The Revolution in Consciousness Begins Now

This Saturday is the first Saturday in May and therefore the date of the annual NYC Cannabis Parade (known over the past four decades as "the Pot Parade,"  "May Day is Jay Day," "Rally to End the Drug War," "the Million Marijuana March," and "the Global Marijuana March" among identities).

The event site explains the history of the event and states the message - the time has come for New York to get on the right side of history and adopt progressive cannabis policies. Ending cannabis prohibition is a no-brainer. Medical use is obvious. General adult use is more complicated but can be accomplished if there is a genuine will to do so instead of bad faith obstructionism.

Prohibition (i.e. criminalization) of the cannabis market is a building block for prohibition as a whole, making it very valuable, since drug prohibition yields a high return as a formula for maintaining social control. It yields a permanent state of crisis, creating a black market that can fund both secret operations of intelligence agencies and insurgent armies while also simultaneously justifying domestic militarization featuring ubiquitous surveillance (even of bodily fluids), no-knock entry into private residences, and huge prisoner of war camps for participants in the market.  It is a formula for eternal war ... viewed from the paradigm of "substance substitution." That paradigm posits that humans, as sensation-seeking beings, tend to seek sensation in a variety of forms, such as stimulation, sedation and other variations in mood and perception, and the factor that determines what sensations, moods and perceptions are prevalent (in the absence of some seriously strong and change-resistant social norm against drug use - a norm absent from this society) is which psychoactive substances are prevalent. No matter what social controls are used, the vast majority of people use and will continue to use some psychoactive or dependence-inducing substance - coffee, tea, alcohol, tobacco, cannabis, meth, coke, heroin, LSD, MDMA, high fructose corn syrup and so on. The government can make cannabis legally available in the free market and allow consumers to pick a safer alternative to substances that are actually toxic or the government can ban cannabis, eliminate that safer alternative - and surprise! (not) - create a crisis in public health and public safety. One of the protests against the Reagan War on Drugs was the theory that eliminating cannabis made way for crack. (I don't have the citation handy but the Village Voice published a piece in the mid-80's called "How the Drug War Created Crack" on this subject.) Ban a legal market for cannabis in the name of public safety, create a public safety debacle, and then invoke the debacle as justification for prohibition. A guaranteed cycle of violence. How convenient for social control addicts.

I believe that if social policy (as expressed in law) were to make cannabis available legally there would be a reduction in alcohol and tobacco consumption as consumers switch to a substance that doubles as a food and an incense, cannot kill you and does not cause a hangover. It is a question of market share changing in the presence of a newly regulated product. For all you law students, I suggest that somewhere in cannabis prohibition is a legal theory supporting an antitrust/restraint of trade action against the federal government for conspiring with the alcohol, tobacco and pharmaceutical industries -  by criminalizing a competing industry.

Cannabis prohibition and drugs generally are no longer cutting-edge national security crises now so it is ironic and intriguing that New York State remains in the grip of a retrograde and stunningly inane policy for regulating the cannabis market (using criminal law to regulate the market instead of civil law). As the surrounding states fall like dominoes to the spread of more progressive cannabis laws (legalizing a market for a population limited to those consumers with physician referrals), the Gottfried-Savino medical cannabis bill stays pinned down in the State Senate - held hostage by a small clique of senators from Long Island. The Governor also opposes the idea of a medical cannabis law. We are not talking about legalization for general adult use; we are talking about a medical use bill that does not allow for individual cultivation and requires that anyone attempting to enter the market be approved by the Department of Health upon a written application. It is a staid, conservative piece of legislation that in today's climate of reform activity and the meltdown in the global prohibitionist regime is as radical as pancakes with maple syrup on a Sunday morning.

It is even more ironic that to date this City has not exerted countervailing influence on the state legislature since New York City is usually at the cutting edge of progressive social policies. Although the City Council supports the medical cannabis law, the Mayor opposes it, as discussed in previous posts (e.g. "Bloomberg and Brennan Come Out Against NY Medical Marijuana Law" and "The City Council Hearing"). The Mayor and his executive branch agencies, namely the Department of Health and Mental Hygiene and the Special Narcotics Prosecutor's Office, spout egregiously formulaic and dishonest disinformation that can only come out of a DEA briefing manual on "how to argue against legalization." They claim that a highly-restricted cannabis market (medical patients only) is impossible to implement safely and cite Los Angeles as an example that is being destroyed by dispensaries notwithstanding the utter irrelevance of the California medical cannabis experience to the tame regulatory system proposed for New York. They do not explain why after almost two decades of a legal medical cannabis market California has not fallen into the sea and after a decade plus Colorado is not a smoking crater.

They do not explain because .... no one challenges them. Not the press, not the City Council, not the substantial business interests here. No one demands that they demonstrate that there is some rational basis for their positions and that they are not simply reciting the DEA's Newspeak - no one but a handful of advocacy organizations demanding progressive policy on cannabis in the City of New York.

The message that cannabis law change is a critical intervention with immense consequences for society is spreading far and wide around the world but this revolution in consciousness has not yet occurred in New York, a city that is arguably (still) the capital of the world. The zillion dollar question is when will the populace realize the power it holds in its hands, rise up and demand change.

The goal of the Cannabis Parade and the gathering in Union Square is to demonstrate that the populace is ready for rational drug policy. If you are in New York City and are ready for the prison walls to fall, come to Union Square at 1 pm on May 4 and be counted.  A revolution in consciousness does not happen on its own. Bring the revolution in consciousness to the streets of the world capital, New York City.

Nebraska seals the border with Colorado

Buford Terrell published another interesting post, this one concerns the reaction of Nebraska to cannabis legalization in Colorado. According to Buford, Nebraska is preparing to sue Colorado. Perhaps the United Nations will join the lawsuit.

Massachusetts Attorney General issues excellent legal ruling - for New York

I thank Adam Scavone for bringing to my attention two recent articles from Massachusetts again focusing on what I have called in other posts, e.g. Cannabis Invades Massachusetts, the "frontline" in cannabis law: the legality of attempts by local government to ban the operation of the supply-side of the cannabis industry licensed by state law.

The first story, which came out on Monday, discusses identical bans on dispensaries enacted by three Massachusetts towns, Reading, Wakefield, Melrose, which together form a regional health district. It presents interviews with (a) the regional health director for those three localities and (b) a lawyer with the ACLU. This story came out prior to the news in the second story yesterday that the state Attorney General struck down the Wakefield ban.

The reasoning of the regional health director is highly suspect for many reasons, among them

1. The reference to federal money flowing into the district's substance abuse prevention programs can be construed in two ways: (a) the district receives federal funding for "prevention" that could be jeopardized if the district sits back and allows distribution of cannabis and (b) condoning the use of cannabis for any purpose will undermine its "prevention" efforts.

I cannot address fully now the immense significance and Orwellian aspects of "prevention" as a paradigm for social policy and social control, especially in the counter-revolution of the late 1970s against cannabis law reform (which counter-revolution is called, in political science terms, the emergence of "prevention" as the primary response to substance abuse).  Suffice it to say for the moment that in a sense, the "substance abuse prevention" field shares with the substance abuse treatment field the current monopoly on healthcare funding slotted towards cannabis, since cannabis is legally defined as a drug of abuse (i.e. the federal government has declared that it will not consider any of the existing evidence of medical use).  Note that "prevention" is a funding track for both the health care sector and law enforcement - surveillance cameras and police on the streets are considered form of "prevention" under the logic of the prohibitionist bureaucracy. Drug-testing is also a form of "prevention." You can see how powerful the "prevention" lobby is.

But in practice, could the presence of dispensaries really lead to the loss of federal funding for the district? If in fact that really is Ms. Clay's concern, the interview provides no basis for it, leading us to the second possible meaning of her comment, one which is more likely - the classic invocation of protecting the youth as the rationale for opposing any liberalization of cannabis laws.

