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A Model Legalization Proposal PDF Print E-mail
Written by RICHARD B. KAREL   
Tuesday, 05 January 2010 23:43

A Model Legalization Proposal

RICHARD B. KAREL

Chapter 3 of The Drug Legalization Debate, edited by James A. Inciardi

From the SAGE Publications series:
Studies in Crime, Law and Justice Vol 7. ISBN 0-8039-3678-8

Copyright 1991, SAGE Publications, Inc. (www.sagepub.com)
All Rights Reserved. Reused with permission.


INTRODUCTION

During an April 1988 meeting of the U.S. Conference of Mayors, Baltimore Mayor Kurt L. Schmoke called for a national debate on the issue of drug legalization. Since that time, the debate has grown in fury, generating much heat, and occasionally some light.
Although many of the critiques of legalization have been couched in highly emotional terms, one valid critique that withstands scrutiny has been that legalization proposals have lacked concrete and specific recommendations. The following chapter is in response to this criticism. It does not attempt to deal with a variety of social and ethical issues, in the belief that such issues are worthy of separate consideration and could not be adequately discussed in a paper of such pragmatic orientation. Because the subject of marijuana legalization is not dealt with below, it is worth mentioning that any move toward decriminalization, legalization, and regulation of the currently illicit narcotics will certainly be foreshadowed by a shift in that direction regarding marijuana. Unlike the other substances discussed below, I believe that marijuana could be regulated in a fashion similar to alcohol. As will become clear, this is not necessarily the model I embrace regarding regulation of other drugs.


