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Feature: The DEA's New Proposed Policy Statement on Pain Prescribing -- What Does It Mean?

When the Drug Enforcement Administration (DEA) issued a new policy statement on prescribing controlled substances for patients suffering from chronic pain last week, it sought to redress the rising chorus of concern and complaints from health care workers and patients alike that its tough stance toward physicians prescribing opioid pain medications was resulting in a crisis in care for chronic pain patients. But if the activists and experts Drug War Chronicle talked to this week are any indication, the DEA's job in reassuring the pain care community is far from done.

The move comes after years of increasing prosecutions of physicians like Dr. William Hurwitz, a leading pain care practitioner in Virginia, who was convicted of being a drug dealer over his prescribing practices. (That conviction was recently overturned on appeal.) It also comes two years after the DEA shocked and dismayed the pain care community, including many academic pain specialists who had worked with the agency, by first posting and then quickly removing a series of "frequently asked questions" designed to assist physicians in staying within the good graces of the law. It is now commonly suspected in the academic pain community that the DEA pulled the pain FAQ at the request of the Justice Department because it would have aided Hurwitz's defense in his November 2004 trial, but the Justice Department hasn't confirmed that.

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Siobhan Reynolds, Frank Fisher, Ron Libby and Maia Szalavitz, at a September 17, 2004 Congressional Briefing convened by the Association of American Physicians and Surgeons (photo courtesy Pain Relief Network)
In a September 6 press release announcing the agency would loosen regulations on prescribing Schedule II drugs, DEA administrator Karen Tandy also unveiled the new policy statement on prescribing. "We listened to the comments of more than 600 physicians, pharmacists, nurses, patients, and advocates for pain treatment, and studied their concerns carefully. Today's policy statement is the result of that collaboration. The policy statement reiterates the DEA's commitment to striking the proper balance to ensure that people who need pain relief get it, and those who abuse it, don't," said Tandy.

The policy statement outlines DEA's vision of how doctors can prescribe powerful pain medications, such as Oxycontin or fentanyl, without ending up being arrested and called a "drug dealer" by federal prosecutors intent on throwing them in prison for years. Such drugs must only be prescribed for a "legitimate medical purpose," the DEA said.

"We believe that the statement and proposed rule will help the medical professional ensure that only patients who need medication for pain relief get it. The statement reflects an awareness of patients' needs as well as the importance of preventing any illegal diversion of prescription drugs," Tandy continued. "Today's policy statement reaffirms that DEA wants doctors to treat pain as is appropriate under accepted medical community standards. Physicians acting in accordance with accepted medical practice should be confident that they will not be criminally charged for prescribing all appropriate pain medications," Tandy concluded.

Not everyone was buying what Tandy was selling, though. "This new policy statement is mere window dressing," said Dr. Frank Fisher, a California physician who underwent a years-long legal ordeal after being accused of murdering his patients through overprescribing. He was ultimately acquitted on all criminal charges, but he was ruined financially and professionally. "The problem is that physicians are intimidated and as a result we have a public health disaster with the under-treatment of chronic pain. This doesn't address the problem. We have to get treatment for those who are dying because they're not being treated. We have to find a rational way to regulate these substances, and I think there is a very good model with alcohol and tobacco, both of which are infinitely more dangerous than the opiates," he argued.

While Fisher was harshly critical of the DEA, he did concede that the proposed policy statement suggested the agency was concerned about a backlash. "It is telling," he said, "that the DEA now seems to be concerned about its image. In that sense, it's a sign of progress, but the DEA isn't really the problem -- the Controlled Substance Act is the problem. This is fiddling while Rome burns," he said.

"The DEA has been intransigent in its positions, and this is the first crack we've seen," said Kathryn Serkes, spokeswoman for the American Association of Physicians and Surgeons (AAPS), a 5,000-member, libertarian-leaning medical association that has long been active in the pain wars. "I think with the Dr. Billy Hurwitz case and everything else that has been going on in recent years, we are reaching the tipping point," she told the Chronicle. "Through getting our side out in the media and on web sites, through telling our stories, and through the work of activists like [the Pain Relief Network's] Siobhan Reynolds, the public gets it now. The media gets it now. We have seen a change in the stories. It's not just about horrible doctors killing patients anymore; the reporters are writing about the problem of pain."

That new understanding is even starting to percolate within the political class, Serkes said. "The politicians are starting to get it. The only folks who haven't gotten it are law enforcement and the courts. I think the release of this policy statement was a strategic move by the DEA in the face of Hurwitz's successful appeal of his conviction. If I were the DEA, I would certainly be looking for something to show we were being responsive. I'm sorry to sound cynical, but this looks like an obvious attempt by the agency to manipulate the situation. Still," she concluded, "we'll take what we can get. We're working on the good dog theory with the DEA -- praise the dog when it does something good even if it has some behavioral problems. Good dog, DEA, but you're still in the dog house."

Despite some broader issues with the DEA, Dr. Howard Heit, a Fairfax, Virginia, pain management and addiction medicine specialist who worked with the agency on the new policy statement was very pleased with the looser prescribing rules. "This is a tremendous step forward in the common goal of achieving balance between the DEA and health care professionals," he told the Chronicle. "It will ensure that patients who need Schedule II drugs get them and will help decrease the diversion of prescription drugs."

Heit divided his patients into two types: stable and problematic. "With stable patients, those with no aberrant behavior who follow all the agreements, I can now write sequential prescriptions for patients that I used to have to see every month," he explained. "Now I can see other patients because the stable patients don't have to come back unnecessarily. On the other hand, with my patients with problematic behavior, I want to see them every two weeks and more tightly control the medications. That prevents a greater quantity of medicine getting out that can be misused or diverted," he said.

"The DEA said they made a mistake in not allowing us to do sequential prescriptions," said Heit. "Now they are allowing us to do this. The DEA is responding to the health care community, and this opens up dialog that has been rather closed in the past two years. This is a step in the right direction. The rules of the game are being set up. The DEA has also stated they do not want to practice medicine, but it is their charge to enforce existing regulations. While I feel it is the prescriber's responsibility to know and follow federal regulations for prescribing controlled substances, it is also the DEA's responsibility to ensure that all DEA agents enforcing these regulations are knowledgeable about them."

Despite problems with the DEA in the past, particularly around the abortive pain FAQ in 2004, Heit said there was no option but to work with the agency. "The DEA isn't going away, the patients aren't going away, I'm not going away. We need to communicate with each other."

Dr. David Joranson of the Pain and Policy Studies Group at the University of Wisconsin Comprehensive Cancer Center, which had worked closely with the DEA on the abortive FAQ but not on this latest policy statement, was reluctant to render a verdict on it. "We're still analyzing the proposal and are trying to help people think through it," he told the Chronicle.

One point Joranson made was that much of the reporting about limitations on prescribing opiates is mistaken, and it isn't just the reporters getting it wrong. "There is currently no 30-day refill requirement," he said. "The DEA has clarified that there is no such requirement. There is not a word in the law or the regulations about that, and if everyone is saying there is, everyone is wrong." Even physicians are often mistaken about the law, he said. "The literature shows that medical professionals often have an inadequate understanding of the law and regulations regarding prescription practices."

Even though the DEA's own press release announcing the proposed policy statement said it "will allow a physician to prescribe up to a 90-day supply of Schedule II controlled substances during a single office visit, where medically appropriate," that press release is misleading, said Joranson. "The statement implies there is a supply limit now, but in fact a physician can prescribe any quantity of a controlled substance on a single prescription."

But Professor Ronald Libby, a University of North Florida political scientist who is writing a book on the clash between the imperatives of medicine and those of law enforcement, was not so sure patients would benefit from the relaxed prescribing rules. "General practitioners are already scared to death to write prescriptions in the first place because of the DEA," he told the Chronicle. "If they're afraid to write one prescription, why should we expect them to feel more secure writing three?" he asked.

