February 28, 2009
More Drug War FoolishnessHot on the heels of brand-new AG Eric Holder’s sotto voce admission that DEA raids on pot cubs in California will cease came an AP story that’s hardly news: drug war violence around the world is a threat to American national security. Imagine that! The first two problem areas cited were Afghanistan and Mexico.
Afghanistan vaulted from also ran to world leadership in opium production after the CIA assisted its Northern Alliance (of opium growers) in their (successful) efforts to oust the Soviets during the Eighties. After the Soviet debacle, following which the US lost interest, Pakistan’s ISI had helped the Islamist Talban to gain and maintain political control of Afghanistan despite the fact that the chronically divided country had been providing de facto sanctuary to Osama bin Laden, who had himself been empowered by helping us oust the Soviets and became profoundly anti-American in the process.
Following 9/11, we soon rediscovered the Northern Alliance with the help of Pakistan’s newly installed military dictator and the Alliance quickly consolidated its position as number one supplier of heroin to Europe. Incidentally, the Muslim KLA that helped NATO against the Bosnian Serbs in Kosovo had also been earning most of its foreign exchange smuggling Afghan heroin into Europe.
If this is starting to sound a bit murky, it's only the tip of the drug war iceberg; for a more complete picture of CIA involvement in illegal drug markets going back to the Nixon era and before, one should read Alfred McCoy's updated Politics of Heroin
In the interests of keeping this entry manageable, I'll now segue South of the Border and call on my own memory based on the five years I lived in El Paso, well before the drug war had empowered Mexican cartels. As a surgical resident at the Army's William Beaumont General Hospital, I had a fair amount of direct contact with border politics and was also a frequent visitor to Juarez, then also sinful, but nearly untainted by illegal drugs, except for the occasional joint sold to an unsuspecting GI by a petty grifter, who would then point the miscreant out to US Customs at the border for a minor reward.
In other words, nearly everyone knew pot was illegal, but the business it generated was insignificant because there was no demand; hardly the story today. For more evidence, click here.
Distressing to me as a long time opponent of the drug war is the fact that neither the Newsweek feature article nor today's AP story would draw the obvious conclusion that American drug policy, by providing both price support and free advertising for illegal criminal markets, has been the cause of much of the evil it claims to oppose. Given its timing, I'm now also suspicious that the AP story was planted by drug war supporters who are just smart enough to understand that sustained cessation of DEA raids on California pot clubs would mark the beginning of the end of the futile War on Drugs that became their meal ticket shortly after Tricky Dick was forced to blow town.
February 27, 2009
It Looks the "Change" is RealAt long last, we have it from a reliable source that DEA raids in California will be reined in. Hot on the heels of poll numbers favoring some form of decriminalization and remembering that the last Depression marked the death knell of an earlier failed prohibition, my fearless prediction is that the drug war itself could soon be mortally wounded.
Am off to Oakland to see patients, so this brief announcement is all for now; more later.
February 26, 2009
Update from Big PharmaNot only is the pharmaceutical industry feeling the effects of a crumbling economy, but another item from an insider news letter reveals that the corporate dishonesty and regulatory incompetence that contributed to our housing crisis were not confined to lending institutions and those charged with their regulation.
As for the FDA. I've been less than impressed by their intellectual honesty ever since they issued a blatantly political attack on the medical use of cannabis that was carefully timed to coincide with the first day of the 2006 NORML convention, a detail apparently unknown to the New York Times reporter who wrote the story. Quite by coincidence, just about a month later, a researcher who had spent most of his career trying to incriminate pot as a cause of chronic pulmonary disease and lung cancer was forced to admit he hadn't found what he was looking for.
February 25, 2009
A Different View of HistoryThe "Elephant in the Room" has become a popular metaphor for topics no one wants to discuss. What’s usually left unsaid is why they aren't discussed: is it because so few people have tumbled to their existence, or because many who are aware are simply to frightened to talk about them? When all is said and done, inexplicable silence ends up being like the tree falling in an empty forest: if no one could have heard it fall, why would the sound matter?
That could be a summation of human extinction: those scientifically literate enough to grasp the findings of Science with a capital “S” now accept that sudden mass extinctions have occurred several times in the remote past and will almost certainly occur through one of several possible mechanisms. If humans are still around the next time Yellowstone erupts, or Earth is hit by another big asteroid, it won’t matter much for very long. However, we also seem to have set ourselves up for several otherwise avoidable problems that, if recognized and dealt with in a timely manner, could be mitigated to a considerable extent. Because our habit of denial interferes with that process is precisely why I believe such phenomena are important to discuss
Those still reading may have guessed I’m about to cite global warming and coastal inundation. While they are certainly real dangers we haven't been effectively preparing for, I now think the most pressing calamity in our immediate future is a reprise of the “Great” Depression of the 20th Century; I further suspect recovery will be much more difficult: simply because the modern world’s human population is so much bigger, better connected, more polarized, and has inflicted greater environmental damage on the planet's ecology since 1929. Finally; it's likely that if recovery is unduly protracted, our ability to mitigate the effects of climate change will also be compromised.