Coca, Cocaine, and Crack

It is crucial to distinguish between coca, cocaine, and crack. The differences in toxicity and abuse potential of these different but related substances are extremely significant. Coca, in the form of leaves or simple extracts of leaves, has far more in common with coffee than it does with granular cocaine (Bedford et al., 1982). There is a long history of use of coca and coca-containing beverages without concurrent social problems. It is fair to say that the habit-forming potential of coca is similar to that of coffee and tea (Brecher, 1972). Even daily use of what we would consider extraordinarily large quantities of leaves by South American Indians is not correlated with social dysfunction or ill health (Von Glascoe et al., 1977).
Drug researchers have drawn sharp distinctions between the effects of crack, cocaine, and coca (Kolata, 1988). The euphoria induced by crack, and by intranasal use of cocaine, they explain, stems from the abnormal stimulation of a pleasure center in the base of the brain. The sense of euphoria, however, depends not only on blood levels of cocaine, but on the rate at which blood levels rise. Hence, the faster the increase, the greater the euphoria. Dr. Herbert Kleber of Yale, an expert in the field, and currently Deputy Director of the Office of National Drug Control Policy, observed that the slow absorption of cocaine as occurs through the Indian habit of leaf-chewing would create high blood levels but no euphoria. "It would have an effect like caffeine," Kleber said (Kolata, 1989).
It would not be unreasonable to allow simple coca tea to be sold as tea is now sold in a supermarket. The effects and risks are comparable. Extracts containing more than a designated amount of leaves might be regulated like alcoholic beverages. It would also make sense to allow limited cultivation of coca for personal use.
In addition to the original Coca Cola, the rather colorful history of coca records use of a beverage called Vin Mariani's Coca Wine. It contained two ounces of fresh coca leaves to a pint of Bordeaux (Gomez et al., 1984, p. 59). Testimonials for the wine were recorded from then President of the United States William McKinley, patriotic composer John Phillip Sousa, inventor Thomas Alva Edison, and Pope Leo XIII (Gomez et al., 1984).[1] Despite the widespread use of coca-containing beverages, there is little evidence that social or medical problems ensued (Brecher, 1972).
The jump from coca to cocaine, and from cocaine to crack is a difference in kind, not merely in potency. Although crack appears to be far more addicting and dangerous than granular cocaine, the latter is highly addicting to a small but significant number of cocaine users. Accordingly, legal regulations must reflect the medical and social problems associated with use. Crack seems to pose unreasonable risks, and therefore, at this juncture, appears an unlikely candidate for even carefully controlled legalization. If, after legalization of coca and granular cocaine, a substantial black market in crack persists, with all the attendant ills, than it will be time to look at providing orderly access to smokable cocaine. Initially, however, it is worthwhile to see what occurs following legalization of the other forms of the drug without significantly altering the legal status of crack.
The question arises, then, of what to do with crack addicts who prefer smoking to any other route of administration. There is no easy answer. While researchers feel that addiction to the crack form of cocaine is the hardest to kick, some have recently expressed optimism that it can be treated if environmental factors are given emphasis (Kolata, 1989). It may be plausible to provide a less dangerous form of cocaine to the crack addict. The availability of other forms of cocaine, and other legal drugs, would act to minimize a black market in crack even if that form of the drug remained illegal. It would not eliminate the medical complications of habitual crack use, if it persisted, but would be likely to eliminate the violence associated with an illicit and highly profitable cocaine market. There are no panaceas, only hard choices.
Cocaine, although problematic, has a lower addiction potential than crack (Kolata, 1988). Making granular cocaine available in unrestricted quantities to the general public as a recreational drug may be unnecessary and unwise. It could, however, be made available to the public in the form of a chewing gum similar to that now used to treat nicotine addiction. The nicotine gum has proved effective in assisting more smokers to quit, although a certain percentage become addicted to the gum (Drug Abuse Research, 1987). A cocaine gum is a reasonable option. Some years back Dr. Andrew Weil of Harvard suggested consideration of a coca chewing gum (Weil, 1977).
In order to minimize the excessive use of the gum, and in order to send a signal that restraint must be exercised, a restricted distribution system would be employed for this form of the drug. The gum would be available in packages of 20, each piece containing a small amount—perhaps 10 to 20 milligrams—of pharmaceutical cocaine (Siegel, 1989, pp. 178-179, 300-301). It would be almost impossible to overdose from this form of the drug, and intake would be limited by the physical limitations inherent in mastication. To further regulate use, however, an automatic teller machine (ATM) bank card, would be used, limiting purchase to one package every 48 to 72 hours. If a purchase was attempted more frequently, the card would indicate that not enough time had elapsed, and sale withheld. Undoubtedly, people would sometimes circumvent the system by having friends purchase gum for them This would certainly be better than forcing users to become involved with a criminal subculture, however.
This system might be used to permit distribution of granular cocaine in one-gram quantities. Initially, however, it would be worthwhile to see if a slightly more restrictive approach to the granular form of the substance, as described below, would be effective in both eliminating the black market and curtailing the entry of new users into the marketplace.
In either case, a pharmacist would do the actual dispensing. The card would simply be an electronic time log. Further compliance with the system could be ensured by requiring presentation of corroborating photo identification at time of purchase. The system would only monitor most recent purchase, and not invade privacy by keeping a long-term log.
The treatment of the addicted user, either of crack or granular cocaine, presents other problems. Addicts could be supplied with the cocaine gum under a clinical distribution system separate from regular pharmacies, or through prescription. Physicians operating through the clinical distribution system would be permitted to use other approaches as they deemed fit. This could include prescription of other forms of cocaine or treatment with other drugs, such as antidepressants (Gawin and Kleber, 1984).
Legal sanctions would not be used to force abstinence upon addicts, except in cases where they have committed crimes that render them subject to special restrictions. Protestations to the contrary (see Inciardi and McBride, 1989, pp. 282-283), this follows Mill's principle of individual liberty, i.e., that government may educate and inform the citizen, but must not restrict individual choice, even if the behavior in question might prove harmful to the individual. Government, wrote Mill, may only interfere with adult behavior if there is strong evidence of actual, not potential, harm to others, and even then such interference must be limited to those actually doing the harm and should not be so broad as to include those who might render harm. It would be acceptable, for example, to impose special legal restraints on an habitual drunkard who had behaved violently or irresponsibly while under the influence of alcohol (Mill, 1921). In fact, such restraints are currently used with the otherwise legal drug alcohol, whereby probationers and other individuals may be prohibited from consuming alcohol as a condition of probation or parole. The notion of mandatory treatment for mere drug use would, in general, become an anachronism. Exceptions, noted below, would include mandatory treatment for possession of still prohibited narcotics or forms of narcotics.
Administration of cocaine to addicts through a clinical system would undermine any remaining black market and keep the addict in touch with an environment where his addiction was treated as a medical problem and not a crime. By keeping the distribution network within a medical framework, it would place a check on the social legitimization of cocaine. An analogy might be drawn with the current distribution of methadone. Placed within a medical framework, this has not resulted in a general social -recreational legitimization of either that drug or other, related narcotics, such as heroin (Brecher, 1972).
Clearly, approaches to treatment of addicts presenting themselves to the clinical distribution centers would have to evolve as experience was gained. Treatment of cocaine and other stimulant addiction is a complex and challenging sociomedical problem. Stricter legal sanctions do little to address the treatment issue, and have been counterproductive in reducing the availability of cocaine (NNICC, 1989). Those behaving in a violent or antisocial manner under the influence of cocaine or any substance would be subject to appropriate legal sanctions. Such behavior, and any underlying psychological problems, would, in a postlegalization world, be dealt with on its own merit.
The criteria, then, for the regulation of cocaine, are both medical and economic. Resources saved on incarceration and arrest procedures would be applied to setting up and administering distribution and treatment facilities. The economic incentive for a black market would be minimized by a system such as that described.
Based on the available evidence, provision of coca and cocaine gum would not create serious social and medical problems. Use of the substances in this form, particularly the milder coca, might be beneficial to many people in the same way that various forms of caffeine are now. The manner in which the substances would be taxed, and how revenues might be allocated, will be discussed in a later section.