"I don't see any real change in policy," said Libby. "Other than the 90-day prescription thing, I just don't see anything. The DEA is basically fulfilling its promise to replace the FAQ, and here it is. This is largely tokenism because the DEA is feeling the heat," he said.

Continuing discussions between the DEA and the health care community are not going to resolve the contradictions, said Libby. "I don't think you can get at the underlying issues unless and until there are congressional hearings on the DEA," he argued. "They're more secretive than an intelligence agency. It's almost impossible to get information from them, even for members of Congress."

[Editor's Note: Years ago I heard an analyst tell attendees at a forum that researchers at the federal Government Accountability Office liked to say DEA stands for "don't expect anything, don't even ask." -- DB]

But Libby doesn't see congressional hearings happening any time soon. "Let's face it. The drug warriors are in full bloom. The climate of the country is not conducive. They've managed to equate illicit drug trafficking with terrorism, and as long as that's the case and they include practitioners and patients in that war, the only way to move forward is to excise this diversion stuff from the war on drugs. But even though the pain foundations and people like the Pain Relief Network have been trying to get hearings for years, we can't get them. If the Democrats win the House, that might change, but members have to consider the fallout. If you take a hard-line position against the DEA, you become a target yourself."

"To view this as significant is to miss the point," said Siobhan Reynolds of the advocacy group the Pain Relief Network. "Pain patients have been suffering from an unbelievable crackdown, a reign of terror that has cost people their lives," she told the Chronicle.

It's very personal for Reynolds. One of those pain patients who died was her husband, Sean Greenwood, who succumbed earlier this month to Ehlers-Danlos Syndrome as he and Reynolds desperately traversed the country seeking adequate levels of prescribed pain medications for him. Because anti-terror precautions precluded them from taking medicines on airplanes, the family was forced to drive cross-country in search of a physician who would prescribe the massive doses Greenwood needed. He died in a motel room in a state Reynolds does not want to identify for fear of leading the DEA to the doctor they were seeking.

"People do not understand the enormity of what patients face," she said. "Because doctors are so afraid of law enforcement, they have projected their fear onto these patients and these drugs, so that sick people taking pain meds frighten hospitals and doctors. Sean needed a lot of hospital care, but they didn't focus on his medical problems because everyone is in the witch hunt mode about opiates. All the hospitals would talk about was giving him Narcan, as if the opiates were responsible for his medical problems," she said.

"My son watched his father die for no good reason," Reynolds continued. "He couldn't get into a hospital because of a government crackdown nobody is willing to admit is going on. No one can get the serious doses of pain medications that these really sick people need, and that's a real human rights catastrophe, and the DEA making a shiny new policy statement that basically says the same thing as before is not going to change anything."

What is needed, said Reynolds, is an all-out legal assault on the DEA's prescription drug control edifice. "We need multi-layered litigation with multiple plaintiffs going after different elements of this problem." But that will require a larger commitment from reformers than has so far been forthcoming. "We are in a gridlock of grief here, and nobody seems to care."

Feature: Vancouver's Safe Injection Site Gets Only Limited Continuing Exemption

Insite, Vancouver's pioneering safe injection site, won a reprieve from the Conservative government of Prime Minister Steven Harper last Friday -- but only a limited one. The site's three-year exemption from Canada's drug laws was set to expire next week, and the Harper government had dallied for months on whether it would re-approve the controversial harm reduction experiment. Supporters, including the city of Vancouver, the current and two former mayors, local activists, researchers from around the world, and Canadian politicians had sought a renewal of the three-year exemption, but the Harper government instead announced it would renew the exemption only through December 2007.

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InSite (courtesy Vancouver Coastal Health)
In an announcement last Friday afternoon -- seemingly timed to make the story vanish during a three-day holiday weekend news dump -- Health Minister Tony Clement said the results of the first three years of Insite's operation raised new questions that must be answered before the Harper government would make a decision about the long-term future of Insite or approve any other safe injection sites in Canada.

"Do safe injection sites contribute to lowering drug use and fighting addiction? Right now the only thing the research to date has proven conclusively is that drug addicts need more help to get off drugs," Minister Clement said. "Given the need for more facts, I am unable to approve the current request to extend the Vancouver site for another three and a half years."

Clement's remarks reflected the Harper government's ideological antagonism toward harm reduction practices in general and any form of dealing with drug users that does not involve abstinence in particular. "We believe the best form of harm reduction is to help addicts to break the cycle of dependency," Clement said, "We also need better education and prevention to ensure Canadians don't get addicted to drugs in the first place."

Although Insite and Vancouver Coastal Health, the government entity charged with operating the site, have produced reams of research showing that the site has reduced drug overdoses, attracted users at risk to HIV/AIDS and hepatitis C, increased the number of users seeking treatment or counseling, and reduced needle sharing -- all without leading to increases in crime or drug use -- the Health Ministry insists it wants more.

"We looked at research put out by the Royal Canadian Mounted Police and others," Health Ministry spokesman Erik Waddell told Drug War Chronicle. "We want more research done to show that this form of harm reduction will actually help addicts get off drugs."

While Minister Clement and the Harper government are calling for more research on the efficacy of Insite, they aren't willing to pay for it. The federal government had been sponsoring research at Insite to the tune of $500,000 a year, but Waddell said that had come to an end. "We will not be providing any additional funding for research," he said.

That was news to Vancouver Coastal Health and supporters of Insite. "We hadn't heard that," said Viviana Zanocco, spokeswoman for Vancouver Coastal Health. "We're still trying to get in touch with them and waiting for details," she told Drug War Chronicle. "Still, we are pleased the extension has been granted, even though it's not for the 3 ½ years we requested."

"It's good news that the exemption has been extended and they didn't close it down," said Gillian Maxwell of Insite for Community Safety, a coalition created to help ensure the site's continued existence. "Insite is staying open because of the broad support for it and the depth of research carried out that shows what is has already achieved," she told the Chronicle.

But Maxwell also complained that the Harper government is moving the goalposts. "They have raised the bar on us," she said. "We have a harm reduction program that helps people get into treatment, but now the Harper government wants it to show it helps people stop taking drugs. We can never get everyone to stop taking drugs. This means we have a lot of work to do to protect Insite."

Maxwell said she was shocked but not surprised by the Health Ministry's refusal to fund the additional research it calls for. "They are ideologically opposed to this, so they try to make it as difficult as possible. They may think things should be a certain way, but reality and the research say otherwise."

While the short term extension of the exemption is better than shutting down the facility, said Maxwell, it could well signal that the Harper government will try to shut it down permanently later on. "They didn't feel confident enough to try to close it down now, but they have already made it clear they favor a three-pillar, not a four-pillar, approach. They have little use for harm reduction, and I think they believe that 16 months from now there will have been another election and they will have a majority and then they can shut it down."

Representatives of Insite and the Vancouver city drug policy office were on vacation this week and unavailable to comment.

Ann Livingston of the Vancouver Area Network of Drug Users (VANDU) predicted months ago that the Harper government would seek an interim solution. "I guess I was right," she told Drug War Chronicle. "I know these guys, and they don't want to let us mount a campaign. If they had said no outright, that would have been great, we could have really mobilized."

But Livingston and VANDU are not just sitting back and waiting for December 2007. The group filed a lawsuit late last month seeking an injunction to keep the site open and charging the Harper government with discriminating against people with diagnosable illnesses like drug addiction. "Criminalizing a group of people who are addicted to drugs is blocking them from health care, and that's a Charter right," she said. "The lawsuit will continue."

The lawsuit also charged that Insite does not need an exemption from the Canadian drug laws and even if it does, the government has provided no application process. "The staff at Insite doesn't handle drugs, so they shouldn't need an exemption," Livingston argued. "If they are going to argue that they do need a permit, they have to tell us how to do that. Right now there is no application process; it's all at the whim of a minister."

