Twentieth Annual Report of the Research Advisory Panel - State of California

TWENTIETH ANNUAL REPORT OF THE RESEARCH ADVISORY PANEL 1989 [part 1]

COMMENTARY SECTION

PREPARED FOR THE GOVERNOR AND LEGISLATURE [OF CALIFORNIA]

RESEARCH ADVISORY PANEL MEMBERS

Edward P. O'Brien, J.D.
Panel Chairman
Appointed by the Attorney General

Frederick H. Meyers, M.D.
Panel Vice-Chairman
Appointed by the University of California

Thomas K. Hazlet, Pharm.D.
Appointed by the Department of Health Services (March 1989)

Luis Icaza, Pharm.D.
Appointed by the State Board of Pharmacy

Nancy C. Miller, R.N. (resigned during 1989)

M. Douglas Anglin, PhD.
Appointed by the Governor (December 1989)

Carmel M. Roberts, Ph.D.
Appointed by the University of Southern California
Designated private university

Donald R. Wesson, M.D.
Appointed by the California Medical Association
Designated professional medical society

STAFF MEMBERS

David W. Schieser, Ph.D.
Executive Secretary

Brenda J. Crommie
Secretary

COMMENTARY

In previous annual reports the Research Advisory Panel has used the experience acquired during its operation to be critical of the research community and to summarize other problems of drug abuse important to the State of California. In this annual report, the Panel presumes to suggest that the Legislature act to redirect this State away from the present destructive pathways of drug control. The Panel suggests that this legislation be formulated following four principles. First, separately consider the different drugs involved and not consider that there is one massive drug problem; second, distinguish between the effects of drugs and the associated criminal activity; third, design the legislation being aware that these are initial efforts subject to change with experience; and fourth think of "drugs" as including alcohol and nicotine, not as being separate substances.

PANEL QUALIFICATION

The Panel presumes to make these suggestions because of the long experience of Panel members in activities relating to drug abuse, both in their role as members of the Panel and also from their comprehensive experience outside of their Panel function in areas related to the effects of drugs, the treatment of drug abuse and societal response to drug abuse.

The.Panel approaches the Legislature differently from most advocates that appear before you. Such advocates have some conflict of interest, but that conflict is not always disclosed nor easily apparent to the Legislature or to the persons themselves. It is not easy or pleasant, but it is essential, to acknowledge that even peace officers and workers in the drug abuse treatment industry (not to mention simple "legalization" advocates) have an interest in maintaining and initiating

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This report represents a consensus among Panel members acting as individual experts. It does not represent policies or positions of the appointing agencies nor have those agencies been consulted during its preparation.

The diversity of opinion and choice of tactics is so great that no Panel member adheres completely to every item herein. One Panel member disagrees with the commentary portion of the Annual Report on the grounds that the legislative recommendations are not within the authority of the Panel as granted by the Legislature. Two members disagree with certain legislative recommendations within the commentary. Their comments are contained in minority reports at the end of this commentary.

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certain practices. With minor exceptions, members of the Panel over the past twenty-two years have had no vested interest in drug treatment programs or sources of research support. Panel members are appointed by different agencies within the State and most receive compensation from their primary employment and are relieved of any tendency to react out of self interest to suggestions for change.

After years of informed discussion and sensing a change in the attitudes of a large fraction of the population, Panel members have agreed that we are mandated as an advisory group to the Legislature to suggest that some legislation be attempted to reduce the damage to society now being imposed by drugs (always including alcohol and tobacco) and by inappropriate societal reaction to drug use.

IMMEDIATE NEEDS

Action must occur now. It is unnecessary to belabor the magnitude and importance of the problems of drug abuse as they are currently perceived by at least a fraction of the American public and by their elected representatives. The reaction is in part rational and justifiable, but is also colored by emotion and misunderstanding. The traditional activities by enforcement and regulatory agencies, however expanded by the long standing wars on drugs, whether directed at the individual drug user or small or large purveyor, have not been able to alter the course of the problems, of the extent of use, of individual damage or of the associated criminal activity. Even in the judgment of the enforcement agencies this traditional approach has accomplished little except possibly to increase price and encourage experimentation with alternate drugs. In spite of the sanctions imposed upon drug users, we have over the past 22-years seen massive epidemics involving high-dose intravenous methamphetamine, heroin, marijuana, hallucinogens, sniffed cocaine, synthetic narcotics, PCP, and now smoking free-base or crack-cocaine. It appears incontrovertible that whatever policies we have been following over the past generations must not be continued unexamined and unmodified since our actions to date have favored the development of massive individual and societal problems.

