Drug policy news

A new star drug reporter, and what looks like an important contribution from two veterans.

Daily-press reporters who can handle complicated drug-policy stories are as rare as hens’ teeth. Most reporters assigned to drug-policy stories are generalists who don’t know enough about the issue to distinguish fact from spin.

Peter Reuter tells me that Steve Suo of the Portland Oregonian has been doing terrific work for some time, e.g. his brilliant series on how drug-industry lobbyists blocked Congressional efforts to crack down on the diversion of pseudoephedrine from the cold-remedy market into the supply chain for illicit methamphetamine.

Somehow, though, Suo managed to fly under my radar until he called for for a story on the new RAND report on drug prices and purities, which contains numbers that pretty well demolish the claim by ONDCP that Plan Colombia is somehow going to reduce cocaine abuse in the US.

Sure enough, Suo is the real deal: his initial story tells the tale clearly, and his follow-up on the spin from ONDCP is good for a laugh.

Watch that space.

While I’m mentioning things worth reading about drug policy: Reuter and David Boyum have just published a long essay arguing, among other things, that drug enforcement should focus on reducing the side-effects of prohibition rather than trying to reduce drug consumption by increasing prices and reducing availability. I haven’t read it yet, but anything by Reuter and Boyum is guaranteed to be worth your attention if you care about the issue.

Hallucinogens and delusions

The New York Times finds a reporter who doesn’t know the difference beween a stoned party and a mystical initiation.

Timothy Leary once said jokingly that the psychedelics are such powerful chemicals that they induce delusions in people who don’t even take them. Unlike most of what he said and did, that wisecrack embodied considerable wisdom, and remains valid forty years later.

Two recently approved studies, one at UCLA and one at Harvard, explore the use of hallucinogens to help dying people deal with their impending dates with the Grim Reaper. At least two other human studies involving possible useful applications of hallucinogens (that’s “psychedelics” if you’re my age and not a pharmacologist) are also underway in the United States, reflecting the re-opening of a research tradition that flourished in the 1960s but has been largely shut down since.

The New York Times, having been beaten on the story by the Washington Post and AP, decided to weigh in with a Sunday piece of more than usual obtuseness. It’s worth reading through; while getting most of the facts more or less right, it manages to get the story entirely wrong by making a single invalid (and of course unstated) assumption.

January 16, 2005

RAVE ON, AND OUT

Going High Into That Good Night

By BENEDICT CAREY

If there’s a drug for social phobia, maybe there could be one to help us relax in the company of death.

Last month, the Food and Drug Administration gave the go-ahead to a Harvard University plan to study the recreational drug “ecstasy” as a treatment for anxiety in terminal cancer patients. Elsewhere, researchers in California are studying the effect of psilocybin – the active ingredient in hallucinogenic mushrooms – in similar patients. Both teams hope to learn whether the drugs, which can induce effusiveness and heightened awareness, will help people express and manage their fears in a therapeutic setting.

Although these illegal drugs are controversial, their use is a natural outgrowth of the medicalization of all emotional difficulty, from childhood shyness to adult phobias and depression. Doctors already prescribe antidepressants widely to dying patients, as well as anti-anxiety medications, like Valium, which can be emotionally numbing.

The possibility of using potent consciousness-altering agents raises a question: At what point do the theological, cultural and personal significance of mortality become altered, or lost? Does going high into that good night risk mocking end-of-life customs – prompting rave flashbacks rather than life review, rude jokes rather than amends?

“I see death not only as an opportunity to reflect on the meaning of your own existence, but to offer your life as a gift to others,” said the Rev. Donald Moore, a professor of theology at Fordham University. The end presents us with a time to ponder – and discuss, if possible – what life has meant and might continue to mean for others. Any drug that interferes with that experience comes at a steep cost, he said.

“If I never ponder these things,” Father Moore said, “if I never face up to these questions intellectually, if I’m so spaced out it doesn’t make any difference, then I think the experience is pretty empty and meaningless. In death we can become more a part of others’ lives, and if I have decided simply to escape, I may have missed that opportunity.”

