Tuesday, March 12, 2013

Why Heroin Should be Legal, Responding to the DEA

In a free society you need a reason to make something illegal. Therefore the real question is why should heroin be prohibited?

First and foremost heroin, or diacetylmorphine, is an opiate in the same class as morphine, oxycodone (percocet, oxycontin), hydrocodone (Vicodin) and codeine (Tylenol 3). Heroin itself functions as a pro-drug, a substance not pharmacologically active (or weakly active) but, through natural metabolic processes of the body, is converted into an pharmacologically active form. Once in the body, heroin is converted to morphine.   It is absurd that heroin is claimed to have no medical value when its primary metabolite is on the World Health Organization's list of essential medicines. Prohibitionist doctors claim that we have other opiates and synthetic opioids which work just as well, though this claim is not extended to other drugs.

However I claim heroin should be made available to adults beyond the narrow parameters of "medical" use. After all who gets to define what is or what is not medical? Government bureaucrats and professional groups of medical doctors. When it comes to one's own body and mind, the final arbiter of what is and what is not therapeutic must lie with the individual. This is not to say that doctor's are irrelevant, but if an individual uses heroin (or opium, cannabis or coca for that matter) to improve their mood, is this drug abuse or self-medication? It must also be acknowledged that not all users are self-medicating, certainly there are people who take heroin for fun, the so-called recreational users. Is it justifiable to have alcohol available for recreational purposes while banning opiates? Surely there must be a good health reason why heroin is prohibited while alcohol available? Sadly not, in many ways heroin, and opiates in general, are less toxic than alcohol. Aside from dependence (tolerance and withdrawal syndrome) and the risk of acute overdose, heroin is a benign drug. Alcohol also shares the risks of dependence and acute overdose.

The italicized sections are from the DEA's publication "Speaking Out Against Drug Legalization." The booklet is broken into "facts" and "myths" about drug legalization. I have selected some of them for specific, point by point rebuttal.

The parallel between alcohol prohibition in the 1920’s and the current status of marijuana, heroin, and other dangerous drugs is tenuous.  The 18th Amendment took a popular activity, alcohol sales, which was widely tolerated, and made it illegal. It did so after more than a century of growing concern over the effects of excessive alcohol consumption was having on society.  In contrast, the use of marijuana, heroin, or other controlled drugs has never been a widely accepted activity.

This statement may have been true in 1950, but today is absolutely false. Half of all Americans will at least admit to using illegal drugs, marijuana being the most common. The current and last president of the US are former cocaine users. Regardless of numbers of users, the US does not govern by majority rule. Even a later paragraph from the DEA disputes this.

In 2008, according to the National Survey on Drug Use and Health, an estimated 20.1 million Americans aged 12 or older were current (past month) illicit drug users, meaning they had used an illicit drug during the month prior to the survey interview. This estimate represents 8 percent of the population aged 12 years old or older. Illicit drugs include marijuana/hashish, cocaine (including crack), heroin, hallucinogens, inhalants, or prescription-type psychotherapeutics used non-medically.

So maybe drug use is not "a widely accepted activity," but it sure is a popular one. 8% of the population is about the same percentage of people who identify as belonging to the "Tea Party".

Myth #5: Congress is attempting to legislate morality
Morality is about right and wrong, and that’s what laws put into legal form. All laws legislate morality (even speed limits imply a moral moral judgement). Everyone in politics — conservatives, libertarians and liberals — is trying in some degree to legislate morality. The complaint then, is not whether or not Congress is attempting to legislate morality, but whose morality is Congress attempting to legislate?

The Constitution also lays out the structure by which these moral judgments will be made.  The principal of majority rule, the balance of power between the president, the; judiciary; and the Congress, and even the bi-cameral structure of Congress all work to provide an effective mechanism to legislate morality that is consistent with the desires—and therefore we must assume the morals—of a majority of Americans.