A bedrock theory of cannabis prevention (which, in turn, is the bedrock of drug prohibition generally) is that no one should ever say that there could a non-injurious use of cannabis (let alone a therapeutic use of cannabis) because it will lead youth astray, i.e. it will undermine the abstinence-only model. In this worldview, a successful campaign against drug addiction requires censoring the idea that cannabis could be OK in some way because that idea is dangerous - by abating the message that "one puff and you're hooked - and then you're dead," you confuse youth. This model prevailed during the Reagan-Bush I continuum. It has taken a lot of hits since 1996 when Californians passed Proposition 215 - but it is still around, as can be seen from Ms. Clay's comment. Never mind whether it is accurate to deny therapeutic uses of cannabis and never mind the heavy question of whether the total prohibition of cannabis/abstinence-only model is and has always been a very bad idea. This position can be translated as "we are heavily invested in a flawed policy so we must keep pretending it is not flawed."

2. There is the classic ludicrous reference to what has happened in other unnamed (unknown?) jurisdictions that legalized a medical cannabis market. What can anyone say without knowing those jurisdictions are? If we know don't which jurisdictions then we cannot know what their laws provide (and cannot check as a factual matter what actually happened). The obvious logical meltdown in this argument is that state laws are different - problems resulting in one state (if they actually resulted) i.e. CALIFORNIA, could be the result of a different legal system which the newer legal systems are intended to avoid. If so then the clear productive next step is designing efficacy assessments for the legal systems, rating them and adopting and adapting them. No-brainer, that one. (In fairness, the interview with Ms. Clay was likely edited for publication so we don't know what she actually said.)

3. There is the explanation that the towns don't know what the regulations enacted by the state will be and maybe they won't be tight enough.

However, where there is a will there is a way and presumably, as pointed out by the ACLU lawyer, the localities are free to submit their comments to the state executive branch.

They could also enlist state legislators on the relevant committees supervising the health department to monitor the regulations as they are being drafted to ensure they are effective and protect the public health and welfare.

They could also begin convening hearings for their own constituents to discuss not how to ban dispensaries but how to integrate dispensaries into their communities.

This latter process is the important work of determining, under the state law of "preemption," in what manner and to what extent local governments can regulate beyond what the state provides. It can and should be determined at the outset of any discussion of state law, e.g. New York.

4. Then of course there is the research issue, a truly low blow in light of the fiendish activities of the DEA in this area as described in my article Madmen Rule You. What kind of research do the opponents of medical use (or any use) want? What proof of efficacy? Anyone who claims that a lack of research is the problem with implementing a medical cannabis system is free to tell the federal government to divert some fraction of its drug control budget to funding the research it says is missing as soon as possible. Even better, let those persons objecting to the medical use of cannabis demand that the National Institute on Drug Abuse provide the Multidisciplinary Association for Psychedelic Studies with cannabis so that it can conduct its FDA-approved clinical trial of cannabis.

That is the task: find a way to solve the problem, don't insist it is impossible.

The ACLU lawyer made several interesting points in response. The matter on which I wish to comment is her statement that the towns may not enact outright bans on what the state permits. I understand from my research that that basic principle of state-local legal relations is what applies in New York as well. Since, as of this writing, the proposed Gottfried-Savino bill does not build local input into its procedure for regulating the supply side (which will ALL be done at the state level by the Department of Health), I believe that it will be difficult for a local government in New York to enact a complete ban that will survive a legal challenge. The only place in the bill I see that affords local control is the requirement that the supply-side player demonstrate that it has the right to use sufficient land to conduct its operations, which to me means a certificate of occupancy or some other proof of compliance with local zoning law.

It was not fair to present a lawyer in counterpoint to the health director - the more useful debate would be between the lawyers for the three towns and ACLU lawyer. That should be the next story. Maybe it will take place in court documents presented to a judge by a local government and a private litigant.

The next story reports that the Massachusetts Attorney General struck down the ban. (I am not aware of any similar mechanism in New York for invalidating a local law; in the New York decisions I have seen local laws are upheld or invalidated by judges as "preempted" by state law after someone, e.g. a market participant, seeks a declaratory injunction and an injunction.) The summary appearing there indicates that the AG followed the reasoning stated by the ACLU lawyer.

The AG also upheld a moratorium, i.e. a temporary ban, on dispensaries by another locality. The comments of the head of the Massachusetts Municipal Association on that ruling confirm my belief that local law, specifically zoning, is the name of the game in implementing legal change.

Massachusetts is a model for New York. I think it clear that the task at hand for New Yorkers is to begin now designing the local regulatory systems and defining the relationships between state and local government that will facilitate the implementation of a viable legal cannabis market, whether "medical" or general adult use.

Power Trip: Psychiatry and the Unnameable

(c) Noah Potter 2013

  I researched and originally wrote this article as an undergraduate for an anthropology of mental health class in 1994. I tweaked it a few times since then but never tried to update it to keep the factual sections current with the times. The knowledgable reader will know that the field of psychedelic research has changed dramatically since I wrote it. I believe that the concepts in the paper are still relevant and I don't have my other posts ready so I'm posting the article. (Lawyers: I didn't feel like redoing the citation format so please disregard citation issues.) 

The Issue

To say a few words on psychoanalysis—I do not feel that psychoanalysis as it is organized today, as separate from psychiatry, will survive. The contributions of psychoanalysis which are considered constructive will have to be fused and merged with general clinical psychiatry. Psychoanalytic theories and practices...will also have to be related to brain function—not merely verbally, but through the consideration of neurophysiologic mechanisms.

Dr. Paul Hoch, Commissioner of the Department of Mental Hygiene, State of New York and a Professor of Clinical Psychiatry at Columbia University College of Physicians and Surgeons, speaking at the Proceedings of the Fifty-First Annual Meeting of the American Psychopathological Association, New York City, February 1961

And if it was in my power I would make every psychiatrist mad under controlled conditions, I mean artificially mad under controlled conditions; and I would make all mental health workers, and hospital staffs—I would make them all mad under controlled conditions, so that they could understand what it was like.  

Christopher Mayhew, Member of Parliament and a vice president of the National Association for Mental Health, recounting a mescaline experience to the Quarterly Meeting of the Royal Medico-Psychological Association in London, February 1961 

Introduction

 In this paper I intend to discuss the relationship between psychiatry, a subcategory of medical science, and LSD, a psychoactive compound which is frequently treated as representative of a subcategory of drugs with comparable effects known by such terms as hallucinogens, psychotomimetics, and psychedelics. It is my contention that the varying labels for LSD signify a divergence of opinions over the nature of “madness” that has had substantial implications for the evolution of concepts of mental health and mental illness. The prohibition of LSD has ensured the supremacy of the model of madness as a disease. However, the topic of LSD is not merely an historical example of the power of medical specialists to set definitions which are beyond challenge by laymen, but is the key to analyzing an unresolved competition between prospective purveyors of order in society.   

Historical/Etymological Background

 The first question that arises in a discussion of this subject is terminology. There is a plethora of terms to describe this category of substances. Even the latest publications with the heaviest authority acknowledge difficulty in characterizing this subset of psychoactive compounds. A probe of the language also reveals some uncertainty over the proper characterization of their action. The current Textbook of Substance Abuse Treatment, published in 1994 by no less an authority than the American Psychiatric Press states in the second paragraph of the chapter entitled “Hallucinogens” that 

The label hallucinogens actually is inaccurate because true LSD-induced hallucinations are rare. What are commonly seen are illusory phenomena. An illusion is a perceptual distortion of an actual stimulus in the environment. To “see” someone’s face melting is an illusion; to “see” a melting face when no one is present is a hallucination. Consequently, some have called these drugs illusionogenic. Those who use the terms psychedelic or mind-manifesting for hallucinogens (a term coined in 1957 by Osmond) have been criticized as being “pro-drug” much as those who use the term hallucinogen have been accused of being “anti-drug” (Osmond 1957). The term psychotomimetic, meaning a producer of psychosis, also has been widely used.

