Drug WarRant Saturday, April 9, 2005 More on the future HHS response to Data Quality Act complaints For those who are not aware of the significance/importance of the Data Quality Act complaint I mentioned in the previous post, I thought I'd explain a bit. One of the most critical ways to loosen the federal death grip on marijuana is through re-scheduling. Marijuana is currently under Schedule 1 of the Controlled Substances Act: SCHEDULE I The drug or other substance has a high potential for abuse. The drug or other substance has no currently accepted medical use in treatment in the United States. There is a lack of accepted safety for use of the drug or other substance under medical supervision. Of course, Health and Human Services (HHS) has consistently denied, in their official materials, that marijuana has currently accepted medical use (despite all evidence). If they were to acknowledge accepted medical use, then the government would have a very hard time denying a petition to re-schedule marijuana. (And if marijuana was re-scheduled, then the feds would be unable to prevent medical marijuana programs.) The Data Quality Act complaint is forcing HHS to defend its materials in light of a list of scientific data a mile long showing accepted medical use of marijuana. So, HHS has no option but to deny the complaint. But how? I've been giving this some thought and have come up with some possibilities: Begging the Question: HHS declares that illegal activity cannot, by definition, be considered currently accepted medical use. Since marijuana is illegal, there is no accepted medical use, which therefore supports keeping it illegal. This kind of circular reasoning is right up the government's alley. However, this seems unlikely. They've got to know that it could eventually end up in court and a judge would find it laughable. The "But you don't have a double-blind, 20-year, multiple inhibitor 27R-stroke-J study" Response: Since it would be a huge task for HHS to repudiate each of the various scientific and medical studies mentioned in the complaint, they simply determine that a particular kind of study is the only valid way to judge accepted medical use and accepted safety. This would be a study that doesn't exist for marijuana, primarly because HHS and DEA have not allowed it. The problem with this for HHS is that there could well be other drugs that have also not had such a specific study done (and that aren't in Schedule 1). If so, that could be additional grounds for an appeal. The Impossible Standard Response Again, HHS doesn't bother responding to the various studies, but uses something specific to marijuana and claims that it hasn't been shown to have currently accepted medical use. For example, they say that since marijuana is made up of hundreds of compounds, that it can't have accepted medical use unless it's proven for each of those compounds separately and independently. This would be an unresponsive answer to the complaint, however, since the complaint requires them to acknowledge or refute the information that's out there. This wouldn't stop HHS from using this approach, but it would hurt them eventually in the courts. It's also possible that HHS may use a combination of approaches above. Regardless of what happens, they will be forced to eventually say something official that can be used against them in court. What's your wager? What response do you think HHS will use? One of the above, or something different? 11:12:49 PM |  drug policy | Links | permalink | comment [] Update on Health and Human Services stalling tactics I've been reporting for some time about the efforts by Americans for Safe Access to use a new law called the Data Quality Act to force Health and Human Services to stop spreading false info about medical marijuana (a step which could, theoretically, assist long-term efforts to re-schedule medical marijuana). (Background post -- Actual Petition(pdf) ) At the time, I was excited about this, because the law requires that the agency respond in 60 days. (What I did not realize at the time was that the law also allows the agency to grant itself extensions.) The original complaint was filed on October 6, 2004. On December 1, HHS responded (in part) We have not yet completed our response to your complaint because of other agency priorities and the need to coordinate agency review of the response. We hop to provide you with a response within 60 days from the date of this letter. On February 2, 2005, HHS responded (in part): Your October 4, 2004, request for correction of information disseminated by the Department of Health and Human Services regarding the medical use of marijuana is still under review. While the goal of the Food and Drug Administration is to respond within 60 days to such requests, we are unable to do so in this case. We anticipate that a response will be forwarded to you by April 1, 2005. Now, last week, HHS responded (in part): We wrote to you on February 2, 2005, indicating that we would need additional time to complete our response to your request and expected to reply by April 1, 2005. At this time we are continuing to prepare our response but require additional time to coordinate Agency review. We anticipate that a response will be forwarded to you by April 15, 2005. Could it be that a real response is actually coming? Of course, they've now had six months to try to justify their lies. And if we don't like their response? Well then Americans for Safe Access will have 30 days to submit an appeal... to Health and Human Services! (As frustrating as all this appears, we need to keep working every angle. The press, the public, the legislators, the agencies, the courts. Baby steps... baby steps.) 