March 9, 2016
Another year is wrapping up and so it is once again time to consider the most interesting drug law stories of the last 365 days. Keep in mind that I’m a California oriented blogger and my interests have to do primarily with issues that are either in criminal law or in areas of our national regulatory scheme that could potentially shade into criminal law, so my list is not the same list that somebody who is more into pharma law would compile, to say the least.
By the way, last year’s list is here.
10. Steroids, And More Steroids
Barry Bonds was indicted for perjury and obstruction of justice, and the Mitchell Report was released alleging that — shock! — Major League Baseball players actually have used steroids. This should have surprised absolutely nobody. Somehow it was a gigantic story. To my mind, it was a gigantic waste of taxpayer resources, even taking into account that the Mitchell report was privately funded. So much effort to police a problem that pales in comparison to the risks of legal drugs like alcohol and cigarettes.
(Above: Former Senator George Mitchell, author of the report on MLB steroid use.)
9. The “Ambien Defense” Succeeds, At Least Once.
I’ve written a few times about the so-called “Ambien Defense,” which is the claim a defendant can make that they were under the influence of Ambien and were unexpectedly “sleep-walking” or “sleep-driving” or sleep-whatevering at the time they committed some form of misdeed. At the end of the year, a Massachusetts judge accepted this argument in a case involving vehicular homicide, resulting in a controversial acquittal. At the crossroads between pharma liability issues and challenging theories of diminished culpability, the Ambien defense seems like it is tailor-made for inclusion in law school casebooks. It raises some very difficult questions about who should be held responsible for the rare but potentially very dangerous side effects of a drug.
(Above: The limits of the Ambien defense, from the blog Sid in the City.)
8. ASA Sues the Feds for Putting Out Pseudo-Scientific Gobbledygook.
One of the intriguing things about law is the way formalized and seemingly very “square” tactics can sometimes accomplish surprisingly progressive goals. This year, Americans for Safe Access brought a lawsuit against the Department of Health and Human Services and the FDA based on a law called the Data Quality Act. The basic argument is that under the DQA, these federal agencies have to rely on accurate science in setting their policies, and that their position on medical marijuana manifestly fails to do that. This suit is still working its way through the courts, so we’ll see what comes of it….
7. Janice Rogers Brown Tells it Like it Is on the Fourth Amendment.
It’s a great thing when a prominent judge cuts through the circumlocution of legalese and speaks to the realities of the law as it is actually enforced from day to day. This year, DC Circuit Judge Janice Rogers Brown, who is generally quite conservative, managed to be about a million times more candid than the average judge in dissenting from the majority’s June opinion in U.S. v. Goddard. Specifically, Rogers suggested that
prudent constraints on police conduct have been forgotten in our frustration over city life plagued with drug trafficking and violent crime. As a result, what we are now tempted to enforce is . . . the rule that, in a high-crime neighborhood, being young, male, and black creates reasonable, articulable suspicion [for police to stop an individual].
A federal study, meanwhile, determined that minorities were more likely to be searched during traffic stops than their white counterparts, and a study released at the end of the year by the Justice Policy Institute showed that blacks are being arrested for drug crime at rates dozens or even more than a hundred times the rate of their white counterparts despite comparable use of drugs. The American criminal justice approach to drugs continues to appall with its blatant, relentless discrimination, but it’s nice to hear a few prominent voices speaking up about the fiasco.
(Above: DC Circuit Judge Janice Rogers Brown. Photo by Paul Sakuma, Associate Press, from the website of the New York Times.)
6. Pain Doctors in the Crosshairs.
2007 was a year when the federal government continued to carry out an aggressive campaign of prosecuting doctors for practicing pain medicine, treating what should probably be an administrative matter or an issue of civil negligence as the opportunity to lock doctors up in prison. As the New York Times’ John Tierney wrote in July, the message of these prosecutions for doctors who practice pain medicine was very simple: “be afraid.”
(Above: Law enforcement agents haul evidence out of the office of Dr. Milton Brindley of Augusta, Kentucky during a June 2007 raid. Photo by Terry Prather of the Ledger Independent)
5. America Starts to Wonder If Maybe It Has a Prison Addiction.
This year, California taxpayers got the exciting news that they were going to get to spend $7.8 billion dollars to fix their overflowing prisons. They also got to learn that their spending on prisons will soon outstrip their spending on higher education. Meanwhile, despite all this spending, our correctional system is so enormously overcrowded that we might just release 20,000 inmates early. In 2007, dumping billions of dollars into a dysfunctional system started to seem like it might actually be a reason for concern.
More broadly, America continued to be the highest per capita and overall incarcerator in the entire world, giving the lie to the notion that we are the “land of the free.” 2007 saw a dawning awareness that this is a problem, not a reason to be proud. Ted Koppel ran a special all about America’s addiction to prison, focusing on — yes, that’s right — California, “where the biggest problems are.” 2007 also saw hearings in the Senate entitled Mass Incarceration in the United States: At What Cost? When it comes to our prison addiction, we’re in sort of the equivalent of the morning after the DUI car wreck, where we think “hmmm, maybe I’m not in control of this thing after all.” … But it’s going to be a long road to recovery.
(Above: A California inmate looks through the door of his cell in a private Arizona prison, where he was shipped to help relieve the tremendous overcrowding in California’s system. Photo from the Los Angeles Times. Photographer: Luis Sinco.)