  In the chapter addressing the historical background of LSD in the recently published LSD: Still With Us After All These Years, co-editor Leigh A. Henderson draws up an extensive list of alternative names for “the class of drugs called hallucinogens”: “psychotomimetic  (psychosis-mimicking), psychotogenic  (psychosis-causing), psycholytic (mind-loosening), psychodysleptic  (mind-disrupting), psychedelic (mind-revealing), phanerothyme (soul-revealing), mysticomimetic, emotionalgenic, mind-expanding, mind-expanding, consciousness-expanding, transcendental, illusiogenic, phantasticant, and deliriant,” (Leigh and Henderson, 1994: 37). A brief exploration of three of the more commonly used terms may open a discussion of the power dynamics implicit here. 

  In the beginning was the hallucination.  Peter D. Slade and Richard P. Benthall in Sensory Deception, A Scientific Analysis of Hallucination trace the negative connotations of the perception of phenomena which are not materially present to within the pre-Reformation Church: “the scholastics argued for a sharp dividing line or discontinuity between normal perception and non-veridical perceptual experience. The important aspects of hallucinatory/imaginal experience for the scholastics, as reflected in the writings of St. Thomas Aquinas (AD 1225-1274), were source and content. For the scholastics, it was of crucial importance to decide on whether the reported experience was the work of the Devil, God, or other natural agencies or causes. "This initial move to qualify perceptual experience led to “the publication of Malleus maleficarum (The hammer of the witches)  in 1489.” The medieval authors “Kramer and Sprenger were charged with producing this work in order that Christendom could be defended against Satanic influences.”  

  It was actually the Inquisition, according to Slade and Benthall, “combined with the rediscovery of ancient Greek medicine in the guise of Galen and Hippocrates, which opened the way to the widespread acceptance of a medical, rather than religious, conception of madness.” These authors state that “enlightened and humane clerics” such as Teresa of Avila articulated “medical-type concepts and criteria” which caused the Church to “split into two camps, the hard-line inquisitors and the soft-line humanitarians.”  This split allowed physicians to build upon Galen’s conception of madness as a disturbance of bodily humours. Thus the word ‘hallucination,’  an anglicized version of the Latin allucinatio   (wandering of the mind, idle talk) was first introduced into English in the 1572 translation of a work by Lavater, in which the term was used to refer to a variety of strange noises, omens, and apparitions. (Slade and Benthall, 1988: 7). 

  In this portrayal, debate over the definition of madness is the catalyst that has revolutionary implications: the supplanting of ecclesiastical authorities by secular ones. Though it is really the subject of a different paper, the assertion made in Martin A. Lee and Bruce Shlain’s Acid Dreams: The Complete Social History of LSD that “[t]he witches of the Middle Ages concocted brews with various hallucinogenic compounds—belladonna, thorn apple, henbane and bufotenine (derived from the sweat gland of the toad Bufo marinus ) — and when the moon was full they flew off on their imaginary broomsticks to commune with spirits,” (Lee and Shlain, 1985: 66) bears mention. Dr. Thomas Szasz made the same assertion (Szasz, 1974: 62-63) ten years before Lee and Shlain in Ceremonial Chemistry, where he asserted that the drug control establishment is the descendant of the medieval Inquisition. This information was, however, buried deep in the historical record by the time that nineteenth-century European physicians set about investigating the plants of other continents that produced mental aberrations similar to those visible in madmen. 

Psychotomimesis

 The increased influx of psychoactive compounds to Europe beginning in the middle of the nineteenth century precipitated the rise of the psychotomimetic model. The agent of this rise was mescaline, the psychoactive element in the peyote cactus. An “important turning point” was reached when “in 1919 it was recognized that the molecular structure of mescaline was related to the structure of the adrenal hormone epinephrine.” This “structural resemblance of mescaline and epinephrine suggested a possible link between the drug and mental illness: Might the early, excited stage of schizophrenia be produced or at least triggered by an error in metabolism that produced a mescaline-like substance?” (Barron, Jarvik, and Bunnell, 1964: 32-33).  This possibility was made only more intriguing when the effects of LSD were discovered. 

 A chemist named Albert Hofmann working in a Sandoz laboratory in Basel, Switzerland, synthesized lysergic acid diethylamide-25 in 1938 “while investigating the chemical and pharmacological properties of ergot, a rye fungus rich in medicinal alkaloids,” (Lee and Shlain, 1985: xvii). In 1943, Dr. Hofmann produced another batch, some of which he accidentally ingested. Realizing that this compound had psychoactive properties, he concocted another batch to ingest. “On April 19, three days after his initial psychedelic voyage, Dr. Albert Hofmann swallowed a mere 250 micrograms (a millionth of an ounce), thinking that such a minuscule amount would have negligible results. But he was in for a surprise,” (Lee and Shlain, 1985: xviii). In fact “LSD is one of the most powerful psychoactive drugs known. As little as 10 micrograms (ten millionths of a gram or .01 milligram) produces some mild euphoria, loosening of inhibitions, and empathetic feelings.” (Grinspoon and Bakalar, 1979: 11).

 It was this power, apparently, that eventually attracted the attention of the United States Central Intelligence Agency.

 According to Lee and Shlain, Major General William Donovan, the director of the Office of Strategic Services (OSS), the forerunner of the CIA, initiated an American psycho-pharmacological warfare program in 1942 when he “assembled a half-dozen prestigious American scientists and asked them to undertake a top-secret research program. Their mission was to develop a speech-inducing drug for use in intelligence interrogations,” (3). A variety of drugs were tested, including “a highly potent extract of cannabis,” (4) which proved fruitless. 

 After the war, the CIA and the military picked up where the OSS had left off in the secret search for a truth serum,” focusing on mescaline—ostensibly in response to Nazi experiments on inmates at the concentration camp Dachau (5-6).  Once the CIA became aware of the powerful effects which LSD could produce, it was prioritized as a subject of study. The CIA program testing LSD was codenamed first Operation BLUEBIRD, then Operation ARTICHOKE, and then Operation MK-ULTRA (9-10, 27). LSD was not especially useful as an interrogation agent, but “the Agency was not about to discard such a powerful and unusual substance simply because it did not live up to its original expectations,” (15). The authors allege that “when acid entered the scene, the entire program assumed a more aggressive posture. The CIA’s turned-on strategists came to believe that mind control techniques could be applied to a wide range of operations above and beyond the strict category of ‘special interrogation,’” (18). 

 According to Lee and Shlain, it was Dr. Paul Hoch who coined the term “psychotomimetic” model—they call it his “landmark thesis.” They ascribe to the Commissioner of Mental Hygiene of the State of New York and Professor of Clinical Psychiatry at Columbia University’s College of Physicians and Surgeons (Hoch and Zubin, 1962: 137) the following positions: 

Hoch reported that the symptoms produced by LSD, mescaline and related drugs were similar to those of schizophrenia: intensity of color perception, hallucinations, depersonalization, intense anxiety, paranoia, and in some cases catatonic manifestations. As Hoch put it, “LSD and the Mescaline disorganize the psychic integration of the individual.” He believed that the medical profession was fortunate to have access to these substances, for now it would be possible to reconstruct temporary or model psychoses in the laboratory. LSD was considered an excellent research tool in that the subject could provide a detailed description of his experience while he was under the influence of the drug.

 What is the relationship between psychotomimesis and the CIA? According to Lee and Shlain,  “the model psychosis dovetailed particularly well with the secret schemes of the CIA, which also viewed LSD in terms of its ability to blow minds and make people crazy,” (20-21). Lee and Shlain assert that a substantial amount of the research conducted with LSD in the United States was funded by the CIA. To what extent this is true is unclear. However, their depiction of widespread work with LSD following its appearance in the United States at the Boston Psychopathic Hospital in 1949 (Grinspoon and Bakalar, 62) is well-documented. LSD was everywhere in the 1950s. 