Action must be innovative. Not only should the leaders of this State act now, but they must act differently. They must adopt actions unlike those we have tested and found wanting over past generations. The responsibility for initiating change appears to us to be passing at this moment from the intellectual and scholarly community to the Legislature. There is more than an undercurrent of published discussion favoring radical change and questioning the efficacy of what, for convenience, we will call the "prohibition policy." Technical journals cited below and leading intellectual periodicals across the political spectrum have published carefully reasoned discussions establishing that our present policies are worse than useless. "Legalization" (not our term) has even been supported by conservative leaders such as William F. Buckley and Milton Freedman.

BASIS OF DERIVATION OF SUGGESTED LEGISLATION

The Panel believes that a rational approach to change should be based on three concepts that neither the public nor many legislators appear to be aware of or appreciate, however clear the distinctions are to researchers and practitioners in the area of drug abuse:

1) Differentiate different drugs and different routes of administration. There is no basis for progress in talking about the drug problem and looking for a magic solution to the massive problem as it is perceived by the public. The approach must be based upon a separate consideration of each of the several drugs involved. The various drugs involve different toxicities and different individual and social problems. The terrible lethal effects of cigarette smoking, that is, of inhaling tobacco smoke, are familiar. Some drugs, notably alcohol, cause, as a direct pharmacological effect, criminal or anti-social activity. Other drugs, notably heroin, are much less inherently dangerous either to the individual or to society, in spite of their high addiction liability, but they generate massive problems for the criminal justice system. The statement about heroin is not controversial or arguable. The California and Federal Legislatures have acknowledged that narcotics are not inherently prohibitively dangerous and have authorized programs to provide huge doses of methadone, a strong narcotic, to heroin users in lieu of their street drug.

We must then, not be naively permissive in our attitude toward alcohol and other depressants that disinhibit and cause inappropriate reactions. And we should not react emotionally against less harmful drugs in such a way that their regulation generates more problems than would their ungoverned use.

Eventually, although certainly not at this time, regulations, that is, societal reaction, will have to take into account different routes of administration as well as different drugs and recognize, for example, that cocaine in one form may be a minor hazard, whereas smoked cocaine may be highly addictive and require a more restrictive approach.

In our judgment, a first step in rationalizing our approach would be to further isolate marijuana from the other illegal drugs. This drug is widely used as a social drug, comparable to alcohol. More than half of the population has or will have had experience with this drug. Marijuana presents the same problems of responsible and irresponsible use as alcohol. However, no change in regulation would be acceptable if it leads to another industry comparable to the alcohol and tobacco industry.

2) Separate drug effects from associated criminal activity. Legislators and other Political leaders-must look objectively at the hazards claimed to result from drug abuse and differentiate damage caused by direct drug effects from damage engendered by societal reaction. For example, the population is not actually threatened by the behavior of the heroin user under the influence of this drug. The heroin user who is "coasting" after an injection is not given to violent activity. Yet those same heroin users, driven by their compulsion, will, in their efforts to maintain a supply of this drug, resort to income generating criminal activities. These may be as minor as panhandling, may lead only to property and drug trafficking crime or, the personality of the user permitting, result in violent crime. Above the individual user is a stratum of heroin purveyors who operate as organized criminal activity and who will, the need in their opinion requiring, resort to the most violent acts. Obviously, to burden the individual user with the onus of organized criminal activity carried out by people who are rarely users themselves can lead to control of the problem only if the consumers are totally removed from the streets. This has not been accomplished even in the face of horrendous penalties, including briefly, in New York State under the so-called Rockefeller plan, the death penalty.

With a drug like marijuana, which enjoys popular approval in the face of legal prohibition, the associated criminal activity is regarded as nominal. And in the face of a refusal by a significant fraction of the population to support the laws against marijuana, it will be impossible to control the market in marijuana. Indeed, although the huge illegal market for imported marijuana may add significantly to our negative balance of payments, that market is not associated with drive-by killings or other devastating criminal activity.

3) Awareness of Risk/Benefit Ratio of any Change.