    Here the DEA is conflating the notions of "personal" morality and "public" morality, the difference between malum in se and malum prohibitum. When people say "you can't legislate morality," they are referring to malum prohibita. Suppose a majority wanted to criminalize homosexuality or all non-Christian religious practice, apparently the DEA would be okay with that.
The first ten amendments to the Constitution are called the bill of rights. Certain rights are inalienable, meaning they cannot be taken away. There is no footnote in the bill of rights that says, "subject to pharmacological preference."
"It is easy to prove that the laws against drugs are unconstitutional. The Declaration of Independence states that the rights to "Life, Liberty, and the pursuit of Happiness" are "unalienable" rights, i.e., rights that are incapable of being sold or transferred. The preamble to the Constitution states that one of the purposes of the Constitution is to "secure the blessings of liberty to ourselves and our posterity". The Ninth Amendment states, "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Clearly, the rights to liberty and to the pursuit of happiness, specifically mentioned in the Declaration of Independence, are retained by the people. Many people take drugs to pursue happiness. Thus, any law that denies them the liberty to take drugs is unconstitutional. Q.E.D.
"Some people pursue and attain happiness in no other way than by taking drugs; they work all day so that they can pay for and enjoy drugs after work and on weekends. The Constitution, which views people not as statistical averages but as individuals, should protect each drug user until such time as he or she actually harms another person. Of course, as we all know, the Supreme Court does not base its decisions on logic, therefore it would be very difficult to have the laws against drugs declared unconstitutional even though an irrefutable case can be made in ten seconds.
"The Case for Drug Legalization and Decontrol in the United States" by Thomas Wayburn PhD.

If an adult can legally drink alcohol and smoke tobacco in the privacy of their own home, is it such a stretch to include a right to privacy for other drug use?

Criminals won’t stop being criminals if we make drugs legal.  Individuals who have chosen
to pursue a life of crime and violence aren’t likely to change course, get legitimate jobs, and become
honest, tax-paying citizens just because we legalize drugs. The individuals and organizations that smuggle drugs don’t do so because they enjoy the challenge of “making a sale.” They sell drugs because that’s what makes them the most money.  

     This is an interesting argument because it basically says we should keep drugs illegal as a subsidy to criminals, since if they weren't selling drugs they would be committing even worse crimes. The fact of the matter is that few crimes can generate as much money with as little effort as selling heroin. A small fortune in heroin can be packaged in a container as small as a cigarette pack. Compared to human trafficking, kidnapping, extortion, armed robbery and other real crimes (the kind with a real victim), drug trafficking is both easier and more profitable. Victims of real crimes make themselves known and have an expectation the police will at least make an effort to find the perpetrator. Neither heroin sellers not buyers have any interest of involving the police, unless they are acting as an informant (a practice that leads to all sorts of abuses)..
     Of course career criminals will not suddenly "go straight" and get minimum wage jobs. The fact remains that the opportunities to make a good living committing crimes after drug legalization will decrease. Resources currently directed to spectacularly ineffective supply reduction, and chasing down drug users (not to mention incarcerating them), could be allocated to solving crimes with real victims. Every hour of police time spent trying to stop consensual crimes is an hour that could have been spent bringing a sexual predator, murderer or burglar to justice. Not only is this a allocation of police resources, but many victims will never see justice and the criminals can continue to find new victims.

They sell drugs because that’s what makes them the most money.
     This is exactly why the supply and distribution must be moved from criminal drug trafficking organizations (cartels) to legitimate businesses. The tobacco, alcohol and pharmaceutical industry certainly receives a lot of criticism, some deserved, some not, but nevertheless the various companies are not killing each other over market share. Disagreements are settled with legal briefs, not bullets.  If a product is contaminated or otherwise mis-branded, it is quickly recalled and any victims are eligible to receive compensation via a civil lawsuit.

Alcohol consumption declined dramatically during prohibition. Cirrhosis death rates for men were 29.5 per 100,000 in 1911 and 10.7 in 1929. Admissions to State mental hospitals for alcoholic psychosis declined from 10.1 per 100,000 in 1919 to 4.7 in 1928.

Cirrhosis deaths did indeed decline during prohibition, though the causative factors for this decline are disputed. This has no relevancy to the use of heroin since heroin is not toxic to the liver. Cirrhosis deaths are only half the story, how many people died from tainted booze during prohibition. Alcohol that was poisoned in some cases by none other than the US government in its long history of maximizing the harms of drugs. How many lives lost to black market violence? Focusing on drug harms and use alone misses the costs of prohibition, which are massive.

