Prison time for drug users?

I don’t really want to see Rush Limbaugh spend the next twenty-five years of his life in prison, which is what would happen if the laws of the State of Florida were enforced. But I really do want to see the politicians and pundits who support both Limbaugh and the drug war explain why that particular law shouldn’t be enforced in this case, and why it shouldn’t be repealed.

And I’d also like to hear their defense, if they have one, for sending a woman to prison for thirteen years after convicting her of murder when it turned out that her stillborn child had traces of cocaine in its bloodstream. Of course, it’s obvious that homeless people with borderline mental retardation ought to be held strictly accountable for their actions, unlike multimillionaires with logorrhea and strong political connetions.

Oh, and speaking of “junk science”: there is precisely no medical evidence that maternal cocaine use can cause stillbirth. That is not the case for alcohol, which turns out to be the actual cause of most of the damage once attributed to prenatal cocaine exposure: women who use cocaine are likely to drink heavily.

In case you hadn’t noticed — the liberal media didn’t bother to cover it much — the Supreme Court just turned down Regina McKnight’s last appeal.

One of the big disadvantages liberals have, compared with conservatives, is that liberal outrages (even imaginary ones) are known to the whole world, while so many conservative outrages are passed over in silence.

Oooo, is that awful, nasty left
    being mean to poor widdle Rushie?

Kevin Drum [*] catches Jonah Goldberg trolling for examples of people on the left making fun of Rush Limbaugh’s narcotics addiction. I don’t think he’ll find much; our side, with a few exceptions, has been remarkably well-behaved. (Due not at all, I have to assume, to my earlier plea for compassion. [*])

Rush and his defenders, by contrast, have been behaving rather badly. They’ve been pushing the line that because Rush (if you believe his account) got into the pills after being prescribed them for physical pain and was taking illegally purchased pharmaceuticals rather than white powders sold in baggies, he wasn’t really anything like all those nasty junkies out there for whom Limbaugh always expressed such hatred and contempt.

Limbaugh was rich enough not to have had to stick up any liquor stores to support his habit. That’s the only moral distinction between him and a street drug addict. He, and his friends and admirers, ought to learn something from his addiction. It shouldn’t, as my grandmother used to say, be a total loss.

The limits of drug law enforcement

One idea about drug law enforcement is that by making the illicit traffic more expensive and dangerous for the people who sell drugs, enforcement can push up the prices of drugs and therefore reduce consumption.

The old criticism of this approach, based on the notion that demand for illicit drugs was highly inelastic, turns out to be incorrect; cocaine and heroin, at least, seem to have greater-than-unit elasticity, so a price increase will actually decrease the total amount consumers spend. So increasing drug prices would seem to be a useful goal.

The bad news is that, in the face of mass distribution, enforcement has a very hard time increasing prices. When I learned about the illicit drug markets around 1980, heroin traded at wholesale for about $250,000 per kilogram and at retail in New York for between $2 and $2.50 per pure milligram, reflecting a kilo-to-street markup of about 10x.

Now, after twenty years of intensified drug law enforcement, the wholesale price is about $70,000 a kilo and the retail price in New York about 20 cents per pure milligram. [*], a factor-of-three reduction at wholesale and a factor-of-ten reduction at retail, reflecting a greatly reduced markup. The general price level, as measured by the CPI, has roughly doubled over that period, so the inflation-adjusted price of a pure milligram of heroin is actually down about 95%.

The price drop for cocaine has been a little bit smaller: from about 80 cents per pure milligram in 1980, the price fell very rapidly until about 1988, and has since stablilized (in nominal-dollar) terms at about 15 cents per pure milligram, which adjusted for inflation is a deline of about 90%.

All of this happened in the face of an enforcement effort that increased the number of drug dealers behind bars from about 30,000 in 1980 to about 450,000 today.