11:10:23 AM |  drug policy | Links | permalink | comment [] More good articles Here are a couple of good articles via Cannabis News: Prohibition on Marijuana Does More Harm Than Good by Kris Millegan in the Register-Guard (OR) is a good response to an earlier article by prohibitionists. Millegan also provides us with a great line: Once a substance is banned and enters a black market, the age of the users goes down, the volume of abuse goes up, and civil and criminal corruption rises. Exactly right. Decriminalization: A Growing Debate by John Koziol in the Laconia, NH Citizen caught my attention when it started: Even though it's a political hot potato, civil libertarians and several lawmakers say Granite Staters should have a discussion about illegal substances, including the possibility of decriminalizing at least one of them: marijuana. That one paragraph says so much about part of the problem we face as drug policy reformers. We even have to work to convince people to have a discussion about the topic. That said, this article actually has a large number of intelligent, reform statements by politicians! (How did that happen?) [State Rep. David A. Welch, R-Kingston] agrees that the legal drugs -- alcohol and tobacco -- appear to cause more harm than the illegal ones. ... Speaking of the federal initiative to curb the influx and use of illegal substances, "I don't believe the war on drugs has been effective, said Welch. "It certainly hasn't been cost-effective, and it certainly isn't working. "I think we need to take a harder look at it at the national level," he added. ... "Arresting people doesn't work," said Welch. ... State Rep. Tim Robertson, D-Keene, whom Welch called the "conscience of our committee" and who was the primary sponsor of HB197, said that, if drugs were legal, people would not be dying of heroin overdoses in New Hampshire. ... But Robertson is not out to decriminalize all drugs, just one. "If we legalized marijuana, we would find that it wasn't the death knell for society in the way that the anti-marijuana people say. The whole drug war is quite similar to prohibition, which we gave up on." ... "I stand on principle," said Robertson. "I hate hypocrites and I try not to be one." The war on drugs, he said, is "creating a whole number of people who've been convicted and served time for not a very good reason" -- possession or use of marijuana. "With marijuana, you usually don't do violent things, you usually don't drive, get into a fight. It's my understanding -- I have had a puff once in my life but I'm much too old to have been in the habit -- that you get hungry and you might get romantic but apart from that you keep your moral base. It doesn't attack the same parts of your brain that alcohol does." Robertson said the federal government is conflicted about marijuana because it can not figure out a way to regulate it, and, ultimately, to tax it. "It's very difficult to tax or make money selling a weed. Marijuana will grow anywhere. The average user probably could grow all they need in a window box or in their closet and a lot of them do. It's tough to tax something that you can go down the street and pick up in an empty lot. The average marijuana user is smoking 3-4 joints per week and it's not like cigarettes. It's not addictive and if the price got too high you could stop." Good article. Lots of good quotes in it besides the ones I included here. 10:34:44 AM |  drug policy | Links | permalink | comment [] Friday, April 8, 2005 Waiting for Raich v. Ashcroft Sure, I'm waiting for the Supreme Court decision in this historic case. As are tons of other drug policy reformers and those who depend on marijuana for their medicine. But we're not the only ones. According to this press release, so is novelist Neil Mavis. Deorbit the Space Shuttle: Stem Cell Rescue highlights the Achilles heel of the NASA space shuttle fleet. "... blood spraying the white cabin walls of Space Shuttle Atlantis flashed across television screens worldwide." begins this near-future techno-thriller, a provocative novel by Neil Mavis that dramatizes the terrifying possibilities of a space shuttle rescue mission of a Hubble telescope gone awry. "The final current event topic that needs to occur before the book is released is the U.S. Supreme Court decision on medical marijuana between Angel Raich and John Ashcroft." Author Neil Mavis said in Tulsa. "When that decision is rendered by the Supreme Court, the issue of medical marijuana and stem cell research will be threaded throughout the novel according to current events." I hope the Justices keep that in mind. There are a couple of other things that I wonder if the Justices are considering... The Wine Lovers Page seems to think that the wine decision is due soon (argued after Raich and also involves commerce clause law -- the "dormant commerce clause.") I wonder if the Justices will decide to release both commerce clause