The reign of medicine

 The number of scientific reports on LSD alone rose from six in 1950 to 118 in 1956; thereafter it remained at about one hundred a year until research with human subjects was cut off almost completely in the mid-1960s (Hoffer and Osmond 1967, pg. 83). Throughout the fifties psychedelic drugs, mainly LSD and mescaline, were rather freely available to physicians and psychiatrists and the United States. They were regarded as promising therapeutic agents or as interesting tools for exploring the mind; the United States Army and the CIA also investigated them in ethically dubious and sometimes outrageous experiments in as incapacitating agents for chemical warfare.

 As psychotomimetic drugs they could provide a biological explanation for schizophrenia. If they were also “promising therapeutic agents,” though, the logical possibility that madness, which LSD modeled, might be beneficial could arise. This would make for a bit of a puzzle, since madness would then not necessarily be an affliction in need of treatment or of treatment-providers. This was the setting for the advent of the term “psychedelic.”  

 “Psychedelic” is attributed to Dr. Humphry Osmond, who is known for having tried LSD as a treatment for alcoholism at Weyburn Hospital in Saskatchewan, Canada. The term supposedly first appeared in a conversation with the novelist Aldous Huxley, who had written about his mescaline experience in the book The Doors of Perception.

 The terminology used to describe the LSD experience in the scientific literature did not sit well with Osmond. Words like hallucination and psychosis were loaded; they implied negative states of mind. The psychiatric jargon reflected a pathological orientation, whereas a truly objective science would not impose value judgments on chemicals that produced unusual or altered states of consciousness. 

(Lee and Shlain, 54)

 Psychedelic therapy describes a single, high dose treatment intended to act as a breakthrough (Grinspoon and Bakalar). This sort of treatment, prevalent in North America, was what Osmond administered to his alcoholic patients. The use of several moderate doses of LSD in conjunction with psychotherapy describes psycholytic therapy. The conference in London from which this paper’s opening quote was taken was entitled “Hallucinogenic Drugs and their Psychotherapeutic Use." G. W. Arendsen-Hein presented a paper on his recent psycholytic use of LSD in psychotherapeutic treatment of what he described as “criminal psychopaths, or severely disturbed neurotic criminals,” (Crocket, 1963: 102). 

After thorough preparation of the patient as to what he could expect of this treatment and the establishment of  a firm positive relationship with the therapist and the nurse...LSD was given once a week or once a fortnight, as the patient desired, during ten to twenty weeks, according to his clinical progress and the re-integration of previously repressed material...
...To share the intense emotional experiences of the LSD world with a trustworthy companion means a deeper human relationship than the patient has ever experienced before. Unleashed and being able to express his feelings more freely than under normal conditions, the regressed patient can enter into an affective contact, hitherto unknown to him, and the therapist has then an opportunity to provide some emotional compensation for the affective starvation that the patient has suffered from in the past...

(Crocket, 104)

(excerpts from Conclusions)

Especially I feel that we have to postpone the verdict of incurability on constitutional hereditary grounds until we have tried seriously to establish an affective contact and to penetrate deeper into the emotional life of the patient, and tried to understand the underlying motives of his behaviour patterns. 

With this concept in mind, forming the general attitude of the staff, and aided by the tolerant atmosphere of the therapeutic institution and LSD, we have seen functional changes in the personality coming about that would have been regarded as impossible according to our conventional concepts.

(Crocket, 106)

 Lee and Shlain depict Dr. Hoch at the first international conference on LSD therapy in 1959, defending his model by denying any therapeutic use of LSD.

Despite ample evidence to the contrary Dr. Hoch stubbornly insisted that LSD and mescaline were “essentially anxiety-producing drugs.” He asserted that they were “not especially useful” in a therapeutic context because they disorganize the psychic integration of a person. LSD experiments, according to the chairman, could not be compared with “results obtained in patients where tranquilizing drugs were used to reduce, instead of stir up the patient’s symptoms." Dr. Hoch was incredulous when other participants in the Macy conference reported that their patients found the LSD session beneficial and personally rewarding and were usually eager to take the drug again. “In my experience,” Hoch announced, “no patient asks for it again.” 

(Lee and Shlain 69)

Prime time

 Thomas Szasz makes for lively reading, as do most polemicists. In Ceremonial Chemistry, Szasz attacks the pharmacracy, his term for medicine as a “method of social control or political rule” (Szasz, 1974: 139). In particular, he is warmed to the task of inveighing against “the Medical Holy War on drug abuse,” (67) which he likens to the witch-hunting Inquisition. Writing in 1974, Szasz had just witnessed a tremendous increase in mobilization of the American public against illegal drugs—what was in fact the beginning of the current War on Drugs. (Three critical components of the drug prohibition - the National Institute of Drug Abuse, the Drug Enforcement Administration, and the 1970 Controlled Substances Act - were made their first appearances during Nixon’s presidency.)  Though his ire is directed at medical specialists, in the chapter entitled “Cures and Controls,” Szasz relents momentarily by allowing “the physician” momentarily into the position of injured party. 

[T]he citizen as potential sick person is deprived of the right to self-medication...the opportunity and right to select the expert of his choice...and by the right to treatment with certain drugs which, although available in other countries, may be forbidden in the United States, even through prescription by accredited physicians. [T]he physician...is ultimately victimized, mainly as a result of the enforcement of precisely those drug controls whose ostensible aim was only the protection of the layman from ‘using the wrong medicine.’ This seemingly altruistic motive and practical goal conceals the drive for domination—of patient by physician, of some physicians by others, of physician by politician, in an unending spiral of regulations and tyrannizations.

(Szasz, 148)

  Szasz has inserted a small but important variant into his “Therapeutic State” of medical power which is smocked in compassion but prescribes coercion: there are checks and balances even on social control. 

 On January 18, 1968, the New York Times carried a page of excerpts from President Lyndon Johnson’s State of the Union Address of the day before, in which the Chief Executive announced that he would “propose a drug control act to provide stricter penalties for those who traffic in LSD and other dangerous drugs with our people,” (New York Times, 1/18/68: A16). Johnson did not neglect LSD in his anti-crime proposal to Congress, reported February 8: “I propose that the Congress immediately enact legislation to make the illegal manufacture, sale or distribution of LSD and other dangerous drugs a felony and the illegal possession of these drugs a misdemeanor,” (New York Times, 2/8/1968: A20). 

 What had happened? LSD had gotten out of the laboratories, the institutions, the controlled environments, and into the public consciousness. In line with Hoch’s concept of an LSD experience as being inherently negative, the official portrayal came to be that of an exclusively dangerous drug—a spreading plague of madness—as the authority to make definitions was removed from researchers and given to the police. 

  In 1962, tensions between Dr. Timothy Leary, a Psychology Professor, and other faculty members of Harvard University over his studies of psilocybin (a psychoactive compound found in some mushrooms) and LSD began to appear in the Boston press. After he and his colleague Ralph Metzner were fired in the following spring, Leary began to appear in the national press extolling the virtues of LSD. Hallucinogens had already passed from his scene at Harvard to New York through Beat poets and musicians.  Contemporaneously, Ken Kesey, a graduate student at Stanford University who had been a paid subject in psychotomimetic testing, became the node of a “psychedelic” scene on the West Coast. Reports of LSD began to percolate through the information veins of America. 

 Until 1962-1963, LSD, mescaline, and psilocybin were easy to obtain for clinical and experimental research; and until 1966 there were no state or federal criminal penalties for unauthorized possession, manufacture, and sale,” (Grinspoon and Bakalar, 75). The rate of LSD use skyrocketed. “[A]fter 1966, when Sandoz Pharmaceuticals took its LSD off the market in response to the new laws and the public atmosphere,” underground chemists began making it (Grinspoon and Bakalar, 75). By that time a subculture had bloomed around the experience of psychedelics. “The hippie movement constituted the mass following of the psychedelic ideology. It began to gather force around 1965 and reached its height between 1967 and 1969...there is no doubt that the initiating element, the sacrament, the symbolic center, the source of group identity in hippie lives was the psychedelic drug trip,” (Grinspoon and Bakalar, 70-71). 