By now, anyone still reading might be asking themselves, “who is this nut-case, and how does he presume to speak so knowledgeably about these important matters? ” These are certainly fair questions and the answers may not be reassuring to many. My own view of history has changed radically; it has been critically shaped by the ongoing study of pot smokers I've been engaged in since 2001 and blogging about since 2005. It's also one that has been continually reinforced by the very phenomenon addressed in the first paragraph: the obvious reluctance of people who should be interested in the controversial material I’ve been writing about to deal with it.
That reluctance is a form of denial, a pervasive human characteristic I fear may have already pushed our species past the point of recovery from its current economic debacle. The need to answer questions generated by such inappropriate silence impelled me to do a lot of thinking just as the improbable election of America’s first nominally “Black” President was inspiring what I now believe may be the last bit of hope our species has of finding the leadership necessary to bring us through the looming disaster relatively unscathed. As this was being composed and edited, I was about to write that I thought our new President might not be as astute as I'd once hoped. Then I listened to his remarks amplifying last night's State of the Union speech, including his overview and emphasis on transparency, which were masterfully stated. The man is both a quick study and an amazingly competent teacher. If the same principles can be applied to our abysmally stupid and dishonest drug war, they might end it.
If Obama is able to convert enough boo-birds on the Right and greedy wimps from his own party to such a sane approach, he just may become the leader we so desperately need; I'm still pessimistic, but a bit more hopeful
February 23, 2009
Lessons Resisted, 1: Malignant federal bureaucracy as a consequence of pervasive dishonestyIt’s difficult to know precisely what the federal bureaucrats conducting the drug war really think about “drugs;” in other words, do they- especially physicians with some expertise in Pharmacology- really believe their policy’s off-the-wall assertions about “drugs of abuse?” How does one even recognize a drug of abuse apart from its arbitrary listing on Schedule One on the basis of criteria chosen by anonymous authors of the 1970 Controlled Substances Act?
It doesn’t take a great deal of research to discover that the legal precedent originally permitting the federal government to arrest doctors for prescribing opiates for "addicts" was based on turn of the (last) century fears of “addiction,” as endorsed by a series of 5-4 Supreme Court rulings upholding the 1914 Harrison Narcotic Act. That precedent was later significantly expanded by the 1937 Marijuana Tax Act, which effectively rendered any possession of cannabis by either physicians or patients lacking a special tax stamp subject to harsh penalties.
The deceptive intentions of the MTA were evident from the beginning; it also relied on the Harrison ploy of a transfer tax and required physicians to purchase the tax stamps. The (significant) difference was that the stamps needed for the MTA were never printed. The MTA also substituted the slang term, “marijuana,” for cannabis, one the government has retained in all official documents ever since. Finally, the MTA significantly extended the powers usurped by Harrison with an (implicit) ban on any future medical use of cannabis. That restriction was hardly noted at first, but is now crucial. It never applied to either cocaine or the opiates "regulated" by the older law because there were no substitutes when it was passed
Just as the MTA expanded dubious federal prerogatives claimed by Harrison, the 1970 Controlled Substances Act authored by Richard Nixon’s Department of Justice further expanded them, also without medical input, a legislative sleight-of-hand made possible because the Supreme Court's 1969 rejection of the MTA was on legal (Fifth Amendment) grounds that were countered by simply asserting a different Constitutional basis for the CSA: Congressional jurisdiction over Interstate Commerce.
Thus does the entire medical basis of current policy rest on the ignorance of Harrison's authors as narrowly validated by a medically ignorant Supreme Court during the second decade of the Twentieth Century. It also follows logically that modern Congressional enhancements of penalties for “drug crimes,” especially numerous in the case of cocaine and marijuana, were also passed without any review of the same questionable amateur medical beliefs.
The bottom line is that America's (and the world's) drug policy is rigidly bound by medically ignorant legal assumptions that run a gamut from those made by Hamilton Wright through Harry Anslinger and Richard Nixon. Worse yet, those assumptions were never validated; nor could they have been formally challenged until a California state initiative was passed in 1996 and these disturbing conclusions could not have been reached except for the relatively relatively simple study of chronic cannabis use that made them possible.
Sadly, that's not the end of this surprising story. Although first announced to insiders within the reform movement in 2003 and 2004, then published in 2005, and updated in peer-reviewed literature in 2007 the data and their implications have been assiduously ignored, a phenomenon demanding its own explanation.
As our contemporary world gradually slides into what may be its second-ever Great Depression, simple extrapolation from the daily news sheds light on my dilemma and vice versa: both appear related to the interplay of emotional and cognitive centers within the highly evolved human brain. Since the emergence of empirical Science some five hundred years ago, our species' ability to affect our planetary environment has been progressively enhanced to a point we are now having major impacts on both our terrestrial and emotional environments.
As a physician, I realize that making an accurate diagnosis doesn't always guarantee effective treatment, but I also know that without an accurate diagnosis, the likelihood of prescribing effective treatment is greatly diminished. That concern probably also applies to Economics, considered by many to be a Behavioral science.