The policy implication would seem to be that enforcement has limited capacity to increase the prices and thus decrease the consumption of mass-market illicit drugs, and ought to focus instead on reducing the violence and neighborhood disruption associated with the illicit trade, by targeting the meanest dealers and the ones whose trafficking is most flagrant, rather than the largest.

Zero tolerance, Zero intelligence

Two new stories of the damage done by dimwitted “zero-tolerance” policies: one about “weapons” [*](in this case a butter knife packed in a middle school girl’s lunch) and “drugs” [*] (asthma medication given by one student to another in a potentially life-threatening situation).

Zero tolerance is the bastard child of dim-wittedness out of litigiousness. It sounds good to concerned parents and voters, and it helps defend against charges that discretion has been abused for some discriminatory purpose by abolishing discretion altogether.

But as Madison said about liberty and faction, to try to prevent discrimination by abolishing discretion is like fighting fire by abolishing oxygen. Not a good deal.

Ritual use of controlled substances

The three-judge panel of Tenth Circuit Court of Appeals has, by a 2-to-1 vote, reinstated a preliminary injunction issued by Judge James Parker of the U.S. District Court for New Mexico, but stayed pending appeal, in favor of the American branch of Uniao do Vegetal. The UDV is a Brazilian syncretic church that uses ayahuasca, a mixture including the hallucinogen DMT and various harmala alkaloids, as a sacrament.

The ruling, unless either the Tenth Circuit en banc or the Supreme Court stays it yet again, at will allow the UDV to resume its rituals, which have been suspended for more than two years since a Federal seizure of a shipment of the church’s ritual mixture.

The Tenth Circuit opinions are highly technical, turning largely on the question of what constitutes the status quo in determining whether a preliminary injunction is “mandatory” or “prohibitory” and thus the allocation of the burden of persuasion between the parties. But the result, if it stands, is pathbreaking: this is the first time that a court, acting under the Religious Freedom Restoration Act, has allowed the use of a controlled substance ritually outside the special case, long enshrined in regulation and now in statute, of peyote use in Native American rituals.

I testified as an expert witness for the UDV on the issue of the risks of diversion of the sacramental mixture to non-religious use. Since the case is ongoing (even if the preliminary injunction stands, the case-in-chief remains to be tried) I will refrain from comment on the decision, except to say that the District Court ruling and both the majority and dissenting opinions from the Circuit Court are excellent specimens of judicial prose, not at all painful for non-lawyers to read. In lieu of any substantive comment, I refer you to Eugene Volokh’s reflections, and to his scholarly article (linked to on his site) on the general question of religious exemptions from facially neutral laws of general applicability.

Judge Parker’s opinion is here.

The appellate decision and dissent are here:

10th cir opinion.pdf

More Legalization

John Quiggan asks a sensible question: If there’s a good case for prohibiting cocaine, why not alcohol? He concludes that consistency would call for banning neither, or both:

In summary, Prohibition produced greater benefits than the War on Drugs, at a lower cost in terms of crime and social dislocation. The idea that it is impossible to change the status of currently legal drugs does not stand up to an examination of the evidence.

The real reason we will not even attempt to make society drug-free is that we do not want to. I don’t want to give up my evening gin-and-tonic, even if it does me more harm than good. Similarly, despite the appeal of ‘Just Say No’ and the priority placed on abstinence rather than risk reduction in other contexts, no-one seems to be suggesting the promotion of even voluntary abstinence from alcohol.

We are then, left with a paradox. Through the governments we elect, we are willing to turn our homes into fortresses and our streets into battlefields in order to maintain the illegal status of drugs that have been widely used for decades. But the same governments are unwilling to take even modest steps against drugs whose only distinguishing characteristics are a longer history of use and abuse, and the existence of influential producer and consumer lobbies.

I do not know whether our social acceptance of established drugs is a good thing. But until we are prepared to take a consistent position one way or the other, we should stop talking about sending messages. The only message our current policies send is that we are a bunch of hypocrites.