From the sixth-century politician Boethius, who turned to philosophy for consolation at the end, to Mozart, who plunged into his requiem Mass, history is filled with examples of those who faced the unknown unaided, and apparently shared in some universal reckoning with their purpose.

But there is no philosophical or psychological reason why existential questions should wait to the end of life. Death itself hardly respects concerns about meaning or timing. It strikes friends and loved ones often without warning. Moreover, it casts a deepening psychological shadow starting in middle age, which gives most people ample opportunity to contemplate the purpose and content of their lives simply by virtue of living to adulthood, psychologists say.

If a drug taken at the end can help them simply reflect on the pleasure of having lived, that in itself might provide comfort and meaning to those left behind, said Dr. Simon Blackburn, professor of philosophy at the University of Cambridge.

“If you look at what people envy as opposed to what they say they like, I think we envy people who go out on a high,” he said. “An old don in my college, he had a stroke at the end of college dinner, and died on the spot, sitting in his suspenders, in candlelight, holding a wine glass. It was the perfect end for him, just incredible, and I think it struck people as very admirable.”

The insistence on making amends, on finding or declaring meaning, stems as much from cultural expectations of a good death as it does from the needs or the psychological state of a dying person, psychiatrists say. Some people have an anguished need to talk with loved ones, but cannot bring themselves to do so; others simply want to say goodbye and laugh their way out. And the effect of even a strong drug may not alter those desires much.

Researchers tested LSD in terminal patients in the 1960’s, and heroin in the 1980, and neither drug made much difference in the emotional or family experience at the end of life, said Dr. David F. Musto, a professor of psychiatry and medical history at Yale University School of Medicine.

“The larger danger is that we try to manage a death along the lines of what we consider the right way of doing it,” Dr. Musto said. “Some want to leave peacefully, and others are anxious to find some meaning and get things taken care of,” and new drug treatments may help both.

Not to mention those who want simply to laugh, and trust their maker to understand their choice. “There was some one thing that was too great for God to show us when He walked upon our earth,” wrote the Catholic philosopher and commentator G. K. Chesterton, in his classic “Orthodoxy,” “and I have sometimes fancied it was His mirth.”

The central assumption of the article is that all “drugs” are alike, and that “drugs” have the property of dulling perception and cognition, making people less present to what is happening to them. From this perspective, if “drugs” could be useful for dying people at all, it could only be by serving as anodynes for physical or psychic pain.

The author notes, without apparent irony, that the benzodiazepine minor tranquilizers (the class that includes Valium, Xanax, and Ativan) are already used in precisely that way as part of what is now the normal dying process. (He omits mention of the heavy use of opiates and opioids to deal with not only terminal pain but also terminal fear.)

He then goes on, in his own voice and in the voices of those he quotes, to paint a picture of the new research as involving getting people too stoned to know what’s happening to them. (Note all the loaded language: “raves,” “flashbacks,” “high,” “recreational drug,” “illegal drugs,” “spaced out,” and of course “escape.”)

That picture is just about exactly the opposite of the truth. The actual intended use of the hallucinogens with the dying is precisely to make them more aware, not less aware, of what they are undergoing. (The reporter notes that “heightened awareness” is a common effect of the hallucinogens, but doesn’t seem to notice the contradicton between that fact and his main thesis.)

By contrast with the opiates and the tranquilizers, which are given constantly (and, for the opiates, in escalating doses), the hallucinogens would be used on no more than a handful of occasions; I think the protocols now being studied involve only one or two administrations.

The experiences the experimenters are hoping to facilitate resemble moments of mystical insight more than they do drunken binges. One standard “endpoint” of such studies is reduced use of sedatives and pain-killers, leading to a more conscious dying.

Whether this will turn out to work or not I don’t know; that’s why they call it “research.” And the reporter is clearly right about one thing: if using the hallucinogens to address the fear of death is a good idea, there’s no reason to wait until people are actually dying to start the process. After all, none of us is getting out of here alive.