The safe injection site has survived one execution date, but the would-be executioners in Ottawa are still sharpening their axes. Fortunately for Insite, it has a lot of friends and a proven track record. This battle is going to continue for awhile.

Feature: Afghan Opium Crop Hits Record as Violence Increases

Things are not going well in Afghanistan. In a stunning admission that the hundreds of millions of dollars spent trying to eradicate the country's opium crop had accomplished little, the United Nations Office on Drugs and Crime (UNODC) announced Saturday that this year's Afghan opium crop is up a "staggering" 60% over last year and will yield a record 6,100 tons this year, leading to a global surplus in black market heroin.

Opium is the backbone of the Afghan economy, accounting for somewhere between 35% and 50% of gross national product, and Afghan opium is the backbone of the global traffic in narcotics, now accounting for 92% of total illicit global production, according to UNODC.

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opium eradication team (photo from the Senlis Council report, photo library section)
Meanwhile, US soldiers and NATO forces, who took over operations in the restive south of the country earlier this year, are being killed at a record pace as Taliban and Al Qaeda rebels reinvigorated by profits from the opium trade are taking the battle to the foreigners and the government they prop up. And in a reflection of the increased NATO role, for the first time, NATO casualties are keeping pace with American casualties. In what is turning into the bloodiest year so far for Afghanistan's occupiers, 73 NATO troops and 74 American soldiers have been killed so far. Last year, the second bloodiest since the US invasion nearly five years ago, 99 US and 31 NATO troops were killed in fighting.

"The news is very bad. On the opium front today in some of the provinces of Afghanistan, we face a state of emergency," UNODC head Antonio Maria Costa told a Kabul news conference after presenting results of its crop survey to Afghan President Hamid Karzai. "In the southern provinces, the situation is out of control."

In southern Helmand province, now a hotbed of Taliban activity, cultivation rose by a whopping 162% and accounts for 42% of total Afghan opium cultivation, the UNODC said. Costa told the Kabul news conference that NATO must step up its role in fighting the opium trade, especially in the south, where it is helping to fuel the Taliban insurgency.

"We need much stronger, forceful measures to improve security or otherwise I'm afraid we are going to face a dramatic situation of failed regions, districts and even perhaps even provinces in the near future," Costa said.

But while NATO commanders late this week called urgently for more troops on the ground in the south, they have little interest in fighting the drug war. NATO's official position is that its mandate is for stability and peace-keeping, not counternarcotics.

Still, there is pressure from the Americans and the British to try to wage both the war on terror and the war on drugs simultaneously. The top American anti-drug official in Afghanistan, Doug Wankel, told the press conference the need was urgent. "This country could be taken down by this whole drugs problem," he told reporters. "We have seen what can come from Afghanistan, if you go back to 9/11. Obviously the US does not want to see that again."

But analysts consulted by Drug War Chronicle warned that attempting to quash the opium economy and fight the Taliban at the same time is a recipe for disaster. "Paradoxically, the more they go after opium production, the more they strengthen the bond between the Taliban and the population and the traffickers," said Vanda Felbab-Brown, a research fellow at the Brookings Institution and Harvard University's John F. Kennedy School of Government Affairs. "It is a difficult conundrum. There can be no fundamental progress on either the narcotics problem or stabilization in general unless we deal with the insurgency," she told the Chronicle.

"The Taliban have now once again become integrated into production in the south," Felbab-Brown explained. "After 2001, they were pretty much forced out of the drug trade because they were fleeing and because the US and coalition forces were not going after drug trafficking. But now, the traffickers need someone to protect them, to scare off the eradication teams and the state presence, and the Taliban is providing this protection. It is also exploiting the eradication effort," the expert on illicit drugs and military conflict said. "They are handing out leaflets saying things like 'We are the Taliban. Isn't it awful that Karzai under the pressure of the foreign infidels is trying to destroy our crops. Here's our cell phone number. Give us a call.' So now, the Taliban is not only profiting financially, it is also gaining the allegiance of the population by providing protection."

"Things are a bit out of control because so many things happening in Iraq and the Middle East keep the superpowers' eyes off of Afghanistan, so the intruders have more opportunities to accelerate their destruction and illegal activities," said Raheem Yaseer, assistant director of the Center for Afghanistan Studies at the University of Nebraska-Omaha. "At the same time, the coalition and the Karzai government are too busy fighting the Taliban and Al Qaeda to concentrate on eradication," he told the Chronicle.

"The Taliban is moving into the areas where there is drug cultivation, and they receive support from farmers who have had their crops destroyed or threatened," Yaseer continued. "Thus, the traffickers and growers have a bit more freedom than usual. That's why business is booming for the drug dealers. There are too many fronts to deal with, and eradication is just one front."

Solutions are hard to come by. "Nobody knows what the answer is," Yaseer conceded. "Out of those billions of dollars they are spending, they need to use some to compensate farmers and create other jobs and projects. People in the provinces are unemployed and hungry, and the terrorists offer them money to join them. People turn to the Taliban and the terrorists and the drug dealers because that's where the money is. The government and the coalition cannot compete with the money drug dealers offer. It doesn't help that there is such nepotism and involvement of high level officials in the trade. That only makes it all the more difficult to enforce the drug laws. Many government officials are supporting the trade, not fighting it."

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the opium trader's wares (photo by Chronicle editor Phil Smith during September 2005 visit to Afghanistan)
"There is no doubt lots of government officials are complicit in the trade, but focusing on individuals is a mistake," noted Felbab-Brown. "This isn't about individuals, but about deep structural factors like the lack of stability, security, and economic development. Whoever is in power, whether honest or corrupt, will have to contend with these issues. The honest ones will confront the fact that there is nothing but poppy-growing for much of the population. The only way they can do eradication now is at gunpoint, and that is not the way to carry out a legitimate, widely-embraced policy. Forced eradication generates instability and opposition from the people, and ambitious politicians in the south will link up with the Taliban."

For Felbab-Brown, it comes down to doing counterinsurgency right. "It is critical to increase the number of forces, to increase the troop presence and the delivery of aid," she said. "It's difficult to deliver aid during an active insurgency, but it is vital. But we also need patience, especially on the narcotics issue. The big pressure for premature eradication coming from Washington and international organizations needs to be resisted. We need more money, more troops, more development. Is this international community willing to provide these resources?"

Being patient with the opium economy is getting closer to the correct approach, said Ted Galen Carpenter, a foreign affairs and drug policy analyst with the libertarian leaning Cato Institute. "The only solution is one that no one in any position of influence in Washington or the NATO capitals will consider -- drug legalization," he told Drug War Chronicle. "That would take the black market profits out of the drug trade. It is the ultimate solution. If they won't consider legalization, the very least they can do is look the other way with regard to the drug trade. That worked in Peru in the 1980s, when the Peruvian generals figured out that leaving the coca crop alone dried up support for the Shining Path. Something similar needs to occur in Afghanistan, whether they admit it or not. If they are serious about preventing a further rebound of the Taliban and Al Qaeda, they need to lay off the drug war."

Trying to wage both the war on terror and the war on drugs undermines US policy in the country, Carpenter argued. "There is a fundamental inconsistency in the US nation-building strategy in Afghanistan. The primary goal remains to undermine the Taliban and Al Qaeda, but the problem is if they go after the drug trade, they alienate a major portion of the population and strengthen support for the Taliban. Even trying to prosecute the war on drugs there undermines the primary US goal in Afghanistan."

One European defense and development group, the Senlis Council, has proposed for nearly a year now that the Afghan opium crop be licensed, legalized, and diverted to the legitimate medicinal market. Senlis was harshly critical of Western policy this week.

"Huge amounts of money have been spent on large and costly military operations, but after five years southern Afghanistan is once more a battlefield for the control of the country," said Senlis executive director Emmanuel Reinert as he announced the publication of a new report on the rebirth of the Taliban. "At the same time Afghans are starving. The US has lost control in Afghanistan and has in many ways undercut the new democracy in Afghanistan. I think we can call that a failure, and one with dire consequences which should concern us all. The US policies in Afghanistan have re-created the safe-haven for terrorism that the 2001 invasion aimed to destroy."