Opium and Opiates

In addressing the problem of opiate use and addiction, a number of criteria are pertinent. These are related to medical effects and the form in which an opiate is consumed.
In the hysteria over illicit drug use, a remarkable medical fact about opiates—all opiates, including heroin—has been overlooked. This is that opiate use and even addiction, isolated from problems caused by illegality and improper use of hypodermic needles, is medically quite innocuous. The primary medical problem attributable to long-term opiate addiction is chronic constipation (Brecher, 1972; Ray, 1972). Even this effect can be mitigated through intelligent measures. Once the medically innocuous nature of opiates is understood, it becomes clear that the most serious problems now associated with their use are caused by the circumstances surrounding their illegality (Brecher, 1972; Nadelmann, 1988).
Although legislators and others debating the issue of drug use and abuse in America may find it remarkable, it was a widespread practice in the United States in the late nineteenth and early twentieth centuries for physicians to prescribe opiates as a substitute for alcohol use by alcoholics. The medical reasoning was and remains quite sound. It has been well documented in a study published in 1969 on narcotics addicts in Kentucky (O'Donnell, 1969). The medical reasoning was that opiate addiction would arrest the cellular degeneration associated with alcoholism. The social rationale was that opiate addicts generally made far better citizens than alcoholics, being far less likely to engage in violent or antisocial behavior (Brecher, 1972; Siegel, 1986).
Before further explicating my regulatory suggestions, it is worthwhile to briefly discuss how U.S. drug policy has led to progressively more dangerous forms of opiate use.
There is no debate that opium and its derivatives are addicting. There is widespread evidence that such addiction is not incompatible with a productive existence, although the conventional wisdom denies the probability. In fact, the attempt to uniformly proscribe all opiate use, prohibiting opium equally with heroin, has led to the common form of opiate use we see today—intravenous heroin. In the illicit drug market, there is a premium on simplifying the smuggling process by increasing potency and thereby reducing bulk (Boaz, 1988).
In the Consumers Union book Licit and Illicit Drugs, there is an illustrative discussion of the effect of banning opium smoking in the United States between 1875 and 1914. Opium smoking is something of a misnomer, since the traditional method actually involves inhalation of vapor. There is no inhalation of tars and other carcinogens, such as occurs with the smoking of tobacco or marijuana. In addition, the naturally occurring drug opium contains a relatively small amount of morphine and other psychoactive agents. The development of tolerance and addiction through opium smoking takes far longer than with other forms of opiate use. Intake is also far easier to stabilize, and far less likely to lead to acute overdose (Brecher, 1972).
The effective banning of opium smoking was successful in causing people to adopt more hazardous forms of opiate use. Generally, the smokers first used legally available morphine, and, when later legislation made morphine unavailable, switched to heroin. Today, heroin is the universally available street opiate (Brecher, 1972). More recently, the pattern has been repeated in countries such as Iran and Pakistan, where pressure to limit the availability of opium has resulted in an explosion of heroin use, which was previously far less prevalent (White, 1985).
Opium is addictive, and there is legitimate social interest in discouraging addiction of any kind. In view of the far more innocuous nature of opium as compared to alcohol, heroin, and other frequently used sedative and narcotic drugs, however, it would make sense to make a smokable and edible form of opium available through use of the ATM card system suggested above for cocaine chewing gum. This would convey societal concern and encourage restraint. It would not appear advisable to make opium widely available in the form of laudanum, as that preparation traditionally contained a substantial amount of alcohol in which the substance was dissolved. As with marijuana and coca, cultivation of the opium poppy for personal use would be permitted, as would limited purchase of the opium-containing poppy heads (known as "poppy straw") through the ATM card system.
As with granular cocaine, the application of the ATM card system for distribution of the more potent opiates, including heroin, would be considered only if the more restrictive clinical/prescription system resulted in the perpetuation of an unacceptably large black market. The initial approach would be more conservative, limiting dispensing of the more potent opiates to the clinical/prescription system.
The heroin addict should be provided with heroin, methadone, or other narcotics, and encouraged, but not forced, to abstain. Clearly, sterile syringes and pharmaceutically pure and measured drugs would have a salutary effect on most addicts. The use of a clinical distribution and treatment system, such as that discussed for cocaine users, would be implemented. The psychological problems inherent in cocaine addiction are not symptomatic of opiate addiction. A legal opiate-addict population would not be subject to the medical and psychological problems that make dealing with compulsive stimulant users so problematic.
In all cases, publicly available drugs would be taxed and revenues turned to administer and expand drug treatment and distribution centers and drug education programs. In those cases where there is interest in the legitimate medical and psychological applications of specific drugs, tax revenues could be applied to research on those applications. Some examples might be further investigation of the use of cannabis in reducing chemotherapeutic ally induced nausea, or examination of the applications of psychedelics in psychotherapeutic and creative situations.
Provision of drugs to addicts would be based on ability to pay—an addict would never have to steal or sell drugs to pay for an addiction that is a medical-psychological problem.


PCP

PCP is a drug that appears to have great potential for abuse with serious antisocial consequences. Reports of violence precipitated by use of the drug, particularly in combination with alcohol and other drugs, suggest that PCP is a substance that may, in some individuals, be impossible to use safely even on an occasional basis. Anecdotal evidence, which may not be entirely reliable, indicates that use can precipitate psychosis, bizarre behavior, and, as noted, violence. PCP seems to be the illicit drug version of our worst nightmares. It would remain illegal for human use, although the outlawing of the drug as a veterinary anesthetic might be reevaluated.
A lesson is suggested from the epidemic of PCP (and crack) use in some urban areas. It is that uniform proscription of both extremely dangerous and much less dangerous psychoactive drugs may lead to disregard of legitimate warnings about drug use, and muddle the distinction between more and less harmful illicit drugs and more and less harmful modes of consumption. When marijuana is equated with PCP, the unfortunate end result appears to be a tendency to disregard the very real distinctions in the potential dangers of the two substances.
It is probable that some black market in PCP or pharmacologically similar substances will remain. With law enforcement resources freed from the pursuit of many other categories of drug offenders, however, it would be possible to focus on enforcement of PCP (and crack) prohibition. In addition, the economic incentive for a PCP black market would be greatly reduced if users knew they could obtain other potent substances cheaply and legally.