But the reporter, who doesn’t seem to have bothered to talk with anyone working on the current studies or anyone who worked on the previous studies, or to read any of the voluminous literature, seems to have worked from the principle that a sneer always makes a good story. Or perhaps he simply doesn’t grasp the possibility that a chemical, used under the right conditions and with the right intentions, might facilitate something closely resembling a major religious experience, though that possibility is illustrated by traditions from the Eleusinian Brotherhood to the Native American Church.

Whatever the explanation, his trivializing, moralizing, condescending tone in talking about something of which, on the evidence of the story, he appears to be entirely ignorant is really pretty contemptible. Presumably the copy editor who wrote the silly-clever headlines didn’t know any better.

Supreme Court lifts stay; UdV may worship now

The Supreme Court has now dissolved the emergency stay issued last week suspending an injunction forbidding the government to interfere with the rituals of the UdV, the American branch of a Brazilian church that uses a DMT-containing potion called hoasca or ayahuasca as its sacramental drink.

Yes, I know that sentence is hard to parse, but what it means is that, in this case, the use of an otherwise banned hallucinogen has been made lawful due to the sincere religious intentions of the people handing it out and the people swallowing it. If this stands, it represents a significant extension of the precedent set by allowing the use of peyote in Native American rituals.

Marty Lederman of SCOTUSBlog comments.

What this means, as a practical matter, is that the members of the UDV will be able to use hoasca in religious rituals, notwithstanding the Controlled Substances Act, for an extended period — almost certainly the most significant RFRA exemption to federal law in the history of that statute. Assuming the SG petitions for certiorari on the preliminary injunction (rather than going back to district court for a trial on the merits), and further assuming that the Court grants the petition and rules for the Government, it will likely be at least a year until the Court overturns the injunction. And by the time the Court hears arguments in the case, presumably there will be some evidence concerning whether the RFRA exemption has caused the harms — in terms of health risks, diversion to improper (non-RFRA-exempted) use, and damage to U.S. efforts in the international narcotics-interdiction campaign — that the government has articulated. (Of course, if the Government does not return to the district court, it might be very difficult to figure out a way to include in the record of the case any intervening evidence of the experience under the RFRA exemption.)]

Documents:

The government’s application for a stay.

The church’s response in opposition.

Supplementary documents to the church’s response.

The government’s reply.

Glossary:

“RFRA” is the Religious Freedom Restoration Act.

“UdV” or “UDV” is O Centro Espirita Beneficiente Unaio do Vegetal.

Two scandals

Forget about who doped the players; who leaked the dope from the grand jury?

NOTE UPDATE AND CORRECTION BELOW: THE LEAK CAME FROM A DEFENSE LAWYER.

A bunch of baseball players have been illegally using anabolic steroids. And, in the course of the investigation, Federal law enforcement officials illegally disclosed secret grand jury transcripts to a reporter.

Of the two crimes, it seems to me that the wrong one is getting all the attention.

The grand-jury leak is much more serious intrinsically, and much better worth the attention of the press because those officials work for you and me. Yet the grand jury leak is no so well accepted a prosecution tactic that no one, as far as I know, has even bothered to criticize this one, let alone demand the full-court-press investigation every such case ought to get.

A witness before a grand jury is not allowed to have an attorney present. And there’s no judge to step in to stop out-of-bounds lines of questioning. Unlike a criminal defendant, a grand jury witness has no right to be told what the case is about, or what sort of information he provides could be used to make a case against him. All of that is tolerable only under the rule that says matters before the grand jury are secret.

(Bill Clinton told something less than the whole truth under oath about his relationship with Monica Lewinsky — a relationship that was not against the law — because he knew that Starr’s cronies were routinely leaking grand jury material to the press. An honest answer, or an attempt to plead the privilege against self-incriminaton, would have been legally harmless but politically suicidal. That doesn’t justify Clinton’s evasion, but it does illustrate the devastating power of the grand jury leak in the hands of an unscrupulous prosecutor.)