cases at the same time -- certainly they've discussed them both together in terms of larger commerce clause issues. I can't help wondering if the Justices (while working on the Raich decision having to do with whether Congress has unlimited power to regulate anything they want in the country) have been following the fact that prominent members of Congress are agitating to castrate the Judiciary. Hmmm... 6:37:55 PM |  drug policy | Links | permalink | comment [] Fabulous OpEd on Marijuana in NowToronto And Marijuana For All by Alan Young. Read the whole thing. Seriously. Print it out. Post it on a bulletin board. Email it to your friends. Here are some excerpts, but the whole thing is worth reading and distributing. From my perspective, the marijuana issue is a no-brainer. There are probably more Canadians who smoke pot than play hockey. People have been doing this for more than 10,000 years. No one has ever died from pot, while a number of approved pharmaceuticals have been pulled off the market this year for causing cardiac arrest or suicidal ideation. Growing pot is perfectly safe, but our harsh, prohibitionist approach creates an unregulated black market in which there is little incentive to comply with safety code standards. ... I believe there are six incontrovertible reasons why we should put the tiresome marijuana debate to rest once and for all by truly giving Canadians the liberty to grow and use the marijuana plant for personal use, whether recreational or medical. First, it is a plant. Criminal law should be reserved for serious predatory conduct, and only in the world of science-fiction can a plant become a predator. Second, since the 1894 Indian Hemp Commission, virtually every royal commission and governmental committee, internationally and in Canada, has recommended that marijuana use be decriminalized. Some have even called for outright legalization. It is an affront to democracy to continuously spend taxpayers' money on comprehensive and informed reports that are ignored for no apparent reason. Third, most of Europe and Australia have decriminalized marijuana use, and the liberalization of the law in these countries has not wreaked social havoc. In fact, consumption rates in decriminalized jurisdictions are significantly lower than in the penal colonies of Canada and the United States. Fourth, the use of marijuana poses few societal dangers. It is not a criminogenic substance. ... Fifth, marijuana is relatively harmless for the user. ... Democracy is an illusion when the state can maintain a criminal prohibition on an activity enjoyed by 3 million Canadians and tolerated by an overwhelming majority. ... Studies show that 40,000 Americans injure themselves on their toilet seats every year, and 100,000 are injured by their clothing annually, yet no one has tried to demonize Sir Thomas Crapper or outlaw zippers. ... Prohibitionists should be ashamed of themselves for spreading lies and hiding the fact that many of them have secretly partaken of the plant. We are at an impasse because the government is simultaneously trying to demonize and decriminalize. And those in power know that if you suck and blow at the same time, nothing will happen on the path to law reform. Great article (and thanks again, Scott). 12:09:23 AM |  drug policy | Links | permalink | comment [] Thursday, April 7, 2005 Drug Czar Whoppers The drug czar found a receptive audience in Cincinatti, where they put undercover agents in classes. In addition to the usual lies, check out this line from Bozo: "Today, high potency marijuana, by the dose and by weight, can be as potent as cocaine and methamphetamine and ice," Walters said. What does that even mean? Isn't anybody in the government embarrassed to have this guy running around without a leash? [Thanks to Scott as always.] 11:45:43 PM |  drug policy | Links | permalink | comment [] Wednesday, April 6, 2005 Protecting an Independent Judiciary or: "Mommy, why is that man throwing rocks at the blind lady?" There have been some recent veiled (and not-so-veiled) attacks on the judiciary by powerful elected officials. While these have not specifically been about drug policy, there are potential long-term ramifications that require me to speak. Generally, I find the political litmus tests over the selection of federal judges distasteful, regardless of the party, and often wish that the two sides could get together and really find some top notch judges without them having an agenda either way. However, I must admit that I'd probably have my own litmus test of a sort: a commitment to judicial independence and protecting the separation of powers, plus protection of individual rights from government overreach. This is not a test you see applied often in confirmation hearings, but if you're lucky, well-qualified judges will rule properly in these areas naturally (often despite the wishes of their sponsors). Regardless of my distaste for the partisan bickering over judges, I accept it somehow as part of political reality (and hope that each side is prevented from getting all their wishes by the other side). What really scares me recently is the threats by some to curb the power of the judiciary itself -- an attempt to make it subserviant to the legislature. Now the drug war is one of the prime arenas in which government