(formerly The Week Online with DRCNet)
Issue #365 , 12/3/04
"Raising Awareness of the Consequences of Drug Prohibition"
REP. BARNEY FRANK, 4TH DISTRICT OF MASSACHUSETTS, US CONGRESS
THE JOHN W. PERRY FUND
On Thursday, December 9, 2004, 6:00-8:00pm, Omni Parker House, Alcott Room, 60 School Street (corner of Tremont), Boston. RSVP to [email protected], (202) 362-0030 or (617) 426-7979. Light refreshments will be served. Suggested minimum donation $25, sliding scale or free admission available on request. (No one will be turned away.)
Supporting speakers to include State Rep. Byron Rushing, Boston City Councilmember Chuck Turner, well known author Wendy Kaminer representing the ACLU of Massachusetts, David Borden of DRCNet, Whitney Taylor of DPFMA, Joe White of Change the Climate, Scarlett Swerdlow of Students for Sensible Drug Policy, Bernie Pekala of Boston College and the Massachusetts Association of Student Financial Aid Administrators, others to be announced.
Barney Frank has served in Congress since 1981. He is the Senior Democrat on the Financial Services Committee and is also a member of the Select Committee on Homeland Security. Previously he was a Massachusetts State Representative and an assistant to the Mayor of Boston. He has also taught at several Boston area universities. Rep. Frank has been a vigorous champion of reforms to draconian US drug policy, including medical marijuana, asset forfeiture reform, a "safety-valve" exemption to mandatory minimum sentencing, and repeal of a 1998 law that has delayed or denied financial aid eligibility to more than 150,000 would-be students.
BACKGROUND ON THE PERRY FUND:
DRCNet (Drug Reform Coordination Network) Foundation, in partnership with Students for Sensible Drug Policy (SSDP) and other friends of civil liberties, has created the John W. Perry Fund to help students affected by the law stay in school. Though we can directly assist only a fraction of the 34,000 would-be students who've lost aid this year alone, we hope through this program to make a powerful statement that will build opposition to the law among the public and in Congress, and to let thousands of young people around the country know about the campaign to repeal it and the movement against the drug war as a whole.
Please join us on December 9 in Boston to thank Rep. Frank for his important work on this issue while raising money to help students stay in school! If you can't make it, you can also help by making a generous contribution to the DRCNet Foundation for the John W. Perry Fund. Checks should be made payable to DRCNet Foundation, with "scholarship fund" or "John W. Perry Fund" written in the memo or accompanying letter, and sent to: DRCNet Foundation, P.O. Box 18402, Washington, DC 20036. DRCNet Foundation is a 501(c)(3) nonprofit charity, and your contribution will be tax-deductible as provided by law. Please let us know if we may include your name in the list of contributors accompanying future publicity efforts.
ABOUT JOHN PERRY
John William Perry was a New York City police officer and Libertarian Party and ACLU activist who spoke out against the "war on drugs." He was also a lawyer, athlete, actor, linguist and humanitarian. On the morning of September 11, 2001, John Perry was at One Police Plaza in lower Manhattan filing retirement papers when the first plane hit the World Trade Center. Without hesitation he went to help, losing his life rescuing others. We decided to dedicate this scholarship program, which addresses a drug war injustice, to his memory. John Perry's academic achievements are an inspiring example for students: He was fluent in several languages, graduated from NYU Law School and prosecuted NYPD misconduct cases for the department. His web site is http://www.johnwperry.com.
Visit http://stopthedrugwar.org for further information on DRCNet. Visit http://www.dpfma.org for further information on the Drug Policy Forum of Massachusetts. Contact the Perry Fund at [email protected] or (202) 362-0030 to request a scholarship application, get involved in the HEA Campaign or with other inquiries, or visit http://www.RaiseYourVoice.com and http://www.SSDP.org online.
In August, after a long collaborative process with leading academic pain management specialists, the Drug Enforcement Administration (DEA) posted a document designed to provide guidelines for physicians involved in opioid pain management therapy. The document, "PRESCRIPTION PAIN MEDICATIONS: Frequently Asked Questions for Health Care Professionals and Law Enforcement Personnel," sought to balance the imperatives of drug law enforcement and those of medicine and, at least according to the pain professionals involved in the process, marked a fairly enlightened approach to navigating the turbulent intersection of law and medicine.
But in early October, the DEA pain FAQ mysteriously disappeared without warning to any of the pain professionals involved in creating it. The pain FAQ contained "misstatements" and was not an official document, the agency tersely explained (http://stopthedrugwar.org/chronicle/358/thefaq.shtml). On November 16, the DEA posted an "interim policy statement" on the Federal Register, detailing its objections to the earlier collaborative FAQ and hewing to a much harder line on the diversion of prescription medicines.
The move comes as one prominent pain physician, Northern Virginia's Dr. William Hurwitz, is on trial for alleged drug diversion. Hundreds of other physicians have been arrested or disciplined in recent years on similar charges. Combined with the federal government's recently announced campaign against prescription drug diversion, the new DEA statement is bound to have a chilling effect on the willingness of doctors to prescribe adequately for the estimated 50 million Americans suffering from chronic pain.
Where the pain FAQ said that the number of patients or the number of pills prescribed "should not be used as the sole basis for an investigation," the new statement said a high number of pain patients or a large quantity of prescribed pills "may indeed be indicative of diversion." As if that weren't enough, the agency asserted for good measure that the government "can investigate merely on suspicion that the law is being violated, or even just because it wants assurances it is not." In other words, the DEA can investigate a pain doctor whenever it feels like it.
While the pain FAQ said that physicians could write multiple prescriptions for a pain patient on a given day, the new statement expressly said they could not and qualified such behavior as indicative of possible diversion. And while the pain FAQ said that prescribing opioid pain medications to people with histories of drug abuse could be done if precautions were taken, the new statement said the FAQ "understated the degree of caution that a physician must exercise to minimize the risk of diversion when dispensing controlled substances to known or suspected addicts." In other words, if you have any history of substance use, count on having a very difficult time getting any doctor to subscribe pain medications for you.