A grand jury leak is special in another way, too. The number of potential leakers is tiny, especially when what’s leaked are transcripts rather than just verbal reports. Any grand juror might be the source of a report, but only the prosecutor gets the transcript.

Even the investigators working on the case aren’t present in the grand jury room, and they have access to the transcript only through the prosecutor. The prosecutor is also allowed to disseminate the information to other officials, but anyone who gets grand jury information from the prosecutor must by law be warned that it is not to be disclosed. And the prosecutor must give the court a list of those to whom such legitimate disclosures have been made.

So when grand jury transcripts leak, the ultimate source of the leak was either the prosecutor or someone the prosecutor give it to, whether or not there were intermediate parties between the recipient and the reporter. That’s a good short list of potential targets.

It ought to be automatic, in such cases, to get the prosecutor in front of (another) grand jury, get him on oath about whether he gave the material to the press or knows who did, and get from him a list of all the authorized disclosures he made. The proseuctor, plus his list of authorized disclosures, are the complete set of suspects. If none of them had shown the transcripts to someone outside that circle, they never could have gotten to the press. So get all of the authorized disclosees on oath the same way.

And then call the reporter in and ask who gave him the stuff. If he refuses, he goes to jail under the civil cotempt power, for eighteen months or until he opens up, whichever comes first. Will that have a chilling effect on reporters? Damned straight it will, and a good thing, too. This isn’t like the national security situation, where classification is mostly a tool to cover up malfeasance and incompetence. (DoD just kept MIT from investigating whether Lincoln Labs faked some missle-defense components tests by classifying all of the information.) This stuff is secret for good reason, and in most cases the only official malfeasance involved is that of the leaker.

Among the many horrible legacies of that pluperfect scoundrel Richard Milhous Nixon, none was worse than the valorization of prosecutors who disclose grand jury testimony and the reporters who help them. Given the outrageousness of Nixon’s misconduct, no one but the die-hards was in a mood to be picky about the tactics used to get him. But somehow that case became a precedent, and anything that was done to take down Nixon &#8212 including using the sentencing process as a substitute for torture as a way of making co-conspirators rat out the boss &#8212 came to seem legitimate. (The civil rights revolution had the same unfortunate legitimizing effect on the usually-misnamed “civil disobedience.” But that’s a longer story.)

The press, so eager to investigate everyone else, is of course quite protective of its own, and of those who “serve the public’s right to know.”

Disgusting.

Footnote:

Having expressed the opinion that taking amphetamines to boost performance on high-stakes tests such as the LSAT, MCAT, and GMAT constitutes cheating (partly on the grounds that using amphetamines that way is against the law, and breaking the law to win a contest is cheating), I suppose I’m committed to the position that baseball players shouldn’t be making illegal use of anabolic steroids to built their muscle. And yes, there’s a real public interest to be served in not making steroid use effectively mandatory for serious competitive athletes. But neither sports doping nor LSAT-doping is a vital public issue. The integrity of the criminal process is.

Update and correction(s):

1. I was wrong to say that the grand jury leak angle hadn’t gotten any attention. It was noticed by the LA Times and the NY Daily News. NPR reports that the U.S Attorney in San Francisco is threatening an investigation.

2. It’s not strictly true that the leak must have come from a public official. It’s possible that the transcripts have been provided to the defense lawyers for the four people indicted so far.

UPDATE AND CORRECTION It’s more than “possible” that the leak came from a defense lawyer. One has now admitted it. My apologies to the SF USAO for questioning their integrity on inadequate evidence.

It remains my view that the press is unduly willing to accept prosecution leaks of grand jury material, and that when such a leak shows up in print other reporters insufficiently eagerto investigate the source of the leak.

UDV case headed to the Supreme Court?

SG files an appeal; Justice Breyer stays preliminary injunction.