Fact 6: Legalization of drugs will lead to increased use and increased levels of addiction. Legalization proponents claim that making illegal drugs legal would not cause more of these substances to be consumed, nor would addiction increase. They claim that many people can use drugs in moderation and that many would choose not to use drugs, just as many abstain from alcohol and tobacco now. Yet how much misery can already be attributed to alcoholism and smoking?

If heroin is illegal because it's addictive, why isn't alcohol and tobacco prohibited? The standard wisdom is that widespread access to opiates leads to widespread addiction. The standard line is that following the civil war huge numbers of veterans became addicted to morphine, morphine addiction was so widespread it was known as the "soldier's disease". Yet over at the Schaffer drug library there is an essay, Mythical Roots of US Drug Policy: Soldiers Disease and the Civil War by Jerry Mandel that questions the accuracy of this story. Here's the abstract:
Soldier's Disease -- widespread addiction following massive administration of opiates during the Civil War -- is the earliest and most often repeated example of a drug problem before the narcotics laws. The story exemplifies several basic themes used in support of continued drug prohibition -- addiction is easy to acquire, hard to kick, and is a publicly noticed, i.e. asocial, problem. Soldier's Disease, though, is a myth. Not one case of addiction was reported in medical records or the literature of the time; under ten references were made in the Nineteenth Century to addiction the cause of which was the Civil War; and no perjorative nickname for addicted veterans, like Soldier's Disease, appeared in the literature until 1915, and it did not become part of the Conventional Wisdom of drug experts until almost a century after Appomattox.

Would treatment admissions increase under legalization? I will only speak to that which I have the most experience with, namely opiates/opioids. (For the record I think with cannabis the answer is clearly no) Let’s suppose heroin and all the other opium derivatives and synthetic opioids are sold like alcohol.

First assuming casual users were ineligible for treatment, would addiction increase? Maybe, hard to say for sure. I tend to think most people predisposed to developing a chemical addiction (for whatever reason) probably are already addicted. This would most likely mean a shift from alcohol and benzodiazepines to opiates, a net gain since pharmaceutical (pure, sterile) opiates are far less harmful to the body than alcohol and, unlike benzos, far less likely to cause death upon rapid withdrawal. It is possible that alcohol and opiates will be used as complements, but I think that is unlikely. Most users prefer one or the other, certainly historically bars and opium dens were very different places.

If opiate addiction were to increase, perhaps correlating with a decrease in alcohol addiction, would treatment demand increase? First of all the only one’s seeking treatment would be those that need it.This is the way it should be. Drug courts that offer treatment in place of jail really offer no choice at all. Nevertheless, drug courts are not the only reason addicts go to treatment. Many seek detox not to “recover” but simply to get out of the cold (if homeless), get a break from the daily hustle while being fed and medicated, and lower their tolerance before heading back to the streets. Following legalization they would not need a respite from the daily grind of coming up with $30, 50, or 100+ dollars per day.

There will of course still be people seeking means to end their opiate addictions, this was true when opiates were legal and will most likely be true into the future. Even following legalization opiate addiction will likely be stigmatized, though hopefully less so. The fact that junkies won’t be stealing for opiates anymore will certainly change some perceptions. Maybe “junkie” will go back to what it originally meant, someone who supported their habit by collecting junk metal. The homeless opiate addicts under legalization will be collecting cans instead of engaging in robbing, shoplifting, prostitution and petty dealing.

To summarize, assuming (1) heroin is sold like alcohol and (2) opiate addiction increases, would treatment demand increase? The loss of involuntary clients, and individuals merely seeking refuge from the pressures of addiction could hardly be called voluntary, might be balanced by the increase in addiction prevalence. If the increase in opiate addiction is accompanied by a decrease in alcoholism (or other chemical addictions, which assumes the rate of chemical addiction in a given society is constant), the total number of addicts seeking treatment would decrease and thus the number of potential clients. All in all there are a lot of unknowns (I think I used the word assume multiple times).

One possible good following legalization is that the treatment industry might finally adopt evidence based practices. Sadly most treatment does no good, not because the evidence isn’t there, but because ideology trumps evidence. I tend to think a large involuntary and semi-voluntary client base only encourages this to continue.

Fact 8: Alcohol and tobacco have caused significant health, social, and crime problems, and legalized
drugs would only make the situation worse. The “legalization lobby” claims drugs are no more dangerous than alcohol, no more harmful than smoking cigarettes. But drunk driving is one of the primary killers of Americans. Do we want our bus drivers, nurses, and airline pilots to be able to take drugs one evening, and operate freely at work the next day?