The new DEA statement has been greeted with anger and dismay in the pain management community. In a November 24 letter to the DEA's Office of Diversion Control, Dr. David Joranson, director of the University of Wisconsin's Pain Policy Studies Group, who had worked closely with the DEA in crafting the original pain FAQ, complained that "DEA's abrupt withdrawal of support for the FAQ, without any consultation with coauthors about its concerns, raises questions about what communication the pain management community can expect to have with DEA." The DEA's changes, Joranson added, "are likely to interfere in medical practice and pain management."
Joranson also accused the DEA of failing to recognize "the well-established principle in federal law that enforcement of the Controlled Substances Act is not intended to interfere with ethical medical practice and patient care," a principle, he pointed out, the DEA has endorsed in the past. And he had particulars.
Regarding the new statement's criticism of the pain FAQ on whether a high number of pills prescribed in itself indicates a problem, Joranson pointed out that the FAQ was in line with Model Guidelines published by the Federation of State Medical Boards of the US, and that the DEA had earlier submitted written testimony supporting the federation guidelines.
As for the DEA's assertion of its ability to investigate any pain doctor for the merest suspicion of wrongdoing, Joranson warned that it is "this attitude that will exacerbate practitioner fears of investigation, even thought they could ultimately show, after a costly and demoralizing process, that the prescribing was medically appropriate."
Joranson also took issue with the DEA's stance on prescribing to people with histories of drug abuse. "The interim policy statement does not recognize that it is within the scope of federal law to prescribe opioids for the purpose of treating pain in patients with an addictive disease or a history of substance abuse, as did the FAQ." Even people who have substance abuse problems sometimes suffer severe pain from cancer or other diseases, Joranson noted. "Is DEA suggesting that it objects to the use of opioids in the treatment of pain in this population of medical patients?" he pointedly asked.
Further comments by Joranson in the letter (linked to below) challenge both the relevance and factuality of arguments presented by the DEA in its new statement.
Another academic pain specialist who had worked closely with the DEA on the pain FAQ, Dr. Russell Portenoy of Beth Israel Medical Center in New York City, told the Washington Post this week that the DEA has changed "the tone of the dialogue in a way that is very worrisome. We're seeing more of an emphasis on law enforcement and less on the legitimate use of prescription narcotics," he added.
Physicians, scholars, and pain advocates not involved in the collaborative process with DEA were less restrained in their reactions. "It's pretty obvious to me what they're up to," said University of North Florida Professor Ronald Libby, who is writing a book on the tangled intersection of law and medicine in pain management. "They basically don't want to be held to any standard for practicing pain medicine," he told DRCNet. "In the pain FAQ, the DEA basically said that there had to be criminal intent on the part of the doctor for it to bring charges, but they don't want to hold to that because then most of these cases they've been bringing against doctors will just collapse. What they are doing now is putting doctors on trial for the behavior of their patients."
"This is the sort of deceptive obfuscation we've come to expect from the DEA," said Siohban Reynolds, executive director of the patient advocacy group the Pain Relief Network (http://www.painreliefnetwork.org). "And it's replete with threats not only against doctors but against the very integrity of medicine. The DEA has been completely dishonest," she added. "I am very dismayed."
Although academic pain specialists like Dr. Portenoy and the University of Wisconsin pain group had spoken with DRCNet in the past, they did not respond to interview requests this time around. Reynolds thinks she knows why. "The academic pain specialists have had all their effort and good will trampled on," she said. "I feel very sad for them. On the other hand, the good news is that the pain management world will be extremely hard-pressed to continue to act as if the DEA and the Department of Justice are acting in good faith. We are watching a witch hunt going on and even these guys are beginning to understand that."
California physician Frank Fisher, himself a victim of overzealous prosecutors in a notorious Northern California case in which he was exonerated, isn't so sure. "The fact that law enforcement regulates medicine at all is a fundamental problem," he told DRCNet. "Doctors have been trying to work with the DEA on this for the past 15 years, but nothing gets better. Still, as a practical matter, most of the doctors are saying let's try again."
"What pain specialist with any responsibility is going to waste his time with this again?" disagreed Libby. "They are busy, busy people, and they were clearly used by the DEA. They put their time, energy, and professional reputations on the line, and the DEA burned them. How can anyone take the DEA at its word again?"
If the DEA's maneuvers around the pain FAQ and the new statement represent a retrenchment and a harder line toward pain doctors, the timing of the move also strongly suggests that the DEA had more sinister and nefarious reasons. Attorneys for Dr. Hurwitz had moved in late September to introduce the pain FAQ in his trial. The pain FAQ vanished from the DEA web site a few days later. Two weeks after that, US Attorney Paul McNulty, who is prosecuting Hurwitz, filed a motion seeking to have the pain FAQ excluded because it "did not have the force and effect of law." Presiding US District Court Judge Leonard Wexler ruled in favor of the government.
"This is all about winning," said Libby. "I'm sure these guys believe in what they're doing, but they have to justify their jobs and shut these 'drug dealer' doctors down. Now that prescription drugs are as much a part of the drug war as Schedule I substances, the doctors are legal game."
Visit http://www.medsch.wisc.edu/painpolicy/DEA/ to read the correspondence between the DEA and the University of Wisconsin Pain Policy Group.
Two days ago the prosecution rested its case in the trial of pain treatment specialist Dr. William Hurwitz. Dr. Frank Fisher, another physician victimized by the government's mendacious against pain doctors, distributed the following update to Hurwitz supporters last night:
"Today was the first full day of defense testimony. Steve Passik spent the morning on the witness stand discussing conceptual issues surrounding the controversy about aberrant drug-related behaviors. He made it clear that these behaviors are not in and of themselves automatically diagnostic of anything, and that complex clinical judgments are required in order to assess their meanings. Dr. Passik pointed out that these criteria are better characterized as AMBIGUOUS drug-related behaviors.