Ten days ago the 10th Circuit affirmed a preliminary injunction that would have allowed the UdV to resume its ritual use of ayahuasca. Now the government has decided to appeal to the Supreme Court, and Justice Breyer has stayed the injunction. That doesn’t mean that the Court will take the appeal. But it does mean that the Civil Division and the DEA have persuaded the Solicitor General’s office that the case is worth pursuing.

Update Marty Lederman at SCOTUSblog has more, including a link to the SG brief.

Medical marijuana on NPR at 8 p.m. Eastern tonight

Continuing my campaign to make as many enemies in possible, I curse both sides in the “medical marijuana” dispute. NPR tonight at 8pm Eastern.

Dahlia Lithwick provides a grim partial play-by-play of the oral argument in the medical marijuana case in the Supreme Court. Lawrence Solum at the Legal Theory Blog is even more detailed, and even more depressing.

Solum is not convinced he can predict which way the Court will come down; everyone else, including Lithwick and Marty Lederman at SCOTUSblog seems to think it’s a lay-down for the government.

For the Deputy Solicitor General of the United States to argue, right there in public with his bare face hanging out, that letting people grow their own pot to treat their own ailments would somehow influence the national market in illicit marijuana in a way that makes the drug-dealing problem worse rather than better, is really pretty astonishing. Somehow saying things that are flatly and obviously nonsensical in court never made it into the list of lawyers’ ethical no-nos.

(For Justice Kennedy and Mr. Clements to agree that the result of allowing patients to grow their own would be to lower the illicit market price is a more pardonable error; that is indeed the Econ 101 answer, but it’s wrong as applied to illicit markets, where shrinking volume increases the enforcement risk faced by remaining participants and thus tends to increase price. Barnett, arguing for the marijuana-smokers, says he’s “sure” that the result would be a small reduction in price, certainty being a well-known substitute for accuracy.)

It’s clear that all the talk about “federalism” from the Court’s right wing when the question was whether Congress could keep guns away from schoolyards or make it possible for battered women to sue their batterers in Federal court isn’t going to mean anything if the question is whether genuninely sick people can smoke pot. Steve Breyer, on the other hand, who doesn’t so much defer to the political branches as genuflect before them, suggests that the proponents of medical marijuana ought to submit scientific research to the FDA, as if the National Institute on Drug Abuse hadn’t made scientific research on the medical uses of cannabis impossible by denying access to cannabis for medical research.

Feh.

On the other hand, while it’s easy to feel compassion for the patients in this case and rage at Paul Clement, standing up in his fancy suit on behalf of the People of the United States, for asking the court to condemn them to painful death for the crime of having a condition treatable by something that’s also a drug of abuse, it’s hard to work up much sympathy for the medical marijuana advocates. who have done their level best to keep this alive as a political/legal issue rather than getting it resolved on a scientific basis. (I’ve ranted about that before.)

At the end of the day, “medical marijuana” is hardly worth all the hot air used up in the argument about it.

The plaintiffs in the current case are pretty obviously getting real benefit from smoking whole cannabis, but in the Netherlands, where buying cannabis is virtually legal, physicians aren’t in fact sending large numbers of patients to coffee shops. It’s quite likely that some important medicines will be developed that bind to the cannabinoid receptors that have now been discovered in the brain. But it’s not very likely that cannabis itself, or even the standardized blend of cannabinoids developed as a sublingual spray under the tradename Sativex by a British outfit (and still awaiting British approval as a pharmaceutical drug) will, itself, turn out to be an important medicine.

“Medical marijuana” is the one drug-policy issue where the dovish position has overwhelming popular support. It’s not surprising that the anti-drug-war movement doesn’t want to give it up. Cases like the current one make fine guerilla theater.

