Category: Drug Policy

It’s often hard to tell whether Rush Limbaugh is just deceiving his audience or whether he’s also deceiving himself. But his on-the-air defense against the money-laundering changes he may face simply missed the point, in legal terms. Even if the Florida authorities decide to give him a break, he could be in very big trouble — about three years’ in prison worth of trouble — if the Feds decide to go after him.

The accusation is that when Limbaugh was sending his housekeeper out to buy narcotics for him — and apparently threatening her once when she thought about not supplying him — he withdrew money from his bank in amounts just under $10,000, in order to avoid having to fill out the Currency Transaction Reports (CTRs) that would otherwise be required.

Limbaugh doesn’t seem to deny that. But he told his listeners, “I was not laundering money. I was withdrawing money for crying out loud.”

The bad news for Limbaugh is that, by law, “structuring” transations to avoid the CTR rules for money used in a drug deal constitutes the crime of money laundering.

Here’s the statutory language (18 U.S.C. Sec 1956):

Whoever, with the intent -

(A) to promote the carrying on of specified unlawful activity;

(B) to conceal or disguise the nature, location, source, ownership, or control of property believed to be the proceeds of specified unlawful activity; or

(C) to avoid a transaction reporting requirement under State or Federal law,

conducts or attempts to conduct a financial transaction involving property represented to be the proceeds of specified unlawful activity, or property used to conduct or facilitate specified unlawful activity, shall be fined under this title or imprisoned for not more than 20 years, or both.

For purposes of this paragraph and paragraph (2), the term ”represented” means any representation made by a law enforcement officer or by another person at the direction of, or with the approval of, a Federal official authorized to investigate or prosecute violations of this section.

That’s it. If Rushbo, in order to avoid a transactions reporting requirement, “structured” transactions to stay under the $10,000 trigger with money to be used for a drug buy (“property used to conduct or facilitate specified unlawful activity”), he’s toast.

Not being a specialist, I’m not sure what actual sentence he would likely face. The relevant guideline seems to be 2S1.3 If I read it correctly, “structuring” has a base offense level of 6, plus another two for doing so to facilitate an illicit transaction, plus a number determined by the amount of cash: 6 if the sum is more than $30,000, 8 if more than $70,000, 10 if more than $120,000, 12 if more than $200,000. That yields a total of between 14 and 20, and thus guideline ranges starting at 15 months and ranging up to 41 months.

I have heard from DEA sources that the new Administrator is really on a tear about money laundering and that there’s some interest in making Limbaugh the poster boy. If DEA sticks by that plan, there’s not much anyone else can do about it. The old “Thornburgh memo,” weakened under Reno but now back in full force under Ashcroft, requires federal prosecutors to charge the most servere offense they’re sure they can prove. (And proving this one is child’s play.)

So if DEA wants Limbaugh’s head for a trophy, the U.S. Attorney for the Southern District of Florida — presumably Jeb’s choice, since Florida has two Democrats in the Senate — couldn’t decide to give him a break.

None of this is nearly as bad as what he’d face as a “drug trafficker” (defined by the quantity he possessed, not by any intent to sell) under Florida law, but it’s plenty bad enough.

While I’m on the subject, two other Limbaugh-related notes:

(1) William Bennett, who used to be so enthusiastic about sending middle-class drug users to jail because they serve as such a bad example to everyone else, seems to have decided to make an exception in Limbaugh’s case. If Bennett had any integrity, he’d be asking why the nation’s radio broadcasters are willing to give someone who undeniably has committed felony violations of and state and federal laws a national audience every day. But then if my grandmother had had beizim, she would have been my grandfather.

(2) Rush’s PR folks seem to have persuaded the newspapers to refer to his oxycodone and hydrocodone habit as “prescription drug abuse,” as if he had simply been dealing with overgenerous doctors. The drugs he was abusing are indeed available by prescription, but he wasn’t getting them prescribed. He was buying them on the illicit market.

The sad story of Limbaugh’s drug addiction wouldn’t be a total loss if it helped his fans and political allies rethink their position toward drug addicts in general. Noticing that they aren’t actually willing to apply the principles of tough love and zero tolerance to someone they care about, they might start to wonder whether those principles are really the ones we ought to be applying to drug addicts who aren’t famous or rich or well-connected. Instead, they’ve just gone into denial about the fact that Limbaugh’s case strongly resembles the case of other drug abusers.

Too bad.

Some Native American peoples traditionally used hallucinogens, notably the mescaline-bearing peyote cactus, for ritual purposes. Staring in the 1880s, a specific version of ritual peyote use has spread widely among Native Americans, including many from tribes without hallucinogen traditions of their own. While peyote use long predates the introduction of Christianity to the New World, today’s peyote rituals are essentially Christian. The Native American Church (not a single organization, but a collection of local bodies with somewhat different practices) now claims 250,000 members. After a long political and legal struggle, federal regulations were changed to exempt Native American ritual peyote use from the drug laws in 1965; the American Indian Religious Freedom Act Amendments of 1994 codified that exepmtion and made it binding on the states.

In recent years, freedom of exercise for the peyote religion has been largely uncontroversial. Even drug war hawks supported AIRFAA, and the Drug Enforcement Administration offered no opposition and has stressed its good working relationships with the NAC. The House Committee report on AIRFAA bill asserts what has become the conventional wisdom on the topic:

Medical evidence, based on scientific studies and. opinions of scientific and other experts, including medical doctors, former directors of the Indian Health Service and Enthropologists, clearly demonstrates peyote is not injurious to the Indian religious user, and, in fact, is often helpful in controlling alcoholism and alcohol abuse among Indian people.

In that context, the last two paragraphs of this otherwise unremarkable Philadelphia Inqurer article about peyote use among the Huichol of Mexico are rather chilling. After citing a scientist who is studying ritual peyote users and finding no health damage, the story continues:

Others, such as David Murray of the Office of National Drug Control Policy in Washington, see more serious risk. Working among the Navajo, he said, he found long-term peyote use was “counterproductive to education and social mobility.”

Because the peyote comes from a natural plant, he said, “you’re taking in a powerful chemical stew,” with some toxins in addition to the psychoactive ingredient. “It is, without question, a risky undertaking.”

It seems unlikely that Murray, a close adviser to John Walters, would talk that way for publication without clearing it. Is this a trial balloon for a policy change? If Murray, an anthropologist, has any research to back up his claims, we’d all like to see it.

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.

If you’re going to send a threatening letter in an attempt to suppress the communication of truthful information damaging to your client, don’t do it to another bunch of lawyers. You’ll just make their day.

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.

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.

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.

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

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.

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.