Drug War Chronicle:
What does this resolution say, and what does it ask the legislature to
Roger Goodman: The
resolution of the King County Bar Association calls on the Washington state
legislature to set up a body of experts -- in pharmacology, medicine, education,
the law, and so on -- to gather around the table and figure out how a state-level
regulatory system for psychoactive substances may be feasibly established.
We are talking about psychoactive substances produced entirely in illegal
markets. We are not talking about "grey market" pharmaceuticals --
prescription drugs that have been diverted -- that's an important distinction.
The black market is much harder to control, but by getting rid of the black
market and its associated crime problems, we would go a long way toward
addressing what is commonly thought of as the "drug problem."
We understand that we are
not going to get there right away, so we are supporting drug courts as
an interim measure that can be fully implemented consistent with the existing
federal prohibitionist legal framework. We are talking about abstinence
achieved through the use of criminal sanctions, holding a hammer over people's
heads, and we realize that a significant part of the drug reform community
has problems with that, but we have to live in the real world. Drug
courts keep people out of prison, they save money, and they improve the
health and lives of the participants. What drug courts also do is
change the culture of the courts, and we can only move as fast as the culture
will allow. This can be frustrating for drug reformers, but now,
at least, we are finally talking about the elephant sitting in the middle
of the room.
When we are talking about
bar associations, who are we talking about but lawyers and judges?
Most of these lawyers would love to see the courts unclogged of these drug
cases, they would love to see the money redirected to indigent defense,
to family courts, and things like that. Within the legal profession,
everyone is receptive to this reform because it frees up resources.
And neither can sheriffs and police chiefs just reject drug courts out
of hand anymore. They are no longer a radical idea, but an important
One of our guiding principles
is that the degree of state regulation and control of a particular substance
should be commensurate with the harm associated with that substance.
Now, harm is a loaded word, but you can reduce it down to something measurable.
And what we are talking about is primary harm -- direct negative consequences
for the user or others -- not secondary harm, and not the fact that someone
may be offended by drug use. Other than reasonable regulations, such
as on places of consumption or hours of sales, we are basically following
the liberal tradition of the state not interfering in the affairs of its
citizens. We even quote John Stuart Mill.
Chronicle: How important
is this resolution, and how relevant is it as a model for other localities?
Goodman: This could
be the beginning of the next big thing. What we are doing with this
resolution is trying to plant the seed that will finally end the war on
drugs, however long that takes. You know, I was just thinking to
myself: How could anyone argue to preserve the black market in drugs?
Why does it keep continuing? I think it is simply because we have
not been talking about it. But with this resolution, these ideas
are finally on the table. And we are not pulling punches. We
are talking about the need for a continuum of therapeutic approaches.
What is embodied in the resolution is a long-term vision, and we are looking
at all those areas of the law that really haven't been considered as part
of this. It's boring stuff, really -- manufacturing regulations,
product safety, that sort of thing -- but it is incredible that potentially
hazardous psychoactive substances are left in the hands of criminal gangs
who prey on children. And just by using that sort of language, people
find they have to sit down and talk about this. So, yes, we think
this is very important. A couple of days ago, I literally had to
prop myself up against the wall as the enormity of what we are doing sank
And it can easily be a model
for any local or state bar association in the land. In fact, this
is being discussed right now in bar associations across the country.
Last week I was in New York; the state bar there wants to start its own
drug law committee and work on this. There is also interest in other
states, from Oregon to Alabama and Mississippi.
Chronicle: As impressive
as the passage of this resolution is, equally impressive is the array of
professional organizations you have marshaled behind it. What were
the dynamics behind that, and where to you go from here in terms of gathering
even more support?
Goodman: What we did
was basically create a bandwagon effect. How it all started was through
the leadership of the KCBA and the King County Medical Society presidents,
who got the state bar and the state medical association interested back
in 2001. We formed a steering committee, and then the KCBA targeted
and invited other professional organizations in the state to send a representative
to the steering committee. We made presentations to the boards of
each of these organizations, and now each of those boards is engaged in
the issue and gets updated. The organization presidents are now making
decisions about, say, whether to sign onto a letter demanding reform of
the Higher Education Act or in support of funding for treatment.
And the process continues
to expand, even here. While most of the organizations already involved
are medical, I think by the end of this month we will also have the Society
of Addiction Medicine and the Association of Addiction Programs.
These are abstinence-based groups for the most part, but they will likely
come on board, and that leaves law enforcement all alone by itself.
I feel somewhat left out
of the drug reform movement, because what we are doing here is not grassroots
organizing, but grasstops organizing. I go to all these professional
conferences and sit there quietly, but now the model is working nationwide.
One of the biggest and most pleasant surprises is to see these busy professionals
attend early morning meetings where they are sitting around a table talking
strategy. They're not talking about whether their groups will support
drug reform, but how to work together to convince public opinion leaders
and public officials.