 This story was not part of anybody’s international conference on hallucinogens. The medical authorities (presumably the very ones Szasz derides) responded with alarm at the way LSD and assorted drugs were manifesting outside clinical environments. This reaction was not without cause. Records from the time indicate that outside of such controlled spaces the potential adverse reactions might overwhelm the drug-taker. In 1965, LSD still required a graphic explanation in the press. The New York Times reprinted the contents of a New England Journal of Medicine report of an increase “in the number of patients admitted to the Bellevue Psychiatric Hospital because of bad reactions to LSD, a drug that produces powerful hallucinations and is being used experimentally in the treatment of mental illness...Its effects on the mind and perception were discovered in 1943. In addition to vivid, colorful hallucinations, these include many bizarre effects such as terror or other distortions of mood and perceptual disorders in which a patient may not, for example, be able to distinguish his own body and the chair he sits in.” This article emphasizes that the drug requires special knowledge or expertise in that ‘a large number of anxiety-ridden people have begun to experiment with acid in the hope of achieving help.’ The theme of the report was that there is little prospect for such help when the drug is taken by any but the most carefully chosen patients and is administered under any but the most carefully supervised conditions. 

 An editorial in the Journal makes clear the concern on the part of the elements of the medical profession: 

The editorial said the drug’s true value in research and treatment of patients still largely remains to be proven. It cautioned that further work with LSD and similar drugs ‘certainly should be undertaken only in controlled setting by scientists capable of impartial, critical judgment.’

(New York Times, 12/2/1965, 43)

 In October 1968, the New York Times ran a story with a very different tone entitled “Bill Signed to Curb Mind-Drug Peddling,” (New York Times, 10/26/1968: 26). It opened with a flourish: “President Johnson today signed a stiff measure designed to outlaw traffic in LSD and other mind-bending drugs.” After this trippy plug for acid, the article continues: “Mr. Johnson said in a statement: ‘It is measures like this—and not talk about crime—that strengthen the hand of our police and give our family protection.’ ” Apparently President Johnson was not listening to the head of the National Institute of Mental Health, Dr. Stanley Yolles.

 A month after Johnson’s anti-crime proposal to Congress, the Times ran almost a full-page spread on the testimony of Dr. Yolles, the director of the National Institute of Mental Health (NIMH), on the issue of drug abuse before the Senate Subcommittee on Juvenile Delinquency. The spread consisted of a summary of his testimony, excerpted remarks, and a personal profile of the doctor. The summary begins citing Dr. Yolles’ statement that “ ‘alienation,’ which he called a major underlying cause of drug abuse, was wider, deeper, and more diffuse than it has been at any other period in American history.”  

He said the problem—which he defined as “rebellion without a cause, rejection without a program and a refusal of what is without a vision of what should be”—deserved urgent attention. “If this is not done, there are serious dangers that large proportions of current and future generations will reach adulthood embittered towards the larger society, unequipped to take on parental, vocational, and other citizen roles, and involved in some form of socially deviant behavior,” he said.

 Ostensibly Dr. Yolles was in front of the Senate to testify about LSD and marijuana. He testified that LSD seemed use seemed to be declining, admissions to psychiatric hospitals for “bad trips” from LSD were reported lessening, marijuana use seemed to be increasing, no conclusive evidence was available concerning links between LSD and birth defects, scare tactics in drug education “are not only ineffectual, but are even detrimental to conveying needed information about the hazards of drug abuse,” and he proposed that “if we are ever to solve the problem of drug abuse, it is critical for us to focus on and try to solve the root causes of alienation.” 

 The last three paragraphs of the summary of Dr. Yolles' testimony read as follows:

He said that while he supported the Administration’s proposal to stiffen penalties for manufacture and sale of LSD and other dangerous drugs, he had personal reservations “as a physician” about penalties for possession of these and other drugs. 

Like the other health and medical experts who testified, Dr. Yolles was reluctant to speak publicly about differences of opinion with law enforcement officials on the philosophy of curbing drug abuse.

Generally, health officials have favored educational approaches over strong punitive measures for those who possess drugs for their own personal use. They have been critical of what they call “propaganda” and “scare tactics” of some law enforcement agencies, preferring straight, factual information.

Johnson signed the law controlling “mind-bending drugs” seven months later.

Overthrow

 The doctors lost control that year. They became subservient to the newly ascending police forces.

“In 1968 the Drug Abuse Amendments were modified to make possession of LSD a misdemeanor and sale a felony. Responsibility for enforcing the law was shifted from the FDA [Food and Drug Administration] to the newly formed Bureau of Narcotics and Dangerous Drugs (BNDD). Two years later psychedelic drugs were placed in the Schedule I category—a classification for drugs abuse that have no medical value,” (Lee and Shlain, 93).  The occasion of this “scheduling” was the Controlled Substances Act of 1970. The FDA was in the Department of Health, Education, and Welfare at the time (now the Department of Health and Human Services, or DHHS), the location of the federal health agencies. The BNDD was the name by which the Federal Bureau of Narcotics would be known as it moved out of the Treasury Department and into the Department of Justice, location of the federal domestic police agencies.

 After Dr. Yolles’ testimony, but before January of 1969, a workshop organized by the Pharmacology Section of the Psychopharmacology Research Branch of the NIMH was held at the University of California, Irvine. The topic was psychotomimetic drugs.  In the Preface to the Proceedings, Dr. Daniel Efron, the Chief of the NIMH Pharmacology Branch, mentions also the terms hallucinogenic and psychotogenic as possible labels. He then contrasts the “restricted” and “orderly”   “use of these psychotomimetic substances in ancient times” with the “abuse” and “disorderly manner” of use in the “new era” : “The newer times also brought with them the so-called experimenting with drugs by people who do not possess enough knowledge in this area and, what is worse, enough maturity to judge these ‘experiments,’ ” (Efron, 1969:5). Later, Dr. Morris Lipton of the University of North Carolina stated in his presentation on “The Relevance of Chemically-Induced Psychoses” that there was no definitive information one way or another on a biological root to schizophrenia or therapeutic uses of psychotomimetics. (237-239). 

 In the “general discussion” at the end of the conference, Dr. Lipton brought up “the pending legislation which may permit the Narcotics Bureau of the Department of Justice to control the distribution of psychotomimetics employed for research.”  This was “alarming” because “the utility of these compounds for the acquisition of new information about the brain and its functioning have hardly been tapped. Even their utility for therapy is far from clear.” Dr. Lipton suggested “we should individually and collectively through our organizations attempt to recommend a reasonable set of regulations, and these, it seems to me, should be under the control of the National Institutes of Health,” (330). Dr. Daniel Freedman of the Department of Psychiatry at the University of Chicago School of Medicine directed the issue to one Dr. Milton Joffe of the Abuse and Liabilities Branch of the Department of Justice. Dr. Joffe repeatedly assured the conference that everything was cool: there was no plan to “take over” “all research and education,” and that the impending “omnibus bill” would protect LSD and marijuana in a “research category.” Dr. Joffe eventually was addressed by three doctors in total, the second of whom was Dr. Freedman, and the third of whom, Dr. Victor Laties of the Department of Radiation Biology and Biophysics at the University of Rochester, asked specifically about language specifying that the Department of Justice would have discretion to license researchers wishing to do research with Schedule I compounds.

 Dr. Joffe made a few attempts to assure the conference that he, a doctor, was with them, not with his law enforcement superiors at the Department of Justice, and that he was as concerned as they were. His reassurances were empty. Clinical research with hallucinogens died a precipitous death until the 1990s (largely due to the activism of the Multidisciplinary Association for Psychedelic Studies). The Schedule I classification means that a substance is so dangerous that "there is a lack of accepted safety for use of the drug or other substance under medical supervision," (CSA 981)—in other words, hallucinogens are so dangerous that they can never be administered safely. The preceding text should make clear that that view was imposed on the researchers from outside, and that the research did not die of natural causes. 