Suggestions for changes in the regulation of abused drugs should realistically take into consideration the possibility that any relaxation of regulation could lead to increased use. Any change effected should be evaluated over time to ensure that it does nothing, or the minimum, to encourage drug use. The term "legalization," should never be used in describing the approach we are advocating since we are not proposing to add an unregulated drug to the market or to permit the development of an industry which proselytizes for drug use. "Decriminalization" would be a legitimate description, but there is no intent to minimize the dangers or encourage the use of any drugs, always including those already in wide and damaging use, such as alcohol and tobacco.

A STEP-WISE APPROACH TO DECRIMINALIZATION

The Panel does not pretend to be able to suggest an ultimate solution to the problem of drug abuse and does not suggest that an ultimate solution be sought at this time. Instead, we suggest a phased approach based upon the above principles of differentiating drugs and their problems that would initially achieve minor change but would demonstrate to the public that the minor change involved would not be accompanied by any significant increase in use or other damage. Since the Panel does not pretend to have the ultimate solution it suggests that the outcome of such legislation be monitored closely.

Not only the traditional legislative responses, but most current proposals in the area of drug abuse legislation, are almost entirely in the direction of being increasingly more restrictive and vengeful. One can surmise this is a result of an apparent fear of being labeled "soft on drugs." Existing legislation, like prohibition itself, should be considered essentially a failure but one from which we can learn. Prohibition was characterized at the time as a "noble experiment," a judgment with which most of us would now agree. This noble experiment, however, was unsuccessful and after less than a generation was terminated. The intent of the 18th Amendment was beyond criticism and the effort was indeed noble, did accomplish a decrease in alcohol consumption, and could be used to justify additional experimental approaches. However, the experiment was unsuccessful in that the American public did not support enforcement and the illegal market generated an amount of associated criminal activity in the 1920's that was unacceptable to the public.

We are currently at a similar point in our history where much of the leadership and a considerable fraction of the public are coming to question whether prohibition is not equally unproductive in coping with the drug problems. Clearly the marijuana laws are unenforceable in the face of the attitudes and practices of a significant fraction of the population.

The Panel then suggests areas in which initial steps can be taken to prevent individual tragedies and unclog our judicial system. Should any of the ideas prove less than optimal, the legislation can be modified as easily as the Volstead Act was terminated. If the changes are successful, they will serve to demonstrate to the citizenry of California that different drugs can be viewed differently, that some decriminalization may be beneficial to the general public, and that they can be developed without great or irreversible harm.

SUGGESTED LEGISLATION

Remove penalties for possession of needles and syringes. The statement that heroin is inherently not a dangerous drug has been somewhat weakened by the appearance in the community of the AIDS virus. This virus is transmitted, among other ways, by the use by one person of paraphernalia contaminated with the blood of an infected person. The AIDS virus has already spread through the drug-using community to an extent that varies with the sanitary practices of the local population. The prevalence of infection is much higher, for example, in New York City than in San Francisco.

There are two suggested methods of controlling the spread of this relatively new virus. The first, demonstrably ineffective, is to adopt a moralizing attitude, continue our current practices and simply add the individual tragedy and economic burden to the community of more AIDS patients. There is no reason to conclude that the additional threat of infection with AIDS has lead to a decrease in the use of injected drugs.

The other method of controlling the spread of the AIDS virus would be to encourage sanitary practices at the time of injection by making it possible for each heroin user to use his own "outfit", that is, syringe and needle, rather than accept the risk of using one contaminated with another addict's blood. This would become permissible as well as possible if the intravenous (IV) drug user were permitted to legally possess his own syringe and needle. The idea of providing or permitting the possession of the paraphernalia is controversial being viewed by some as offensive to the public morality. This attitude appears extremely shortsighted, in that making clean outfits available will not affect the prevalence of heroin use for the simple reason that syringes and needles are not difficult to obtain at this time. It follows that current experimental programs of needle exchange will be ineffective so long as the IV drug user fears harassment or arrest for carrying paraphernalia on his person.

Heroin users understandably try to avoid carrying supplies of their drug and their injecting paraphernalia any more than is absolutely necessary since the mere possession of the substance and the equipment is a punishable, although nominal, crime. The possession of paraphernalia is defined as a misdemeanor. Even though convictions under that complex section of the code are not easy to obtain if the charge is contested, the availability of the charge becomes a convenient means of harassing the addict and of subjecting him, in effect, to a three-day jail sentence without trial. A person with a prior drug related conviction must be especially careful since, in such a situation, even the possession of an ordinary spoon can be construed as possession of paraphernalia. As a result, users are reluctant to carry their own outfits and, their compulsion being upon them, are quite likely to use whatever equipment is available at the site of drug purchase. People driven by the compulsion that a heroin user feels, and given their choice between using someone else's outfit and doing without their drug will use the possibly contaminated equipment.