Psychedelics

The term psychedelics is used in reference to certain drugs that profoundly alter perception without causing tranquilization. It does not include PCP or pharmacologically similar substances. In an earlier paper, I used the term "hallucinogens," but altered this after it was pointed out that this term is often loosely used to group substances such as PCP with pharmacologically dissimilar substances such as LSD.
Psychedelics, including the naturally occurring plant drugs such a psilocybin and peyote, as well as synthetics such as LSD and MDMA (ecstasy), would be regulated quite differently from all other drug categories (Riedlinger, 1986).
Because these drugs have positive potential when properly used, but are dangerous to a very small percentage of psychologically unstable individuals, the legal provision of such drugs would be conditioned on demonstration of knowledge as to their effects (Krippner, 1985; Kurland, 1985; Yensen, 1985; Wolfson, 1986). This could involve completion of a written examination, screening test, and interview. Cultivation of psilocybin, peyote cacti, or other psychedelic plants for personal use would be permitted.
This category of drugs is not currently a source of much social discord in the United States or elsewhere. It is unfortunate, however, that sweeping prohibitions on legal use have driven such drugs underground and gainsaid their use by individuals willing to undergo appropriate preparation.
What is worse, of course, is that the user of purported psychedelics may be exposed to dangerous chemicals either deliberately or accidentally substituted for another drug. There is considerable evidence that this occurs repeatedly in the street sale of supposed psilocybin (Furst, 1986).
Prior to the LSD hysteria of the late 1960s and early 1970s research with great potential on the applications of that drug was being conducted by a large number of individuals. It is a tragedy of drug policy that the irresponsible behavior of a few prominent individuals led to the curtailment of potentially valuable medical and psychological research.


Prescription Drugs

The authority of physicians to prescribe drugs as they see fit would be restored. This does not mean that clear-cut instances of excessive prescribing to unknown patients would be tolerated. It does mean, however, that a physician would be able to prescribe various psychoactive drugs based on his judgment and the needs of his patients. This would necessitate a doctor-patient relationship. While it is not desirable to have physicians prescribing to patients they do not know, it is equally undesirable to have drug enforcement authorities setting up arbitrary restrictions, which preclude medical personnel from prescribing drugs to patients on a regular basis within the context of a medical relationship, simply because it might constitute maintenance of addiction.
The elimination of maintenance prescribing was the final result of judicial interpretations of the Harrison Narcotics Act, which many contend was originally conceived as a regulatory and tax measure, rather than a prohibitive fiat (Musto, 1987).
Repeal or reinterpretation of the Harrison Act would allow physicians to once again treat alcoholism through opiate substitution and to undercut the growth of a black market in other kinds of prescription drugs. It would do away with the necessity for subterfuge on the part of both physician and patient, and put the patient into a context where he could openly discuss with his physician the effects of specific drugs and how negative consequences of use might be mitigated.


Availability

In discussing regulation and distribution of narcotics, the implicit assumption was that these substances be made legal only for adults with the restrictions noted. The definition of adult might vary from state to state and for different substances. Previously, before the federal government pushed the states to make 21 the mandatory drinking age nationwide by threatening to withhold highway funds to those not in compliance, the District of Columbia made 18 the legal age for beer and wine and 21 the legal age for hard liquor. Drugs would not be made available to children. Age limitations could be either 18 or 21, depending on both the specific substance and the judgment of the individual states.
One of the most important reasons to consider legalization is the effect it would have in eliminating the association between drugs and an underground, criminal subculture. Currently, youngsters who seek out illicit drugs are often exposed to people who are criminals in other ways than just their possession or sale of prohibited substances. Critics of legalization are probably correct in assuming that it would be impossible to keep drugs, whether legal or illegal, completely out of the hands of children. The elimination of the profit motive, however, would reduce the incentive to deliberately employ children in the drug trade or otherwise entice them into contact with drugs.
Opponents of legalization have argued that prohibition works to the extent that it reduces accessibility, and that legalization, by increasing accessibility, would ipso facto lead to increased use. At least as regards marijuana, however, there is serious cause to question this reasoning. Recent survey data indicate that although 85% or more of high school seniors reported that marijuana has remained readily available in the past decade, daily use in 1988 had declined to the lowest level in more than a decade. Hence, availability does not appear to have been a significant factor in declining use (Reuter, 1987; National High School Senior Survey, 1989).
Most psychotropic drugs, then, would be made available to anyone who wants them, with certain restrictions, as noted above. Addicts would be handled somewhat differently, and the widespread availability of treatment slots, funded by newly available drug revenues, would replace the long waiting lines that now characterize our rather feeble efforts to assist those crying out for help. The answer as to whom drugs would be made available, like any carefully considered response to a complex problem, is complex.


