Effective Drug Control: Toward A New Legal Framework State-Level Regulation as a Workable Alternative to the “War on Drugs” King County Bar Association Drug Policy Project 1200 Fifth Avenue, Suite 600 Seattle, Washington 98101 206/267-7001 www.kcba.org © Copyright 2005 King County Bar Association TABLE OF CONTENTS RESOLUTION – STATE REGULATION AND CONTROL OF PSYCHOACTIVE SUBSTANCES…………… ix INTRODUCTION………………………………………………………. 1 PART I DRUGS AND THE DRUG LAWS: HISTORICAL AND CULTURAL CONTEXTS A NATURAL PROPENSITY……………………………….…....................... 7 PROHIBITIONS OF THE PAST…………………………….……………… 8 GROUNDWORK FOR DRUG PROHIBITION IN AMERICA………….. 9 The 19th Century: A Rudimentary Pharmacopoeia The Puritan and the Progressive: Confluence of Cultural Strains Patterns of Drug Prohibition and Race LEGISLATIVE BEGINNINGS IN THE STATES……….………..………14 THE FIRST FEDERAL DRUG LAWS….………………………………….15 The Pure Food and Drug Act Opium and U.S. Occupation of the Philippines Opium and Tension With China The 1909 Opium Exclusion Act The Foster Antinarcotics Bill: Prelude to the Harrison Act The Harrison Act of 1914 and its Interpretation The Doremus and Webb Decisions A New Political Climate The Behrman and Linder Decisions DRUG PROHIBITION AND BUREAUCRATIC ENTRENCHMENT….. 21 The Porter Act of 1930 “Reefer Madness” The Marihuana Tax Act of 1937 The Boggs Act of 1951 Criticism from the Professions The Narcotic Control (Daniel) Act of 1956 Drug Abuse Control Act of 1965 THE MODERN “WAR ON DRUGS”………………………….…………… 26 The Comprehensive Drug Abuse Prevention and Control Act of 1970 The Comprehensive Crime Control Act of 1984 The Anti-Drug Abuse Act of 1986 The Anti-Drug Abuse Act of 1988 The “War on Drugs” into the 21st Century The Legacy of Drug Prohibition PART II INTERNATIONAL TRENDS IN DRUG POLICY: LESSONS LEARNED FROM ABROAD INTERNATIONAL LEGAL FRAMEWORK……………….……….…….. 31 STRICT PROHIBITION MODEL………………………….………………. 32 “Source Control” Death Penalties and Death Squads Citizenship Revocation and Deportation Mass Incarceration INNOVATIONS WITHIN THE PROHIBITION MODEL……………..... 36 Harm Reduction – A Guiding Principle Diversion and Drug Treatment Decriminalization Cannabis Normalization Safe Administration of “Hard” Drugs Drug Prescription Legalization and Regulation LESSONS LEARNED: THE LIMITS OF THE PROHIBITION MODEL……………………….…47 PART III CONTROLLING PSYCHOACTIVE SUBSTANCES: THE CURRENT SYSTEM AND ALTERNATIVE MODELS THE CURRENT SYSTEM OF DRUG CONTROL…….…………………..53 International Treaties………………………………………….……... 53 U.S. Drug Control – Federal Preemption…………………………… 53 Controlled Substances Act Federal Food, Drug and Cosmetic Act Federal Agencies Alcohol Exemption under the 21st Amendment What the Current System Allows………………………………….… 56 The Business of Dealing Drugs Financing Terrorism Environmental Harms Harsh Punishment and Racial Disparities Impaired Administration of Justice and Civil Rights Curbs on Legitimate Medical Practice Increases in Drug-Related Harms State Administration of the Current Drug Control System……...... 62 Uniform Controlled Substances Act Drug Courts and Treatment Alternatives De-policing CURRENT STATE-LEVEL MODELS FOR REGULATING DRUGS.... 64 Regulatory Mechanisms for Currently Legal Substances……..….. 64 Alcohol Washington State Liquor Control Board Tobacco Pharmaceuticals and the “Gray Market” Existing Legal Remedies – Civil and Other Non-Criminal Sanctions……………………….…. 67 Civil Proceedings: The Other “Drug Courts” Civil Contempt and Remedial Sanctions: Coercion With a Purpose Professional Sanctions ALTERNATIVE MODELS OF DRUG CONTROL…………………….. 69 General Frameworks………………………………………….……. 69 Report from Britain– After the War on Drugs: Options for Control Regulatory Options A Variety of Ideas Specific Models………………………………………………….…... 75 Safe Administration and Prescription of “Hard” Drugs Past Proposed Legislation PART IV STATES’ RIGHTS: TOWARD A FEDERALIST DRUG POLICY POWERS RESERVED TO THE STATES……………………………….. 81 Police Power and State Sovereignty FEDERAL ENCROACHMENT ON STATES’ RIGHTS……………….. 82 Federal Commerce Power Prohibition and “Regulation” of Illicit Commerce THE PREEMPTIVE EFFECT OF FEDERAL DRUG LAWS………….. 83 The Controlled Substances Act Growing Federal Commerce Power – Pending Supreme Court Decisions THE COMMERCE CLAUSE TURNED ON ITS HEAD…....………….. 85 Tests for State Police Power – A Drug Policy Scenario STEPS TOWARD A FEDERALIST DRUG POLICY…………………... 87 States as Laboratories Key Amendments to Federal Drug Law CURRENT OPTIONS AVAILABLE TO THE STATES……………….. 88 Reassertion of Inherent Police Powers Exclusive Regulation of Medical Practice State as “Market Participant” CONTINUED FEDERAL INTERFERENCE?.......................................... 90 Federal Police Power Taxing and Spending Powers Implied Foreign Affairs Power SUMMARY……………………………………………………….