It is not a crime for professionals to drink alcohol during their weekends off, even to the point of being heavily intoxicated. As long as they are sober on Monday morning, what is the problem. Different drugs have different degrees of impairment. Stimulants like coffee and amphetamine have been shown to increase alertness and enhance performance in some tasks. An opiate naive person may be impaired following ingestion of heroin, a tolerant user can regulate their usage to control the degree of impairment.
    Driving or operating machinery while impaired is never a good idea. However there are many jobs where the use of drugs may enhance performance, such as writing. Nevertheless on a stable dose people dependent on opiates are not impaired, so this argument does not apply to the "stabilized" addict.

Further Reading:

Sex, Drugs, Death, and the Law. An Essay on Human Rights and Overcriminalization
Drug Use and the Rights of the Person by David A. J. Richards


  1. What a great and thorough rebuttal of the DEA's specious arguments. As usual, you did a really good job with this post. Keep it up.

    What I think is very telling about the DEA's publication is the simple fact that they felt the need to release it in the first place. If what they do really is justified, both morally and constitutionally, and it really is "consistent with the desires of the public,"[1] then why do they feel the need to release this document? It reeks of apologia and defensiveness, which I think is reason for reserved optimism among us anti-prohibitionists; it is a good sign that the tides are beginning to turn in our favor.

    Something else that struck me in the DEA publication is just how pathetic their arguments are. Not only are their arguments weak and unsupported by data, but they even contradict themselves in several places. They can't even be consistent!

    The DEA and all the other prohibitionists are on the losing end of the struggle for privacy, human rights and dignity versus ignorant ideology and authoritarian prohibitionism. And even if I never see an end to prohibition and all the unnecessary suffering it causes in my lifetime, I can take solace in the fact that we are on the right side of history. At times, things may seem bad, but as with the abolitionists, women's suffragists, civil rights activists, and the gay rights movement, when the cause is ethical and just, it will eventually prevail. Today's conservatives will be, as conservatives have always been, on the wrong side of history. The drug war will be remembered like any other affront to humanity in history as being a callous, ignorant injustice perpetrated on countless innocent people in the name of the impossible idealism of calvinistic xenophobes, whose ideology ignores human biology, psychology, and history.

    [1] "an effective mechanism to legislate morality that is consistent with the desires—and therefore we must assume the morals—of a majority of Americans."

    This is my favorite statement in the DEA publication. According to the DEA, public desires and the notions of morality of the majority of Americans are sufficient justification for legislation and enforcement. So, if all of a sudden the majority of Americans suddenly decided that women caught in an adulterous relationship should be buried up to their necks and stoned to death, the DEA would support this because it is "consistent with the desires—and therefore we must assume the morals—of a majority of Americans"? I can think of many other examples, but I'm sure you get the picture.

    1. Thanks for the kind words. That DEA document is interesting because it essentially condenses all the major arguments for prohibition into one document. The morality arguments are some of the weakest and easily refuted. I think you're right that the publication indicates the prohibitionists are on the defensive. Previously they never had to justify drug prohibition, "everyone knows" that drugs are bad and should be outlawed. More and more people are questioning this assumption.

      The only thing I would take issue with is your assertion that conservatives are on the wrong side of history. There are a number of conservatives who are against drug prohibition, the libertarian-minded conservatives. But by and large the conservative movement has been taken over by the Christian Right, who are no friends of drug liberalization (though not all Christians, see my most recent post). Liberals have historically been nearly as bad as conservatives in propagating the drug war. As a legislator, Joe Biden had a long history of finding more reasons to lock people in cages. The prison population and drug war escalated under Clinton, if not for 9/11 and the demonization of "muslim terrorists" drug users would probably have continued to be America's go-to scapegoat. Obama has done little to tackle reforms in drug policy and criminal justice. Conservatives may be bad on drug policy, but liberals are little better.