Production

One of the benefits of legalization would be the opportunity to legitimize commerce in the raw materials and drug products of the current drug-producing countries, whether in South America, Southeast Asia, or elsewhere. With the exception of the United States, which is a major producer of high-quality marijuana, most of the countries currently involved in illicit drug production are poor. While the people of these countries have experienced substantial benefits from the illicit international drug market, the influx of narco-dollars has resulted in severe economic distortion, undermining of governmental authority, and an inability to rationally implement economic reforms.
Because a legally produced product would be subject to strict standards of purity and cleanliness, there would be some advantages to purchasing raw materials, such as coca and opium from foreign sources, while producing refined products in the United States. In fact, this is precisely what occurs now with the small legal production of medical cocaine and opiates in the United States and European countries. Another advantage of domestic production would be the provision of employment at various skill levels here. The establishment of cannabis, opium, and coca as domestic cash crops might eliminate the need for costly farm subsidies, while providing employment for farmers, unskilled laborers, pharmacists, chemists, and retailers. Conversely, the lower cost of labor in the major producing countries might dictate a heavy reliance on imports.
The latter would provide major economic benefits to the South American and other producing countries. There would be little incentive to continue illicit cocaine production since it would no longer be an irrationally valuable commodity. Similar effects would occur in relationship to the international opium market. This would virtually eliminate the corruption and violence now associated with the highly profitable black market. One is hard-pressed to recall an instance where the highly profitable commerce in coffee resulted in violence or corruption.
The United States currently produces a tremendous amount of high-quality marijuana, and, according to the DEA, will probably be the largest producer of that substance by the 1990s (Kupfer, 1988). Therefore, the crop would be both a domestic boon to American farmers and a cash export crop that could redress, to some extent, our international trade imbalance.


Distribution

The question as to precisely where and how drugs would be made available is not insignificant. Although a partial answer was provided earlier, further elaboration may be useful.
The response must be framed in terms of both providing drugs to the public and dealing with the specific problems of addicts or heavy users.
As noted, the government would act as a regulator, not a provider of drugs. There is no reason that legitimate pharmaceutical companies should be denied the opportunity to make a reasonable profit from drugs. In the case of coca tea and beverages, other marketing entities beside pharmaceutical houses would undoubtedly be involved. Marijuana would be sold as a regulated commodity, combining some of the regulatory constraints now applied to the marketing and distribution of both tobacco and alcohol, as well as additional restrictions on advertising. Experience indicates that the market would find a reasonable price level once the costs of illegality were not a factor.
Cocaine chewing gum, and smoking and edible opium, would be available through existing pharmaceutical outlets. It would be relatively easy for such outlets to acquire the equipment to monitor the ATM card system described earlier.
Provision of other forms of cocaine or opiates to addicts or heavy users would occur through combination clinic/distribution centers similar to current methadone centers and also through authorized individual physicians. The current methadone clinics could actually be incorporated into the new system in modified form.
Physicians could apply for a special narcotics-distribution license, which would be provided subject to certain criteria. These criteria would include establishing a regular physician-client relationship with all patients receiving narcotics and a pledge to periodically review the patients' patterns of drug use and suggest health options. While care must be taken that this oversight authority does not become a means of circumventing legalization, as many suggest happened with the Harrison Narcotics Act of 1914 (Musto, 1987), it would serve as a check on physicians becoming prescription writers without actively monitoring the health of their patients. Oversight authority might reside in a radically revamped and legally constrained DEA.
Coca-containing beverages and coca tea would be treated as foodstuffs unless the preparation contained an extract exceeding a designated percentage of coca. Simple coca tea and low-concentration beverages would be distributed as are coffee, tea, and colas now. The more potent beverages, including coca wine, would be distributed through liquor stores or other places selling alcohol, and regulated similarly. The determination as to what percentage coca extract would fall under alcohol-type regulation could be determined by toxicologists as the final step prior to legalization.
Cannabis, whether as marijuana or hashish, could be distributed through tobacconists or similar shops devoted exclusively to cannabis distribution. Sale of cannabis through liquor outlets would not be permitted in order to encourage a distinction between the two. While this may appear trivial to some, both the danger of additive effects from combining cannabis and alcohol, and the fact that cannabis used alone is considerably less dangerous than alcohol used alone, mandate maintaining a separation.
Due to the unique nature of the psychedelics and the necessity for the screening and testing process described above, it would make sense to establish dispensaries in which a user might also remain to ingest the substance if he so desired. Whether this would be cost-effective would have to be examined. The idea is for a comfortable but prosaic setting in which those unfamiliar with the psychological effects of a given drug would have access to knowledgeable, trained facilitators. The dispensaries would also serve as the screening and testing centers for those wishing to legally obtain psychedelics.