"A registered nurse who worked in Dr. Hurwitz' office gave a fair and accurate representation of what went on there. She discussed the difficult decision making process that occurred in dealing with patients who were less than compliant with their treatment plans.
"Finally, three patients testified today. All made it clear that Dr. Hurwitz' heroic treatment had been life saving. This occurred after the remainder of the medical establishment had failed them, sometimes for more than a decade.
"The testimony of a nice lady from New Mexico moved members of the jury and courtroom staff to tears. She described the torment that had reduced her to years of a bedridden existence, consisting of pain and vomiting, prior to Dr. Hurwitz' treatment restoring her to a functional existence."
Siobhan Reynolds of the Pain Relief Network has informed DRCNet that Dr. Hurwitz will testify on his own behalf on Monday, December 6, and asked that supporters come out to demonstrate their support in person. The trial is taking place at the federal courthouse in Alexandria, Virginia, 401 Courthouse Square. Even a short visit is worthwhile and could make an impact! Visit http://www.painreliefnetwork.org/default.asp?id=70&mnu=40 for directions and trial updates.
Monday's oral arguments in Ashcroft v. Raich, where the Supreme Court took up the case of two California medical marijuana patients, featured much discussion of the merits of medical marijuana. But that wasn't the issue the Supreme Court needed to decide. While the Supreme Court's decision will determine whether Angel Raich, Diane Monson, and other medical marijuana patients can take their medicine without fear of federal raiders, this case is ultimately about federalism and states' rights.
But in recent years, the Rehnquist Court has whittled back the scope of the interstate commerce clause, most strikingly in two cases from the mid-1990s. In one, the Court held unconstitutional a federal law punishing gun possession near schools; in the other, the Court held unconstitutional the Violence Against Women Act. In both cases, the Court found that the link between the acts the laws were intended to punish and interstate commerce were so tenuous that the commerce clause did not apply. In those cases, the Court scaled back Wickard to regulations that involve "economic activity," which the Court has not defined, but appears to mean activities that are part of a process leading to sale or barter.
From the moment acting Solicitor General Paul Greenlee began his oral argument, the issue of whether intrastate, noncommercial activity (growing and smoking medical marijuana) was "economic activity" governed by Wickard was at the fore. Justice O'Connor questioned whether the Court's decisions in the 1990s cases had any impact on this case, given that "this substance was not in a national market or in any intrastate market, unlike the activity at issue in those cases."
"Marijuana is a fungible product and there is a national market in this drug," Clement responded.
Justice Ginsburg challenged Clement: "This is not commercial activity, is it?"
"This is economic activity, but not commercial activity," Clement argued. "It is like the production of wheat."
When Raich attorney Randy Barnett had his turn, the give-and-take followed similar lines. "May it please the Court, I have two points," Barnett began. "The first point is that the activity involved here is wholly intrastate and non-economic in nature. The second point is that regulation of this activity is not essential to a broader regulatory scheme."
Here Barnett raised a key point. A second line of defense for the government is that even if intrastate use of medical marijuana is not an "economic activity," if allowing it to occur would interfere with a legitimate federal regulatory function, that could be a reason to rule in the government's favor. As Barnett put it, "The federal government can only reach non-economic activity if the state's authorization of that activity would undermine a broader scheme for the regulation of interstate commerce. The state statute isolates medical cannabis from the larger recreational market."
Court watchers are notoriously uneager to attempt to divine how the Supreme Court will rule, but a few brave souls have taken a shot at it. "So how will Ashcroft v. Raich come out?," asked University of San Diego law professor Lawrence Solum on his Legal Theory blog (http://www.lsolum.blogspot.com). "I don't know. I got a sense that O'Connor, Ginsburg, and perhaps Stevens were quite sympathetic to the respondents. Based on his questions, Justice Kennedy seemed quite favorable to the government. One would guess that Justice Thomas will be the hardest member of the Court for the government to win. One might also guess that it will be hard for the petitioners to win Souter or Bryer, who both are very skeptical of Lopez and Morrison. Justice Rehnquist is hard to call. We didn't hear from him. One suspects he is both pro-federalism/state power and pro-federal regulation of drugs. One can imagine this case coming out 5-4 either way. Before argument, I would have said it could be 9-0 either way, but if I allow myself the dangerous pleasure of reading the tea leaves, I now think that is unlikely."
Findlaw columnist Marci Hamilton was a little braver. After discussing how Raich differs from the controlling case, Wickard, Hamilton gave her bottom line: "In sum, given all these significant distinctions between Wickard and Raich, the Court could easily hold that while Congress did not exceed its Commerce Clause power by regulating home wheat use, it did exceed its Commerce Clause power by regulating intrastate medical marijuana."
Slate senior editor and Supreme Court watcher Dahlia Lithwick, somewhat cynically, came to the opposite conclusion. "Should the court's staunchest conservatives get away with being for states' rights only when the state in question isn't California?" she asked. "No. Will they? Oh, you can bet your bong on it."
Several major newspapers were also pessimistic about Raich's prospects. "States' Rights Defense Falters in Medical Marijuana Case," read the New York Times headline. "Justices React Skeptically to Medical Marijuana Arguments," ran the San Jose Mercury News headline.
Oakland attorney Robert Raich, husband of plaintiff Angel Raich, who has, unsurprisingly, followed the case closely from the beginning, remained cautiously optimistic. "You can't predict how the justices are going to vote on the basis of the questions they asked, but one thing we can tell is that they are definitely familiar with this case and have done their homework."
Raich raised an important point about the implications of a loss at the Supreme Court. "Even if we should lose, this would still have no effect on patients in the states that have medical marijuana laws," he told DRCNet. "Those laws would remain in full force and effect, protecting patients from harassment from state and local authorities. That's important, because 99% of arrests are by state and local authorities. A bad ruling would have no effect on the vast majority of patients. On the other hand, if we win, it will be a tremendous victory for patients all over the country because they will know they can have the medicine they need."