February 22, 2009
An Almost-Sane Right Wing PunditDebra Saunders has been of considerable interest to me, since well before I began screening pot smokers in 2001; primarily because she had expressed early support for (at least her version) of medical marijuana, one that believed it should be legal for those with certain diseases. In those days, I must admit that because I still hadn’t discovered the extent to which pot’s market success had depended on its anxiolytic properties or worked out some of the clinical dynamics of its many therapeutic benefits, I saw all political support as both rational and welcome.
As the Bush years wore on however, I found less and less to like about Ms Saunders’ inevitable defense of his latest folly and her often expressed scorn for “Bush-haters” and “tree huggers ” alike. Today’s column in the SF Chronicle, which was also carried under another title in a radical Right Wing Internet newsletter, is an interesting case in point. Now that both the American and Global economies seem to be going South at ever increasing rates, Saunders, writing from Europe, seems to be one of the few on the Right willing to admit that reality and assign Bush at least a modicum of blame.
One is forced to wonder, however, just how long such a position will be acceptable to Limbaugh loyalists who are rooting for Obama to fail, but remain clueless as to the potentially dire consequences of such a failure.
Last night, I took a break of sorts. Once an avid movie buff, I haven’t watched a full length film in a long time. In fact, the last was Inconvenient Truth, the documentary written by Al Gore and released in May 2006. After finding the DVD and watching it again, I was struck that I hadn't fully grasped how bad things were when I first watched it, how much worse they seem to have become in just under three years, and how slowly the nay-sayers seem to be catching on.
What I now realize with increasing clarity is that some humsns are even more armored against reality by our highly variable capacity for denial than I'd realized; further, those, like Bush and Limbaugh, who seem least able to admit a mistake are also seemingly capable of denying almost any reality. Finally; it doesn't seem a function of intelligence, but of rather the degree of one's commitment to an extreme belief.
Appropriate examples among extremists on the opposite side abound: the President of Iran, who as Shiite Muslim, is hardly a fan of Osama bin Laden, whose Sunni sympathies are well known, but who–– in any case–– almost certainly didn’t discuss the details of 9/11 with Saddam, another Sunni we foolishly (and oportunisticlly) squandered so much blood and treasure to attack in (claimed) retaliation.
If there’s a message hidden in that mess, it may be that we humans are so dishonest and so prone to irrational decisions, we probably shouldn’t be trusted with big ones.
But, unortunately, someone has to make them.
February 18, 2009
The Significance of the Phelps FiascoAt first, I thought the attention paid to a photo of Michael Phelps’ November ‘08 bong hit might be a way to publicize the connection between ADD and self medication with marijuana that I have been documenting for the past several years. In the background has always been my delusional hope/belief that if enough people came to understand how pot was helping troubled youth, it would change policy. The most recent developments have demonstrated that hope to be both naive and forlorn; not because people don’t know there's a connection between cannabis and relief of symptoms, but because so many have their own reasons for seeing that complex phenomenon in a completely different light.
One example is provided by a South Carolina sheriff improbably named Lonnie Lott, who felt obligated to explain why his department wasted so much time and money investigating the event.
Another is that of President Barack Obama, who has also been affected by “absent daddy disorder” himself, and once got high, but has been disappointing me since late January by allowing holdover DEA administrator Michele Leonhart to authorize pot raids as usual in California and recently proved that despite his obvious intelligence and flare for analysis in some areas, he is as hopelessly committed to the conventional idea that “drugs” are a police problem as all of his predecessors since Nixon. Otherwise; why would he be about to nominate Seattle’s police chief as the next drug czar?
Just as I see Obama as an improvement over Bush, I will probably see Gil Kerlikowske as much better than John Walters; but both Obama and Kerlikowski are way too iittle and too late for the enormous job of changing global thinking about “drugs” and drug policy.
That's because drugs are so densely related to how humans think, and our cognitive process is precisely what has our species in in so much trouble in so many areas.
February 17, 2009
Phelps Follow UpIn addition to wondering if Michael Phelps had ever been diagnosed with ADD, the other question that popped into my mind after seeing his famous bong hit was his relationship with his biological father. President’s Day was spent seeing patients in a place lacking internet access, thus I had to wait for Google to confirm my suspicions it had been dysfunctional in ways I’d first suspected in 2002 and started writing about in late 2004.
The key insight that chronic pot use was the most outstanding and easily determined characteristic of everyone seeking our “recommendation” to use it had already occurred to both Doctor Claudia Jensen and myself when we met at the same Oakland buyers’ club in April of 2002. Unfortunately, as I later reported, that association would be sadly and unexpectedly brief; however she also continued to document what we’d both learned was clinical evidence those on opposite sides of the issue didn’t want to hear; each for their own reasons.
The bad news is that much valuable time has been wasted because those with the resources to learn the truth have remained so adamantly in support of ignorance.
The good news is that the cat is so far out of the bag that the destructive futility of American drug policy should eventually prove as difficult to hide as it was for chattel slavery, the signature error of our young republic. But it now also seems that such behavior is a deeply imbedded component of humanity’s evolutionary legacy, thus its eventual correction is no more certain than it is for multiple other existential vulnerabilities attributable to our unrestrained cleverness.