Regulation of Purity and Content

The question of how and by whom psychoactive drugs, both in plant form and other forms, would be regulated for purity and content is an important issue. It makes sense to examine existing mechanisms with an eye to adapting them to regulation of the psychoactive drug market.
Currently, the U.S. Department of Agriculture (USDA) and the Bureau of Alcohol, Tobacco and Firearms (BATF) share responsibility for regulating aspects of the commerce in alcohol and tobacco.
These existing regulatory bodies could be employed for quality control of a new legally regulated drug market. USDA, for example, could be responsible for grading marijuana for quality, presence of adulterants, and pesticide residues. BATF could function, as it does now for tobacco, to see that merchants comply with interstate commerce and tax regulations applicable to the cannabis trade. The question of tar and THC content in marijuana (and hashish), if modeled on the tobacco industry, would not be problematic.
Whether cannabis would be made available in convenient, prepackaged cigarettes, which, symbolically, might be unwise, or merely retailed the way pipe tobacco is now, could be decided upon legalization. In either case, however, the retailer would be required by law to display tar and THC content on the container from which the substance was dispensed. Currently, the Federal Trade Commission (FTC), which deals with all aspects of advertising, has a voluntary agreement with tobacco manufacturers regarding display of tar and nicotine content on cigarette packages and advertisements. No cannabis product would be offered through a vending machine, even on the premises of a licensed dispensary.
Regulation of plant psychedelics, such as psilocybin mushrooms, could also be handled by the USDA. In the case of some of these naturally occurring substances, the problem of spoilage would be a factor. USDA, however, has extensive experience dealing with perishables such as milk. It would seem unnecessary to create another bureaucracy strictly for regulating the quality of naturally occurring psychoactive agents.
Regulation of raw coca and opium would also be handled by the USDA; although once the coca went into the marketplace, it would be regulated, like coffee or tea, by the Food and Drug Administration (FDA) as a foodstuff. As noted previously, more concentrated coca extract would be regulated like alcohol, in which case purity and content would fall under the jurisdiction of BATE
Prescription drugs would be regulated as they are today, by the FDA. No changes would be necessary.
Objections to this scenario have been raised in regard to the difficulty of having the FDA involved for substances that could prove carcinogenic. This objection may not be applicable, however, since the smokable plant substances would fall under USDA regulation. As evidence regarding the specific health effects of different drugs accumulates, this could be incorporated into a warning label on the various products as occurs now with tobacco. Efforts to employ such labels on alcoholic beverages recently came to fruition.


Use of Tax Revenues

As noted above, a large part of tax revenues from drugs available to the public would be channeled toward drug distribution and treatment centers for addicts. The system would be self-financing, with revenues being used to cover administrative overhead. Addicts would be provided drugs based on their ability to pay. They would never be forced to resort to crime to support a habit.
The creation of innovative training programs, the provision of therapy, and the harnessing of manpower, from among those undergoing clinical treatment, to rebuild and renovate housing in economically depressed areas would be integral parts of the legalization program. The determination of a fair rate of taxation would rely on Grinspoon's concept of a harmfulness tax (Grinspoon, 1988), as well as historical experience with alcohol, tobacco, coffee, and tea. It is crucial, however, to keep the rate low enough so as not to create strong incentives for a black market. Taxes must be economically viable.


Advertising and Public Consumption

Advertising, other than basic telephone business listings, and pointof-sale information-only bulletins for cannabis, tobacco, and alcohol, would be prohibited. Opiates, cocaine in any form other than coca, and the entire panoply of drugs, including psychedelics, would be handled much as Class Five or "ledger narcotics" are now, i.e., the consumer would have to learn, through the appropriate governmental authority, or, more likely, word-of-mouth, where the substances are dispensed and could then inquire by telephone or at the location. As discussed above, coca and coca-containing beverages, except when combined with alcohol or containing a high concentration of coca extract, could be marketed and advertised like coffee and tea.
Public consumption should generally be prohibited, and violation of this prohibition should be punishable by a fine similar to a parking ticket. Intravenous drug use and use of crack or PCP in public would be punishable by overnight incarceration similar to that sometimes employed for public drunkenness.


Legalization as a Public Safety Issue

The question as to whether drug use, even if legal, should be proscribed for employees in certain occupations is one of the most difficult and challenging issues in the debate on regulatory reform. Marijuana is of particular interest here, since traces may sometimes be identified for weeks following use. The difficulty is determining the meaning of such residuals.
There is one study suggesting that use of marijuana may cause impairment in piloting ability for up to 24 hours following use. Although there has not been replication of the study, the findings deserve scrutiny because they indicated some degree of impairment even when the pilots no longer perceived themselves as impaired (Yesavage et al., 1985).
The study has been criticized for inadequate methodology in structuring of controls. The implications of this criticism are significant and suggest that caution must be exercised in making far-ranging policy decisions prior to accumulation of ample, replicable data (Morgan, 1987).[2] It is clear that the mere existence of traces of cannabinoids in the body days or weeks after use does not indicate impairment. It is important that individuals entrusted with the public safety be unimpaired. This need must be balanced against the constitutional protection provided by the Fourth Amendment. All drug testing is intrusive, and the most effective testing related to current impairment, through blood sampling, is most intrusive.
Also problematic is the fallibility of even sophisticated testing techniques (Bearman, 1988). While there is no resolution to the constitutional issue raised by testing, and while there is currently no way to correlate traces of cannabinoids with impairment, there is a partial solution to the problem.
In lieu of random drug testing among public safety officials and operators of common carriers, random psychomotor testing could be performed. This would directly measure the variables involved in safe operation of vehicles and equipment. Where there appears to be impairment, blood samples might then be taken. This would avoid interference in private behavior unless it had a direct impact upon onthe-job performance.
Another technological device, the interlock, could be applied to operators of common carriers. One possible version entails an electrically wired panel of lights that flash in sequence. Before the ignition will operate, the lights must be punched back in the same sequence by the prospective driver within a limited interval. The sequence would be randomly varied. If the driver took too long or punched the incorrect sequence, the vehicle would not start. Indeed, suggestions are being heard that such devices might be employed for first-time DWI (driving while intoxicated) offenders to prevent them from operating their vehicles in the future if impaired. While circumvention of systems could not be totally avoided, the implementation of laws making it a felony to tamper with an interlock, or for individuals to operate an interlock for an impaired person, would serve as a deterrent to such tampering and circumvention of intent. Unlike laws generally prohibiting use of drugs or alcohol, such a clearly public -safety-oriented law would stand a very good chance of eliciting cooperation, even from those individuals who feel that drug or alcohol use in nonhazardous circumstances is a private decision.
In the case of common carriers, it would represent an extremely modest additional expenditure to employ a safety technician responsible for monitoring interlocks to see that they were in working order and had not been tampered with. The advantage of a combination of random psychomotor testing and interlocks would be that all forms of impairment, including those caused by illness and neurological or psychiatric abnormalities, would be detected. In addition, the possibility of sophisticated drug or alcohol abusers circumventing accurate drug testing, which has already occurred, would become a non-issue. The public safety would be better addressed by this system, and the question of Fourth Amendment violations would be avoided. It would not be appropriate to subject educators, financial managers, and others not directly linked to public safety to this regimen.
It is also important to remember that some forms of substance-use do not cause impairment. The use of amphetamines to temporarily enhance alertness has been a common practice in the U.S. military and that of other nations. No one, for example, believes that a pilot is a menace following his morning cup of coffee. The use of coca tea or beverages would have to be viewed in the same light.


