Eugene Volokh questions an argument of Justice Thomas, dissenting in Ashcroft v. Raich, that allowing patients to grow their own pot would not lead to substantial leakage into the illicit market. Justice Thomas cites amphatamines and morphine as examples; Eugene says “I had thought that prescription narcotics often do make their way into the illegal markets… the availability of prescriptions has undermined the broad prohibitory goals of the Act.”
The answer is: It depends, both on the rigor of controls on prescription drugs and on the availability of non-pharmaceutical supplies of the drug in question or substitutes for it.
Dexamphtamine used to leak massively from the prescription market into the illicit market; in 1970, three times as much amphetamine was legally produced and sold by pharmaceutical companies as was prescribed that year by physicians. Moving amphetamine to Schedule II, and the imposition of triplicate prescriptions and other measures to control retail-level diversion by some states, largely dried up that market. (Those controls also, of course, led to the development of a huge market for illicitly-produced methamphetamine; it’s quite possible, though not certain, that the net result of tightening controls on the diversion of prescription amphetamine was to create a larger drug abuse problem than would otherwise have existed.)
Morphine doesn’t leak much because there’s not much illicit demand for it, but hydromophone (dilaudid) and miperidine (Demerol) are much sought-after as heroin substitutes.
The semi-synthetic opioids hydrocodone (Vicodin) and oxycodone (Percodan, Oxycontin)have thriving diversion markets. The diverted opioids have created opiate-abuse problems in places the strictly illicit heroin markets don’t reach, so it’s certainly fair to say that diversion in that case has been the source of a significant amount of drug abuse that otherwise wouldn’t be happening. The same is true of the benzodiazepine “minor tranquilizers” (anxiolyitics) such as Valium and Xanax.
The harder a drug is to make in an illicit lab, the greater the possible contribution to drug abuse of making it licitly available. Methamphetamine is easy to cook from easily-available precursors; heroin is moderately easy to make, but only if you have a supply of opium; oxycodone simply isn’t a backyard chemical.
Where diversion is a significant problem, there’s a real tradeoff (as Eugene notes) between making life easy for physicians and patients and reducing drug abuse.
In the cannabis case, insofar as the “buyers’ clubs” function as convenient retail outlets, they may do a little bit to increase the availability of pot for non-medical use, though of course the places most receptive to the presence of such clubs tend to be the places where strictly illicit cannabis is easiest to obtain. But the ubiquity of the illicit cannabis supply, in both geographic and social space, greatly reduces the impact of making it medically available.
In the fact situation of Ashcroft v. Raich — production by a patient for personal use — that impact must surely be entirely trivial. Yes, if such activity were allowed, some patients would grow more than they need and sell the surplus. But it’s inconceivable that their contribution, either to production or to retail availability, would be noticeable, let alone significant.
So Eugene is right that Justice Thomas’s claim is too sweeping, but Justice Thomas is right that, on the facts of this case, there’s no real tradeoff between medical availability and substance abuse.
Footnote
Eugene’s reference to “the prohibitory goals of the Act” is an interesting tribute to the extent to which the War on Drugs has distorted the original intent of the Controlled Substances Act.
In its terms, the CSA is a regulatory statute, not a prohibitory one. The goal of making medicine available to patients is every bit as central to the statutory scheme as the goal of keeping drugs of abuse away from potential addicts. But of course that’s not the way the enforcement agencies, or the politicians, now see the problem.