More practically and closer to the subject, ADD & ADHD now appear to be variants of the same entity; certainly not a “disease,” but a form of pediatric anxiety often manifested in early childhood and frequently persistent throughout life. The common denominator seems to be the trauma of a child’s perception of rejection by the family sometime between sentience and the onset of puberty. The ease with which inhaled cannabis can control those distressing symptoms in adolescence (and beyond) has been a major reason for the obvious failure of our smug, moralistic— yet supremely stupid— drug policy.
You can put that in your bong and smoke it.
February 15, 2009
Michael Phelps’ Bong HitI must admit to having become so busy maintaining my database of pot applicants that I hardly noticed the Beijing Olympics; about the only thing I could have told anyone about them in November was that Michael Phelps had amazed the world by winning eight gold medals and that he seemed to be setting a new record for product endorsements on TV. When I saw that picture of him taking a huge bong hit I knew immediately he was no beginner and wondered if he had ADD. This morning I received an e-mail referencing his mother’s earlier statement about his childhood diagnosis and learned that even before the Olympics he had been a source of inspiration to many diagnosed with ADHD.
Of course there was no mention of cannabis.
For the record, virtually all recommendations I write now include “mood disorder,’ which I consider a generic term for the range of anxiety disorders that so many people have learned to self-medicate with pot since the Sixties.
Once I learned how to accurately question pot applicants about their prior drug initiations and current use, I couldn’t wait to tell my “reform” colleagues about those early findings at a national meeting in May 2004. Their responses ranged from stony silence to outright hostility, which I have since had to understand and am now ready to write about because subsequent interviews, now totaling nearly five thousand (over a thousand of whom have been seen as often as four times), have provided me with enough data to formulate a hypothesis with considerable confidence.
Because that hypothesis was arrived at as a result of unique data, it required me to understand why so may people have been so reluctant to accept conclusions which, to me, are very logical.
All I can say is that most advances in science have involved the questioning of false assumptions; often of long duration. Once one realizes that both sides in the drug war have been sharing many of the same false assumptions and that 215 provided a first-ever opportunity to test them against clinical data from actual pot smokers, one is on their way to understanding why I’m now considered a heretic and maverick by many ex-colleagues.
February 14, 2009
Truth, Marijuana, and Justice: 2Gridlock: why court trials have (again) become determinants of drug policy
As noted previously, the state and federal police agencies created and/or empowered by the 1970 Controlled Substances Act had developed such a powerful vested interest in marijuana prohibition that by 1996 they would regard any implementation of California’s initiative as a threat to be opposed at all costs. For a variety of reasons, their position has been tacitly supported by the more permissive default adopted by American non-government organizations. Thus the prevailing attitude toward “medical” marijuana gradually taken by the American polity has become a vaguely imagined middle ground: it's OK to make exceptions for very ill or dying pot smokers, but they should be strictly monitored and “recreational” use, especially by irresponsible young people, should remain illegal.
There are several problems with that formulation: first, it depends on police agencies and courts to determine "recreational" use; second, the applicable standards are so vague as to be unsatisfactory. However, because the interested parties have confidence in the ones they had developed in mutual ignorance, there's little interest in developing new ones. Finally; the core issue of drug prohibition has never been honestly debated by opposing stakeholders, mostly because an (unfair) onus on the treatment of "drug addicts" created by Harrison had so frightened physicians and then been transformed, in two stages, into a fear of cannabis itself: first when the MTA, made all use illegal under all circumstances. Then, after pot's popularity with adolescents made it the nation's most popular illegal drug in the Seventies, that phenomenon, and the reasons behind it, were completely missed; largely because Nixon was able to get away with quashing the Shafer Commission report in March, 1972, well ahead of the Watergate scandal.
Ironically, it had also been pot's progressive and sustained popularity that had demonstrated the financial and political profits that could accrue to law enforcement agencies from policing its huge illegal market and convinced them they shouldn't be surrendered without a fight.
Thus 215's police problem has been the gridlock produced by the illegality of cannabis. The best way to understand that may be by analogy with homosexuality, another common and deplored behavior, once technically illegal in many venues, but critically different because it was never a federal crime. While still regarded as undesirable behavior by many, homosexuality, has never been a comparable source of financial or political power. Additional keys to understanding the important difference in how the two are perceived: the DSM declared homosexuality a non-disease in the Seventies, but still classifies repetitive marijuana use as a "disorder," and the California Supreme Court trashed Proposition 215 in the Raging Wire case, but will consider the Constitutionality of Proposition 8.
At this point in its evolution, the unresolved debate over “medical marijuana” has been relegated to federal courtrooms where terms can be arbitrarily defined by a judge with little understanding of "science." Because neither the federal nor state supreme courts have chosen to challenge the initiative process itself, the default has become a ridiculously unfair "shared sovereignty” arrangement since Raich. The DEA is now feels free to bully and intimidate suspects while it gathers evidence and then to colludes with local law enforcement in deciding who be subject to federal prosecution, and in what order.
The huge advantage enjoyed by the feds in court is control of the rules, as is evident in the three trials considered here. At the same time, those trials' important details and outcomes to raise serious questions about the whole American Judicial system.