Medical Assessments of the Legalization Option

There is no unanimity of opinion among so-called medical and drug experts. It is not difficult to find individuals on both sides of the issues, and there are individuals in a variety of medical and health-related professions who now favor some form of drug legalization.
In the current climate it is difficult for anyone, physician or otherwise, to suggest that any drug use might be beneficial. It is relevant to recall, however, that although alcohol is one of the most damaging drugs of abuse (O'Driscoll, 1988) by any standard (tobacco causes more deaths, but less social tragedy), there are studies indicating that moderate consumption of alcoholic beverages may be beneficial (Law, 1980; Werth, 1980; Kagan et al., 1981; Marmot et al., 1981). There are probably physicians who feel that the same thing is true for moderate consumption of some other substances. There are certainly mental health professionals who feel that the use of psychedelics and related drugs has potential benefits under the right circumstances (Brecher, 1972; Krippner, 1985; Kurland, 1985; Yensen, 1985; Wolfson, 1986).
Open communication with the family physician is a good idea, and would be far more likely to occur if the paranoia induced by drug prohibition was removed. It is probable that many physicians would suggest abstinence as the ideal. It is also probable that, in an atmosphere of open communication, medical professionals would not hesitate to advise their patients on how to minimize the health risks involved in drug use. Former U.S. Surgeon General C. Everett Koop promoted the use of condoms while asserting that the unattainable ideal for safe sexual behavior was abstinence or monogamy. Due to drug prohibition, such a realistic, health-oriented approach is currently impossible with drugs.


Impact on Rates of Use and Addiction

In postulating what might happen to rates of use, addiction, and accidental drug-related deaths if drugs were legalized under the regimen explicated here, it is important to look to history both here and abroad for possible answers. Reformed drug policy in the Netherlands has resulted in decreased use of marijuana, despite its de facto legalization. Heroin use there has also declined (Ruter, 1988). Use of other opiates and cocaine has risen, although crack use is virtually nonexistent, and medical and social indices of drug use have stabilized. The Dutch system is not similar to my proposals, however, and does not provide for as much regulation or direct generation of revenues through taxation as do the proposals elaborated herein. The Dutch do tax the income produced from the sale of cannabis.
Another clue to the effects of legalization is available by looking at nineteenth-century America prior to widespread drug prohibition. In brief, all the historical evidence indicates that despite widespread and fully legal supplies of marijuana, cocaine, and opiate preparations, there were relatively few social problems associated with their use. There were medical problems and overdose deaths, but even these were minimized by the existence of orderly and pharmaceutically pure supplies of these substances. In many cases, such problems as did exist were caused by misleading labeling of patent medicines and immoderate medical use of drugs. People were often unaware of what drugs various patent medicines and remedies contained, and became addicted unwittingly. The patent medicine problem was remedied by passage of the Pure Food and Drug Act of 1906, but drug prohibition and its concomitant social problems did not begin until 1914, with passage of the Harrison Narcotics Act (Brecher, 1972).
An extremely important study, which is rarely cited in the current debate, was published in December 1967 in the American Journal of Public Health. Titled "Epidemiology of Cirrhosis of the Liver: National Mortality Data," it provides compelling evidence that, while the United States was experiencing a combination of public health benefits and social discord under Prohibition, the British were able to gain all of the public health benefits without recourse to prohibition (Terris, 1967). Not only did the British exceed the Americans in reduction of cirrhosis of the liver linked to alcohol consumption, they also succeeded in keeping the rate at a relatively low plateau. This contrasts sharply with the American experience, where alcohol consumption rose toward pre-Prohibition levels in the years following repeal, bringing with it a corresponding increase in cirrhosis.
This study is crucial in responding to legitimate concerns about the impact of liberalized narcotics laws on public health. The argument now heard in many quarters is that the tremendous health costs of legal alcohol provide grounds for dreading the effects of legalizing other drugs. Nowhere do opponents stop to consider how effective the British combination of taxation, rationing, and restricted hours were in reducing alcohol abuse without creating black markets and social disruption. Surely those who invoke the public health success of Prohibition must, in fairness, examine data that indicate there is an alternative to the polar extremes of complete prohibition or laissez faire legalization.
Another recently released study also provides grounds for optimism. The study, released in June 1988, is titled "Liver Cirrhosis Mortality in the United States, 19711985" (NIAA, 1988). It indicates that across virtually every age group (with the exception of over-75, where factors other than alcohol use may significantly contribute to cirrhosis), cirrhosis of the liver peaked between 1973 and 1975. Per capita consumption of hard liquor peaked at about the same time, and beer consumption a little later. While the reason for this encouraging development is not certain, a combination of education and the emphasis on health may have been important factors. It suggests that our culture is able to develop a responsible relationship with legally available psychoactive substances over time.
Depending on the assumptions used, it would be possible to paint either a grim or rosy postlegalization scenario. It is important to remember that the mere fact of drug use is not necessarily an evil, and an increase in use would not necessarily be a hallmark of failure. The best analogy would be that use of alcohol could remain stable or increase, but we would consider it progress if alcoholism and alcohol-related traffic and other fatalities declined.


