David Borden

Washington Sheriff Tells Oregon Voters: Legalization Is Already Working

King County Sheriff John Urquhart has recorded a message letting Oregon voters know that legalization in Washington State has seen wasteful arrests decrease, DUIs decrease, taxes going to schools and police, and drug prevention programs getting funding.

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Is Hemp Legalization on the Horizon?

I attended a forum on marijuana legalization at The Brookings Institution Monday, where Rep. Earl Blumenauer (D-OR), one of a handful of Congressional champions of marijuana law reform, was one of the speakers. Along with his general optimism for where the issue is going, Blumenauer predicted that the current Congress -- #113, in office this year and next -- will legalize hemp growing.

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The Next Seven States to Legalize Marijuana?

Rolling Stone's Tim Dickinson continues his coverage of marijuana legalization with a not unjustifiably optimistic article, "The Next Seven States to Legalize Pot." Dickinson's predictions: Oregon, California, Nevada, Rhode Island, Maine, Vermont, and Alaska. Some of the states are more intuitively obvious than others, such as California, and even Oregon despite the loss. But Dickinson offers reasonable reasons to be hopeful about the others.

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Getting the Pointlessness

Amidst the continuing furor of anti-drug polemics and hysterics, it's easy to make the casual observer forget one of the basic realities of this issue: Most people who use drugs are okay. For most of the people who use drugs, it's OK that they are using drugs. We may legitimately worry about those who truly have problems with their drug use, and the people they may affect; we legitimately worry about the consequences of the illicit trade in drugs -- which is to say, the consequences of prohibition. And we would like to see the drug trade made less accessible to children.

But when one faces facts straight on, they say a simple thing: Most people who use drugs are okay. If results are what count, in most cases it's okay that people are using drugs. Not in all cases, to be sure. But in most cases.

Certain types of civil disobedience can illustrate the pointlessness of criminalization of drug use in a vivid enough way to be both noticed and understood. Members of the European Parliament Marco Cappato of Italy and Chris Davies of Great Britain accomplished this three years ago when they presented themselves to police in the London suburb of Manchester with minute quantities of marijuana attached to the back of a couple of postage stamps, getting arrested in the process. Cappato and Davies weren't even using the marijuana, it wasn't even enough to be used, they clearly were not menacing society in any way, they are highly respectable citizens. Yet it was enough to get them sent to jail in handcuffs. That is an effective demonstration of the pointlessness of criminalization.

Drug reformers in the formerly Communist nation of Hungary are doing something similar right now. Roughly 30 of them have turned themselves in as drug users to Budapest and other city police headquarters since the beginning of April. Among them was a famous novelist who is also grandmother -- clearly not a threat to society. Police are being forced to arrest these people and make the law look ridiculous in the process. It is fueling discussion, not only about casual use of marijuana but also how society deals with the truly problematic drug users. It is raising the issue of the unlucky ones who get caught and might not get a lenient sentence. It may well help to change the country's drug laws.

The criminalization of responsible drug users is only one of the many pointless aspects of drug prohibition. Criminalization of the trade in drugs itself is also pointless, though for more complex reasons that involve economics, public health and many other factors. But criminalization of users is pointless on its face. People may miss that obvious point a lot of the time. But they are capable of grasping it, without a lot of effort, if it is pointed out in a clear and compelling manner.

I believe they can understand the rest of it too. As New Mexico's former governor, Gary Johnson, has put it, support for the drug war is a mile wide but an inch deep. Our drug policies are so far off-base, with such serious consequences, it isn't that hard to get a lot of people, perhaps most, to understand at a minimum that some things are wrong. Prohibition is pointless, but our efforts to end it need not be.

A Moral Fog

Last week witnessed the conclusion of a sad chapter in an ongoing saga; the sentencing of Dr. William Hurwitz, a well-known physician specializing in pain management, to 25 years in prison and a $2 million fine for purported drug dealing involvement.

Supporters of Dr. Hurwitz say that his decision to treat pain aggressively with opioids (narcotics), in the way he did, derived from an ethical principle applied to its logical conclusion. Physicians are obligated by their medical oath to properly treat pain, which in general means relieving to the best feasible extent. To deny a patient adequate pain treatment is "tantamount to torture," in Hurwitz' own words. If you treat pain, then some of the people seeking opioid prescriptions from you inevitably will turn out to be drug diverters or abusers. But it is unethical to punish actual pain patients -- to torture them by denying them medicine -- just because such people are out there. So Hurwitz chose to err on the side of prescribing for pain rather than not doing so. Because his ethics, and his interpretation of them, required him to do so, drug warriors notwithstanding.