First things first. I think alcohol does more harm than good in the world, but I doubt that Quiggin’s gin-and-tonic does him (or anyone else) more harm than good. If he’s a typical drinker, it gives him some amount of pleasure, doesn’t harm his health or cause him to act foolishly, and doesn’t cause him to harm others. His drinking is therefore beneficial. But the minority of alcoholics and mean drunks suffer, and inflict, such huge amounts of damage that the world would probably be a better place if the ethanol molecule weren’t psychoactive.

There’s no reason to think that a given drug is, on balance, either net helpful or net harmful to all consumers, and in fact all the drugs in current use have some consumers who benefit from them (at least in the form of harmless pleasure) and others who are damaged by them. Typically, the beneficiaries are the larger group, but the damage per victim is larger than the gain per beneficiary.

Quiggin is surely right that, if the line between legal and illegal drugs needs to track some imagined line between “good drugs” and “bad drugs,” drug policy is profoundly incoherent. But there’s no need for such a link. There are, among intoxicants, no “good” or “bad” drugs. Both alcohol and cocaine are consumers’ goods with a peculiar mix of risks, including both the risks due to intoxication (loss of self-command over behavior in the short run) and addiction (chronic loss of self-command with respect to consuming the drug itself).

The question, drug-by-drug and comprehensively, is what mix of policies would minimize aggregate damage, net of benefit. (This elides the distinction between harm to self and harm to others, which strikes me as a reasonable thing to do in the face of an activity where individuals can’t be assumed to be good stewards of their own well-being.) In some cases that least-cost solution will look like prohibition; in others it will look like regulation and taxation. It’s a practical problem, to be handled by practical means-ends reasoning, not by the enunciation of profound truths about human nature or the role of the state.

Even believing that alcohol, on balance, creates a net social deficit, I don’t actually believe that alcohol should be prohibited. Given the enormous user base for alcohol, its prohibition would be operationally nightmarish as well as politically infeasible. Instead, why not ban its sale to those previously convicted of alcohol-induced violence or repeated drunken driving? That ban wouldn’t be perfectly obeyed, but it would have some good effect nonetheless, and wouldn’t create another huge illicit market.

What to do about drugs (abridged)

A fellow blogger asked for a quick summary of my substantive views on drug policy. Okay, here’s the standing-on-one-leg version. Believing everything below will be certain to make people look at you funny, no matter which side of the issue they’re on.

I’m leaving out the hallucinogens and MDMA, which pose their own peculiar issues (including especially tricky ones around religious/spiritual use), and the whole question of medical use, which ought to be handled through the FDA drug-approval process.

1. Leave heroin, cocaine, and methamphetamine illegal for non-medical use.

2. Allow use of cannabis, and growing for personal use or gratis distribution. Forbid commercial activity.

3. Shift drug law enforcement and sentencing to focus on reducing the side-effects of dealing: violence, neighborhood disruption, and the recruitment of juveniles. Cut back on base sentences for drug-selling. Target a reduction in total drug-related imprisonment from 400,000 to 200,000.

4. Require users of expensive illicit drugs who are also criminally active to abstain from drug use as a condition of bail, probation, parole, or other supervised release. Enforce that requirement with frequent drug tests and predictable, immediate, and mild punishments for each violation.

5. Integrate school-based and mass-media drug prevention efforts into broader efforts aimed at health risk management and self-command. Stop running drug-war propaganda as “drug abuse prevention.”

6. Tell the National Institute on Drug Abuse that its job is science, not providing support for drug prevention efforts or the latest proposal to stiffen drug sentences on the one hand or the drug treatment lobby on the other.

7. Expand drug treatment by convincing medical providers and their financing machinery that diagnosis of and intervention in substance abuse is an essential part of routine and acute medical care.