Chronicle: You have
this resolution in hand. Where do you go from here?
Goodman: While the
resolution passed last month, we are waiting until March 3 to officially
release it. Now, we are talking to people like you and Dean Becker
of Cultural Baggage and Dan Forbes, but we're not going big time until
then. It is time to get real. We are sitting on the progressive
edge here and we are going to push. We'll do a big news conference
then, we will have faxed news releases to every outlet on the planet.
We will have all those association heads lined up to speak then.
And we do have a plan in place. We will try to place some op-eds
the week after the news conference, and then we'll try to do some radio
shows to follow-up in the weeks after that. We are hoping both that
this gets the state legislature here listening and that we will start to
generate some national coverage. In the meantime, I've been visiting
with legislators down in Olympia, and so far the early signs are good.
There are promises to move on this if there is bipartisan support.
Chronicle: Okay, so
the KCBA passes this resolution urging the state legislature to act, and
you've got a public awareness campaign in place. What do you realistically
expect the legislature to do?
are buying into this. No one I've spoken to so far has said we should
not be talking about alternatives. The chairs of the House criminal
justice and judiciary committees are colleagues of mine, and they say they
are willing to take this on. The Senate judiciary committee chair
has showed similar interest. While both chambers are controlled by
the Democrats, I think they would really like this to be bipartisan.
This represents a major shift in policy, and no one wants to get too far
out front. Changing drug policy is like reversing course on a battleship;
it will take some time to turn it around. Well, now we have boarded
that battleship, but we're not on the bridge yet.
What I would really like
to see this year is hearings. Whether we could get beyond hearings
this year, whether key legislators are ready to act and vote a proposal
to the next level, the rules committees, may or may not happen this year,
but we are seeing an understanding of the issue and a commitment to look
at new ideas from key leaders. What we are asking for is low maintenance
and low budget, and that should make it easier. We are not asking
for an expensive blue ribbon commission because we've already done the
leg work. We are not asking the legislature to make the $1.6 billion
deficit any deeper. If we can get hearings this year, we can spend
the next year educating people. We have an active speakers' bureau,
and we will be out there talking to the Chamber of Commerce, the Rotary
Club, those sorts of groups, informing people one on one over the same
period. This is really an exercise in cultural change, and with the
change in the culture, change in the law will follow. We have to
be a bit patient.
of elephants in the room, how does a single state, or even a number of
states, get around the federal prohibition on illicit drugs?
Goodman: While the
weight of the Controlled Substances Act and its broad interpretation under
the commerce clause seems so daunting that no state would even try to diverge
from federal prohibition, we have come up with a number of arguments we
think can successfully confront the CSA. Under a state's police powers,
for instance, the state has the right to regulate medical practice.
As you know, right now we are seeing a lot of persecution of doctors by
the federal government -- and, of course, the medical groups are very,
very sensitive to this. There is case law that strongly supports
the state's authority to regulate medical practice, so perhaps we could
see prohibited drugs administered medically under state -- not federal
Another conceptual argument
is that if a state were to engage in purveying substances as a business
-- think of state-run liquor stores -- this would be considered commerce
under the law and thus could be regulated. The power to regulate
commerce is not solely the domain of the federal government; it is concurrent
with the states. If a state, through its political process, whether
by legislative action or initiative, opted to get in the business, it could
then argue that it has the power to regulate such a business. I suppose
the US Attorney General could seek an injunction, but it would be a test
of how a state can exercise its police and regulatory powers to protect
the health of its people. I don't think the Supreme Court would intervene.
That would be the ultimate test.
Cannabis is probably the
only example of using the commerce model. It could be grown on state
land under state license and distributed by the state. The law could
also allow for home production and consumption. And there could be
a third category: medical use. You need to keep the medicine affordable,
so perhaps there could be licensed co-ops providing low cost cannabis to
those who need it medically or certification of patients to receive discounts.
In general, though, you do want to keep the price high, although lower
than the black market, because it deters youth consumption and overall
Chronicle: I notice
that the resolution takes the time to emphasize that it is about "regulation
and control," not "legalization." Why not say the L-word?
is such a charged political term that although we are not afraid to use
it, it almost immediately requires definition. What exactly do you
mean by legalization? Regulation and control is much easier to understand.
Also, we are not inventing a new regime here; we are simply incorporating
potentially hazardous psychoactive substances into a regime that currently
exists. The states already regulate some psychoactive substances.
To regulate others that are currently illicit does not require a regime
change, but maybe some new requirements, some new agency to handle it.
Cannabis especially is a substance just crying out for regulation.
Currently it is controlled by the black market and is more available to
young people than adults. I think the public is at a point where
it understands that regulation is a more attractive alternative.