Tidbits on Drug Policy

Drugs cannot be forced out of existence; they will be with us for as long as people find in them the relief or satisfaction they desire. But the harm caused by drug abuse can be reduced. We cannot talk in absolutes - that drug abuse will cease, that no more illegal drugs will cross our borders - because if we are honest with ourselves we know that is beyond our power. But we can bring together the resources of the Federal Government intelligently to protect our society and those who suffer.

Federal Strategy for Drug Abuse and Drug Traffic Prevention 1979, Strategy Council on Drug Abuse.

Yes, this came from the Federal Government of the United States. Obviously, the sensible attitude expressed in the quote above hasn’t really stuck.

admin :: Jun.04.2007 :: Social Policy :: No Comments »

As I wrote in my previous post, our drug laws incarcerate far more blacks than whites, proportionally speaking. Obviously, they were not consciously designed that way; however, many social factors ensure that the impact of these laws is felt stronger amongst the black constituency. One reason may be the inadequate level of legal services available to the lower-income strata of the society in which African Americans are represented in greater numbers than whites. Another reason may be that too many ghetto dwellers turn to small-time dealing as a way to escape poverty. Sometimes, as in the case of the crack versus powder cocaine sentencing disparity, the law that is race-neutral on its face insures that blacks are going to receive harsher prison sentences than whites simply because crack, due to its lower price, is prevalent among the ghetto dwellers, while cocaine is favored by more affluent whites.

Can these laws be challenged on the grounds that their impact is felt stronger by a particular racial group? Such an Equal Protection challenge, alleging that the law discriminates on the basis of race or national origin, would force the courts reviewing these laws to apply the “strict scrutiny” standard. That means that the law will be found unconstitutional unless it is “narrowly tailored” to serve a “compelling” government interest and there cannot be a “less restrictive” alternative available to achieve that compelling interest. For all practical purposes, once the courts agree to review the law in question under the “strict scrutiny” standard, it is very likely that the law will be found unconstitutional.

However, the problem with the drug laws is that they weren’t intended to discriminate against a particular racial or ethnic group. Yes, a shrewd reader might ask, but in our case, even though there wasn’t any discriminatory intent, there is an obvious discriminatory impact! Wouldn’t the courts take that into consideration?

Unfortunately, the Supreme Court ruled that the Equal Protection Clause does not prohibit laws that lead to racial disparities. A mere showing of a disproportionate racial impact is a factor in ascertaining intent, but can never by itself be sufficient to prove it. See Washington v. Davis (1976) and Arlington Heights v. Metropolitan Housing Corp. (1977).

So, it looks like there isn’t any judicial relief on Equal Protection grounds, even though while only 15 percent of all illicit drug users are black, they constitute more than a third of all those arrested for drug violations (see my previous post for sources).

admin :: Jun.01.2007 :: Legal Issues, Social Policy :: No Comments »

Obviously, drugs and race or ethnicity are linked only insofar a particular drug is socially endemic to a particular racial or ethnic group. Different substances play an important religious role in different religions: Christians use alcohol, some American Indian tribes prefer peyote, Hindus often use marijuana derivatives, etc. Similarly, a drug that is marginal or even illegal in one country can have a widespread social use in another.

Because of the cultural association of various substances with different ethnic groups, drug laws often served as proxies for the true intent of those in charge - cracking down upon the unwanted minority. For example, the prohibition of coke in the Harrison Narcotics Tax Act of 1914 was fueled by the fears of “a cocaine-crazed Negro brain.” The 1937 Marihuana Tax Act was seen as the means for law enforcement to “deal with” Mexican communities in the border areas. The opium prohibition was initially directed against the Chinese - for example, in 1887 the Congress enacted a law prohibiting importation of opium by the Chinese, but not by Americans.

Of course, the current drug laws seem to be all about safety, accepted medical use, and potential for abuse (even though the power to schedule substances was taken away from medical authorities and given to the Attorney General in 1969). That’s all nice and good, except that some of our nation’s drug laws seem to have a greater impact on certain ethnic minorities. Okay, I’ll just come out and say it bluntly: our Drug Laws incarcerate a disproportionately large number of blacks. Some studies estimate that “[o]ne in three black men between the ages of 20 and 29 years old is under correctional supervision or control.” Source: Mauer, M. & Huling, T., Young Black Americans and the Criminal Justice System: Five Years Later (Washington DC: The Sentencing Project, 1995).