I agree with those ethics. It may be that reasonable people can believe that some degree of non-treatment of real patients should be risked in order to "balance" that priority with the priority of diversion control. I don't agree with that -- partly because denial of pain treatment really is torture, in my opinion -- and partly because I understand that the economics of the drug trade and prohibition renders diversion control ineffective regardless. If we can get to a point where a debate on the issue is taking place at that level, I'm not going to call anyone unreasonable who is rationally and sincerely trying to sort it out. But I agree with Hurwitz on this point.

I also believe that Dr. Hurwitz is in fact innocent. No actual evidence was ever presented that he knew that any of his patients were diverting or abusing drugs. And as one of the few people in the world holding both a medical degree and a law degree, Hurwitz would have been readily able to earn millions of dollars per year; a financial motive for the crimes of which he was accused simply did not exist. But whether my faith in Dr. Hurwitz is on target or not, even that may ultimately only have secondary importance.

There are two primary issues at stake. One is that it should have been doctors who decided whether Hurwitz had acted properly, but was not. Russell Portenoy, one of the world's top pain specialists, moved the issued forward this week by saying as much to the Los Angeles Times.

The other is the sheer lack of ethics displayed by prosecutors, by their witnesses, and sadly even by the judge himself, Leonard Wexler. I have it on good authority that the prosecutor arguing for a life sentence yesterday lied repeatedly during his performance. The judge invoked a tape he claims he saw, but which was never entered into evidence, to justify harsh treatment of Hurwitz. For a variety of reasons this is not very plausible. But even if it turns out to be true, it would still conflict with the spirit (albeit not the letter, perhaps) of the Supreme Court's recent pronouncements on these issues.

A witness for the prosecution, an addict in recovery, told of how he squandered his whole inheritance on drugs, conjuring the image of hundreds of thousands of dollars if not millions down the drain. He didn't mention, nor did anyone, that it was a mere $20,000, a lot to him perhaps but not a lot. Prosecutors leveraged their power to prosecute that individual and others, in order to get them to testify against Hurwitz in exchange for leniency -- a practice that courts have called bribery, though the Supreme Court ultimately did not uphold that. But the unreliability of testimony made under such duress is clear, and it is unethical to use it or allow it.

Most seriously, the prosecution's medical witness gave testimony that six of the leading experts on pain treatment characterized as "misleading" and even "absurd" in a letter they sent to the judge. But that letter was never shown to the jurors. How dare Judge Wexler withhold exculpatory information of fundamental importance to the case from the jurors? It may be that sharing the letter with the jurors would have been unusual and something that courts don't like to do. But given who that letter came from and the nature of its content, I can conceive of no moral justification for withholding such information from jurors regardless of usual procedures. There must have been some appropriate way for Judge Wexler to get them that information, and that's what he ethically had to do, but did not do.

The Hurwitz case is high profile. But such violations of decency occur all the time, in the countless more ordinary cases being thrust through the system every day. The courts have hence become institutions not to be respected, but rather feared and condemned. It is not good enough for the courts to do the right thing, to protect us from dangerous criminals and enact legitimate justice, but to do so only some of the time. The courts must make all reasonable efforts to maintain and enforce the highest moral and ethical standards at all times. But they lack the will, and perhaps the desire, to do so.

The courts are in a moral fog, unable to discern right and wrong in their own actions, while sitting in judgment on others. It is time not only to oppose and criticize injustice, but to stand against it. Ethics requires that of us too.

Dear Judge Wexler

The Honorable Judge Leonard D. Wexler
United States District Court
Eastern District of Virginia, Alexandria Division
401 Courthouse Square
Alexandria, VA 22314

Re: United States v. William Eliot Hurwitz, 03-CR-467-ALL (LDW)

Dear Judge Wexler:

I am writing to express concern about comments made by Ralph Craft, foreman of the Hurwitz case jury, which appeared in the Dec. 21, 2004 edition of the The Washington Post. Mr. Craft's remarks indicate the jurors fundamentally misconstrued both the legal and medical issues involved in the case. I have observed the pain issue and worked with pain patients, physicians and their advocates for 10 years and am well versed in the issue.

