DRCNet Interview: Roger Goodman, King County Bar Association Drug Policy Project 2/4/05

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In a groundbreaking resolution adopted January 19, Washington state's King County (Seattle) Bar Association (KCBA) effectively declared war on drug prohibition, calling for "a new framework of state-level regulatory control over psychoactive substances, intended to render the illegal markets for such substances unprofitable, to restrict access to psychoactive substances by young persons and to provide prompt health care and essential services to persons suffering from chemical dependency and addiction." KCBA predicted that such a system "will better serve the objectives of reducing crime, improving public order, enhancing public health, protecting children and wisely using scarce public resources, than current drug policies."

While officially endorsed only by the KCBA, the resolution is the result of years of work at the state and local level in Washington by the KCBA's Drug Policy Project headed by Roger Goodman. The effort has brought together an amazing number of state and local professional organizations -- doctors, pharmacists, the League of Women Voters -- to push for a reexamination of the state's approach to drug policy. KCBA's drug policy grouping is a powerful coalition not of outsiders seeking a voice at the table but of insiders demanding change.

With the KCBA and its allies now working with the state legislature to urge it to consider adopting a new, regulatory approach to currently illicit drugs, the Seattle approach appears to be on the cutting edge of drug law reform. Drug War Chronicle spoke with KCBA drug policy head Roger Goodman this week to find out more.

Drug War Chronicle: What does this resolution say, and what does it ask the legislature to do?

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 interim step.

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 in.

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?

Goodman: Legislators 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.

Chronicle: Speaking 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 -- regulation.

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 consumption.

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?

Goodman: Legalization 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.

-- END --
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Issue #373 -- 2/4/05

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