steps all over the rights of individuals. There are plenty of decisions by judges that I've found horrible, yet I hold hope that the judiciary will, at times, step up and balance the power, recognizing our rights in the constitution. (I don't know how Raich will turn out, for example, but I have hope.) Without an independent judiciary that's willing to step in when the legislative or executive branches overreach, there's too much potential for corruption and abuse of power. For example, Ernest Istook had no qualms about drafting a blatantly unconstitutional provision requiring metro systems to deny advertising that called for a change in marijuana laws. Because of political realities (and the fact that it was tacked on to a larger appropriations bill), it was passed by Congress and signed by the President. Fortunately, the courts were there to stomp on it (and even the Justice Department was too embarrassed by it to appeal to the Supreme Court). As it is, too much has happened to centralize power in the United States' legislative and executive branches. In 1919, it was assumed that the federal government had no power to outlaw alcohol sales without a constitutional amendment. (At that time, the judiciary regularly placed the tenth amendment in the path of congressional regulation of "local" affairs, and direct regulation of medical practice was considered beyond congressional power under the commerce clause.) No such perceived limitation has arisen in later years when it comes to outlawing marijuana. The government has actively tried to silence one of our legitimate forms of checks and balances -- jury nullification, and prosecutors have been given way too much power, particularly in the area of sentencing. Government agencies have become adept at providing multiple layers of approval processes in their systems to delay and prevent judicial involvement (particularly in Controlled Substances Act issues). We need to protect the notion of independent, counter-balancing branches of government. When it comes to the drug war, reformers must be able to attempt redress through all avenues (and we are). Now we come to the troubling part. Take a look at some recent statements: Representative Tom Delay: Mrs. Schiavo's death is a moral poverty and a legal tragedy. This loss happened because our legal system did not protect the people who need protection most, and that will change. The time will come for the men responsible for this to answer for their behavior, but not today. And then more Tom DeLay: "We have unaccountable, out of control judiciary. We are after them," DeLay said. "The Constitution gives us (Congress) the responsibility to create courts. If we can create them, we can uncreate them," he said. Uncreate them? DeLay was the keynote speaker (cached page) at a recent conference that shouted: THIS WILL BE AN ACTION-ORIENTED CONFERENCE SEEKING SOLUTIONS, AS WELL AS THE BEGINNING OF A BROAD-BASED EFFORT TO SAVE AMERICA FROM THE JUDGES And, also from Texas, there's Senator John Cornyn (more of the text available at the link): And finally, I -- I don't know if there is a cause-and-effect connection but we have seen some recent episodes of courthouse violence in this country. Certainly nothing new, but we seem to have run through a spate of courthouse violence recently that's been on the news. And I wonder whether there may be some connection between the perception in some quarters on some occasions where judges are making political decisions yet are unaccountable to the public, that it builds up and builds up and builds up to the point where some people engage in -- engage in violence I guess he thought if he expressed it as speculation, he could safely threaten judges with violence. Some of these statements could be chalked up to misinterpretation or irresponsible emotionalism if they were spoken by an average person (or a blogger), but these are public statements by members of the United States Congress (and in Cornyn's case, delivered on the Senate floor). Then you have Senate bill S-520, sponsored by Senator Trent Lott and others, which is aimed at actually preventing the federal courts from being able to rule on certain types of issues, or using certain criteria in their decisions (note that the bill claims to promote federalism, but all it promotes is giving more power to the legislature). Remember, these are not attempts to merely select judges of a particular type (although that's part of it). This is an attack on the independence of the judiciary itself. Cornyn even said that the Supreme Court should merely be "an enforcer of political decisions made by elected representatives." It's important to understand that, while most of those involved in this coup d'etat (and yes, to an extent, that's what it is) are Republicans, they do not represent the large numbers of conservatives who believe in limited government, states' rights, individual responsibility and morality (and a number of prominent writers on the right have started to express their dismay). But they are also not fringe players. DeLay is the majority leader and has built an extraordinarily strong power base that will not brook dissent. It's going to take all of us on the right, left, middle, libertarian, etc. to keep these few from giving themselves more power at our expense. If they