The Sacramento trial of Doctor Mollie Fry and Dale Shafer followed the other two, although the preliminary raid in September 2001 had preceded the others and the medical records taken haven't been returned or accounted for. I’d met both defendants at a Cannabis Clinicians' meeting hosted by the late Tod Mikuriya, but most of my information on their trial and its preliminary raid is from Cool Madness, Vanessa Nelson’s readable and richly detailed account. The degree to which it agrees with my own experiences in the Costa prosecution suggests her report is very accurate.
In brief, a professional couple, each using cannabis to treat a serious disease, thought such use had been legitimized by Proposition 215. At some point, the need to make an frequent round trips to San Francisco led Dale Shafer to begin growing cannabis and high dispensary prices induced he and Fry to help their patients obtain it. The available evidence confirms that their motives were non-commercial, compassionate, and law abiding; however, their control of the recommendation process, together with the production of an illegal drug, made their operation especially vulnerable to federal prosecution.
In that connection, their trial revealed that a local policeman who “befriended” them and whose advice they solicited was simultaneously working under cover as a federal informant. Sgt. Robert Ashforth (probably illegally) had been posing as a "friend" while repeatedly assuring them they were in compliance with the law and encouraging them to grow even larger amounts. Amazingly, his unverified recollection of plant numbers later became part of the estimate that brought them up to the arbitrary 100 plant threshold required to punish them.
His duplicity was matched by that of a dreary parade of prosecution witnesses, some undercover policemen, and others former employees, made vulnerable to federal prosecution by their participation. The motivation and credibility of such "snitches" were frequently attacked by the defense team of Tony Serra and Lawrence Lichter, in verbal battles with relentless lead prosecutor Anne Pings, who comes across as an older version of Karen Escobar, whom I'd observed in the same role (and with the same attitude) in Fresno.
Similarly, Frank Damrell played the same role as Judge Anthony Ishii in Costa’s trial, but with more drama and emotion. One reason was that Robert Rainwater, Costa’s public defender and Ishii's contemporary in federal service, was far more accepting of his role of designated loser than Tony Serra or Lichter.
Dustin Costa of Merced was the first post-Raich state defendant selected for federal punishment. An ex-marine baby-boomer who had controlled a troublesome penchant for alcohol with cannabis, he'd obtained a pot recommendation shortly after 215 passed and was arrested when his arguably legal (under state law) grow was found by a (probably) illegal search. A few weeks after Raich, and while free on bail on the state charges, Costa was symbolically arrested at gunpoint on a federal warrant served by six California “peace officers” and whisked off to the Fresno County jail where he was denied bond and held in miserable conditions until his grossly unfair trial in the courtroom of Judge Anthony Ishii. The judge listened carefully to the well formulated motions of federal public defender Robert Rainwater before denying them all. He then blocked relevant medical testimony and pronounced a sentence of fifteen years the day after the 2006 Super Bowl. Costa is now serving that grotesquely unfair sentence in a low security federal prison in Texas.
I have taken a more personal tone in describing Costa's case because the close personal association that developed after he became my patient in December 2003 afforded me a detailed perspective on his federal ordeal; almost that of a participant. His shabby treatment at the hands of the government I once served has filled me with a disgust I feel every day, even as it allows me to see through the dishonesty and posturing of multiple American institutions.
The two highly publicized trials of the "Guru of Ganja" in San Francisco stand in stark contrast to Costa's Stalinesque show trial in Fresno, Although the outcomes in all were guilty verdicts from juries prevented from hearing relevant testimony by federal judges supporting over-the-top prosecutors, the details were very different. Ed Rosenthal's first trial, presided over in San Francisco by Judge Charles Breyer, was the first of the three and received the most media attention when it was held in 2003.
The original Rosenthal trial's most unusual feature was an oddly timed revolt by 8 jurors who claimed, on the courthouse steps, that they hadn't been told it was a medical case and would have voted differently if they had. The obviously discomfited judge, the younger brother of a Supreme Court Justice and member of a prominent local family, resolved his dilemma by sentencing Rosenthal to time served, a single day after the February, 2002 raid. Not satisfied, Rosenthal loudly denounced the whole process and demanded a new trial, a request granted by the famously liberal Ninth Circuit. After the prosecution churlishly added income tax evasion and other charges, Breyer dismissed them and ruled that the original sentence could not be increased by the appeal and suggested that Rosenthal should drop it.
As reported by Nelson, the ensuing second trial was another circus in which the defense team squabbled incessantly with the prosecutor while a distraught Judge Breyer alternately sat with his eyes closed during boring testimony or erupted at the defense for their many violations of his orders. At the same time, he demonstrated a surprising tolerance for what can only be described as impudent behavior by the defendant. The result was another guilty verdict, no complaints by any jurors, and an unchanged sentence, all of which were financed by a combination of federal (tax) dollars and contributions from loyal stoners.
The contrast between the federal prosecutions of Ed Rosenthal and Dustin Costa could not be more extreme. I plan to discuss their significance in more detail in another entry, but this one is already too long.