I don’t claim to be a Constitutional-law scholar, but this case seems easy to me. I mean, what part of “supreme law of the land” would the plaintiffs like to have explained to them more slowly? Yes, on an originalist jurisprudence the entire structure of the Controlled Substances Act is unconstitutional, simply because Congress has no general police power and no delegated authority to regulate what intoxicants individual citizens want to consume, but if it’s Constitutional to have a federal criminal law against smoking pot in the first place — a proposition no one is challenging — and that Congress didn’t, and didn’t have to, make an exception for sick people — which the Court decided just a couple of years ago — then it’s hard to see how a state statute can undo a valid federal law.

(0n the other hand: Barnett pointed out in oral argument that if Congressional power under the Commerce Clause allows the government to forbid home pot-growing on the grounds that it influences the national marijuana market, then Congress could also ban home dishwashing as part of a regulatory scheme for the national market in dishwashing liquid. That does indeed seem to be the logical consequence of the government’s position.)

So this is a case where the merits one in run direction and the cases in the other; a good reason to give thanks you aren’t a judge.

(Pete Guither at Drug War Rant has a full range of resources relevant to the case.)

In any case, let’s not confuse this with an important problem in drug policy. There are lots of those — for example, how to reduce the volume of violence in the drug markets, or how to shrink drug consumption among hard-core user-offenders, or how to reduce the number of drug dealers behind bars — but they don’t get much attention.

“Medical marijuana” does. And, shameless media-hound that I am, I will be appearing tonight from 8:00-9:00 p.m. Eastern on a nationally syndicated NPR show (produced at WBUR in Boston) called “On Point.” Actually, I won’t come on until about 8:30; the first half-hour will be one of the plaintiffs and two of the lawyers, one from each side.

Warning: While it’s true that I have a face for radio, I have a voice that was made for blogging.

Needle exchange in New Jersey

Yes, needle exchange prevents HIV transmission. More surprisingly, it actually reduces drug abuse.

A reader informs me that, on his way out the door, Gov. McGreevey used emergency powers to legalize needle exchange in New Jersey. My reader wants to know whether this will reduce the spread of HIV.

This isn’t a topic I’ve studied myself, but those who have all come to the same conclusion: needle exchange not only reduces HIV infection rates but also reduces heroin use. Participation in needle exchange seems to be, for some users, a halfway house to entering drug treatment.

If needle exchange (or alternatively just permitting the legal distribution of needles and syringes) had been pursued aggressively in the early 1980s, it could have saved tens of thousands, or even hundreds of thousands, of lives. But of course St. Ronald and George I cared more about conservative votes than they did about the lives of homosexuals and injection drug users (in the 1988 campaign Bush Sr. was still pretending that testing was a policy for preventing HIV transmission), so the opportunity was lost. (And yes, if you’re curious, for once I got the right answer at the right time, but since I wasn’t following either the Administration line or the Gay Men’s Health Crisis line, I couldn’t get anyone’s attenion.)

The benefits of needle exchange are much smaller now: the epidemic has led to improvements in needle hygiene among injection drug users, and many dealers now sell “works” (some of them, unfortunately, previously owned) along with drugs. Still, there’s some benefit to needle exchange, and no loss.

The question is still open whether other forms of outreach to injection drug users besides needle exchange — forms that don’t involve handing out the paraphernalia of illicit drug use, which understandably annoys those who think of themselves as the potential victims of heroin addicts’ property crimes — would work as well. (Certainly expanding access to opiate maintenance would, but that confronts its own fiscal and regulatory challenges.)

But given that needle exchange demonstrably works, without any bad side effects that anyone has been able to detect, Gov. McGreevey’s decision was indubitably the right one substanatively, and it’s a little sad that the topic remains so controversial politically that he felt able to do so only after his career was over. Here’s hoping the still-active politician in New Jersey will be able to hold on to this little bit of progress, or trade it out for something better.

10th Circuit affirms UDV ruling:
ayahuasca-using church may resume services

The 10th Circuit affirmed the award of a preliminary injunction telling the DEA to keep its hands off the UDV’s worship.