But the Senlis licensing proposal is getting little respect or traction and is unlikely to prevail, said Yaseer. "I don't think the Senlis Council proposal will get very far," said Yaseer. "There is all kinds of opposition to any legalization. The religious groups will not support it, the legislators will not support it. There are also serious questions about whether it would just open up more venues for growing and trafficking."

Questions, questions. There are lots of questions in Afghanistan, but few good answers.

Feature: Law Enforcement Against Prohibition Stirs the Waters in Ireland

Retired Florida police chief and Law Enforcement Against Prohibition (LEAP) spokesman Jerry Cameron managed to put the drug debate squarely on the front burner with his appearance in Ireland last week. Cameron's address at the "Rethinking the War on Drugs" conference in Dublin, sponsored by a trio of Irish groups working on prison, drug policy and youth issues sparked numerous newspaper editorials and opinion pieces, filled the airwaves with talk about legalization, and forced the Irish government to respond.

Organized by the Irish Penal Reform Trust, the drug charity Merchant's Quay, and the Union for Improved Services, Communication, and Education (UISCE), a group combining sports and Gaelic language learning, "Rethinking the War on Drugs" brought more than one hundred Irish politicians, government workers, reformers, and activists together on August 28. With Cameron as the keynote speaker, the conference certainly inspired Irish reflection on national drug policy.

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Jerry Cameron at the Dublin conference (courtesy IPRT)
That's just what the IPRT wanted, said executive director Rick Lines. "The IPRT doesn't have any formal policy supporting legalization or decriminalization," he told Drug War Chronicle. "However, we do work from an analysis that drug criminalization is a main driver of growing prison populations in Ireland, and is a main cause of high rates of HIV and Hep C infection in prisons. Therefore, examining alternatives to drug criminalization, and alternatives to prison for people who use drugs, must be a central part of the work done by penal reform organizations. I understand that this might make us a bit unusual among our sister organizations internationally. I am often told by people at harm reduction conferences that the prison reform organizations in their countries don't talk about drug laws at all. Whether this is true or not, I am not sure, but I hope it isn't."

For Lines, the conference and the attention it drew were a huge success. "The event was successful beyond all our expectations," he said. "The crowd was much bigger than anticipated -- standing room only -- as was the press coverage. We counted 26 separate TV, radio, and print outlets covering the event, and we may have missed some. As such, the event was a very successful beginning to reframing the debate on this issue, which was all we really hoped to accomplish."

"This was one of the better conferences I've been to," LEAP's Cameron told DRCNet. "The folks from the Irish Penal Reform Trust did a wonderful job of organizing it, and among those attending were a member of parliament and a member of the European Parliament, the immediate past Irish drug minister, several members of the probation system, a representative from the Garda [Irish police] -- it was a real cross-section of people interested in these issues. I have to say that the people from the Irish government were a lot more open-minded than the politicians I run into in the US."

The media attention was tremendous, Cameron said. "We were in every Irish newspaper the day after the conference. I also did a lot of work with Irish radio and TV stations," he explained. "I even appeared on a radio talk show where the woman arguing me was so crazed we had caller after caller calling in to reject her positions and argue for fundamental reform."

Indeed, the media response was intense and mostly favorable. The Irish Examiner covered the conference and Cameron's remarks the same day with a story titled "US Police Chief's Warning Over Doomed Drug Policy", while the Irish Times published a reaction piece, "Government Considered Legalizing Heroin", and the Examiner came back the next day with another reaction piece, "Legalizing Cannabis 'Would Result in State Being Sued'". But even those reaction pieces featuring government figures explaining why drugs could not possibly ever be legalized kept the discussion of drug prohibition in front of the Irish public.

By the end of last week, the Irish government was forced to respond directly. The man in charge of Irish drug treatment, Minister of State at the Department of Community Noel Ahern, called in reporters to tell them the government was rejecting calls for drug legalization. "We are not going in that direction," he said in remarks reported by Irish wire services. "And if there are moves in the future it would have to be dealt with on a worldwide basis. One country on its own cannot move. Holland tried for a few years ago and they're backing off big time because they realized they were bringing in drug tourism," Ahern added, misrepresenting current Dutch drug policies as he did.

"We wouldn't have expected anything else from the government response," said IPRT's Lines. "But again our main objective was really just to raise debate, and in that sense we were remarkably successful. To paraphrase one of the speakers at the event, if we had held a public forum 20 years ago talking about needle exchange, people would have thought it was a crazy idea, but now it is well established policy."

"The media storm is still going on," Cameron said Tuesday with a mixture of surprise and pleasure. "There have been a couple more columns in the last few days, one of which quoted me extensively. The tack I took went over quite well. I told them I was not there to tell Ireland how to conduct its business, but to tell them US drug policy has been a total failure and ask them to profit from our mistakes. They have a lot of talented people who can come up with Irish solutions for Irish problems. What we've done in the US sure hasn't worked," he said.

An op-ed in the Irish Independent last Sunday titled "The War Isn't Working So Is It Now Time to Consider the Unthinkable and Legalize All Drugs?" was typical of Irish press commentary. "Currently, there is more crime, disease, death and addiction than ever before," wrote the columnist. "He [Cameron] believes, and I share his view, that not one objective or goal of the 'war on drugs' has been met, and that the 'relegalization of drugs' is 'the only way to stop drugs falling
into the hands of our children, to make room for violent offenders to serve their full terms in our prisons, and to return law enforcement to its legitimate function of protecting our citizens.'"

A columnist in the Irish Examiner opined similarly the day before in a piece titled "We Are Losing the War on Drugs and Policy Should Be Stood On Its Head". In that piece, columnist Ryle Dwyer summarized Cameron's argument, added some of his own, and concluded thusly: "Using tried and tested tactics that have failed so dramatically is a cause of, not the answer to, our problems."

"The first step in any effort to promote policy change is to mainstream your perspective, and move it beyond being a 'crazy idea' and make it into a legitimate part of the public discourse," said IPRT's Lines. "One event won't accomplish this, but it is a start. The story continued on in the press in the days after the event, and I think this bodes well for continuing work on this issue, as perhaps we have helped open up safe space for others to make similar arguments themselves."

Conference by conference, op-ed by op-ed, radio show by radio show, the anti-prohibitionist message is spreading, and with the help of groups like LEAP and the IPRT, it is spreading into the mainstream.

Click here to watch the LEAP video online or donate $15 or more to DRCNet to order a copy of the DVD.

Feature: Living on Katrina Time -- Lost in Louisiana's Gumbo Gulag

New Orleans resident Pearl Bland was arrested and jailed on drug paraphernalia charges in August 2005, just weeks before Hurricane Katrina devastated the city. She pleaded guilty on August 11, and her judge ordered her released the next day for placement in a drug rehabilitation program. Recognizing Bland was indigent, he waived the fines and fees. But Bland was not released the next day. The Orleans Parish Prison (OPP) instead held her because she owed $398 in fines and fees from an earlier arrest. She had one more court hearing in August and a September 20 status hearing was set where in all probability the fines and fees would have been waived.

Pearl Bland never got her September hearing. Instead, once Katrina hit, she joined thousands of prisoners stuck in purgatory. After suffering beatings from her fellow inmates in the OPP as deputies shrugged their shoulders, Bland was evacuated, first to the maximum security state prison at Angola and eventually to a jail in Avoyelles Parish. In June, she desperately contacted the American Civil Liberties Union (ACLU), which in turn contacted attorneys with the Tulane University Criminal Law Clinic, who managed to win her release on June 28. Bland wasn’t there for her release hearing, just as she hadn’t been present at four previous hearings in the preceding weeks, because her jailers couldn’t be bothered to deliver her to court.