8. Reduce regulatory burdens on opiate maintenance therapies: methadone, LAAM, and buprenorphine.

9. Continue to raise cigarette taxes. Identify currently addicted smokers and either give them coupons good for exemption from the taxes or just give them lump sums in cash. The point of the policy is to reduce the number of new users to somewhere near zero without impoverishing existing users, not to generate windfalls for the states. Dealing with the resulting smuggling and black-marketing should be considered drug law enforcement.

10. Raise taxes on alcohol from the current average of a dime per drink to something closer to a dollar.

11. Make getting drunk (as opposed to drinking) the object of a big negative-advertising campaign. Goal: make being drunk, or having been drunk, something people — especially young people — try to hide, rather than something they brag about.

12. Abolish the age restriction on alcohol.

A more detailed statement of principles for drug policy, issued by the Federation of American Scientists, is here.

A slightly longer exposition of some practical ideas is here.

The text of my book Against Excess is on line here.

The competence of the post office
    and the compassion of the IRS,
brought to you
    by your friendly local health insurance company

About twenty percent of hospital admissions involve people with drinking problems, which is somewhat more than twice the proportion of problem drinkers in the adult population. For emergency rooms and trauma centers, the proportion is almost certainly higher; some say as much as 50%.

Brief intervention by a physician — roughly, saying “You’re drinking too much and need to cut it out,” followed by a treatment referral if the patient wants one — has been shown to be modestly effective, and, because it’s so cheap, wildly cost-effective, and in fact cost-saving on balance. A brief interview protocol turns out to be quite successful at identifying problem drinkers. Yet the health-care machinery notoriously displays an almost total lack of interest in patients’ drinking behavior.

Rachel Zimmerman, writing in yesterday’s Wall Street Journal seems to have figured out part of the reason: half a century ago, the health insurance industry lobbied a law through in 38 states allowing them to refuse payment for medical care required as a result of intoxication by alcohol or other drugs. So a hospital that runs the test and records it in the patient’s chart is setting itself and the patient up for financial disaster. Result: they don’t look.

A spokesgoon for the Health Insurance Association of America is shocked and appalled that the hospitals aren’t volunteering to let the insurers screw them out of their reimbursements. And naturally he asserts that changing the rules would drive up insurance costs, which seems grossly implausible given that the hospitals mostly aren’t testing now and that the consequence of not testing is more health-care costs in the future. I think HIAA is now so used to opposing things that are good for the country’s health that they now assume that anything that’s good for health is bad for them.

[Note to Ph.D. candidates: Great research opportunity here. Try a cross-section analysis of the frequency of tox screening in states with and without such laws, and an interrupted time series on the states that just changed over.]

[Note to libertarians: Go ahead. Tell me how the market is going to solve this one, in the face of the obvious adverse-selection problem: being the one insurance company that offers coverage for drinking-induced accidents is going to be a marketing advantage only in selling to drunks, who are lousy health care risks.]

[Note to Democrats: So what are you waiting for? Here’s a little-guy-vs.-the-big-companies issue that’s also obviously good public policy. Go!]


Glen Whitman takes up my challenge to libertarians. His answer — essentially, the creation of a special underwriting category for alcohol and drug abusers, who would pay higher insurance rates than the more abstemious — makes sense, as most libertarian solutions do, if you abstract from a few facts:

— Much health insurance is bought by employers for employees, rather than individually.

— Being an alcohol or drug abuser isn’t (1) a simple yes-or-no; (2) a stable condition over time; or (3) an easily observable condition; the usual diagnostic approach is asking the person involved, which isn’t going to work very well if the consequence of saying “yes” is having to pay higher insurance rates.

— Someone who isn’t clinically diagnosable as an alcohol abuser can still wrap his car around a tree.

— Having all the drunks and drug abusers uninsured — the likely consequence of charging them the expected-value cost of their health insurance — means that the rest of us wind up paying for their care through the unpaid care accounts kept by hospitals and passed through to insurers, unless we’re willing to have them die in the streets. The whole logic of treating medical care as an ordinary commodity falls apart once you say, “No, we’re not prepared to have people who can’t pay for care die for want of care.”