February 13, 2009
More Questions about Truth, Marijuana, and Justice: 1Background
One of several ways California voters changed reality by approving Proposition 215 in 1996 was by unintentionally creating a judicial double standard for “truth.” The US, in concert with most "developed" nations, relies on its courts to decide truth; yet both US and California “supreme” courts have ignored that double standard on the several occasions they might have addressed it, thus placing defendants charged with “marijuana” crimes in onerous double jeopardy.
This entry and the next will be a review of three recent prosecutions of defendants who could have reasonably claimed protection under state law, but were punished in federal court under the double standard neither "supreme" court has seen fit to acknowledge. In addition, the three prosecutions were themselves conducted under such loose standards as to constitute serious violations of due process.
Shortly after 215 passed, there was abundant evidence that the federal government and most local police agencies would resist its implementation. Just as the last entry faulted backers of medical marijuana for persisting in their attempts to convince an obviously dishonest federal agency to change its mind; so it appears that those responsible for Reform's legal strategy failed to learn from the harsh treatment meted out to Peter McWilliams and Todd McCormick at the hands of the Federal Judiciary. The adverse outcome in Raich was not simply because their arguments were unpersuasive; rather because they mistakenly believed that the US Supreme Court to be an objective, apolitical entity and that the Department of "Justice" lives up to its name.
Three recent federal trials suggest that not only did backers of federal policy consider the Raich “decision" of June, 2005 to be an invitation to prosecute troublesome activists in Federal Court; those conducting the trials somehow came to believe they had carte blanche to disregard well established rules of due process.
What can now also be seem in retrospect is that not only were all three prosecutions I will describe triggered by Raich, three early DEA raids played crucial roles in two of them and add considerably to a portrait of malevolent federal malfeasance in protection of US drug policy. At the time they took place, all three raids were probably exploratory; intended only to test the waters of public opinion and gain information about those perceived to be enemies in the drug war. Developments in the wake of Raich also suggest that any intelligence gathered in a raid would later be used to punish certain activists if the opportunity presented itself.
Early Federal Raids
The three raids to be discussed weren't the only ones on medical marijuana facilities during the first five years under 215, but they seem to have been the most significant.
All three began early in the morning and took place in a relatively brief 1 year interval between September 2001 and September 2002, in three separate venues. The first was the small Northern California town of Cool (near Sacramento), the second was actually a series of raids on separate locations in the Bay Area in February, 2002, and the third took place in Davenport, a tiny coastal community north of Santa Cruz in September the same year.
The (not so) Cool raid targeted the home, offices, and storage facility of two professionals, Doctor Mollie Fry, her lawyer husband, and their adolescent children. The principal targets of the second, were the Piedmont home of Ed Rosenthal, already famous for his “Ask Ed’” column in High Times, the Mandela Parkway warehouse where he was thought to be growing clones, and selected local buyers' clubs (then called dispensaries) he had been providing them to. In addition, several others, who had been associated with Rosenthal in one capacity or another, were also raided.
The last was the September 2002 raid on WAMM described by Chapkis and Webb, in which Valerie Corral, and her husband Michael were treated like Shafer, Dr. Fry, and their children: forced to lie prone with guns to their heads in typical DEA intimidation style. Whether Ed Rosenthal was treated in similar fashion was not reported, but somehow, I think he was not.
These entries are being written as time permits; the trials I plan to deal with are those of Dustin Costa, in which I testified, attended the sentencing, the second trial of Ed Rosenthal, which was a repeat of the first, and also involved many people I had come to know, the last, also in 2007, was of Mollie Fry and Dale Shafer, both known to me through professional meetings with other Cannabis Clinicians.
My knowledge of the Rosenthal and Fry-Shafer trials depends to a great extent on remarkably lucid descriptions by Vanessa Nelson, which I hope everyone with a serious interest in cannabis policy will read.
February 10, 2009
Federal Trials, Reform Tribulations, and the Questions they (should) raiseThe last entry ended with a comparison of two federal prosecutions in California for growing medical marijuana and suggested they had been so egregiously unfair they could pose a threat to the Controlled Substances Act itself. However, that will only happen in the unlikely event their troubling details become known and understood by the voting public; if not, they will probably do little to change a destructive failing policy that has been successfully sold as necessary to Americans since 1970.
In essence, the CSA had been hastily devised by the Nixon Administration to replace a deceptive drug prohibition policy that had been threatened when the Supreme Court overturned one of its two key pieces of legislation on Fifth Amendment grounds. The replacement legislation was a sweeping rewrite of both the Harrison Act of 1914 and the Marijuana Tax Act of 1937. It addressed the constitutional issue by simply asserting a completely different (and equally questionable) basis for intruding into Medical practice; nor did it revise outdated and highly questionable assumptions about pharmacology and addiction made by by the two original laws. Nevertheless, the new hybrid was soon generating thousands of marijuana arrests and the policy itself soon became known as a “Drug War.” In other words, one of the first questions that should be raised about the CSA is how such a slapdash, uninformed policy come to be accepted as reasonable; not only in America, but around the world.