 The statement by Jerome Jaffee, Nixon’s one-time chief of drug control policy, that in each case of proposed therapeutic uses of LSD, “use has been abandoned either because controlled studies have failed to demonstrate the value of LSD or because the precautions required to minimize adverse psychological reactions dampened enthusiasm and rendered its therapeutic use impractical,” (Gilman and Goodman,  1985: 565) is untruth tending—in its ignorance of history by one who was present there—towards conscious falsehood. 

Implications

  After the advent of LSD in the early 1950s, hallucinogens were the most promising new development in psychiatry. They seemed to verify the long-entertained suspicion that all varieties of mental life correspond to chemical substrates. However, the emergence of the psychedelic model undermined the model of mental illness as a disease, in that psychedelic and psycholytic therapies promised to help reveal the roots of mental illness buried in the memories of the afflicted. Implicit in the word “mind-revealing” is the faith that there is a mind to be revealed at all, a mind which is inconveniently unquantifiable – perhaps intangible.

  The disease model of madness treats it as a disease to be cured. Dr. Hoch’s insistence that LSD could not be a positive experience exemplifies the authority of the medical specialist to make proclamations about the mental patient’s experience. To the observer on the outside, the symptoms “thought, mood, and perceptual disorders” (Galanter and Kleber, 1994:141)—are clearly recognizable. But what do they signify? To the medical specialist they look like madness, and madness is a disorder, a disease to be cured. If they mimic schizophrenia, then they signify nothing.  Biology gives physicians jurisdiction here. 

 

  From the perspective of Mr. Mayhew, the Member of Parliament who wanted to make all psychiatrists mad, these drugs afforded a valuable learning experience for psychiatrists: they could feel what being mad is like. The psychotomimetic model ascribes all agency to the drug itself. In this model, doctors, who dictate the treatment modality, deny any effects of their own agency on the “psychosis.” Similarly, the biological disease model of madness rests on the assumption that the “disease” is produced wholly by the patient.  In contrast, if the symptoms of a hallucinogenic experience caused in “normal” people after ingestion of psychoactive compounds can vary, then potentially the experiences of the mad can vary as well. According to one definition, “iatrogenic,” meaning “caused by the mannerisms or treatment of a physician, is specified as “imaginary illness of the patient brought about by the physician,” (New Webster’s Dictionary, 1985: 473).  If the agency of the physician has iatrogenic effects in patients undergoing “psychomimesis,” that premise implies that some of the negative symptoms of mental illness generally might likewise be generated by the treatment regimen. In that case the outcome of hallucination could be revelation or psychosis, depending on the influence of outside agencies.    

  In examining these two different attitudes visible in psychiatry in the 1950s and early 1960s, which seems closer in spirit to our current conception of mental health? We live in a society in which the allegedly “mind-revealing” agents have been banned, while elimination of symptoms is considered “treatment” of mental illness. When psychedelia was banned, the opening doorway into the mind of the patient was slammed shut and locked, and psychiatry continued unimpeded in the business of labeling disorders. Is it not possible to see psychiatry today as being the result of the choice of a model of brain-adjusting over a model of mind-manifesting?

  This paper posits a feedback relationship between mental health and drug control policy, such that each one shapes the other. In essence, the drug control field is a deformity in the mental health field, an evolutionary offshoot subject to peculiar rules (such as the predominant presence of policemen and the national security state apparatus). The question now is how to re-integrate the two.

  The essential subconscious obstacle to an evolution in drug control is the premise that the psychedelic substances cannot have therapeutic applications, since the mental state generated or facilitated by psychedelics can only be pathological; the alternative conclusion poses too great a threat to the dominant model of normative consciousness. In simplest terms, because psychedelic substances, and to some extent, other psychoactive substances, induce states of abnormal perception and/or mood, they induce what appears to be pathology; in other words, they are ‘poisons’ and it is inconceivable to the current colloquial conception of mental health that a ‘poison’ – i.e. that which induces a ‘disease’ state of impaired rationality - could also be a medicine. The proposition that there could be a therapeutic use of psychedelics therefore threatens a fundamental dichotomy – the dichotomy between ‘sane’ and ‘insane.’ It may be that this ‘threat’ underlies, to some extent, opposition to reform of drug control policy in general.

  The relationship between mental health and drug control is clear as a historical matter – the drug control field clearly evolved out of the mental health discipline. Drug control therefore is most properly a matter of mental health norms. It may be that only by recognizing that the roots of the ‘drug’ issue lie in a mental illness stigma will it be possible to address the source of the fear and evolve to a new model of mental health. In accord with the foregoing, the matter of drug policy reform is then not an independent enterprise but depends upon a simultaneous evolution in the societal understanding of the nature of the mind.

Works Cited

Barron, Frank, Jarvik, Murray E., and Sterling Bunnell, Jr .

April 1964 “The Hallucinogenic Drugs.” Scientific American. pp.29-37.

Bill Signed to Curb Mind-Drug Peddling. (1968, October 26). New York Times,

sec. A,  p.26

Crocket, Richard, R.A Sandison, and Alexander Walk, ed.

1963 Hallucinogenic Drugs and Their Psychotherapeutic Use. London: H.K Lewis & Co. Ltd.

Drug Expert Warns on the Spread of ‘Alienation.’ (1968, March 7). New York Times

sec. A, p. 26

Efron, Daniel H, ed.

1970 Psychtomimetic Drugs. New York: Raven Press.

Excerpts From Statement on Drug Abuse Heard by Senate Panel on Delinquency.

1968, March 7. New York Times    sec. A, p. 26

Galanter, Marc, and Herb Kleber

1994 Textbook of Substance Abuse Treatment. Washington: American Psychiatric Press.

Goodman, Louis, and Alfred Goodman Gilman, eds. 

1985 The Pharmacological Basis of Therapeutics. New York: MacMillan Publsihing Company.

Grinspoon, Lester and James B. Bakalar

1979 Psychedelic Drugs Reconsidered. New York: Basic Books., Publishers.

Henderson, Leigh A. and William J. Glass, ed.

1994 LSD: Still With Us After All These Years. New York: Lexington Books.

Hoch, Paul H. and Joseph Zubin

1962 The Future of Psychiatry. New York: Grune & Stratton.

Institute of Medicine.

1994 Development of Anti-Addiction Medications: Issues for the Government and Private Sector. Washington: National Academy of Sciences.

Johnson Widens Narcotics Fight. (1968, February 8) New York Times,  sec A, p.1

Lee, Martin A. and Bruce Shlain.

1985 Acid Dreams: The Complete Social History of the Sixties and Beyond. 

New York: Grove Weidenfeld.

Schmeck, Harold M., Jr. (1965, December 2) Bellevue Notes Rise in LSD Cases. 

New York Times   Sec.A p.43

Slade, Peter D, and Richard Bentall

1988 Sensory Deception. Baltimore: Johns Hopkins University Press.

Szasz, Thomas

1974 Ceremonial Chemistry: The Ritual Persecution of Drugs, Addicts, and Pushers.

Garden City: Anchor Press/ Doubleday.

Transcript of President’s State of the Union Message to Congress and the Nation. (1968, January 18). New York Times 

The meaning of the DEA's recent victory in ASA v DEA

Following, after a brief introduction, are two comments on the D. C. Circuit Court of Appeals ruling last week in the proceeding captioned Americans for Safe Access v. Drug Enforcement Administration. In its decision the DC Circuit denied a petition by a coalition of drug law reform activists seeking to overturn the DEA's July 2011 decision not to conduct an evidentiary hearing as to whether cannabis should be moved out of the most restrictive category in US drug control, Schedule I of the Controlled Substances Act.

After those two points is a short colloquial summary of what I explained at length in my post of October 25, Madmen Rule You.  

I. Brief introduction

In Madmen Rule You I explained the legal theory which the DEA uses to supports its public statements that marijuana is not a medicine. Those statements are extremely deceptive. In technical terms, the actual legal position is that there is no "currently medical use in treatment in the United States," which I abbreviate for convenience as "CAMUIT" (pronounced "commute," as in "commute the sentences of all non-violent drug offenders").