A reader notes the use of “Quite frankly” in its modern idiomatic meaning, which is roughly “The following sentence is so astonishingly mendacious that I’m going to have trouble saying it without laughing out loud. You are requested not to notice.”

February 26, 2003

Why Emergency Rooms Rarely Test

Trauma Patients for Alcohol, Drugs



Alcohol-related accidents and mishaps left Alan Levine with two amputated feet, a broken back, a ruptured spleen and only four remaining teeth.

Yet in 10 visits to emergency rooms in California, Nevada, Oregon and Washington, he says he was never tested for alcohol in his blood, nor was he ever urged to get counseling. “None of the so-called professionals mentioned treatment or counseling or gave any indication there was something wrong,” says Mr. Levine, 57 years old, who stopped drinking several years ago and now volunteers as a substance-abuse counselor in Portland, Ore.

In fact, most of the nation’s emergency rooms and trauma centers don’t routinely run blood-alcohol tests or “tox screens” on patients thought to be intoxicated. Why? At trauma centers, which treat the most seriously injured patients, the first priority is generally to save lives and provide immediate care. But doctors say another big reason the tests aren’t performed is the obscure, decades-old laws adopted in 38 states and the District of Columbia that give insurers the option to deny medical reimbursements to patients under the influence of alcohol or narcotics.

Aware that health-insurance policies can contain this exclusion, hospital staff seldom run the tests or urge counseling, for fear the results will appear in claims records and reimbursements will be denied. “Doctors don’t test because they’re afraid they won’t get paid,” says Larry Gentilello, the 49-year-old chief of trauma and surgical critical care at Boston’s Beth Israel Deaconess Hospital.

Dr. Gentilello has been waging a grinding, three-year fight with insurers, regulators and state lawmakers to repeal the laws and make drug and alcohol tests and counseling a routine part of trauma care. He has the support of groups including Mothers Against Drunk Driving, the National Highway Traffic Safety Administration, the National Association of Insurance Commissioners and the American Society of Addiction Medicine, but progress has been slow. Maryland, North Carolina and Vermont have repealed their laws, but repeal efforts have failed in legislatures in New York, Washington and Arizona.

A three-time college dropout, Dr. Gentilello grew up in New York’s Washington Heights, drove a Checker cab and worked at a White Hen Pantry convenience store before applying to medical school. During his surgery residency at the University of Texas Health Science Center in Houston, he began to wonder why trauma care for substance abusers wasn’t automatically linked to counseling.

In a three-year, federally funded study published in the Annals of Surgery in 1999, Dr. Gentilello looked at more than 700 trauma patients admitted to Seattle’s Harborview Medical Center for alcohol-related injuries. The patient group that received 30 minutes of counseling at the hospital experienced a 47% reduction in serious injuries requiring trauma-center admission in the following three years, plus a 48% reduction in less-serious injuries requiring ER care.

With alcohol and drug-related injuries accounting for as much as half of all trauma-center visits, such reductions on a national scale could save as much as several billion dollars a year in health-care spending, Dr. Gentilello figures. But eager to cut costs, insurers are denying alcohol and drug-related claims more often, he believes.

Dr. Gentilello says insurers’ denial of coverage to substance abusers is short-sighted and discriminatory. “Do we not treat venereal disease if the person did not wear a condom? Do we not treat emphysema in a patient who will not stop smoking?” he asks.

Jeffrey Hammond, chief of trauma and surgical critical care at Robert Wood Johnson University Hospital, New Brunswick, N.J., says doctors’ awareness of denied reimbursements has led to a steady decline in testing and counseling during the past five years. Ideally, most adults admitted to trauma centers would be tested and referred to counseling when appropriate, he says. But without the assurance of payment, many hospitals and doctors can’t afford to jeopardize profits by providing such preventive care. “No margin, no mission,” Dr. Hammond says.