The 10th Circuit en banc, by a majority of 8 to 5, has affirmed the 2-1 decision of its own three-judge panel to affirm the grant by the District Court for New Mexico of a preliminary injunction allowing the UDV, which uses as a sacrament a potion containing DMT (a hallucinogen that is a Schedule I controlled substance), to pursue its religious practices without interference. The court also removed the stay it had placed on the preliminary injunction pending appeal.

The decision is subject to review by the Supreme Court, which might or might not take the case and which, if it did take the case, might or might not again stay the preliminary injunction. If the injunction remains in effect, the church will be able to hold its ceremonies in the U.S. for the first time in five years.

How Appealing has the full text of the very cursory per curiam opinion, along with both the dissent by the five-judge minority, the opinion of Judge Seymour and five colleages (agreeing with the result but disagreeing on an important procedural point) and the concurrence by Michael McConnell and one colleage, the only two judges of the thirteen who liked both the result and the procedural decision.

Much of the discussion is about the appropriate standard for the grant of a preliminary injunction; those interested in drug policy and religious freedom may want to skip over those sections to get to the meat.

As I appeared as an expert witness in the case, I probably shouldn’t offer any further comment.

Is test-doping cheating?

Yes. It reduces the validity of the test, and puts test-takers at risk of developing substance abuse.

My email inbox has been full of arguments about my post calling the practice of taking stimulants to improve one’s scores on the SAT and LSAT (and presumably the MCAT and GMAT) “dishonest” and likening it to doping in sports competition. The objections fell into two categories: some asking why doping was cheating, and others arguing that “life isn’t a sporting event” and that the category therefore wasn’t applicable.

Second things first: No, life isn’t a sporting event. But test-taking is part of a competitive process where the (astonishingly valuable) prizes are the small number of places at the top colleges and professional schools. (Arguably, where you go to college, within the range likely to be relevant here, matters more socially than it does professionally. But where you go to law school or business school matters enormously. Moreover, with more and more places using scholarship awards to compete for top students, there are immediate financial advantages to scoring better than your competitors.)

In any competitive process, an advantage for one competitor is a disadvantage for others. So the question is what counts as an “unfair” advantage. The answer isn’t obvious.

In general, though, we expect people to obey the law. Breaking the law for competitive advantage seems to me to fit pretty squarely into the category of cheating.

But why, one might ask, should there be such a law? Using a stimulant once or a few times isn’t harmful. If some students want to obtain a competitive edge by studying, others by popping Ritalin, and still others by catching a good night’s sleep before the test, why shouldn’t the rules allow any or all of those strategies?

The simple answer is that the tests are supposed to measure aptitute for learning, and more generally aptitude for performing intellectually demanding tasks. That’s why the schools value the results. So the test results ought, ideally, to reflect something about the normal performance of the test-takers. Taking stimulants is a self-limiting process; you’re not creating mental energy out of nowhere, but merely borrowing it fairly stiff rates of interest. People can’t be stimulated all the time. So unstimulated performance is a better measure of average performance than is stimulated performance.

Finding the potential law student (for example) who responds most postively to psychostimulants, or tolerates the greatest dose of stimulant without becoming manic or compulsive, or who is most adept at figuring out what dose of stimulant will produce optimal performance on the LSAT, doesn’t have much to do with finding the potential law student most likely to have a good career in law school and as a lawyer. Therefore, the rules of the LSAT should forbid drug-taking as a test adjunct, as the criminal law already does.

If drug-assisted test-taking were legal, and if (as seems likely) the drugs can produce big gains for many students, then every student who really wants to compete will have to do the work of figuring out whether stimulents help him or her, which stimulant is optimal, and how much to use. Some of them are likely to find the stimulant experience rewarding, or discover that they work much better stimulated than not. All of those people will be at risk of developing stimulant abuse or dependency, which is a really bad risk to be at. Lots of methamphetamine addicts started out taking the drug to work, not to party. (I know one guy whose mind will never be the same after the methamphetamine habit he developed while using meth to write his Ph.D. thesis about drug abuse.)