………... 91 PART V PARAMETERS OF A NEW LEGAL FRAMEWORK FOR PSYCHOACTIVE SUBSTANCE CONTROL PRINCIPLES AND OBJECTIVES…………………………………………. 95 REGULATION AND CONTROL – ESSENTIAL COMPONENTS….. 96 Controversial Terminology Substances Subject to State Regulation and Control The Importance of State Control Sources of Production Effects on Current Drug Prescription Regime Purity, Labeling and Health Warnings Limits on Access to Psychoactive Substances Private Production and Consumption of Cannabis The Moral Authority of the State PROTECTING YOUNG PERSONS FROM THE HARMS OF DRUGS……………………………………………….……...101 1) Should young persons be legally prohibited from possessing and consuming psychoactive substances? 2) Should young persons be criminally punished for possessing and consuming psychoactive substances? 3) Should young persons be criminally punished for selling or otherwise providing psychoactive substances to others? 4) What measures should be promoted to reduce the harm from and to discourage the use of psychoactive substances by young persons? 5) What measures are needed to limit the illegal market for psychoactive substances that targets young persons? CURBING DEMAND FOR DRUGS: LIMITING PROMOTION….. 105 The Harms of Unfettered Promotion First Amendment Issues The Importance of Counter-Advertising CURRENT SYSTEMS LEFT UNTOUCHED……………………...…… 108 The Courts and the Justice System……………………………...….108 Holding People Accountable Continued Utility of Drug Courts Driving Under the Influence Drug Use by Professionals ADDRESSING PERSISTENT PROBLEMS………………………..……109 The Gray Market The Black Market Alcohol and Cannabis: The Substitution Effect Preventing Increases in Drug Addiction Preventing Increases in Crime and Violence Costs and Cost Savings IMPLEMENTING A NEW FRAMEWORK…………………..…………111 Incremental Reforms and Safety Valves ENDNOTES……………………………..………….....…..…112 RESOLUTION State Regulation and Control of Psychoactive Substances The King County Bar Association, together with a coalition of professional and civic organizations, has been examining a public health approach to the chronic societal problem of substance abuse and encouraging public investment in research, education, prevention and treatment as a more effective alternative to the use of criminal sanctions. The King County Bar Association has concluded, in consideration of the findings enumerated below, that the establishment of a new legal framework of state-level regulatory control over psychoactive substances, intended to render the illegal markets for such substances unprofitable, to restrict access to psychoactive substances by young persons and to provide prompt health care and essential services to persons suffering from chemical dependency and addiction, will better serve the objectives of reducing crime, improving public order, enhancing public health, protecting children and wisely using scarce public resources, than current drug policies. Therefore, the King County Bar Association resolves that: The Washington State Legislature should establish a special consultative body, composed of experts in pharmacology, education, medicine, public health, law and law enforcement, as well as public officials and civic leaders, including delegates from the leadership of each caucus in the House and Senate, to provide specific recommendations for legislation to establish regulatory systems and structures for the State of Washington to control psychoactive substances that are currently produced and distributed exclusively through illegal markets, including the regulation of manufacturing, transportation, storage, purity and product safety, limitations on sale and other transfer, labeling, pricing and taxation, requirements of medical supervision, limits on advertising, and the civil and criminal enforcement of such regulations, as set forth more fully below. The King County Bar Association transmits this resolution to the Washington State Legislature, urging the establishment of a special consultative body as provided and for the purposes stated in this resolution. ADOPTED this 19th day of January, 2005. The Coalition and Its Task Forces and Committees The coalition includes the King County Medical Society, the Church Council of Greater Seattle, the Loren Miller Bar Association, the Municipal League of King County, the Seattle League of Women Voters, the Washington Academy of Family Physicians, the Washington Association of Addiction Programs, the Washington Osteopathic Medical Association, Washington Physicians for Social Responsibility, the Washington Society of Addiction Medicine, the Washington State Bar Association, the Washington State Medical Association, the Washington State Pharmacy Association, the Washington State Psychiatric Association,