A decision in the case is expected in July.
(Tuesday DRCNet issued a special report to bring our readers a taste of what it was like to be present at the Supreme Court medical marijuana hearing last Monday. We reprint that bulletin in this issue.)
The case, Ashcroft v. Raich, pits two California medical marijuana patients against the Justice Department. It also pits the doctrine of states' rights against the federal government's use of the Constitution's interstate commerce clause to crack down on medical marijuana users despite state laws okaying their use.
Angel Raich, who suffers from a variety of life-threatening disorders, and Diane Monson, a chronic back pain sufferer, filed suit in federal court in California after the Drug Enforcement Administration raided Monson's home in 2001 and seized her marijuana plants, which she was growing for medical purposes in compliance with California law. The pair filed for injunctive relief seeking to permanently bar the federal government from raiding, arresting, seizing the property of, or otherwise harassing law-abiding medical marijuana patients. They argued that because their cultivation and use are non-commercial and take place within a single state, the federal government has no constitutional standing to stop them.
Raich and Monson lost in federal district court in October 2002, but that decision was overturned by the US 9th Circuit Court of Appeals in San Francisco last December. That decision meant that medical marijuana patients in the states comprising the 9th Circuit could now use and cultivate the plant without fear of the feds.
The Justice Department of Attorney General John Ashcroft appealed the 9th Circuit's ruling. Written briefs in the potentially landmark case were submitted months ago, and today the Supreme Court heard an hour's worth of oral arguments from acting Solicitor General Paul Clement for the Bush administration and Boston attorney Randy Barnett for Raich and Monson.
A favorable decision from the high court would extend those protections nationwide. A decision to overturn the 9th Circuit would merely mean that the DEA could once again conduct raids against medical marijuana patients and providers, but would not overturn the state laws approving medical marijuana.
As the chill pre-dawn darkness turned to sunlight outside the Supreme Court, the line of hopeful spectators grew steadily longer. First in line was attorney Eric Sterling, head of the Criminal Justice Policy Foundation, followed by Jeff Jones, whose Oakland Cannabis Buyers Cooperative lost its medical necessity case in the same court three years ago. Following them were a mixed bag of wildly-speculating activist law students, medical marijuana supporters, and Supreme Court groupies, all very grateful for the hot coffee provided by Steph Sherer and Stacey Swimme of the medical marijuana defense group Americans for Safe Access.
By 9:00am, when the doors to the court were opened, the crowd of hopefuls had grown to a couple of hundred -- with only 50 guaranteed access to the actual chamber. By then, more movement bigwigs had made appearances, as the leaders of the country's two largest marijuana reform groups, outgoing NORML head Keith Stroup and Marijuana Policy Project head Rob Kampia, showed up to hear the arguments.
Bush administration lawyer Paul Clement led off the session, asserting that marijuana had no accepted medical use, that someone growing pot non-commercially for his own use in his own state was subject to the jurisdiction provided by the Interstate Commerce Clause, that a restrictive reading of the Commerce Clause would impeded the federal government's ability to set national policy on any number of issues, and, furthermore, that a ruling allowing medical use unfettered by federal law would open the door to similar arguments regarding recreational use.
But in typical Supreme Court fashion, Clement barely got started before being peppered by rapid fire questions from the justices -- all except Justice Clarence Thomas, who rarely asks questions and who used the hearing today to alternately loll about in his chair or read from a book. Wouldn't the non-commercial use of homegrown pot reduce the illicit interstate commerce in the herb? asked a mischievous Justice Scalia. Maybe so, Clement reluctantly responded, but for him the important point was that "any island of non-regulation would frustrate the regime created by Congress."
After a half-hour of back and forth, it was time for Raich attorney Randy Barnett. The Interstate Commerce Clause does not apply to Raich and Monson, he argued, because "their medical marijuana use and cultivation is non-economic and wholly intrastate." But the justices, displaying evident concern about the ramifications of restricting the federal government's ability to use the Interstate Commerce Clause, shot question after question at Barnett about whether growing even pot that never hit the market or left the state was an economic activity and thus subject to regulation under the clause.
The argument over the Interstate Commerce Clause pits earlier Supreme Court decisions against each other. In a 1942 ruling, the court held that a farmer who grew wheat for consumption on his own property was subject to the clause because the wheat he grew affected the overall market. But in a pair of mid-1990s rulings by the current court, the court struck down federal laws regarding firearms near public schools and violence against women, suggesting that the clause should be interpreted more strictly.
With ramifications extending far beyond the issue of medical marijuana, the Raich case drew a high number of friend of the court briefs and illustrated the ideological flexibility of all concerned. Conservative Republican congressmen led by Rep. Mark Souder (R-IN) submitted a brief calling for increased federal power, while the southern states of Alabama, Louisiana, and Mississippi submitted one supporting Raich as upholding states' rights.
Justice Breyer suggested that seeking a solution in the courts was premature. "I would think they would go to the FDA," to get marijuana rescheduled, he suggested. But the FDA has been consistently unresponsive to repeated efforts to get the herb rescheduled, as Barnett tartly pointed out. "I would suggest you read the brief from Rick Doblin on FDA obstructionism," he said.
"What about other states without medical marijuana laws?" asked Justice Ginsberg. "Could Congress regulate medical marijuana there?"
"The federal government could not prosecute medical marijuana users anywhere," responded Barnett.
"What about growing heroin or cocaine?" asked Justice Breyer. "It all depends on the regulatory scheme," Barnett offered.
"What impact would a favorable ruling have on the marijuana market overall?" asked Justice Stevens.
"The only impact would be a slight price reduction," Barnett suggested.
While the justices demonstrated concern about the ramifications of a positive decision, Angel Raich herself clearly articulated the ramifications of a negative one. Appearing at a post-hearing press conference on the Supreme Court steps as a lonely handful of anti-medical marijuana activists held up signs warning that smoked medicine is not medicine and that tens of thousands of kids are in drug treatment for marijuana, Raich made clear what this case is all about. "If they decide I have the right to live, I will spend the rest of the life with my family," she said. "On the other hand, if they decide against me, they will be handing me a death sentence."