The Panel urges an approach that would acknowledge the difficulty of treatment and accept a humane, rather than a punitive approach, and attempt the control of the spread of AIDS through the drug-using population by removing the prohibition against the possession of drug using equipment, which equipment is after all no different than that used by a diabetic or that available in the trash cans of some dozens of offices and hospitals in every city. The suggestion then, is that those sections of the codes (California Health and Safety Code sections 11364, 1 1 364.5, and 1 1 364.7 and Business and Professions Code section 4140) be revised to decriminalize possession of needles and syringes. Whether syringes and needles remain prescription items or not is a minor consideration in the spread of drug abuse, since this equipment or substitutes improvised out of plastic tubes and pacifiers are already easily available.

The result of this action would be to control to some extent the spread of the AIDS virus. Fortunately, in California the action could have significant impact since the incidence in drug users with HIV infection is still below 5% in cities other than San Francisco. Also, there would be important progress in controlling the spread of hepatitis, other infections, and local abscesses. Most important, it would provide experience and presumably evidence that liberalization of regulations would be followed by some gain in individual-and public health rather than by a massive increase in drug use. There is no reason to believe that the availability or lack of availability of needles and syringes has anything to do with the recruitment of new heroin users. Except during the early years of the epidemics (1 949-50 and 197071) the spread of heroin use to new users can be best understood by considering what older students in this area refer to as the "infectious disease model." New heroin users do not appear because of the availability of syringes, but because of their contact with established heroin users.

Allow cultivation of marijuana for personal use. Insofar as damage to the individual and society is concerned, the quantitatively most important drugs are alcohol and nicotine in the form of cigarettes. There remains, then, as the other quantitatively important drug, marijuana, which has become, for a large fraction of the population, a social drug comparable in pattern and approaching that of alcohol in extent of usage.

Marijuana is a disinhibiting drug used socially to relieve anxiety and as such has many liabilities in common with alcohol. We acknowledge that marijuana is not without Its effect on the individual user and would not suggest any change that carried a significant risk of increasing the use of marijuana. We resist the use of the word "legalization" in relation to any drug, including marijuana. On the other hand, an objective consideration of marijuana shows that it is responsible for less damage to the individual and to society than are alcohol and cigarettes, the other social drugs mentioned above. A further consideration in forming a reaction to the wide use of marijuana is that it is a source of conflict between generations and of disrespect for the law.

Equally important is the economic and, to some extent, criminal activity associated with the marketplace of marijuana. At the moment, we are adding millions to our trade deficit, off of the books to be sure, by our purchases of marijuana in Columbia, Mexico, Thailand, and elsewhere. Yet, thanks to a previous action of the California Legislature, the product of this illegal activity may be possessed and used by the citizen with the possibility of only minor sanctions.

The Legislature, some years back, did liberalize the regulations pertaining to marijuana in making the possession of a small amount (less than one ounce) an infraction, rather than a crime, calling for a citation and a nominal fine upon the first violation. This change has not lead to any disastrous consequences. On the contrary, it has reduced the tension between generations and decriminalized to some extent the generally sanctioned use of this new social drug by large numbers of people.

This new situation, for which we applaud the Legislature, is however, not stable, in the sense that the failure to act in relation to the supply of the drug leaves unmet the question of the still illegal market and the economic problem that that entails. If this disparity could be resolved there would be economic gain and a great simplification of law enforcement which now devotes a considerable effort to seizing a small fraction of the illegal importations or cultivations.

The Panel therefore suggests that the law be changed to permit cultivation for personal use. Such cultivation would be permitted only on property serving as the residence for the individual, that is, it would not authorize the cultivation of fifty plants on a National forest and it would not permit the possession outside of the home of more than the present one ounce, nor would it sanction the provision to others in or out of the residence whether by sale or in the form "parties". The change regulating the provision of this drug must be made in such a way that we do not see the development of another industry comparable to the alcohol or cigarette industry. This would require extensive revision of Health and Safety Code, Section 1 1 358, which covers substances and matters other than the plant.