succeed, we will have less ability, as individuals, to correct governmental abuse -- particularly in areas like the drug war. 9:31:25 AM |  drug policy | Links | permalink | comment [] Tuesday, April 5, 2005 Check out Radley Balko First of all, just a reminder that The Agitator is always a good read and should be on your regular list. Radley's recent "There ought to be a law" series has been outstanding. Radley has a piece at Cato, Bush Should Feel Doctors' Pain Unfortunately, despite frequent robberies and burglaries of pharmacies, doctors' offices, and warehouses where prescription medications are stored and sold, the DEA has focused a troubling amount of time and resources on the prescriptions issued by practicing physicians. It's easy to see why. Doctors keep records. They pay taxes. They take notes. They're an easier target than common drug dealers. Doctors also often aren't aware of asset forfeiture laws. A physician's considerable assets can be divided up among the various law enforcement agencies investigating him before he's ever brought to trial. Over the last several years, hundreds of physicians have been put on trial for charges ranging from health insurance fraud to drug distribution, even to manslaughter and murder for over-prescribing prescription narcotics. Many times, investigators seize a doctor's house, office, and bank account, leaving him no resources with which to defend himself. A few doctors have been convicted. Many have been acquitted. Others were left with no choice but to settle. This is a continuing travesty that deserves a lot of attention. Finally, Radley reports on yet another death of the fourth amendment. Remember the case where the Supreme Court ruled that a suspicionless search of your car was allowed on the word of a dog? Well, I mentioned at the time about the case of David Smith, whose conviction was based on a dog sniff outside his garage. David Gregory Smith challenged his Texas conviction for drug possession based on evidence obtained after a police dog sniffed outside his garage and alerted authorities to possible drugs inside. After the dog's alert, police obtained a search warrant and found methamphetamine in his bedroom, far from the garage. On Friday, the Supreme Court refused to hear the case. I'm surprised and pissed off, but not quite as pessimistic as Radley about the ramifications. While it does let the lower court ruling stand, as SCOTUS Blog reports, there actually are conflicting lower court cases, with the Nebraska Supreme Court ruling the other way in State v. Ortiz. So while the Supreme Court refused to hear the case now, they could hear a future case that involves this to resolve the differences. 6:26:40 PM |  drug policy | Links | permalink | comment [] Drug Scandals in our Schools! This startling story: Nine students were sent to a hospital after eating caffeine-laced mints taken to class by a 13-year-old boy. The boy was suspended from school for 10 days. Yep. Dangerous stuff. Definitely deserving of a suspension. What were these drugs? Blast Mints. According to the label, a single serving is six mints, which contains 15 milligrams of caffeine. That's about half the amount of caffeine in a regular can of soda. Good thing they don't have any soda machines. [Thanks, Scott] 6:09:27 PM |  drug policy | Links | permalink | comment [] Sunday, April 3, 2005 Is this what we want in our schools? This came to me via the Eurodrug group, regarding a school bust in Norway: Friday 50 police officers and some toll officers with dogs, sealed off an entire High School / College, refusing free movement and scaring 1700 students in a surprise forced drug clamp down. The result was 2 grams of hashish found at the school, 13 arrested people and a lot of (1689) innocently scared students and quite a few angry people in the aftermaths. The student bodies reported the event to the media. The school was sealed off with fences with sharp points, the police went systematically from class room to class room with dogs, picking out 11 "problem pupils" they had on a list and then afterwards lined the entire 1700 student body for drug dog sniffing, before allowing them to leave the school grounds through the fenced gate. The public protests have been many, and even some pro-prohibitionist are shocked. The media tell a slightly different story, given that the police claim in their release that they seized "kilos" of drugs, but there's no evidence given that it was even connected to the school bust. The eurodrug poster went on to say: Half a kilo marihuana was found by accident in a car in the somewhere near by the school, containing half a kilo - owned by a 40 year old man with no connection to the school - later the police raided his home adress and found one more kilo of marihuana - this the police thus called the operation a success, emphasing that they had found "nearly 2 kilos of hashish" in their press release. On the school only 2 grams of hashish from an entire population of 1700 was found, one in at the toilet and one gram on a person Based on what I've seen so far about this incident, it looks like the police are trying to "improve" the story of their massively over-the-top approach. This kind of attack on school kids is unacceptable anywhere. 6:16:36 PM |  drug policy | Links | permalink | comment []