Supporters adjourned to a press conference at the ACLU's DC home the Stewart Mott House, and have now begun the wait.
More than two-thirds of some 300 US chiefs of police interviewed in a survey conducted for the Police Foundation and Drug Strategies (http://www.drugstrategies.org), a mainstream drug policy research and advocacy group with a strong emphasis on prevention and treatment that also supports some harm reduction measures, said that law enforcement has failed to quell drug use. Released this week, the survey found that 67% of police chiefs believe their drug enforcement efforts "have been unsuccessful in reducing the drug problem."
Similarly, while police chiefs surveyed continued to see drug abuse as a top law enforcement problem -- 63% said it was serious or very serious in their communities -- they also appeared to recognize that the decades-long war on drugs requires a radical rethinking. Nearly half of the chiefs (47%) said the nation's drug policy requires "major changes," while 37% called for a "fundamental overhaul."
While some may find these figures surprising, they are supported by a larger annual survey conducted by the National Association of Chiefs of Police (http://www.aphf.org). In one of a series of questions related to drug policy, that survey sent out to more than 22,000 police chiefs and sheriffs asks: "Has the national war on drugs, which has been ongoing for at least 15 years, been successful in reducing the use of illegal drugs?" In the last annual survey, a whopping 82.3% of respondents said no. Association spokesman Dennis Ray Martin told DRCNet that the latest annual survey, which is about to be released, will show a similar figure.
"It's a realistic assessment," said Police Foundation director Hubert Williams, a career police officer who served as director of the Newark Police Department for 11 years. "If the chiefs were to say otherwise, they would be telling lies," he told DRCNet.
"My old profession isn't as dumb as everybody thinks it is," laughed former Tonawanda, New York, police officer Peter Christ, a 20-year veteran of the drug wars who co-founded ReconsiDer: Forum on Drug Policy (http://www.reconsider.org) and then Law Enforcement Against Prohibition (http://www.leap.cc), both pro-legalization. "I've been arguing that legalization is the only solution for the terrible crime problem we've created. Drug use needs to be regulated and controlled -- it's not something we can make go away," he told DRCNet. "I think at least some in law enforcement understand that."
"I'm not in the least surprised," said LEAP executive director Jack Cole, a retired 26-year veteran of the New Jersey State Police. "This summer, LEAP decided to attend national and international police conferences as part of our outreach and we went to five of them. We keep track of everyone we talk to on a one-to-one basis. We're talking about maybe 200 people at each conference," he told DRCNet, "and what we've found in our informal tally is that 80% agree the drug war is a dismal failure."
But while police executives may be wary of the drug war, that sentiment seems at this point to translate not into support for legalization or regulation but for broadening anti-drug efforts to include a greater recognition of the drug problem as a public health problem. In other words, drug war and drug treatment. "Drug abuse is a medical problem, a disease," said the Police Foundation's Williams. "If America is going to be successful in ending drugs, we need a comprehensive approach."
The Drug Strategies/Police Foundation survey results supported that view. When asked to choose whether "drug abuse" is better handled by the criminal justice system or the public health approach, 35% said cops, while 18% said public health. Interestingly, 44% chose neither option, instead volunteering the answer "both."
[Editor's Note: Opinion polls are the creatures of those who commission them. The Drug Strategies/Police Foundation survey is no exception. Following the ideological predilections of Drug Strategies, the survey questions frame the problem as "drug abuse," not drug policy. Thus, 63% of chiefs said that "drug abuse" is a serious problem in their communities, when what they are really referring to is really a combination of problems related both to drug abuse -- as distinct from drug use, a distinction this poll fails to make -- and problems related to crime and violence generated by prohibitionist drug policies.]
But even if police chiefs are willing to anonymously agree that decades of prohibition have failed, few are ready to say so publicly. "That's what LEAP is for!" exclaimed Christ. "We are trying to create a safe space where people who want to agree with us can come forward. All the time, there will be cops at our presentations, and they will say nothing in public, but then they get me off to the side and tell me to keep up the good work. There are career considerations. When I was a cop, everyone knew how I felt, but I didn't speak out publicly because I had a career."
"Police are in a very bad situation when it comes to speaking out against the war on drugs," said LEAP's Cole. "They're scared to death their peers and the politicians are going to label them as soft on drugs, soft on crime. That's a real threat to a police officer. To stand up takes a lot of guts."
And it's a matter of continuing education, too, said the Police Foundation's Williams. "When Kurt Schmoke was mayor of Baltimore, and they wanted to do a needle exchange program, all the police chiefs just saw paraphernalia. But if you engage them in a serious discussion, you will see they agree prevention and treatment are part of the solution. Law enforcement alone is a poor way to address this problem." Bring on the debate, said Williams. "If we are going to address this issue, that will require a considerable amount of discussion so everyone is informed of the real facts. There must be a broad dialog to shape future policies, because law enforcement alone isn't the way."
Read the Drugs Strategies/Police Foundation survey, "Drugs and Crime Across America: Police Chiefs Speak Out," at http://www.drugstrategies.org and http://www.policefoundation.org online. Read the National Association of Chiefs of Police annual survey at http://www.aphf.org/surveyresults.pdf online.
Change the Climate (http://www.changetheclimate.org), a Boston-based organization that fights the drug war with advertisements aiming to change the cultural climate surrounding marijuana, has the right to display its advertisements on Massachusetts Bay Transportation Authority (MBTA) property, the US 1st Circuit Court of Appeals ruled Monday. MBTA violated Change the Climate's First Amendment rights by refusing to display its ads in 2000, the court held.
The ads challenge the status quo on marijuana and urge viewers to change the law. "I've got three great kids," reads one ad. "I love them more than anything. I don't want them to smoke pot. But I know jail is a lot more dangerous than smoking pot."