"Pearl Bland spent 10 months in prisons around the state because of $398 in fines and fees that her judge would most likely have waived if she had ever gotten to court," said Tom Javits, an attorney with the ACLU's National Prison Project. "But because of the storm and the the response to it, she didn’t get her day in court for months, and then only because she sought out help," he told the Drug War Chronicle.

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ACLU report
It would be bad enough if Pearl Bland were a fluke, but sadly, her case is typical of what happened to people unfortunate enough to be behind bars when Katrina hit or to be arrested in the storm's aftermath. As the ACLU National Prison Project and the ACLU of Louisiana documented in their early August report, "Abandoned and Abused: Orleans Parish Prisoners in the Wake of Katrina," thousands of New Orleanians in custody when the storm hit were left on their own as guards fled the rising waters. Since then, those prisoners have been scattered to the winds, left without counsel, abused by guards, and left to rot by a justice system that is seemingly content to forget all about them. And with post-Katrina reconstruction bearing a very heavy law enforcement imprint, they have been joined by thousands more, many of them imprisoned for trivial crimes like spitting on the sidewalk, public drunkenness and simple drug possession.

A year after Katrina, thousands of prisoners have never seen an attorney, never been arraigned, never appeared before a judge. Scandalously, no one has a firm count -- or if they do, they're not telling. "Nobody knows the numbers," said law professor Pamela Metzger, who heads the Tulane Law School Criminal Law Clinic and whose students have been going into Louisiana jails and prisons in search of the Katrina prisoners. "When we ask the district attorney's office to assist us with this, just so people can get lawyers, they say it's not their job. Just since June, my students have been able to track down and get released about 95 people," said Metzger. "But we just have no one of knowing how many are in jail."

When the Chronicle asked ACLU of Louisiana executive director Joe Cook the same question, he had a similar answer. "I don't know what the number is. Ask the district attorney," he said.

The New Orleans district attorney's office did not return repeated calls seeking information on the number of people arrested before or after Katrina who have yet to see a lawyer or have a court hearing. Similarly, and perhaps indicative of the state of affairs at the public defenders office, no one there even answered the phone despite repeated calls. (That's not quite true. On one occasion, a woman answered, but she said she was an accountant and no one else was in the office.)

Published estimates of the number of New Orleans prisoners denied their basic rights to counsel and speedy trial have ranged between 3,000 and 6,000.

Part of the problem is the nearly total collapse of the indigent defender system in the city. It was in terrible shape before the storm hit, and collapsed along with the rest of the criminal justice system in the storm's wake. But while authorities were quick to get law enforcement up and running, it took until June for the criminal courts to begin to operate, and the public defenders' office, which depends on revenue from fines to finance its operations, was running on fumes. Now, nearly three-quarters of the public defenders have simply left even though they are needed to represent about 85% of all criminal defendants in the city.

The situation aroused the attention of the US Department of Justice, which in a report released in April concluded that: "People wait in jail with no charges, and trials cannot take place; even defendants who wish to plead guilty must have counsel for a judge to accept the plea. Without indigent defense lawyers, New Orleans today lacks a true adversarial process, the process to ensure that even the poorest arrested person will get a fair deal, that the government cannot simply lock suspects [up] and forget about them... For the vast majority of arrested individuals," the study found, "justice is simply unavailable."

The situation is also beginning to grate on the nerves of New Orleans judges. In May, Chief Judge of the Criminal District Court Calvin Johnson issued an order requiring everyone charged with traffic or municipal offenses to be cited instead of jailed. The city has "a limited number of jail spaces, and we can’t fill them with people charged with minor offenses such as disturbing the peace, trespassing or spitting on the sidewalk... I’m not exaggerating: There were people in jail for spitting on the sidewalk," he complained.

Last week, another New Orleans criminal court judge, Arthur Hunter, made the news when he threatened to begin holding hearings this week to release some of the prisoners held for months without attorneys or court hearings. That was supposed to happen Tuesday, but it didn't. Instead, Judge Hunter postponed the hearing after prosecutors raised concerns.

While disruptions in the system were inevitable in the wake of Katrina, Tulane's Metzger laid part of the blame on the district attorney's office. "They have made some poor resourcing choices and they are hampered by a sort of knee-jerk response that everything has to be prosecuted to the fullest extent. They are not really looking to clear cases; instead they let people sit without lawyers until they're willing to plead guilty," she said. "It's a form of prosecutorial extortion."

It is not just people who were in jail when Katrina hit, but many of those arrested since who have vanished into the gumbo gulag, said Metzger. "Last week we found a man who had been jailed at the Angola maximum security prison since January. He was picked up for drug possession, his only prior was for marijuana, and he's been sitting in one of the meanest prisons in the country without even seeing a lawyer for eight months," she exclaimed. "We won an order for his release. He was supposed to get out Tuesday, but he's still in jail. We just don’t know how many more there are like him."

The district attorney's office is not only uncooperative, it is downright obstinate, Metzger complained. "We filed a right to speedy trial claim on behalf of a man named Gregory Lewis who had already served 10 months on a drug misdemeanor with a six-month maximum. The district attorney's office fought that, and their motion actually said, and I quote, 'It's not unreasonable to hold alleged drug addicts in jail longer than other people; it allows the deadly drugs to leave their system,'" she said.

The district attorney's office motion referred obliquely to detoxification, which is ironic given that there is now no such facility in New Orleans. "There is not a single detox bed in the whole city," said Samantha Hope of the Hope Network, a group that is seeking private funding to open a treatment and recovery center in the heart of the city. "Most folks in OPP right now are people who couldn’t get access to treatment for an alcohol or drug problem. That's the way it's been since day one," she told the Chronicle. "Rather than criminalize people with an alcohol or drug problem, we need to find a way to give them support. Confronting our money-eating corrections system, our good ol' boy network, and racism, that is hard to do."

The Tulane students have filed some speedy trial cases, but not everyone is fortunate enough to have a Tulane law student working his case so he can file a speedy trial claim. "In order to file a motion for a speedy trial, you have to have a lawyer, and thousands still do not have counsel,' explained ACLU of Louisiana's Cook. "The indigent defense system was broken long before Katrina hit, and now it is just a disaster," he told the Chronicle.

Drug war prisoners make up a significant but unknown number of those doing "Katrina time," said Cook. "It is definitely a significant proportion of them," he said, "but many of them have not even been formally charged. In New Orleans, as in most large urban areas, it's probably safe to say that a plurality of felony arrests are drug-related."

There are solutions, but they won't come easily. "We have to have a public defender's office that is funded with secure, predictable funding," Metzger recommended. "We have to get beyond relying on fines to fund that office. If we had had public defenders, there would have been someone watching to catch the abuses," she said.

"Second, we need to have prosecutors who understand their obligations to the community," Metzger continued. "Their job is not simply to get convictions but to do justice, and what that means will vary according to the individual facts and circumstances. What post-Katrina justice requires is not what justice required before Katrina. If you were living in New Orleans in the fall of 2005 and you weren’t drunk or high, there was probably something wrong with you. Everyone was medicated or self-medicating."

Cook had his own set of recommendations for a fix. "First, we turn up the heat. I just visited the DA this morning and asked him to speed up processing," he revealed. "We want to ensure there is a coordinated emergency evacuation plan for all the prisons and jails and we've asked the Justice Department's civil rights division to look at what happened at OPP and since. Part of that will be looking at why these people didn’t get defense counsel or have their day in court."

Turning up the heat is precisely what one recently formed community group is trying to do. And it's not just the prosecutors and public defender system it is targeting. "The police department has taken a new view of who belongs in the city now, and that view doesn’t include poor black people," said Ursula Price of Safe Streets, Strong Communities, a group organizing people who were in the jail or otherwise brutalized by police. Safe Streets, Strong Communities is running two campaigns, one to strengthen the indigent defender system and one about improving conditions at the jail itself. "They tell our members 'you shouldn’t have come back, we don't want your kind here,'" she told the Chronicle. "Race is an issue, economics is an issue, and our teenage boys are bearing the brunt of it. They are harassed all the time by the police."