I explained that there is a split of opinion between the DC Circuit in the Alliance for Cannabis Therapeutics v. Drug Enforcement Administration decision in 1994 and the 1st Circuit decision in the Grinspoon v Drug Enforcement Administration decision in 1987 - and the ASA v DEA case should go to the Supreme Court so that it can resolve the split.

I also explained that the DEA has perverted the procedure set forth in the Controlled Substances Act for evaluating whether cannabis should be moved out of the most restrictive category in federal drug control.

I also explained that the DEA's construction of the Controlled Substances Act is unconstitutional.

What happened last week - the two issues which the Court considered

In last week's decision the Court focused entirely on two points, disregarding almost the entirety of the petitioners' argument, which focused on evidence of the health benefits and safety of cannabis.

The first point concerned whether the petitioners had "standing" to sue the DEA, i.e. as a matter of the judiciary's self-generated housekeeping rules whether any of the petitioners were sufficiently damaged by the DEA's action that they had the right to sue. I am not going to discuss that issue.

The second point. Sigh. The Court disposed of the petition without reaching any other substantive point except whether the petitioners had shown the existence of "adequate and well-controlled studies proving efficacy of cannabis" because that is the test which the DEA claims to apply in determining whether there is a CAMUIT. I'm going to abbreviate "adequate and well-controlled studies standard" as "AWCS" (pronounced "awacs," as in one of the first scandals of the Reagan administration).

I discussed this test for several pages in Madmen Rule You because of my longstanding belief that this test is the key. It is the essential tool which the DEA uses to maintain permanent cannabis prohibition. It is the one issue that separates Schedule I (the legal prison for psychedelics) from all the other Schedules, i.e. the categories that allow as how there may be a therapeutic use.

I was right about the significance of this issue. The Court basically held that if you do not prove that there is a CAMUIT then just give up. There is no reason to proceed any farther in the analysis.

II. Two comments

1. The court decided only that the DEA need not conduct an evidentiary hearing

Notwithstanding careless reporting in the popular media, the decision and order from the DC Circuit did not rule that there is actually no medical use for cannabis. The Court ruled on the narrow question of whether the petitioners had shown that the DEA acted arbitrarily and capriciously in refusing even to hold a hearing on the scheduling - i.e. to call witnesses and present evidence of the safety, abuse potential ("addictiveness") and efficacy of cannabis - such that the Court should second-guess the administrative agency's decision. 

2. The petitioners did not challenge the DEA's thought-construct

In its decision, the Court set forth very quickly the fundamental defect in the petitioners' approach: they did not challenge the DEA's legal standard - they accepted the legal standard and tried to show that they met the standard. The Court said at page 24-25 of the decision:

Petitioners do not seriously dispute  the propriety of the five-part test approved in Alliance for Cannabis Therapeutics. Thus, they are left with the difficult task of showing that the DEA has misapplied its own regulations. Petitioners challenge the agency’s reasoning on each of the five factors. However, “[a] drug will be deemed to have a currently accepted medical use for CSA purposes only if all five of the foregoing elements are demonstrated.” Denial, 76 Fed. Reg.  at 40,579. In this case, we need only look at one factor, the existence of “adequate and well-controlled studies proving efficacy,” to resolve Petitioners’ claim.

Once you reach that text which I bolded and in particular the text which I italicized it's a pretty good guess that the case is over. The Court told the petitioners what went wrong: their job was to explain why the DEA's regulatory framework was wrong, not to show that the petitioners had met the DEA's requirements.

Once you accept the standard designed by the DEA to keep cannabis and other psychedelics prohibited forever, just give up. Such an approach is a disaster, as the Court's holding demonstrates. The DEA operates in a parallel universe of legal sophistry, a labyrinth of obfuscation and denial, the purpose of which is to maintain cannabis prohibition as an expression of an ideological position as to the nature of "mental health" and "mental illness." (An initial treatment of this topic appears in my post "Toxin and therapy in the mind of the bureaucracy.")

In fact, I believe that the DC Circuit actually looked quite favorably on the petitioners' position. I believe that the two judges in the majority understood that the DEA's test is defective but they held that the petitioners failed to attack the test and thereby could not prevail. 

Here's why. Petitioners relied primarily on the huge growth in 'peer-reviewed' studies to demonstrate that adequate and well-controlled studies demonstrated cannabis' medical uses. At page 26, the opinion says "Contrary to what Petitioners suggest, something more than “peer-reviewed” studies is required to satisfy DEA’s standard, and for good reason."   As I said in Madmen Rule You, the AWCS standard actually requires the equivalent of FDA-compliant Phase III clinical trials even though the DEA regulation does not explicitly say so (since it must avoid the Grinspoon holding, as discussed below). The DC Circuit agreed. ("The DEA interprets 'adequate and well-controlled studies' to mean studies similar to what the Food and Drug Administration (“FDA”) requires for a New Drug Application (“NDA”)." Page 26 of the DC Circuit's decision.) Now look at the Court's language: "something more than 'peer-reviewed studies' is required..." I believe that this statement is a joke -  because the Court recognizes that the DEA never explained what that "something more" is. In other words, the DEA has created a standard that is inherently arbitrary and capricious because it is completely subjective. The DC Circuit, located in DC, handles appeals from administrative agency decisions all the time - and a "something more" standard is obviously preposterous as an administrative standard. However, the petitioners never went after the integrity of that standard and the Court wasn't feeling charitable, especially not on the contentious issue of cannabis classification. It essentially punted this issue to the Supreme Court.

I believe that the Court actually focused on this standard in order to isolate it and focus attention on it. The Court could have sua sponte looked to the Grinspoon decision (which the petitioners cited in passing) and adopted that decision's reasoning but it did not, presumably because the petitioners never made the argument. 

III. Short colloquial summary of Madmen Rule You

- Perversion of the procedure for a petition to reschedule.

The DEA promulgated a regulation requiring that a petition to reschedule cannabis show that there is a CAMUIT. There is no basis whatsoever for that standard anywhere in the Controlled Substances Act. The DEA created it out of thin air. It is actually directly contrary to the CSA. The CSA does not require proof of medical use before conducting a hearing. It's an obvious matter of logic: whether there is a medical use is determined at the hearing on the petition and therefore it cannot be the threshold issue in the petition for initiating the hearing. It is the conclusion to be reached through consideration of evidence.

- There is no support in federal law for the "adequate and well-controlled studies" standard which the DEA invented in 1992: it is an attempt to avoid the holding of the 1st Circuit Court of Appeals in Grinspoon v. DEA, but a careful examination demonstrates that this new standard also cannot survive the reasoning in Grinspoon.

The DEA's AWCS standard is a completely baseless attempt to require that anyone attempting to break cannabis out of Schedule I conduct the equivalent of FDA Phase III clinical trials. The DEA's prior position was that CAMUIT was the same as the showing necessary to get FDA approval to market a drug in interstate commerce - a showing based on extremely long and expensive tests that a drug is "safe" and "effective" for a specific use. The 1st Circuit Court of Appeals explicitly rejected that position in Grinspoon. In response, the DEA formulated the AWCS standard. The problem with that standard is that it is the functional equivalent of FDA approval and fails the 1st Circuit's reasoning.

The essence of the 1st Circuit's reasoning was that Congress cannot have meant that the DEA need only check to see whether there is FDA approval when presented with a rescheduling petition - BECAUSE THEN THERE WOULD NEVER BE A NEED FOR AN EVIDENTIARY HEARING, rendering the petition process meaningless. (Every court tries to interpret a statute that gives effect to every part of a statute - and avoid the conclusion that a part of the statute is meaningless.) The DC Circuit itself in its prior decision NORML v DEA used exactly the same logic when adjudicating the first scheduling petition - the Court said that the agency must be flexible enough to consider various forms of evidence of medical use (which, remember, need not even be shown at the petitioning stage, i.e. BEFORE the evidentiary hearing).