"MBTA advertising space is literally a billboard for the expression of opinions to citizens at large. As a government agency, they shouldn't have the right to pick and choose what opinions they allow to be advertised," Change the Climate attorney Harvey Schwartz told reporters after the ruling.
This isn't the first time Change the Climate has provoked unconstitutional reactions from offended bureaucrats or politicians. In June, Change the Climate won another victory when a US district court judge in Washington, DC, ruled the "Istook amendment" unconstitutional. That law, named after sponsor arch-conservative Rep. Ernest Istook (R-OK), sought to punish transit authorities that allowed ads seeking to reform the marijuana laws by withholding federal transportation funds. Istook had been especially provoked by a Change the Climate ad linking sex and marijuana (http://stopthedrugwar.org/chronicle/340/istook.shtml).
Read the opinion in Change the Climate v. MBTA (No. 03-2285) online by visiting http://www.ca1.uscourts.gov and using the opinion search function.
Two weeks ago, the New Mexico-based US branch of the Brazilian church Centro Espirita Beneficiente Uniao do Vegetal (UDV, or Union of the Vegetable) won in federal appeals court the right to use the Amazonian hallucinogen ayahuasca in its religious rites (http://stopthedrugwar.org/chronicle/363/udv.shtml). On Wednesday, the Bush administration was back in court on the case, seeking and winning a stay from the Supreme Court blocking the church from using its sacrament until they have heard the case.
The 10th US Circuit Court of Appeals in Denver had ruled that the church would probably win its case, and granted a temporary injunction barring the government from suppressing its ayahuasca rituals in the meantime, but Supreme Court Justice Stephen Breyer granted the government a temporary stay to give both sides more time to file arguments with the court.
"Compliance with the injunction would force the United States to go into violation of an international treaty designed to prevent drug trafficking worldwide, which could have both short- and long-term foreign relations costs and could impair the policing of transnational drug trafficking involving the most dangerous controlled substances," acting Solicitor General Paul Clement wrote in a court filing.
The case arose when federal agents raided the Santa Fe, New Mexico, offices of the church's US branch in 1999, seizing 30 gallons of ayahuasca tea. Unfortunately for the feds, the leader of the US branch, Jeffrey Bronfman, is an extremely well-heeled heir to the Seagram's whiskey fortune. Bronfman sued, and so far, he and the church have won every round.
Delaware may bill itself as the First State, but now that outgoing New Jersey Gov. Jim McGreevey has okayed the creation of needle exchange programs (NEPs) next store in the Garden State, Delaware is the last state to allow neither non-prescription needle sales nor NEPs as harm reduction measures for the prevention of HIV/AIDS. But that could change next year, as Delaware lawmakers vow to push once again for passage of an NEP bill.
Delaware State Sen. Margaret Rose Henry told the Associated Press she will reintroduce NEP legislation when the legislature reconvenes in January. The bill would authorize an NEP in Wilmington. "We can't continue to have people die from AIDS when there is a way to stop the spread of it," said Henry.
The state's Democratic-controlled Senate passed the bill, but it died in the Republican-controlled House after House Majority Leader Wayne Smith refused to allow it to move forward. While Smith told the AP the bill "deserved merit" (whatever that means), he added that he did not want to rush it through. "I would have to be convinced that the evidence is overwhelming that this is a tremendous benefit," said Smith.
Smith might want to check with the Centers for Disease Control and the National Institutes of Health, which issued the following finding last year: "An impressive body of evidence exists that suggests powerful benefits from needle exchange programs... Can the opposition to needle exchange programs be justified on scientific grounds? Our answer is a simple and emphatic no. Studies show reductions of risk behavior of up to 80%, with estimates of up to a 30% reduction in HIV among injection drug users" (http://www.cdc.gov/idu/facts/aed_idu_syr.pdf).
Delaware state medical director Dr. Herman Ellis told the AP 43% of the state's HIV infections are injection drug use-related. NEPs would save both lives and money, he said. "If the number of HIV-positive people drops, the cost-benefit means you have less people on that long-term treatment." Now, it is once again up to Majority Leader Smith.
Last week, DRCNet reported on plans by British Prime Minister Tony Blair to institute drug testing of arrestees, who could then be charged with drug possession if traces of drugs are found in their systems. The proposed measure is part of a package of "tough on crime" bills Blair is touting as part of his campaign to be reelected (http://stopthedrugwar.org/chronicle/364/blair.shtml).
But while those bills have not even been formally introduced -- Blair said he would wait until after the election, which it is widely believed will be called in May, to file them -- a pilot project which does just that is already underway in Liverpool, according to the Liverpool Daily Post. As of November 25, people arrested for certain crimes in the Liverpool South and Liverpool North police command units have been forced to submit to drug tests and are being given a choice between forced drug treatment and unspecified penalty. Criminal offenses that would trigger the drug tests include burglary, theft and car crime.
The drug tests are not concerned with marijuana, but persons found to have ingested Class A drugs, such as heroin and cocaine, will face forced treatment.
"We are offering a choice," Prime Minister Blair said in his Queen's Day address last week. "If you are a drug addict engaged in crime, you will be offered a way out through treatment and help. If you refuse that offer, it will be made more difficult for you at every stage in the criminal justice system."
And so Tony Blair's brave new world of therapeutic justice commences.
The Afghan government of President Hamid Karzai is investigating claims from villagers that their fields have been subjected to aerial fumigation as part of the effort to suppress opium production in the country, Agence France Presse reported this week. Afghanistan leads the world in the poppy crop, accounting for nearly 80% of global production, according to estimates by the UN Office on Crime and Drugs. After three years of relative inaction on the Afghan opium front, the US government announced a little over two weeks ago it was preparing to attack the trade (http://stopthedrugwar.org/chronicle/363/afghanistan.shtml). According to AFP, "a flood of patients" have shown up at doctor's offices in eastern Nangahar province complaining of skin diseases they say are the result of exposure to herbicides sprayed on their opium crops last month. The farmers complained that the spray destroyed food crops and left them sick.