It is a matter of choices, said Price. "We have as many cops as before the storm, and half as many people, and we just gave the cops a raise. The city finance department deliberately spends the vast majority of its money on public safety, and then there is nothing left for social services, which are deliberately being sacrificed," she said. "But I'm encouraged because the community is starting to take note. When people found out we were spending half a million dollars a week on the National Guard without it having any impact, they started to get mobilized."

Cook had a full list of needed reforms, ranging from downsizing the jail population by stopping the practice of using it to hold state and federal prisoners, to creating adequate programming for health care and treatment within the jail, to decreasing the number of people held as pretrial detainees. "We need pretrial diversion, bail reform, and cite and release policies to hold down the jail population," he argued. "There needs to be the political will to do this. It's a crime to jail a kid when there is a choice, and there are many other choices. And we ought to be treating drug abuse as a public health issue, not a law enforcement issue."

The prospects look gloomy. "It is going to take enlightened leadership, and I see only a glimmer of hope for that," said Cook. "But we are not giving up. The state juvenile justice system is finally undergoing reforms because of pressure from families and activists, and I think it will take the same sort of effort to fix things at the adult level and here in New Orleans, at the parish level. That is already happening here with the OPP Reform Coalition, the Safe Streets people, and all that."

But there is a long, long way to go in New Orleans.

Feature: Brazilian President Signs New Drug Law -- No Jail for Users

Brazilian President Luis Inacio "Lula" da Silva last week signed a bill creating a new drug law in South America's largest and most populous nation. Under the new law, drug users and possessors will not be arrested and jailed, but cited and offered rehabilitation and community service. The new law marks an important shift in Brazilian drug policy, with drug users now being officially viewed not as criminals but as people in need of medical and psychological help.

"A drug user is not a case for the police, he's a drug addict," Elias Murad, the congressman who sponsored the bill, told the Christian Science Monitor after Lula signed the bill into law. "He's more of a medical and social problem than a police problem, and that's the way thinking is going these days, not just here in Brazil but the world over. We believe that you can't send someone who is ill to jail."

"Smoking marijuana is not a crime," agreed Paulo Roberto Uchoa, who heads Brazil's National Antidrug Secretariat. "A drug user is... someone who needs counseling and information. The ones who traffic drugs are the criminals."

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Psicotropicus banner promoting marijuana (maconha) legalization
With 170 million, Brazil has emerged as a major drug market. Marijuana (or "maconha") use is common, and Brazil claims the dubious distinction of being the world's second largest cocaine market, behind the United States. Brazil has traditionally imprisoned drug users, but that is expensive and it raises the risk they will be exposed to and join the country's well-armed and violent drug trafficking gangs or "commands."

Previously, small-time drug possessors faced between six months and two years in prison, but under the new law, they face only one or more of the following: treatment, community service, fines, or suspension of their drivers' licenses. Penalties for drug traffickers and sellers, however, have been increased slightly. Under the old law, dealers face three to 15 years in prison; now they face five to 15. The law also creates a new crime of being a "narcotrafficking capitalist," punishable by between eight and 20 years in prison.

While Brazilian government officials congratulated themselves on their progressive approach, not everyone saw the glass as half full. "Let's not fool ourselves, drug use is still a crime," said Martin Aranguri Soto, a post-graduate political science student studying imprisonment at the Pontificia Universidade Catolica in Sao Paulo (and who also serves as DRCNet's translator). "Yes, the new mantra is that this has shifted from being a police matter to a public health matter," he told Drug War Chronicle. "But people are still being punished for the choices they made, and if they don’t comply with the 'socio-educational measures' the law mentions -- whatever those are -- they can still be imprisoned for six to 24 months. As if they owed society something for using drugs or needed to be 'educated' or 'corrected.'"

And while Brazilian officials are touting the alternative penalties as a better approach, Aranguri Soto suggested their primary motivation was to cool off Brazil's overcrowded and overheated prisons, home to some of the country's toughest drug overlords (who operate from behind bars) and the scene of repeatedly violent rebellions, most recently in May, when more than 160 people were killed in prison riots and street-fighting organized by the drug commands.

"The big argument supporting the alternative penalties is that it will alleviate overcrowding in the prisons," he said. "You also hear rhetoric about avoiding 'moral contamination' -- the same old formula repeated by criminologists for almost 200 years now."

Prosecutor Ricardo de Oliveira Silva, who advocated for the new law, supported Aranguri Soto's contention, telling the Christian Science Monitor the new law could mean judges send one-third fewer people to jail. That would greatly reduce overcrowding, he said.

"This law does not decriminalize drug use," complained Aranguri Soto. "It keeps punishing users, but now it treats them like sick people. It activates therapeutic justice and legitimizes the state's moralizing role when it comes to individual conduct," he argued. "The new law is a trap, a modern, compassionate, healing, therapeutic trap."

Soto and his Brazilian colleagues have now joined a debate that has swirled in US reform circles for years but which intensified with the campaign for, and passage of, California's Proposition 36 in the November 2000 election. A more hopeful view was taken in a 2003 interview with Drug War Chronicle by King County Bar Association Drug Policy Project chief Roger Goodman. "Reform is always two steps forward, one step back," Goodman said, "but now this whole idea of treatment over incarceration has been mainstreamed. It's no longer radical. The next step is government regulation of drugs instead of government regulation of human behavior. That's much more radical."

Either way, Brazil's new law has been a long time coming. First introduced by Congressman Murad in 1991, the bill took five years to pass the lower house and another five years to pass the Senate. It then languished for another five years before the Lula government got around to signing it.

Now, Brazil has taken a half-step forward. The question now is how the new law will be implemented and whether it will serve as a stepping stone to an even more progressive drug policy or an obstacle to an even more progressive drug policy.

Feature: Medical Marijuana Victory in South Dakota Court Battle Over Ballot Language

The South Dakota medical marijuana initiative and its organizers, South Dakotans for Medical Marijuana, won an important legal victory last Friday when a circuit court judge ordered state officials to throw out the ballot explanation drafted by medical marijuana foe Attorney General Larry Long (R). Initiative organizers had filed suit challenging Long's ballot explanation as hopelessly biased against the initiative, and in his ruling last Friday, Circuit Court Judge Max Gors of Pierre, the state capital, agreed.

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Can't even be left alone in South Dakota...
Under South Dakota law, the attorney general is charged with writing an "objective, clear, and simple summary" of ballot measures. But Attorney General Long's original didn’t even come close. Before he even got to the ballot summary itself, he decided to change the very name of the measure. Known from the beginning and filed with the state as "An act to provide safe access to medical marijuana for certain qualified persons," Long decided it would be better titled as "An Initiative to authorize marijuana use for adults and children with specified medical conditions." The complete text of his original ballot explanation is as follows:

Currently, marijuana possession, use, distribution, or cultivation is a crime under both state and federal law. The proposed law would legalize marijuana use or possession for any adult or child who has one of several listed medical conditions and who is registered with the Department of Health. The proposed law would also provide a defense to persons who cultivate, transport or distribute marijuana solely to registered persons. Even if this initiative passes, possession, use, or distribution of marijuana is still a federal crime. Persons covered by the proposed law would still be subject to federal prosecution for violation of federal drug control laws. Physicians who provide written certifications may be subject to losing their federal license to dispense prescription drugs.