To sum up: Allowing stimulant use in the context of competitive test-taking means, virtually, requiring it of those who want to win the competition. And requiring stimulant use is likely to have some bad results in the future lives of test-takers, in addition to reducing the validity of the tests as predictors of academic and professional performance. Since taking stimulants to boost test scores is illegal, and since making it legal would have bad results, I think it’s fair to call taking stimulants for that purpose “cheating,” and I’m disappointed that today’s test-takers by and large either don’t agree or don’t care. (Two emails informed me that test-doping is now very widespread and barely covert.)

In this respect, test-doping differs from the use of drugs producing long-acting cognitive enhancement. If I can make myself lastingly smarter or less forgetful by taking a pill, that’s no different from an employer’s point of view than if I can do the same thing with good eating or reading habits. The problem there is that the first generation of drugs is likely to have side-effects, and certain to have an unknown long-run side-effect profile. But once again taking those drugs is going to become virtually mandatory for those who are playing the winner-take-all games in the professions and in academia.

There’s probably not much we can do about that.

Even the test-doping problem may be virtually intractable. With millions of prescriptions out there, the milder stimulants are easy to get. ETS and its competitors could start requiring chemical tests, as the sports authorities do, but they’re going to confront the fact that some students have legitimate prescriptions for stimulants to treat ADHD or nacolepsy. Moreover, since the ADHD diagnosis is particularly hard to specify, it won’t be hard for aggressive and well-connected students to find a physician willing to write a prescription in time for the LSAT. The Americans with Disabilities Act would (or at least I hope it would) make it impossible for the test companies to put asterisks next to the test scores of students with prescriptions.

One option would be to take the time pressure off the tests, which would substantially — though not by any means completely — eliminate the stimulant advantage. Another would be for the schools to mount their own tests (perhaps on line), as a supplement to the uniform tests, reducing the gains to be made from doping for a single test that covers all schools.

I don’t have a clear idea about what to do. I am, however, pretty clear that there is a problem.

Cannabinoids and memory

Cannabinoids interfere with short term, ummmm…., now what was that word … whatever. Sometimes that’s good. Especially if you’re a birdbrain.

Smoking pot interferes with short-term memory. That’s the source of about half of marijuana-related humor (the other half being about the munchies).

In the 1980s, Raphael Mechoulam and his colleagues found that the brain makes its own cannabinoids (which they dubbed “anandamides,” from the Sanskrit word for “bliss”), and a set of neurons with anandamide receptor sites. That explains why pot-smoking is psychoactive. Still unexplained is the biological function of the anandamide system; presumably, the ability to get stoned wasn’t a survival advantage.

Even before anandamide ligand-receptor system was discovere, some people — notably Andrew Weil — had claimed that pot-smoking might have an offsetting benefit in enhancing creative imagination. As might be expected, the relevant studies, which might yield politically incorrect results, mostly haven’t been done.

A new study suggests that memory interference and creativity enhancement might be different results of a single underlying process. Memory, it seems, can interfere with imagination.

In the new study, birds were shown a worm in a wormhole. Then the lights were turned off and back on, and the birds were allowed to search for the worm. Birds given a drug that blocks the actions of the brain’s endogenous cannabinoids performed better on the task of finding the worm where it had been before, suggesting that the cannabinoid system worsened performance on short-term memory tasks.

That left the puzzle as to why the system was there in the first place. But a second experiment suggested an answer to that puzzle. If the location of the worm was changed while the lights were out, the cannabinoid-blocked birds stubbornly insisted on finding the worm where it used to be, while those with normal cannabinoid function were much quicker to try alternative locations.

You might say that the cannabinoid-enabled birds flip-flopped, while the cannabinoid-blocked birds stayed the course.

The paper (DeVoogd, T.J., et al., “Cannabinoid Inhibition Improves Memory in Food-storing Birds.” Proceedings of the Royal Society: Biological Sciences (Vol. 271, No. 1552, Oct. 7, 2004) doesn’t seem to be up yet on the Royal Society website. Cornell has posted a well-written press release, though.