The US military has denied any involvement. "US troops are not involved in eradication, which would include the spraying of poppy fields which we do not do," US military spokesman Major Mark McCann told AFP last week.
But the governor of Nangahar province, Din Mohammed, said spraying had indeed taken place. While Mohammed declined to speculate on who was doing the spraying, he did point out the obvious. "I don't know who might be behind this but you know the fact that the airspace of Afghanistan is under the control of the United States," he said.
One Hakimabad villager, Zarawar Khan, told AFP he had seen "a huge plane flying very low" overhead spraying a snow-like substance on the fields. "I saw the plane. They sprayed this thing on the fields," he said, putting his finger on a sticky substance which was slightly lighter than the earth around the seedlings.
Another villager, Hazrat Mir, who was waiting for treatment at the Hakimabad hospital, said he got ill after coming in contact with the mysterious chemical. "I got this sickness when I touched the chemicals sprayed from the air on our fields," he said. "My back, my arms and my legs, my entire body aches -- it is very hard."
As in Colombia, where the US sponsors a massive aerial eradication campaign, the spraying is less than perfectly selective. "See here," said angry villager Abdul Qadir, pointing to a wilting green onion patch next to an opium field that was also dying. "The onions are destroyed, the spinach is destroyed, the wheat and vegetables are destroyed," he said.
One of the nation's premier drug reform groups, the Drug Policy Alliance (http://www.drugpolicy.org), is returning a $200,000 grant from the Ford Foundation because of a new clause the foundation now requires in all its grant contracts that DPA says will undermine freedom of speech. The foundation inserted the clause under pressure from the federal government.
The clause reads: "By countersigning this grant letter, you agree that your organization will not promote or engage in violence, terrorism, bigotry or the destruction of any State, nor will it make sub-grants to any entity that engages in such activities."
While DPA is not known as a terrorism supporter, it raised concerns about comments from federal officials that drug users support terrorism. "You know, as do I, that the Drug Policy Alliance does not promote or engage in any such activities -- and the Ford Foundation knows it too," said DPA executive director Ethan Nadelmann in a message to supporters. "But we also have to contend with federal officials and politicians who are incredibly reckless in linking drug use with terrorism, and who edge ever closer to linking drug policy reform advocacy with support for terrorism. Remember the Super Bowl ads a few years ago that claimed that people who smoked marijuana were supporting terrorists? Have you heard about, or visited, the DEA's exhibit on drugs and terrorism? Or listened carefully to statements by the drug czar, and the head of DEA, and some members of Congress?"
DPA now becomes the second grantee to announce it is returning Ford Foundation funds because of the terrorism clause. Last month, the American Civil Liberties Union (ACLU) returned a $1.15 million grant citing similar concerns. DPA board president Ira Glasser headed the ACLU for over 20 years.
The Ford Foundation adopted the voluntary guidelines in the wake of the passage of the Patriot Act in 2002. Provisions of that act prohibited providing funds, goods, or services to those designated by the US government as terrorists or their associates. Ford and several other philanthropic groups amended their grant policies to include the new anti-terrorist clause. In October, the Washington-based Council on Foundations, representing some 2000 foundations, charities, and corporate grant makers, said it would ask the Treasury Department to reconsider the guidelines, which it called "impractical, costly, and potentially dangerous."
Nadelmann pronounced himself and DPA disappointed that Ford had caved in to federal government pressure. "They can make clear that they don't support terrorism," he said. "But don't require us to put words into our own mouths that can be misinterpreted down the road."
A United States Sentencing Commission study released November 23 found that the number of minority offenders doing time in federal prisons has climbed dramatically since the introduction of federal sentencing guidelines in 1987. Minorities now make up a majority of the federal prison population, the study found.
Whites made up 60% of the federal inmate population in 1984, but only 35% of federal inmates in 2002. The study pointed to disparities in sentences for blacks and whites as part of the reason. While both groups received average sentences of a little over two years in 1984, blacks are now serving an average of six years, while whites are serving only four. According to the report, the disparity is attributable in part to harsh mandatory minimum sentences for drug crimes enacted by Congress. In 2002, 81% of federal drug offenders were black, the report noted.
The length of the average prison sentence has doubled to more than four years, twice what it was in 1984, before the sentencing guidelines were in effect. According to the commission, the increase in sentence length is mostly due to the guidelines' elimination of parole.
Another reason for the relative decline in white prisoners is the dramatic growth in Hispanics imprisoned for immigration violations. According to the report, this group has grown from 15% of federal prisoners in 1984 to 40% in 2002.
The Sentencing Commission found that sentencing guidelines had made sentencing "more certain and predictable," but also generated the racial disparities mentioned above. The Supreme Court is currently considering a case that challenges the constitutionality of those guidelines. A decision in that case could come as early as next week.
Read the study, "15 Years of Guidelines Sentencing," at http://www.ussc.gov/15_year/15year.htm online.
It was party time in Tennessee for a trio of Memphis cops, but the party ended this week as the three appeared in court facing a variety of charges. Memphis police officers John Vaughan, David Tate, and Billy Scott are all charged with possession of 150 Ecstasy tablets and 10 kilograms of a substance containing methamphetamine, according to the Memphis Commercial Appeal.
Vaughan was the good boy of the bunch. Scott, Tate, and a 21-year-old accomplice, April Veach, are also charged with conspiring to burglarize the home of professional wrestler Jerry Lawler. The trio was arrested before they could steal $200,000 they thought Lawler had hidden in his jukebox.
Scott and Tate are charged with additional drug violations, and in a move that raises the sleaze-o-meter, also face charges for driving FBI agents posing as prostitutes to nearby Tunica, Mississippi, to sell sex to big spenders there.
Vaughan and Scott have pled not guilty, while Tate, an 18-year-veteran of the force, told the court this week he was guilty as charged. Vaughan and Scott are out on bail, while Tate remains behind.