Since the mid Seventies, domestic American drug policy enforcement has been dominated by the size of the illegal market for marijuana, a drug not widely used until large numbers of young Americans discovered it in the mid-Sixties, shortly before Nixon’s election. Pot soon proved such a hit with Baby Boomers it had already been established as the nation’s most popular illegal drug; even before the first Monitoring the Future (MTF) study appeared in 1975.
Although the reasons for its sudden surge in popularity have never interested Academia, that same popularity has been enhancing the budgets and political power of a variety of police agencies ever since. In fact, it was the alarming rise in pot busts following passage of the CSA that had inspired a young lawyer named Keith Stroup to found NORML.
Thus did early pressure for rescheduling marijuana (as permitted by the CSA) automatically convert a provision of Nixon’s policy –– that the only person authorized to determine which drugs are prohibited (listed on Schedule One) is the US Attorney General–– into a non-negotiable article of faith for the entire federal government. The Drug policy Reform movement’s continuing failure to grasp that reality is underscored by their recent pursuit of a strategy that failed in the mid-Eighties when an Administrative law judge working for the DEA was summarily reversed by the Agency Director a few month later.
That brings up the next logical question: what could have induced the leading strategists of the medical marijuana "movement" to believe a political adversary as manifestly dishonest and committed to marijuana prohibition as the DEA would behave any differently in 2008 than they had in 1988?
The collateral question is: are these clowns ever going going to wake up?
In the next entry I plan to ask similarly embarrassing questions of the reform movement's legal brain trust.
February 08, 2009
Federal Trials & DEA Raids reflect the same arrogant drug war mentalityWhen interpreting new developments in California’s twelve year old medical marijuana war, the most important point to remember is that it’s been an ad-hoc guerrilla war since December 1996; also that it’s being waged by a comfortable tax-supported alliance of federal and local police agencies against poorer, more disparate, and more loosely affiliated political activists; some of whom have also been exposed as arguably greedy opportunists.
Beyond that, media coverage has, with rare exceptions, been medically uninformed, historically ignorant, and inclined to give the default to the feds.
Although highly principled reformers like WAMM, the Corralls, and the victims of Cool Madness, have also been prominent, they represent a distinct minority and have been further handicapped by having to rely for sustenance on the gray market created by the initiative; to say nothing of being tarred by the antics of traditional stoners who continue to deny increasing evidence that many have been self-medicating since high school.
Despite those handicaps, it has recently become clear that traditional DEA style marijuana enforcement will have to change; what’s now most important is how much? And how fast? Unfortunately, the agent of that change will be an Obama Administration, itself mired in traditional Democratic foibles and forced to deal with the economic and foreign policy messes left by their predecessors.
On the other hand, McCain’s unlikely strength in November suggests it may have taken all eight Bush years to elect America’s first nominally black President.
Before the raids by DEA holdovers began claiming my attention, I was reading accounts of two recent federal marijuana trials by Vanessa Nelson. With respect to the ordeal of Doctor Fry and Dale Shafer, anyone with a rudimentary sense of fairness would have to realize that the federal advantage in court is both huge and grossly unfair. Federal witnesses, mostly snitches or undercover cops, were not only held to a lower standard of truth, the judge and prosecutor openly colluded about how to protect such testimony while keeping the jury from hearing anything good about cannabis.
What I have since discovered is that Ed Rosenthal’s second trial , also conducted in Judge Charles Breyer’s San Francisco courtroom was a greater travesty than either his first or the Cool Madness exercise in Sacramento. That point became painfully clear to me after I placed it in its most logical context: the travesty Dustin Costa endured in Fresno at the hands of two political operatives: Assistant prosecutor Karen Escobar and Judge Anthony Ishii.
The bottom line is that tactics used by the DEA and the Federal Judiciary against medical marijuana activists in California have been exposed as ad-hoc, random, and capricious to a greater degree than ever before. A simple comparison of the relevant facts in the Rosenthal and Costa cases shows why: both men are of similar age and were growing similar numbers of plants, allegedly for medical purposes (although Rosenthal was shown to have collected much more money). However, there are critical differences: their original arrests were by different agencies in different venues and they enjoyed much different levels of political support. Although both were eventually convicted in federal court, their trials and punishments have been so grotesquely different as to defy rational explanation; the wealthier Rosenthal spent one day in jail and was later supported by an outpouring of donations from reform in an attempt to remove the onus of his felony conviction; the less affluent Costa has been continuously incarcerated since August 2005, was denied bond, and has been virtually ignored by the movement he thought he was part of.
This won’t be the last I’ll have to say about these issues; in fact, I’m just getting started.
February 06, 2009
Not With a Bang, but a (Cautious) AnnounncementI should have realized that the point at which the drug war began to lose momentum would be subtle and uncertain; more like a tipping point than the concession speech that represented John McCain’s solitary moment of grace last November.
While it’s still too early to be certain, that moment may have come yesterday and, typical of the confusing mess the drug war has become, may have been signaled by a terse item in the Washington Times, rather than an Op-Ed in its more liberal New York namesake.