Furthermore, everyone knows that in reality NO ONE IS GOING TO SPEND $800 MILLION ON A CLINICAL TRIAL OF A RAW BOTANICAL PRODUCT THAT HAS BEEN USED MEDICINALLY FOR A COUPLE THOUSAND YEARS AND CANNOT BE PATENTED. That clinical trial will NEVER HAPPEN as a practical matter. Most critically in connection with the AWCS standard, no one in his/her right mind unless s/he had $800M to blow, would pay for FDA-complaint clinical trials except in the course of an application for an NDA - the standard which the reasoning of the Grinspoon decision vaporized. 

The DEA then is doing exactly the thing that the 1st Circuit said was not valid - instead of the invalid test of checking only to see if the FDA has approved an NDA for cannabis, it simply uses the invalid test of checking to see if there have been unspecified results of some amorphous clinical trials not expressly defined anywhere in federal; if not, no hearing for you, sunshine, and the DEA will not consider evidence of any other  kind. But ... that approach directly contravenes the Grinspoon ruling: just checking to see the existence/non-existence of any particular fact, to the exclusion of all others, renders the evidentiary hearing part of the statute meaningless, a result every court seeks to avoid.

These AWCS are amorphous and undefined and no taxpayer-funded public servant should be allowed to get away with proposing an amorphous, undefined and entirely subjective standard as the test for whether there is a medical use. It is beyond ludicrous to propose that someone seeking to reschedule cannabis show the "results" of a clinical trial which the administrative agency never defines. What is this fabled clinical trial? Where does it exist in federal law? (Nowhere - the DEA cannot come out and say that it is an FDA Phase III trial.) What is it? Administrative agencies are not allowed to apply amorphous, undefined totally standards that are ripe for abuse. Furthermore, the DEA requires only "results" from the trials. What results - negative? positive? How positive? What success rate? What is the efficacy standard? 

Who reviews the results of these trials? The DEA? Really? Where does it get that authority? Well, it doesn't have that authority. The FDA? Well, maybe - except that there is no basis for that conclusion in federal law - and the Grinspoon holding precludes that conclusion.

There you have it, folks.
The DEA requires cannabis to pass a test that does not exist in federal law.
The only way the citizens can move cannabis out of Schedule I is to get an evidentiary hearing - so the DEA designed a test that will never permit an evidentiary hearing.
That is arbitrary and capricious.

Postscript:
If you want to read why the DEA's entire construction of the CAMUIT provision in the Controlled Substances Act is unconstitutional just go ahead and read Madmen Rule You already.

Toxin and therapy in the mind of the bureaucracy

A story titled "Marijuana Prescribed to Kids with ADHD," posted on AOL on November 24, 2009 [brought to my attention just recently by Eileen via Facebook], starts with the report that doctors in California are recommending cannabis for Attention Deficit Hyperactivity Disorder. It then progresses to its conclusion without identifying any specific doctor who has so recommended cannabis and reports on one anonymous kid who may have gotten such a recommendation. Hmm.

Anyway, that's not the point. The point is that the article focuses on the position of a psychology professor who says essentially that cannabis is not a treatment for a psychiatric disorder because it produces the symptoms of a psychiatric disorder, i.e. cognitive disorganization i.e. ADHD.

This story exposes the inner structure of cannabis prohibition and, by extension, psychedelic prohibition generally.

The reason why this article is so important is that instead of focusing on the usual debate whether cannabis can be a legitimate treatment for a condition like nausea or pain, it poses the question of whether cannabis can be a legitimate treatment for a condition listed in the Diagnostic and Statistical Manual (the DSM), i.e. whether it can be a "psychiatric medication" or part of "mental health" care generally.

In light of the size of the market of the psychiatric medication market - think depression, ADHD, OCD, anxiety - this issue is important. I think it's the real elephant in the room, the lurking presence which no one can acknowledge: can psychedelics ever go back to being psychiatric medications, health care products that could compete with the blockbuster psych meds from big pharma?

The model which the psychologist describes is one in which cannabis cannot be part of mental health care - at least for ADHD - because the effects of cannabis use correspond to what he considers the effects of the condition itself, i.e. symptoms of the disease. In his worldview, cannabis is effectively toxic (a disease-inducing input) to mental function, not therapeutic. It can only make every situation worse.

This is the same control paradigm that applies to all of the psychedelics, which have been incarcerated in Schedule I for thirty+ years. If LSD creates the symptoms of mental illness, how can it be therapeutic? Everyone knows that psychiatric therapy reduces the symptoms of mental illness, that which is visible from the outside.

Now we come into the innermost chamber.

The nature of drug control depends on which part of the government regulates the drugs.

Genealogically, the disciplines of "substance abuse prevention" and "substance abuse treatment" are descendants of - or perhaps mutations from - the much much broader field of "mental health" (once known as "mental hygiene"[!].) In the early 1970s they splintered away into a separate part of social control, as indicated by the fact that the substance abuse and alcohol abuse components of the National Institute of Mental Health were extracted and turned into free-standing bureaucracies - the National Institute on Drug Abuse (NIDA) and the National Institute on Alcohol Abuse and Alcoholism  (NIAAA) - on a par with their parent.

The story of "medical marijuana" as a matter of political science/social organization is the story of the end of law enforcement's monopolization of cannabis regulation (i.e. via enforcement of criminal law). Authority over the use of cannabis, at least in some small part, moved to doctors and patients when the states provided an affirmative defense to criminal prosecution for cannabis possession. The states of Washington and Colorado have now moved control of the supply side beyond the state health departments to the regulators of commerce in consumer products generally, in one case to the alcohol control board.

The question as to the other psychedelics then is whether and, if so, when they too will move from a bureaucratic environment (the DEA/NIDA continuum) that treats them exclusively as toxins to a part of the bureaucracy that can regulate them as therapies.  

Cannabis invades Massachusetts

A recent article in the Boston Globe, "Mass. towns, regulators brace for medical marijuana" sets forth neatly the issues of the hour as cannabis continues its spread east and invades the major Northeastern state of Massachusetts - with a major metropolitan area, Boston, almost on the outskirts of the national (civilizational?) capital, New York City.

As discussed previously, the story being told is how individual communities in the state are trying to delay implementation of the law.  Not every one in a cannabis law reform state wants a cannabis dispensary and/or grow-up in his backyard, you know.

Principles

I am focusing on this report because it provides an example of how you can break apart a standard story and extract some general principles.

I reduce the story as follows:
- a state law sets forth general principles of regulation with delegation of discretion to an executive branch administrative agency, in this case the public health side of the government
- members of the public and government are concerned that the "medical" aspect of the law will be exploited by people who don't really "need" cannabis and that the medical establishment is not capable of handling the job.

Which side of the government governs

I set forth in my post "Save Us from the Doctors" and other articles in June and July of 2010 my position that you can open up the whole, vast continuum of psychoactive substance law (known in part as "drug law") with the question "who regulates?"

At first the question is: police or doctors?

Once we move out of the medical/non-medical dichotomy (the building block construct of prohibition), the questions can evolve: the department of health - or the department of agriculture - or the liquor control board - or the department of consumer affairs or, as with tobacco, maybe just the tax department?
Maybe all of them regulate a little bit.

That is essentially the question of which regulatory branch is in control.

Which level of government governs

However there is also another set of questions: which level of government decides how cannabis (as with other psychoactive substances) is used?

The land use story is the story of concentric sovereigns.
At the broadest level is the treaty system - governing at the international level.
Next there are federal statutes and regulations.
Then there are state/provincial statues and regulations.
Then there are municipal laws and regulations.
Eventually you may reach the neighborhood level.
At the atomic level is the conduct within your own house and, eventually, your own head.

Who governs what you do within your head within your house?

Planning
I am sympathetic to those who think the laws are being rushed through without enough time to plan.
The downside to rapid reform in cannabis law would be failure and retreat back into criminalization.
There is no reason not to start planning now, everywhere, at the local level.
Maybe then it will be possible to avoid repeating the current situation in Massachusetts.