December 5, 1933: The passage of the 21st Amendment repeals prohibition of alcohol. Prohibition ends a little after 5:00pm EST when Utah becomes the 36th state to ratify the amendment.
December 6, 2000: In Belgium, the Liberal Prime Minister Guy Verhofstadt and the Brussels coalition of Liberals, Socialists and Greens, vote to "exempt from punishment possession, consumption and trade of up to five grams hashish or marijuana."
December 7, 1993: During a speech at the National Press Club, US Surgeon General Joycelyn Elders says, "I do feel that we would markedly reduce our crime rate if drugs were legalized, but I don't know all the ramifications of this... I do feel that we need to do some studies. In some of the countries that have legalized drugs, they certainly have shown that there has been a reduction in their crime rate and that there has been no increase in the drug use rate." Elders' gets in hot water for the comment.
December 7, 2001: John P. Walters is sworn in as director of the Office of National Drug Control Policy, or the "drug czar."
December 7, 2001: In California, the Long Beach Press-Telegram reports that a Poly High School senior who played bass in the school orchestra committed suicide by self-inflicting a gunshot wound to his head after being booked on marijuana possession charges. His aunt says he was humiliated by his arrest. "All he repeated to his mother on the way home was 'they treated me like a common criminal,'" she said.
December 8, 1929: Col. Levi G. Nutt, Head of the Narcotics Division of the US Treasury Dept., declares, "I'd rather see my children up against a wall and see them shot down before my eyes than to know that any one of them was going to be a drug slave."
The International Harm Reduction Development Program (IHRD) of the Open Society Institute has announced a new grant competition in support of activism and policy development by and for drug users. The competition is open to drug user organizations in Central and Eastern Europe and Central Asia. Groups may apply for funding in a two-step process. First, a short Letter of Intent describing the organization and project concept is due by January 10, 2005. Selected organizations from the second round will be invited to submit a full application by February 10, 2005. Applications may be submitted in either English or Russian. Applications will be reviewed and grants decided by a committee composed of drug user activists and other advocates.
Since 2001, IHRD has supported the development of drug user organizations, through direct financial contributions, technical assistance, and other means. IHRD supports these programs out of a belief that drug users are their own best advocates, and have a vital role to play in defining the health, social, legal, and research policies that affect them. Underlying this assumption is both a basic commitment to users' rights, and the visible success of user organizations in Asia, Australia, Eastern and Western Europe and North America in recent years.
Questions about this program, or requests for complete details and instructions for applying, including the Letter of Intent form, may be sent to Matt Curtis at [email protected] (English), or Dasha Ocheret at [email protected] or [email protected] (Russian). Applications should be sent to [email protected].
Visit http://www.soros.org/initiatives/ihrd/ for further information about the International Harm Reduction Development program.
Make a difference next semester! DRCNet and the Coalition for Higher Education Act Reform (CHEAR) are seeking motivated and hardworking interns for the Spring 2005 Semester. We are especially looking for people interested in the Higher Education Act Reform Campaign, an active, vigorous, visible effort to repeal a federal law that takes college aid away from students because of drug convictions.
Preference will be given to those able to work 20 hours per week or more, though others will be considered. DRCNet needs interns with good people skills, web design skills, superb writing skills, and a desire to end the war on drugs. Office and/or political experience are a plus. Spring internships begin in the second or third week of January and ideally last through April, but the dates are flexible. Internships are unpaid, but travel stipends are available for those who need them.
Apply today by sending a short cover letter and resume to: [email protected].
DrugWarMarket.com, a web site that follows the economy of the drug war, is seeking web sites for affiliations and link exchanges. The site will launch in December.
DrugWarMarket.com is also seeking information on local drug economies -- if you have information on local law enforcement spending in relationship to the drug war, DrugWarMarket.com would like to know about it! Additionally, DrugWarMarket.com is also interested in information on the cost of drugs, including product, weight and price -- be sure to include the location you are writing about in your e-mail.
Contact DrugWarMarket.com at [email protected].
December 3, full day, Chicago, IL, Opiate Overdose Intervention, presented by the Chicago Harm Reduction Training Collaborative. Registration $30, discounts available for multiple event signups. At the Bridgeview Bank Building, 4753 N. Broadway, contact Shira Hassan at (773) 728-0127 or visit http://www.anypositivechange.org for further information.
December 3, 7:00pm-midnight, San Francisco, Homecoming Celebration for Medical Marijuana POWs Bryan Epis and Keith Alden, to benefit Americans for Safe Access. At Pier 23 Cafe, on the Embarcadero, admission $50. Call (510) 486-8083 or visit http://www.safeaccessnow.org for further information.
December 9, 6:00-8:00pm, Boston, MA, Forum/Fundraiser benefiting the John W. Perry Fund, which provides scholarships for students losing financial aid because of drug convictions. Keynote speaker Rep. Barney Frank, sponsored by DRCNet Foundation and the Drug Policy Forum of Massachusetts, at the Omni Parker House, Alcott Room, 60 School St. (corner of Tremont). Suggested minimum donation $25, no one will be turned away, visit http://stopthedrugwar.org/chronicle/365/frank.shtml for info or RSVP to [email protected] or (202) 362-0030 or (617) 426-7979.
December 11, Annapolis, MD, The Exonerated: a play recounting the true stories of six death row inmates who were found innocent. At the Unitarian Universalist Church of Annapolis, 333 Dubois Road, reception and panel discussion featuring criminal justice experts following performance. Tickets $20 or $15 for students and seniors, benefiting a fund for the exonerated, for reservations call (410) 266-8044 ext. 127.
April 30, 2005 (date tentative), 11:00am-3:00pm, Washington, DC, "America's in Pain!" 2nd Annual National Pain Rally. At the US Capitol Reflecting Pool, visit http://www.AmericanPainInstitute.org for further information.
April 5-8, 2006, Santa Barbara, CA, Fourth National Clinical Conference on Cannabis Therapeutics. Sponsored by Patients Out of Time, details to be announced, visit http://www.medicalcannabis.com for updates.
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