In his ruling last Friday, Judge Gors ordered Attorney General Long to either rewrite the ballot summary or use language Judge Gors himself drafted:

This initiative will allow persons, including minors with parental consent, with a debilitating medical condition, to grow (not more than six plants), possess (not more than one ounce), and use small amounts of marijuana for medical purposes. "Debilitating medical condition" is defined to include cancer, glaucoma, HIV, AIDS, or a chronic, debilitating condition that includes cachexia, wasting syndrome, severe or chronic pain, severe nausea, seizures, including epileptic seizures, severe or persistent muscle spasms, including those caused by spinal injury, multiple sclerosis, Chrohn's Disease, fibromyalgia, or any other medical condition approved by the Department of Health. Certification may be accomplished by submitting medical records to the Department of Health or by submitting a doctor's recommendation. A person may not drive while impaired by marijuana or smoke marijuana anyplace tobacco smoking is prohibited. Growth, possession, and use of marijuana will still be illegal under federal law, but certification is a defense to criminal prosecution under state law.

Sarah Raeburn, a spokesperson for the attorney general's office, told Drug War Chronicle Wednesday that Long had decided to accept the judge's version as is. "That is what we will use," she said. "The only changes were two misspellings that we have corrected."

"We were very pleased with the judge's decision," said Huron attorney Ron Volesky, who argued the case for lead plaintiff Valerie Hanna of South Dakotans for Medical Marijuana, a former army nurse who suffers neurological disorders related to exposure to chemicals during the Gulf War. "We feel it is a victory for fairness at the ballot box. The circuit court put forth a remedy with new language that is fair in its substance," he told the Chronicle.

Volesky, a former state legislator who is the Democratic nominee for attorney general this year, was the perfect man for the job. Not only is he among the few South Dakota politicians interested in medical marijuana -- he introduced a bill that went nowhere in the legislature in 2002 -- he had previous experience challenging Attorney General Long's ballot explanations in 2004.

Plantiff Hanna also pronounced herself gratified. "I'm very happy and pleased with the decision," she told Drug War Chronicle. "It's a good day for sick people in South Dakota."

The Washington, DC-based Marijuana Policy Project, which helped bankroll the signature gathering drive to get the initiative on the ballot, was also pleased. "Thanks to this sensible ruling, South Dakota will now have a fair description of the medical marijuana initiative on the ballot and South Dakota residents can make an unbiased decision about whether they want to protect South Dakota medical marijuana patients from arrest and prosecution for using the medicine that works best for them," MPP spokesperson Rebecca Greenberg told Drug War Chronicle.

Now, with the ballot language issue behind them, South Dakota medical marijuana proponents are turning their attention to winning at the ballot box in November. The socially conservative state will be a tough nut to crack, but organizers are optimistic.

"We will keep pressing forward," said Hanna. "We are reaching out to the press, and I'm contacting clergy members right now. Hopefully, we will find some that have the gumption to stand up publicly, but it's pretty scary to advocate for this here. But I'm really hopeful people will respond positively to this initiative."

"It's time for the people to speak," said Volesky. "When the legislature fails to act, we do have the power of the people through initiative measures and referendums to get past the legislature. Instead of trying to win over a handful of legislators controlled by the administration, the people can make their own decision."

If the campaign is successful, South Dakota will become the 12th state to legalize medical marijuana and the ninth to do so through the initiative process.

Feature: Seattle's Hempfest Going Strong at 15

Seattle's Hempfest turned 15 this year, and attendees at the world's largest marijuana "protestival" basked in the sun, sampled the delectibles, bought glass pipes by the truckload, listened to a stellar lineup of area and touring bands, and some even took in some serious drug policy reform speechifying. With attendance for the two-day annual event estimated at around 150,000 people, the physical space was cramped, but there was plenty of room for partying and politics.

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Hempfest crowd shot (courtesy Hempfest)
Hempfest takes place in Myrtle Edwards Park, a long, narrow strip of land facing Puget Sound just north of downtown Seattle. To the south, the snowy bulk of Mt. Rainier looms. All day Saturday and Sunday, people by the thousands flooded into the park through a pair of narrow entrances only to confront miles of pipe sellers, hemp product hawkers, exotic food booths, various political organizations, and bands playing on multiple stages.

Among those bands was Los Marijuanos, the bilingual hip-hop group describing themselves as "Mexican pro-pot poets." Los Marijuanos' pro-pot repertoire ranged from Cypress Hill-inspired stylings to remakes of classic ranchera tunes, much to the amusement and sometimes bemusement of the crowd.

While it may take on the appearance of a giant rock concert, Hempfest is at root about legalizing marijuana. In a city like Seattle, where residents approved a "lowest law enforcement priority" initiative in 2003, the battle is half won -- but only half won. Still, the ranks of the pro-marijuana legalization forces are growing, and who better to demonstrate that than the city's former police chief, Norm Stamper?

Stamper, a member of Law Enforcement Against Prohibition, has emerged as a leading police critic of the drug war and certainly warranted the main stage speaking slot (among others) he got. Seattlites who remember Stamper primarily as the head cop during the World Trade Organization riots in 1999 were in for a surprise.

Stamper talked about police officers he knew or commanded who were killed or injured enforcing the drug laws, and he talked about the futility of that policy. "It's laughable when people say we are winning the drug war," he said. "We need to legalize all drugs. Police should be focused on violent crime," he told the crowd.

Stamper wasn't the only big name drug policy reformer attending Hempfest; in fact, it would probably be quicker to name those who were not present. They held forth in the Hemporium, a large tent strewn with carpets, where festival goers could wander in and get a taste of what leaders like Ethan Nadelmann of the Drug Policy Alliance, Rob Kampia of the Marijuana Policy Project, Keith Stroup, the founder of the National Organization for the Reform of Marijuana Laws, or DRCNet's David Guard are thinking these days.

But the crowds at the Hemporium were small. For most people, Hempfest is a party, a chance to see some bands, and yes, a celebration of cannabis culture, but that doesn't necessarily imply an especially elevated political consciousness. Structured as an all-volunteer event free to the public, Hempfest attracts many whose commitment to the cause could be seriously challenged if they had to pay an entrance fee.

"I'm here for the weed and the bands and the girls, man," laughed one red-eyed, shirtless young man sporting a top hat. "Pot is cool. Hempfest is cool," he told Drug War Chronicle. But when asked if he had put a dollar in one of the ubiquitous donation buckets being toted around by volunteers, he merely shrugged.

Indeed, if there were one constant at Hempfest other than the sweet smell of burning sinsemilla it was the unrelenting call from festival volunteers for donations. With a budget in the hundreds of thousands of dollars, Hempfest relies on its crowd for support, but if the ominous rumblings from Hempfest director Vivian McPeak and the legion of volunteers are to be heeded, the crowd is not coming through with enough dollars to ensure Hempfest will be back next year. Is it time to start charging admission?

Feature: Pain Doctor William Hurwitz to Get New Trial

In a closely watched case with national implications, a federal appeals court has granted a new trial to a well known Northern Virginia pain doctor sent to federal prison for 25 years as a drug dealer. Pain patient advocates and medical associations praised the ruling in the case of Dr. William Hurwitz, who was convicted in late 2004 of 50 counts in a 62-count indictment, including conspiracy to distribute controlled substances.

Hurwitz appealed his conviction, arguing that trial Judge Leonard Wexler erred by not instructing the jury that Hurwitz should not be convicted if he acted in "good faith." Typically in cases where the quality of medical care is in question, such matters are decided by medical boards or civil courts in the form of malpractice suits. Only doctors who are not prescribing in good faith that they are in line with accepted medical practices face criminal charges. In his jury instructions, Judge Wexler removed Hurwitz' only effective defense.

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Dr. Hurwitz in 1996 (photo courtesy Skip Baker)
For federal prosecutors, who pointed to multiple examples of high-dose prescriptions Hurwitz had written and who claimed he should have recognized some of his patients to be addicts or dealers, Hurwitz was nothing more than a Dr. Feelgood, no different from -- or perhaps worse than -- the kid slinging crack on the street corner. But for patient advocates and a growing number of medical professionals, the case was the highest-profile example yet of a Justice Department and DEA creating a chilling climate toward doctors' willingness to treat chronic pain with opioid pain medications.