4. Medical Marijuana: The Feds Push, and California Pushes Back.
Last year’s number 3 story was that a lot of California municipalities had worked to eliminate medical marijuana dispensaries, either by banning them outright or by passing codes that amounted to a de facto ban. That general trend continued this year, and the federal government also conducted a number of raids on dispensaries throughout California. It also started sending letters to the landlords of medical marijuana dispensaries, threatening them that they could lose their property if they didn’t terminate the leases. In Oregon, it even tried to subpoena the medical records of medical marijuana patients. In many ways, it seemed like the federal crackdown that could have started in 2005 after the Supreme Court decided Gonzales v. Raich was finally coming to pass.
At the same time, 2007 saw some really interesting California court cases on medical marijuana and some signs that the courts were taking a line on our Compassionate Use Act that would vigorously defend the autonomy of our own laws against the federal perspective. In November, the Fourth District Court of Appeal decided City of Garden Grove v. Superior Court, a case that was all about whether an individual should be able to get back medical marijuana that was seized by police if the marijuana was legally possessed under California law. We also saw the oral argument in the California Supreme Court in the employment law case of Ross v. RagingWire, which was about whether an employee could be fired for using physician-approved medical marijuana. Though it’s tough to know how that one will ultimately come out, at least some of the comments from the justices suggested that they were sympathetic to the state’s position on medical marijuana.
(Below: Medical marijuana protesters in Los Angeles. Photo by Ric Francis/AP, from the website of ABC News.)
(Above: Joe Elford argues before the California Supreme Court in Ross v. RagingWire. Below: Protestors at a DEA raid in Los Angeles, where the LAPD assisted in the raid, chant “Uphold State Law.”)
3. Substantive Due Process Arguments Fail in Abigail Alliance and Gonzales v. Raich.
Last year a panel of the DC Circuit Court of Appeals had reached an exciting conclusion in a case called Abigail Alliance v. Eschenbach: it suggested that there was a due process right for terminally ill patients to access certain drugs that had been approved for human testing but had not yet received full FDA approval. That decision, depending on how you read it, might suggest that federal drug regulatory schemes were not the be-all and end-all of the law around drug control, and that some fundamental rights could trump the FDA’s control of this area. This year, however, the DC Circuit reconsidered that opinion en banc and rejected it. It’s not the end of the road, though, because the case could well go to the Supreme Court. (Update: In Jan 2008, the US Supreme Court declined to grant cert, rendering the DC Circuit’s en banc opinion the last word on this issue.) I did an interview with Scott Ballenger, the attorney for the Abigail Alliance, which is here. A related argument also failed in the follow-up to the Supreme Court’s big 2005 decision in Gonzales v. Raich.
2. Bong Hits for Jesus: The First Amendment “Drug Exception.”
This year the Supreme Court gave us Morse v. Frederick and the “Drug Exception” to the First Amendment, another in a series of decisions that erode constitutional protections for the sake of the war on drugs. Last year we saw the Fourth Amendment getting carved up for the sake of the drug war inHudson v. Michigan. This year, the Supreme Court concluded that it was just fine for schools to create content-based restrictions on student speech if “a reasonable observer would interpret [that speech] as advocating illegal drug use.” The Bong Hits case is just one more sad illustration of the way the drug war is chipping away at the American Constitution, one more example of how we try to “send a message” about drug use but instead send a message about a country that would rather tear itself apart than deal forthrightly with the fact that individuals use drugs for pleasure.
(Above: The infamous “Bong Hits” banner, so extremely subversive that the Supreme Court found it necessary to develop an exception to the First Amendment just to suppress it.)
1. America Kicks Crack, Sort Of.
In a surprising one-two punch of Supreme Court jurisprudence and Sentencing Commission reforms, the federal government decided both to retroactively apply reforms to the preposterously harsh sentencing guidelines around crack cocaine and, in Kimbrough v. United States, suggested that federal trial court judges could take into consideration the wide disparities between crack and powder cocaine in the federal sentencing guidelines in deciding to sentence a crack defendant below the guideline. The result is hardly a revolution in the way America handles crack cocaine, but it’s a modest step toward a more humane policy. In a field that is dominated by decisions that are made primarily on the basis of fear, ignorance and pandering to the public, these simple steps in the right direction were a major victory. At the end of the year, a few apparently insane legislators actually sought to pass a law reversing this reform, but they seemed unlikely to succeed.
PLUS 1. Mainstream Politicians Speak Up in Favor of Drug Policy Reform.
The most striking development of 2008, from my point view, is that drug policy reform started to creep with increasing frequency into the mainstream political discourse. In part, I think, this has to do with the role of the Internet in spreading ideas, and particularly the ability of YouTube to capture candidates reacting to situations. But we also saw comments from individuals like San Francisco Mayor Gavin Newsom, who went ahead and proclaimed that the war on drugs was a “total failure.” And we saw every single Democratic presidential candidate pledging to end federal raids on medical marijuana patients. We also saw the intriguing campaign of Republican candidate Ron Paul, a man who (as the YouTube clip below illustrates) unapologetically calls for the end of the war on drugs.
We have a ways to go before drug policy reform is a reality, but the fact that this subject is on the lips of serious politicians is an encouraging sign.