Philip Barie, director of the surgical intensive-care unit at New York-Presbyterian Hospital in Manhattan, says he routinely avoids testing patients’ blood alcohol because he doesn’t want to risk having their insurance claims denied. Once a blood-alcohol test is completed, “it’s in the record and they have grounds to deny the claim,” Dr. Barie says. “Hospitals are not in business to lose money, and doctors depend on the billings.”

Insurers say they can’t afford to cover everything, and the cost of claims would go up, not down, if they had to cover all the injuries of people under the influence of alcohol and drugs. But beyond economics, they say, there’s an ethical concern: Medical needs, not insurance coverage, should drive health-care decisions.

“Quite frankly, I’m a little disheartened that physicians would base their treatment decisions on whether or not they might be reimbursed by an insurance policy,” says Larry Akey, spokesman for the Health Insurers Association of America, a 300-member trade group. The HIAA has argued that doctors who won’t order tests and counseling for alcoholics and drug abusers because of financial concerns are guilty of a “shocking abdication of responsibility.” Trauma doctors don’t need permission to test for drugs or alcohol while treating their patients.

The state insurance laws at issue are based on the Uniform Individual Accident and Sickness Policy Provision Law, or UPPL, a model law drafted by state insurance commissioners in 1947. The HIAA’s Mr. Akey says a number of the group’s members have such provisions in their policies but wouldn’t identify which companies. Aetna Inc. and Cigna Corp., two of the nation’s largest health insurers, say they don’t have such provisions.

But Dr. Gentilello says Cigna recently denied a trauma-care claim at Boston’s Beth Israel because the patient was intoxicated. He says the hospital fought the denial, and eventually Cigna paid. A Cigna spokeswoman says the company can’t comment without the patient’s name; Dr. Gentilello says he can’t name the patient due to confidentiality rules.

Deana Watterson, a 44-year-old waitress in Mouton Cove, La., suffered a ruptured duodenum and other internal injuries in a 1997 car accident. Because there was alcohol in her blood, she says, her insurer didn’t cover the nearly $200,000 cost of her treatment at Our Lady of Lourdes hospital, in Lafayette. She filed for personal bankruptcy; the hospital wrote off the costs. The lesson? “Given the option, I don’t order blood-alcohol tests,” says Christopher Lee, the surgeon who treated her. “And I ask the ER docs not to order them.”

Write to Rachel Zimmerman at

Updated February 26, 2003,,SB1046213237955719943-search,00.html?collection=wsjie%2F30day&vql_string=alcohol%3Cin%3E%28article%2Dbody%29

More on cannabis:
    autonomy, medical use, and the supremacy clause

Matthew Yglesias doubts that keeping someone from damaging himself through coercive means counts as a benefit. Well, turn it around: does inducing/allowing someone to damage himself by setting up a dumb choice for him to make count as a harm? If what Matthew proposes is a counting rule, I don’t see its justification. The principle of autonomy leads me to think that restricting people’s choice ought to be counted as a cost, but not that its benefits in the form of avoided self-damage should be ignored on principle.

Imagine that you were running an oceanside resort, with a beautiful walk along the cliffs that was dangerous in high winds. How many people would have to fall to their deaths, despite your sign saying “Don’t walk here when it’s windy,” before you decided that the path had better be closed?

Whether we’re comparing the grow-your-own policy against full legalization or current prohibition against grow-your own, can it really be right to ignore as a matter of principle the impact of looser controls on the rate of drug abuse and dependency? And as a practical matter, how serious a restriction would it be on autonomy to say that people who wanted to use cannabis had to either grow their own or find a generous friend with a green thumb?