That is why even though even some questioned Hurwitz's prescribing practices, his appeal nevertheless won the support of professional organizations like the American Academy of Pain Medicine, the American Pain Foundation, and the National Pain Foundation, all of which filed briefs in his support. Also joining the fray was the Drug Policy Alliance, which filed its own brief on behalf of pain specialists.

A three-judge panel in the 4th US Circuit Court of Appeals in Richmond agreed with Hurwitz and his allies in its opinion Monday. The panel held that Judge Wexler had erred when he told jurors they could not consider whether Hurwitz had acted in "good faith" when he prescribed large doses of opioid pain relievers like Oxycontin to patients.

"A doctor's good faith in treating his patients is relevant to the jury's determination of whether the doctor acted beyond the bounds of legitimate medical practice," wrote Judge William Traxler. "The district court effectively deprived the jury of the opportunity to consider Hurwitz's defense." That was a fatal error, the panel held. "We cannot say that no reasonable juror could have concluded that Hurwitz's conduct fell within an objectively-defined good-faith standard," wrote Traxler.

"We are very gratified by this decision," said Dr. Jane Orient, executive director of the libertarian-leaning Association of American Physicians and Surgeons, a group that has been in the vanguard of the medical profession on the issue of protecting pain doctors and patients. "Overturning one of these verdicts is something that almost never happens, and we hope it represents a tipping point," she told DRCNet. "We hope that the courts will finally begin to pay attention to the fundamental issues of justice involved here. A doctor is not a drug dealer, and neither is he a policeman. Doctors cannot be held responsible for patient misbehavior."

"I'm delighted," said Dr. Frank Fisher, a California physician originally charged with five counts of murder over his prescribing practices by overzealous prosecutors and state agents, but who was eventually completely exonerated. "This means they will have to let Billy out. The appeals court was absolutely correct in its decision," he told DRCNet.

The appeals court decision is a victory for Hurwitz and his supporters, but it is only one battle in a larger war over who controls the prescribing of pain medications -- the medical profession or the cops -- and in the meantime, doctors and patients are the casualties.

"They are still harassing and investigating doctors," said Orient. "And that in itself can destroy your practice. There are still doctors languishing in prison because they tried to do their best for their patients and there are still patients having difficulty finding physicians willing to do the pain treatment necessary to make them functional instead of bed-ridden suicidal people in severe pain," she said. "More doctors are aware of the extreme risk they take in getting involved with chronic pain patients. The DEA wants them to treat patients like they were suspected criminals."

Fisher pointed to the case of Dr. Richard Heberle, an Ohio physician, of how devastating even defending oneself from such charges can be. "Look at what happened to Dr. Heberle," he said. "He won, but his practice is ruined, his reputation is ruined, his life is ruined. The only thing worse than winning one of these cases is losing one, or maybe coming down with a bad case of chronic pain."

Feature: SSDP, Drug War Rant Blog Score Media Hit with Attack on DEA Drug-Terror Exhibit

For more than four years -- since the day of the first anniversary of the 9-11 attacks -- the US Drug Enforcement Administration and its museum have hosted an exhibit that attempts to link drugs and terrorism. Known as Target America: Opening Eyes to the Damage Drugs Cause, the traveling exhibition has aroused much grumbling and sneering from people who argue that it is not drugs but drug prohibition that generates the illicit profits sometimes used by violent political groups.

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DEA Targets America flyer
There was some sniping against the exhibit when it played Dallas, Omaha, Detroit, and New York, when two years ago, Patricia Perry, mother of NYC police officer John Perry, who lost his life on 9-11, criticized the exhibit in this newsletter. But it was only when it hit Chicago last week that drug reformers succeeded in hitting back with a carefully planned and well-executed counterattack that managed to generate critical media attention toward the exhibit.

It all started with some home-town concern on the part of Illinois State University theater arts professor and Drug War Rant blog author Peter Guither. After publicizing the exhibit's impending arrival on his blog and creating a new web site, DEA Targets America, the response from readers galvanized Guither, and allies began to arrive. By the time the exhibit hit Chicago last week, activists were on hand to hand out flyers in front of the museum and Guither and Students for Sensible Drug Policy (SSDP) had issued press releases in an effort to draw media attention.

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DEA's offensive exhibit
"Back when they first showed this exhibit, I remember thinking is the DEA propagandizing at a science museum?" said Guither. "I grew up with the Chicago Museum of Science and Technology, and I remember thinking my museum would never do that. Then, a couple of years later, I look at the upcoming exhibits and I see the DEA exhibit. This is so clearly propaganda that I had to do something," he told Drug War Chronicle. "I mentioned it on my blog, and one of my readers volunteered to pass out flyers, then I produced the press release and the web site, and then SSDP got involved -- they're a great group! SSDP's Tom Angell helped with the flyer and with getting the press interested, and then it was up to the press to do its job."

"I e-mailed our members in the Chicago area, and we were able to get some people to hand out flyers," said Angell. "We have some good people in the area."

The gambit paid off handsomely with a Washington Post story last Saturday titled "Drug-Terror Connection Disputed." That story, which was also picked up by newspapers in Knoxville, Indianapolis, and Tampa, quoted both Guither and SSDP's Angell, as well as Chicago teacher Jeanne Barr, who is also a member of SSDP. Congressional Quarterly also ran a story about the exhibit mentioning the contention that it is drug prohibition -- not drugs themselves -- that feeds terrorism, and even UPI ran a short piece mentioning the controversy on its international wire, a story that was picked up by the Washington Times.

The stories put the DEA on the defensive, with spokesmen Steve Robertson telling the Post: "We're a law enforcement agency -- we enforce the laws as they are written. Congress makes the laws. People say if we didn't have drug laws there wouldn't be a problem, but there was a problem before and that's why laws were established."

"I think we got the DEA flatfooted," said Guither. "You have that agent saying they just enforce the law, but they're out there lobbying for those laws. I don't think the DEA was ready for this."

"We did a little bit of judo on the DEA," said SSDP's Angell. "We took their message and spun it right back around on them. Reporters were intrigued by what we were saying. On the one hand, we were agreeing with the DEA's main point -- that profits from the black market drug trade can finance terrorism -- but we highlighted the fact that they are leaving out a large part of the story," he told the Chronicle.

"I was disappointed in the Chicago Tribune and Sun-Times, though," Angell continued. "They just toed the DEA line. They didn't mention us by name or give us any quotes; they just had a line or two about 'critics say this.'"

Guither said he didn't really expect anything better from the local press. "Since both the Sun-Times and the McCormick Tribune Corporation were sponsors of the exhibit, I didn't expect either paper to do much criticizing. The mere fact that they mentioned critics saying the exhibit is propaganda is a victory in my view."

Activists were careful to target their ire at the DEA, not the Museum of Science and Technology. "We didn't want to protest the museum but the DEA," said Guither. "And we didn't feel like we could get into picking their implied falsehoods apart, so our focus was on the inappropriateness of the DEA connecting drugs to terrorism since it is prohibition that makes drug trafficking and its profits possible. Also, since this is Chicago, we have the whole Al Capone legacy. Mayor Daley invited this exhibit, yet he seems to have missed the whole connection between drug prohibition and alcohol prohibition and how the latter made Al Capone. What we have with this exhibit is a federal agency with a failing scorecard blowing its own horn and linking itself to the war on terror, when it is really the problem."

While the DEA lists no more cities on its traveling exhibit schedule, SSDP will be ready to go if and when the DEA show hits another city. "Since we already have the materials and the press releases, we'll just follow it wherever it goes," said Angell. "If we have people on the ground, we will organize them to pass out materials. They should know we're coming after them. If we annoy them enough, maybe they'll go away one of these days."

"I'm very pleased," said Guither. "This was fun. If we hadn't done what we did, it would have been the standard announcement: Here's a new educational exhibit. Bring your kids to learn about the dangers of drugs and how the DEA is saving you. But because of the work we did here, we've managed to turn this around on the DEA. That feels good."

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