supreme Court, part II

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As promised in the previous post, here are the examples of Justices’ opinions where they adopt the prevalent social attitudes:

“The detection and punishment of almost any criminal offense serves broadly the safety of the community, and our streets would no doubt be safer but for the scourge of illegal drugs.”

City of Indianapolis v. Edmond (2000) (Opinion by Justice O’Connor)

and,

“The difficulty of assessing gravity is demonstrated in the very context of the present case: Petitioner acknowledges that a mandatory life sentence might not be “grossly excessive” for possession of cocaine with intent to distribute, see Hutto v. Davis, 454 U.S. 370 (1982). But surely whether it is a “grave” offense merely to possess a significant quantity of drugs — thereby facilitating distribution, subjecting the holder to the temptation of distribution, and raising the possibility of theft by others who might distribute — depends entirely upon how odious and socially threatening one believes drug use to be. Would it be “grossly excessive” to provide life imprisonment for “mere possession” of a certain quantity of heavy weaponry? If not, then the only issue is whether the possible dissemination of drugs can be as “grave” as the possible dissemination of heavy weapons. Who are we to say no? The Members of the Michigan Legislature, and not we, know the situation on the streets of Detroit.”

Harmelin v. Michigan (1991) (Opinion by Justice Scalia)

and,

“It is not “absurd” that a local housing authority may sometimes evict a tenant who had no knowledge of the drug-related activity.”

Dep’t of Housing v. Rucker (2002) (Opinion by Justice Rehnquist)

and,

“The Customs Service is our Nation’s first line of defense against one of the greatest problems affecting the health and welfare of our population.
[…]
Petitioners do not dispute, nor can there be doubt, that drug abuse is one of the most serious problems confronting our society today.”

National Treasury Employees Union v. Von Raab (1989) (Opinion by Justice Kennedy)

and,

“The issue in this case is not whether declaring a war on illegal drugs is good public policy. The importance of ridding our society of such drugs is, by now, apparent to all.”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Now, most of these come from the majority opinions, meaning that even without looking at the opinions themselves, one could posit that the Court usually sides with the government drug warriors. Is it actually true? Another quote from the Supreme Court itself seems to confirm our timid assumptions. I will save the quote for the next post, though.

A few quotes from the Supreme Court, part I

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The following are the quotes from the Supreme Court, where Justices actually recognize how the “drug menace” hysteria can influence even the decisions of the nation’s top court:

The unusual action the Court takes today illustrates how far the Court may depart from its principal mission when it becomes transfixed by the specter of a drug courier escaping the punishment that is his due.

Florida v. Rodriguez (1984) (Justice Stevens, dissenting)

and,

Our Nation, we are told, is engaged in a “war on drugs.” No one disputes that it is the job of law-enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law-enforcement technique is not proof of its constitutionality.

Florida v. Bostick (1991) (Justice Marshall, dissenting)

and,

“…[N]othing about the characteristics shown by airport traveler Sokolow reasonably suggests that criminal activity is afoot. The majority’s hasty conclusion to the contrary serves only to indicate its willingness, when drug crimes or antidrug policies are at issue, to give short shrift to constitutional rights.”

United States v. Sokolow (1989) (Justice Marshall, dissenting)

and,

“In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use.
[…]
I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search.”

National Treasury Employees Union v. Von Raab (1989) (Justice Scalia, dissenting)

and,

“A majority of this Court, swept away by society’s obsession with stopping the scourge of illegal drugs, today succumbs to the popular pressures [of its immediate interests that appeal to feelings and distort the judgment].”

Skinner v. Railway Labor Executives Association (1989) (Justice Marshall, dissenting)

Notice, how all of these blurbs that warn the Court not to become a “loyal foot-soldier” in the War on Drugs appear in the dissenting opinions. In the next post, I will present a small compilation of quotes that are in sync with the prevalent social attitudes of the day.

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