  2. Good points, especially about drug policy escalating under Clinton. What I'd say in defense of my statement about conservatives is that I use the term "conservative" as more of a generalized moniker for those with right-wing to far right-wing beliefs. When I say conservative I don't necessarily mean Republican, and when I say liberal I most certainly don't always mean Democrat. I don't consider what some call "Establishment Liberals" (i.e. Democrats} to actually be liberal. Democratic policy over the last few decades does not resemble anything I consider liberal. If you read Frankly Curious very often, you know that Frank often calls the Democratic party "Republican Lite." That being said, this is more of a semantic issue, and I don't want to argue semantics with you because I agree with you. Neither party has been very liberal when it comes to drug policy, nor have they been very liberal when it comes to much else, but that is a discussion for another time and place.

    But I see now that I should've said something like "Modern prohibitionists will be on the wrong side of history, just as the opponents of the other great movements for social justice in America ended up on the wrong side of history," rather than single out conservatives. I know full well that politicians on both sides of the political spectrum are complicit in creating horrible drug/criminal justice policy. Inside and outside of politics, people with typically very liberal views on other social or economic issues have held very unenlightened opinions regarding drugs and drug users. On the right you have the "cold steel" prohibitionists, and on the left you have the involuntary drug treatment advocates. Both are ignorant, both are harmful, and neither do anything to help drug users.

    By the way, I am NO defender of the Democratic party or establishment liberals like Joe Biden. Although I have defended Obama in the past, it is not because I like his policy decisions. I have defended him against people who criticize him for fallacious reasons, such as questioning his citizenship, while there are real and very important problems with his policies that they should be criticizing him for. Drone strikes, and as you pointed out, his lack of action on drug policy reform and fixing our very broken criminal justice system are just a few examples.

    1. Good points, and now that I understand your distinction I agree. I actually helped campaign for Obama in 2008 and have been hugely disappointed with the lack of movement on the issue that is near and dear to me, drug policy. I have stopped calling myself a liberal, now I say I am libertarian on social issues and progressive on economic issues while politically independent. As you said the "force em into treatment" liberals are no friends to drug users.

      On a side note it is a bummer that the comments on HH are off. I do read FC but most of his articles are short enough for me to read on my blogroll so I don't actually visit much.

  3. Actually, I was planning on bringing that up about HH. I was bummed about him turning off the comments, too, even though I haven't been very active in commenting on either site for a quite a while. I haven't been corresponding with Frank via e-mail for some time as well. I had kinda been avoiding politics and similar topics due to not being in a very good state of mind.

    A while ago I was starting preliminary work on getting a blog together, but I kept putting it off. And on top of my procrastination I was avoiding subject matter that would depress or anger me. Instead, I was keeping to myself and my hobbies, but I can't avoid it forever. I always end up coming back to see what's going on in the world, and to try and make my voice heard in whatever small way I can.

    I registered a new Wordpress account last night and I'm slowly doing work on getting something together. I've got a few ideas, but I haven't decided exactly what direction to go in. I don't know that I'd be able to do a blog solely focused on drugs and drug policy, at least not by myself. Perhaps I could manage a collaborative effort, but by myself I'd want to do something with general politics and science. It would be sort of like Frankly Curious but with much less Film/Music/Literature, unless it were related to the subject matter of the blog.

    Anyway, I'll let you know when I get it up and start posting content. By the way, it is a "when" and not an "if." I am going to do it, I just don't know how long it will take. I'm pretty motivated right now, so I'm gonna try to get the hard part of starting out and setting up out of the way while my ambition lasts. I'd be happy if I could make something even half as good as what you've got here. Your articles are very good and quite thorough. I'm really enjoying it.

    1. HH at times had some real insightful conversations in the comments from time to time. I'm sure FM could install a spam filter and cut down on the spam. Some of CJs rants were epic.

      Burnout is definitely a problem, especially since so many activists are doing it on their own time and unlike entrenched interests are not paid. There is so much wrong with the world today it's easy to get overwelmed and depressed. I find myself taking a week or two off the blog now and again due to outrage fatigue.

      I would recommend finding a particular topic to blog about and keeping it specific. FC does pull off being an ecclectic mix but out of the white noise that is thousands of blogs serving as personal soapboxes, the best are related to a specific topic. I've seen people use multiple blogs too for different interests. Just a recommendation, but give me a heads up when you're up and running..

      I first started post some minor things, learning the format and so on. Lately I've been focusing on more in-depth original content. I've been pleased with the results so far and wish I did write more prolifically, but really only do when the mood strikes. Unfortunately I'm much more of a reader than writer.