Some ten days ago, when the first bleating of the most paranoid reformers announced an improbable DEA raid in South Lake Tahoe, I speculated that Obama himself almost certainly hadn’t authorized it personally and, because he is both sensible and consistent, would probably back away from DEA business-as-usual tactics if pressed. At that time only a half-dozen mentions of the raid could be found on Google; yesterday, more than thirty-five pages appeared and the only mainstream media item was at the top of the list.
One hopes the sleazy side of reform, as represented by stoner culture, will remain in the dark long enough for their more restrained brethren to realize that delayed concession almost certainly wasn’t a result of direct pressure from either reform or the mainstream media; more likely, it was a deluge of phone calls to the White House from individual pot smokers mobilized over the internet and coming as far out of their closets as they dared.
The implications of the United States backing away from cannabis prohibition are far more profound than most people realize. Now that we have a president who seems up to the job, let's give him a chance to think it through before leading the nation and the world into what should be a more promising future.
February 05, 2009
Cannabis and the CourtsThe carelessly written Marijuana Tax Act has been a source of confusion and injustice ever since it was passed on the strength of “reefer madness” publicity promulgated almost entirely by Hearst Newspapers in 1937. Although the size and dollar value of the illegal market created by the MTA were comparatively small until “pot” was discovered by baby boomers in the Sixties, today’s marijuana market is now estimated to be worth more than any other crop harvested in North America, annual marijuana arrests continue to climb, and the US prison population has quadrupled since the Controlled Substances Act was passed to replace the MTA in 1970.
Throughout the improbable, and dishonest histories of marijuana prohibition and its parent policy of drug prohibition, America’s judicial system has played a key role in both. In the case of pot, its illegal market remained small between 1937 and the early Sixties, but harsh state laws punishing possession of any illegal drug were widely accepted as reasonable, an attitude that was carried over in 1972 when Richard Nixon summarily dismissed the Shafer Commission's unexpected suggestion that cannabis be investigated for its possible medical benefits.
Of course, a key provision of the CSA had been its medically unsupported listing of three criteria that grant a law enforcement officer, the Attorney General, sole authority to determine which drugs should be banned.
The subsequent creation of two tax supported agencies (the DEA and NIDA), each with a mandate to support the CSA, thus created a tax supported federal lobby for a policy of never-acknowledged drug prohibition that began when the Harrison Act of 1914 was upheld by a series of narrow Supreme Court decisions endowing medically untrained bureaucrats with police powers to enforce their medical judgment and incidentally imposing an arbitrary Judicial definition of "addiction" on society.
Whether one considers that particular anomaly to be scientific or Constitutional, it is the error at the very heart of current drug policy; yet it has never even been considered by any court.
One of many unexpected ways California's Proposition 215 has uncovered flaws in our policy has been by encouraging both state and federal prosecutions of medical marijuana patients and activists. Although the state efforts have, in general, been poorly covered by the media, the increasing tempo of federal prosecutions has already generated engrossing accounts of court proceedings that incidentally serve to expose how shallow, vindictive and irrational our heretofore unassailable policy really is.
At this point, the quickest way for interested readers to see for themselves is by reading Vanessa Nelson's accounts of two pivotal federal prosecutions: Ed Rosenthal's second trial in San Francisco and the totally different, far less humane, yet equally bizarre persecution of an entire family in Sacramento.
I hope to review both very soon.
February 02, 2009
The Science-Pseudoscience ConnectionMany educated people have heard of Phrenology and a substantial fraction even knows it is frequently cited as a classic example of pseudoscience. Predictably fewer are aware of work by two revered Eighteenth Century anatomists Broca , and Hughlings-Jackson , showing that specific neurological processes seem to be controlled by equally specific areas within the brain.
That concept, at first glance, offered support for the basic assumptions of Phrenology; but over time- and on the basis of further observation- those assumptions, and Phrenology with them, were found overly simplistic and Phrenology was downgraded into an example of Pseudoscience.
Ironically, a classic dilemma of human existence, one summed up as mind-body dualism; although similarly vulnerable to definitive scrutiny, can also be protected by doctrinaire thinking, as is illustrated by the slow, painful evolution California's Proposition 215 over the past twelve years.
A good example is how stubborn federal refusal to recognize any medical benefit from use of cannabis suddenly became more aggressive soon after the odious (and predictable) Raich decision was handed down by the Supremes in June 2005. A rash of punitive federal prosecutions of medical marijuana activists soon followed and is still in progress.
An understanding of how those prosecutions are conducted, along with an appreciation of the drug war's sickening impact on American Justice can be gained from reading Cool Madness by Vanessa Nelson. A very talented writer with a gift for accurate low-key descriptions of human interaction, Nelson has been quietly creating a new literary genre with her descriptions of the ordeals individual medical marijuana activists face in federal courtrooms with no more media scrutiny than that received by suspected terrorists in Guantanamo. Although their names, and the trial outcomes have been duly reported, the media have also been blind to what many would see as cruel and inhumane treatment.
For that reason alone, Nelson's accounts are important. A Pdf of Cool Madness can be downloaded for a modest fee from Lulu, an interesting new web site.
I'm nearly finished reading Cool Madness and will post a detailed review ASAP.