“According to the federal Household Survey, “most current illicit drug users are white. There were an estimated 9.9 million whites (72 percent of all users), 2.0 million blacks (15 percent), and 1.4 million Hispanics (10 percent) who were current illicit drug users in 1998.” And yet, blacks constitute 36.8% of those arrested for drug violations, over 42% of those in federal prisons for drug violations. African-Americans comprise almost 58% of those in state prisons for drug felonies; Hispanics account for 20.7%.”

Source: Substance Abuse and Mental Health Services Administration, National Household Survey on Drug Abuse: Summary Report 1998 (Rockville, MD: Substance Abuse and Mental Health Services Administration, 1999), p. 13; Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics 1998 (Washington DC: US Department of Justice, August 1999), p. 343, Table 4.10, p. 435, Table 5.48, and p. 505, Table 6.52; Beck, Allen J., Ph.D. and Mumola, Christopher J., Bureau of Justice Statistics, Prisoners in 1998 (Washington DC: US Department of Justice, August 1999), p. 10, Table 16; Beck, Allen J., PhD, and Paige M. Harrison, US Dept. of Justice, Bureau of Justice Statistics (Washington, DC: US Dept. of Justice, August 2001), p. 11, Table 16.

There are plenty of reasons that account for such a disparity: improperly drafted sentencing regulations, social causes - poverty and drug abuse often go hand-in-hand, and even plain racism - “Among persons convicted of drug felonies in state courts, whites were less likely than African-Americans to be sent to prison. Thirty-three percent (33%) of convicted white defendants received a prison sentence, while 51% of African-American defendants received prison sentences.” Source: Durose, Matthew R., and Langan, Patrick A., Bureau of Justice Statistics, State Court Sentencing of Convicted Felons, 1998 Statistical Tables (Washington DC: US Department of Justice, December 2001), Table 25, available on the web at http://www.ojp.usdoj.gov/bjs/abstract/scsc98st.htm, last accessed December 21, 2001.. Whatever the reasons are, the stark reality is that our drug laws have a very tangible tinge of racial disparity. Can something be done about that in terms of a legal challenge? Stay tuned for the next post.

admin :: May.29.2007 :: Legal Issues, Social Policy :: No Comments »

I got reminded of this ubiquitous mantra that was all over TV a few years ago when I read the following:

“Profits from Afghanistan’s thriving poppy fields are increasingly flowing to Taliban fighters, leading U.S. and NATO officials to conclude that the counterinsurgency mission must now include stepped-up anti-drug efforts.”

Source: CNN: Poppy profits fuel Taliban

“The traffic in drugs finances the works of terror,” said George W. And - he is right. Trading in illicit drugs is a lucrative business, and, considering that drugs are a black market commodity, a logical choice for those who want to stay under the radar. The thing is, trading in any black market commodity is acceptable as a clandestine financing scheme.

It’s funny how the leading U.S. and NATO officials still readily conclude that stepping up anti-drug efforts will help combat drug profits. Do they really think that it will work this time? I actually know a way that will pull the financial rug out from under the Taliban: buy all of the Afghani poppy supply at current black market prices (I am pretty sure it’s gonna come out cheaper than waging another unsuccessful anti-drug campaign) or, better yet - legalize poppy. Removing illicit drugs from the black market economy will immediately financially undermine most, if not all, of terrorist networks, organized crime entities and cartels.

Not like that’s gonna happen in the foreseeable future. For now, it seems like the way to combat illicit drugs and terror link is by throwing more money and resources at massive interdiction campaigns that are doomed to fail right from the start, or by engaging in this sort of rhetoric:

“‘DEA’s Target America is the first exhibit that makes the connection between illegal drug trafficking and terrorism, leaving no doubt that drug abuse can not be viewed as a victimless crime.’ …. said Administrator Hutchinson.”

Source: DEA: DEA AND GIULIANI OPEN NATIONAL MUSEUM EXHIBIT ON DRUGS AND TERRORISM

Right. Lets place the blame for terrorism squarely upon the shoulders of a drug user/abuser/consumer. After all, (s)he should have known where the money that pay for drugs might go to. According to Hutchinson, that makes a poor drug user culpable. According to my old Torts hornbook, there might be a small problem with proximate causation in that scenario. I’ll side with my hornbook on this one, because otherwise I could be blamed for slavery in Africa, just because I drink my cocoa in the morning.

admin :: May.21.2007 :: Opiates, Rants, Social Policy :: No Comments »

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.

admin :: May.10.2007 :: LSD and "Shrooms", Laws, statutes, regulations, Medicinal Value, Social Policy :: No Comments »

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.

admin :: May.05.2007 :: Laws, statutes, regulations, Social Policy :: No Comments »