Tolerance

Tolerance has a ceiling and is not unlimited, as some have implied (Rangel, 1988). It is true, however, that a small percentage of addicts may use enormous doses of drugs. It is the failure of stabilize drug habits that causes problems with tolerance; but there is no reason to think that in an orderly system such problems could not be minimized. The history of America in the nineteenth century indicates that many addicts not faced with an illegal life-style were able to stabilize their addiction and be productive members of society. In fact, a surprising number of eminent individuals were addicts; and there is evidence that addicted physicians were (and are) generally able to function effectively (Brecher, 1972).
The problems of tolerance and the interfacing of the addict or heavy user and the medical community has been handled in an innovative fashion in one British clinical program, where narcotics, including heroin and cocaine, are provided both to addicts and to users. The program, under the auspices of the Mersey Regional Health Authority, in Liverpool, England, is headed by Pat O'Hare and Allan Parry.
In a personal conversation with Parry in October 1988 [3] he explained how the staff at the Mersey clinic deals with tolerance and the problem of patients arguing with prescribing physicians over the quantity of narcotics provided. In essence, the physician makes an initial evaluation and then provides paramedical personnel with the responsibility to interface with the user/addict population on a regular basis. The physician is spared the stress of interacting regularly with the addict/user, and the paramedical personnel, some of whom may be prior addicts or users themselves, are able to establish rapport with most of the individuals who come to the clinic for help. The Mersey clinic has been the subject of a paper in and of itself, but this example alone shows that innovative and flexible approaches to interfacing with the user/addict population are possible.


Legalization and AIDS

It seems probable that bringing the intravenous drug culture within the legal fold and providing free, sterile needles would greatly reduce the spread of AIDS. While the balance of the debate on drug regulatory reform unfolds, there should be immediate action to provide sterile needles to all intravenous drug users. It was encouraging to see New York City embarking on a pilot needle exchange program in August 1988. Based on the Liverpool experience, however, it appears that the success of needle exchange programs in reducing HIV prevalence is closely linked to success in establishing a caring, nonthreatening context that encourages participation by the intravenous drug user (Parry and Newcombe, 1988).


Impact on Insurance and Health Care Costs

It is difficult, if not impossible, to project the impact of drug policy reform on either medical insurance or overall costs of health care. Perhaps as statistics accumulate, insurance companies would offer discounts for abstainers or moderate users as they do now for nonsmokers. Insurers in the nineteenth century did not penalize stabilized opiate addicts because they discovered they were not a costly health risk (Berridge, 1977). The same was not true for alcoholics.
Assuming the worst—that overall health care costs increased—there would be tremendous revenues available both from monies freed up from law enforcement and from funds produced through taxation of drugs. These funds would be earmarked for health care. Many solutions to complex problems involve trade-offs (Aldrich and Mikuriya, 1988; Church et al., 1988; Kupfer, 1988).


NOTES

 

  1. Some of the information regarding prominent Vin Mariani users comes from a personal conversation with Paul Eddy, co-author of The Cocaine Wars, during the course of the Mike Cuthbert Show on WAMU Radio, Washington, D.C., on June 17, 1988. (back)
  2. I had a personal conversation with Morgan on October 21, 1988, at the International Conference on Drug Policy Reform, presented by the Drug Policy Foundation at the Hyatt Regency in Bethesda, Maryland. Morgan related that he heard Yesavage testify that his study on the carry-over effects of marijuana was highly inconclusive. (back)
  3. This information comes from a personal conversation with Allan Parry on October 21, 1988, at the International Conference on Drug Policy Reform, presented by the Drug Policy Foundation at the National Press Club, Washington, D.C. Parry is Drugs/HIV Coordinator for the Mersey Regional Health Authority in Liverpool, England. (back)

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