Matthew also proposes that banning cannabis for everyone makes it more available to kids than allowing it for adults and forbidding it to kids only, which is his preferred alternative. I can’t see how that works. Making it legal for adults doesn’t interfere, in any obvious way, with clandestine growing for the juvenile market, and cannabis is so much more compact than alcohol (a pound of beer is a 16-ounce can, while a pound of pot is a thousand doses) that the leakage around a cannabis age barrier would be even more copious than the leakage around the alcohol age barrier. Moreover, age limitations make the use of the substance involved a badge of adulthood, and encourage kids to learn the mechanics of lawbreaking. [If I had my way, the age restriction on alcohol would go; it does some good in preventing drunk driving, but the notion that having a false ID is a normal thing for a college freshman to do makes me extremely uncomfortable.]

Matthew’s original post was a reflection on a New York Times editorial complaining about the conviction of a California medical-marijuana grower in a Federal court in which the judge barred any testimony that would have told the jury why he was growing the pot, or that he was doing so as an agent of the City of Oakland. The jurors, having convicted him of a crime carrying a five-year mandatory sentence, were extremely upset when they discovered the context of which the trial process had carefully kept them ignorant. Ampersand agrees with the Times, but wants to know what I think about it.

First reaction: yawn. Medical marijuana is not an important issue medically (Dutch doctors, whose patients have easy access to the drug, don’t use it much) and not an important issue for drug policy. It was clever of the drug-legalization movement to make medical marijuana the battleground, and foolish of the drug warriors to accept battle on ground so favorable to their foes. [I’m not saying that any individual drug warrior or drug-war group is foolish; any one of them who said “This is the wrong battle to fight” would have been excommunicated. That’s the problem with running a movement based on thought police.] But as a practical matter the whole business is barely worth talking about. That hasn’t kept me from doing so, of course.

Substantively, my view is that the only way to make marijuana available as a medicine (other than legalizing it outright, which isn’t going to happen anytime soon) is to put it through the FDA process. If a tenth of the money and energy that has gone into litigation and referenda had gone instead into medical research, cannabis would now be a Schedule II drug. But the one point the warriors and the legalizers agree on is that this is a topic to be argued about, not one to be studied scientifically. (That agreement is at a pragmatic, rather than a rhetorical level. The drug warriors insist that cannabis cannot be approved as a medicine without more research, and then do their best to make research impossible; the medical pot crowd — with the exception of Rick Doblin — pretends that adequate research has already been done and therefore makes no effort to get any going.)

Legally, Judge Breyer did precisely the right thing. The Supreme Court ruled (overturning one of Breyer’s decisions) that, as a matter of law, cannabis has no medical use, and that therefore the issue of its medical value could not be raised in court. Under the Supremacy Clause, a California initiative does not trump a federal prohibition. Growing cannabis is against federal law, and growing it under contract to the City of Oakland is against federal law to precisely the same extent as growing it to supply an army of pushers lurking outside elementary schools.

Moreover, even California Proposition 215 doesn’t permit someone to grow a thousand marijuana plants to be distributed to patients though “buyers’ clubs.” Prop. 215 provides merely that a patient in need of cannabis, or that patient’s “primary caregiver,” may grow or possess cannabis. It’s clear from the text that a “primary caregiver” is understood to be a close relative or friend who takes responsibility for an individual patient. “For the purposes of this section, ”primary caregiver” means the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person.” The idea that a buyer’s club, which of course is not an “individual” at all amd which does not assume general responsibility for its clients, can be the “primary caregiver” for hundreds of people at a time is utterly fantastic.

Had the jury known all the facts, it would have nullified the law by acquitting a person clearly guilty under its terms. I’m not going to get into the argument about whether that’s a good idea, but under current law the defense isn’t allowed to argue that the jury should do so, or present evidence relevant to the nullification but not to legal culpability. The five-year mandatory for large-scale pot growing is unconscionable, and the Justice Department decision to frame the charge in a way that triggered the mandatory is something for everyone who contributed to it to be ashamed of. But the legality of what Ed Rosenthal was convicted of doing isn’t really an open question; is there some part of the phrase “supreme law of the land” that his lawyers would like explained more carefully? In any case, ragging on Judge Breyer is pointless: he was just doing his job.