Blows Against the Empire: MAPS wins round one against the DEA
Tuesday, a mid-level Administrative Law Judge at the US Drug Enforcement Agency (DEA), the agency which administers the Controlled Substances Act (a/k/a “the War on (some users) of (some) Drugs”, as it’s been called) provided a rare victory to a public interest group seeking to study marijuana as medicine.
The Controlled Substances Act (CSA), a Nixon Administration set piece which as has been discussed on the Newsroom-L list before was part of the “Southern Strategy” payback, designed to lash out at Nixon’s political enemies: blacks, war protesters, Jews etc. Read references here to Nixon’s demented rantings on drugs, captured on his secret taping system and therefore preserved in our National Archives. Only in America!
The CSA and DEA laws and related international Treaties set up a byzantine system of bureaucratic procedures and inter-agency consultations, supposedly based on science, in which a drug can be put on one of four “schedules” which control how severe the enforcement/penalties are for a certain drug added to this list of forbidden, “controlled” substances. The worst is “Schedule I”, drugs with no medical value AND highly addictive. heroin is Schedule I. But so is marijuana, a classification which rejected the contrary recommendations of the blue-ribbon panel chaired by then PA Governor Schafer. There have been several attempts over the years to reschedule marijuana. In 1988 an ALJ recommended rescheduling, but the petitions were ultimately denied, and refiled. The closest the rescheduling petitions have gotten to success was with the ALJ recommendation in 1988).
Another front in the medical marijuana war, besides rescheduling is proving its medical efficacy to the FDA, which would also involve the DEA and another research agency, the National Institute for Drug Abuse, which is in HHS and basically controls the research that can be done. And the long and short of it is that the research is very politicized: any study that proposes to study the BENEFITS of botanical cannabis will be frustrated. A key part of the frustration of this effort is that the FDA requires trials and proofs of a drug’s efficacy, but the source of legal cannabis which could be used is also controlled by the DEA/NIDA: it is grown only at a single university under contract, and the problem is that what is grown there is deliberately absolute schwag, frozen for years, full of sticks and seeds, with the potency of low grade Mexican brickweed. Not the high-potency seedless which is actually grown and sold on the vast black market, which cannot be used in valid research, because it is not the “government standard” pot.
A big, big Catch 22 to ever getting “marihuana” off of Schedule I.
Now comes MAPS, proposing that Dr. Lyle Craker, an agronomist at the University of Massachusetts in Amherst, be allowed to grow the kind bud in his highly secure facility for research purposes. And the petition goes to an administrative hearing in 2005 of several weeks’ duration, in which expert testimony was cross-examined and things got downright nasty and dirty (and stupid) when e.g., the DEA lawyer tried to argue that the project’s financial sponsor would not satisfy the required permit criteria that the research pot to be grown in Amherst wouldn’t be illegally “diverted” to MAP President’s private stash, because he admitted to personal illegal drug “abuse” (pot smoking once a week).
Anyway: punchline: MAPS wins, at least this round!! See ALJ Mary Ellen Bittner’s decision on the MAPS website.
There’s a lot of background about the CSA and international treaties you can breeze through in the first 40 pages or so, but the section entitled “The Events Leading Up to Respondent’s Application” which begins at page 40 and discusses in detail how the legalizers have been totally jacked around by the various drug control agencies of the government over the past 15 years is priceless (and apparently the justification for the decision which finds it in the public interest to allow objective scientific study that might support changes in a retrograde, but staunchly defended ideology concerning drugs prohibition).
The MAPS website and its page detailing the tortured progress of the application through the bowels of the bureaucracy’s administrative process to get the rock up the hill as far as they did is also fascinating reading, including the full transcripts of the hearing. Some of the more eye-popping testimonials on the “Dr. Cracker litigation” page of the MAPS website.
It can’t get much better than über-conservative Grover Norquist growling that “Scientific research on agricultural products should not be influenced by politics. If the test subject in question were dandelions, there would be no controversy here. The fact that some choose to abuse the cannabis plant illegally is immaterial. The use of controlled substances for legitimate research purposes is well-established, and has yielded a number of miracle medicines widely available to patients and doctors. This case should be no different. It’s in the public interest to end the government monopoly on marijuana legal for research.”, and economist Frederic Scherer, demolishing the government’s fatuous arguments that the current arrangement wasn’t a monopoly based on its pricing, quoting Friedrich A. Hayek’s, The Road to Serfdom:
“Our freedom of choice in a competitive society rests on the fact that, if one person refuses to satisfy our wishes, we can turn to another. But if we face a monopolist we are at his mercy. And an authority directing the whole economic system would be the most powerful monopolist conceivable. While we need probably not be afraid that such an authority would exploit this power in the manner in which a private monopolist would do so, while its purpose would presumably not be the extortion of maximum financial gain, it would have complete power to decide what we are to be given and on what terms… The power conferred by the control of production and prices is almost unlimited.” (The Road to Serfdom, 1976 University of Chicago revised edition, at p. 93).
It will be interesting, of course, to see whether the DEA accepts the ALJ’s recommendation and ultimately grants the horticulture application to Dr. Craker. The early word in the affected blogosphere (such as Dr. Tom Connell’s blog http://www.doctortom.org/) is highly skeptical, perhaps recalling the earlier Prague Spring of ALJ Francis Young when a DEA civil servant once raised hopes to be cruelly dashed by the higher powers in due course.
The one difference here, I’d argue, to hold out for hope is found in the tortured history of this application on the MAPS website. The DEA hosed the applicants around for a few years, refusing to even docket the application for hearings and review, until MAPS went to Federal Court and got an order requiring the DEA to accept and process the application. And if you read the opinion, you will see that it appears the statutory scheme is that if an applicant can demonstrate the four requirements set forth in the CSA law, he is required to be granted a registration by the DEA. It’s not all that discretionary, if you meet all the criteria, the way it’s laid out.
So, when this goes to the Deputy DEA Administrator for decision, the way ALJ Mary Ellen Bittner has drafted this lenghty decision, it’s going to be very difficult for the DEA to stall or “tilt” the outcome to one not supported by the substantial record evidence and decision. There’s nothing on the other side of the record, other than perhaps DEA Counsel’s speculation about Dr. Craker slipping Dr. Doblin some stash, which fails the “straight face” test, not that the Bush administation is not beyond buffoonery defending other retrograde policies favored by social conservatives.
Lastly, I’d be remiss in not giving a shout out and props here to MAPS legal counsel who prepared the applications, expert testimony and legal briefs which were submitted in the DEA hearings before ALJ Bittner: lead lawyer Julie Carpenter, Jenner & Block, assisted by Allen Hopper, ACLU and Emanuel Jacobowitz, Steptoe & Johnson, all of whom did the work pro bono. As a professional engaged in a similar line of work (administrative agency hearings regarding environmental impacts assessment and facility permitting), I know how much work and sweating the details has to go into “building a record” that at the end of the day makes a Judge buy your arguments in toto as opposed to the other sides’. Good work, and thanks!