Mr. Craft told the Post that, "legitimate doctors out there don't prescribe anywhere close to what Hurwitz did."

However, the dosage which, according to the Post, "astounded" Craft, 1,600 5mg oxycodone pills, adds up to 8 grams daily, of a medication equivalent in its potency to morphine. According to Dr. Russell Portenoy, Chairman of the Department of Pain Medicine and Palliative Care at Beth Israel Medical Center, "[i]n clinical practice, the range of opioid doses required by patients is enormous" and "[d]oses equivalent to more than 35g morphine per day have been reported in highly tolerant patients. ..."

The 35 grams Dr. Portenoy, one of the world's leading pain specialists, finds appropriate in some cases, is more than four times the dosage Mr. Craft and presumably other jurors believed was impossibly large -- a serious misconception that appears to have played a major role in the convictions.

Mr. Craft also told the Post that Dr. Hurwitz "wasn't running a criminal enterprise." However, the charges of which he and other jurors voted to convict Dr. Hurwitz are clearly intended to apply to persons involved in major criminal enterprises. That Mr. Craft and perhaps other jurors could understand that Dr. Hurwitz did not run a criminal enterprise and yet convict him for running a criminal enterprise, suggests they were either unable, unwilling, or inadequately prepared to properly interpret the charges on which they were deciding.

Given the multiple, fundamental errors made by jurors, I believe your legal and moral obligation is to reverse the convictions and release Dr. Hurwitz immediately. Short of that, I urge you at least to use the discretion afforded by the recent Booker/Fanfan Supreme Court ruling to sentence reasonably, and sentence Dr. Hurwitz to time served when he appears before you this week. Since the jurors themselves did not believe Dr. Hurwitz ran a criminal enterprise, it would be unreasonable to hand down a sentence Congress intended for leaders of criminal enterprises.

Thank you for taking my points into consideration. I will be attending the April 14 sentencing hearing in support of Dr. Hurwitz, pain patients, and all enlightened physicians who wish to treat them. I believe this is a matter of the utmost moral gravity and that history will watch and remember the actions you take that day.

Shilling For Steroids

It was the talk of the airwaves today: Congress held hearings on steroid use in professional baseball, with sports stars like Mark McGwire and Sammy Sosa subpoenaed to be there. Is steroid use wrong? Can baseball police itself? Are congressmen seeking the public good or just grandstanding? Should the issue lie within Congress' purview at all? Numerous participants in the public debate have opined on the issue, and it will no doubt continue to be talked about for months or more likely years to come.

The most emotion-laden argument heard is that of the superstar athlete as role model for the nation's youth. One of the witnesses at the hearing was a grieving father whose son committed suicide, it is believed, as a result of withdrawal from anabolic steroid use. If kids get the idea that steroids can make them excel at sports, maybe even make the major leagues, more kids will use them and more such tragedies will be the result, is the idea. There may or may not be a lot of truth to the notion – it is notably difficult to sort fact from fiction on matters involving drugs and especially drugs and kids. But let's assume for the sake of argument that there is at least some truth to it. There probably is at least a little.

All the more reason Congress was wrong to do what it did this week. If there were any young people in America who didn't know that steroids can enhance one's athleticism, they almost certainly know it now. Along with thinking about the policy and social issues, some young people are now thinking, more than they were before, about whether or not to take steroids. It is an inevitable chain of events whenever politicians or the media draw attention to a drug. Though I do not know whether steroid use will increase as a result of the hearings, I would not be surprised by that. Whereas I would be surprised if the hearings directly or indirectly caused steroid use to drop. That's just not the way these things tend to work out.

Anyone interested in this issue should read "How To Launch a Nationwide Drug Menace", chapter 44 of the 1972 classic, The Consumers Union Report on Licit and Illicit Drugs. The chapter traces the evolution of glue sniffing from an obscure habit in 1959 to a major national phenomenon by the early 1960s. Anyone hurt or concerned by the harms wrought by drugs on some of their users ought to be disheartened by that story's similarities to today's steroid brouhaha. Will publicity from Congress' unintended advertising of steroid use serve to drive use up?

Time will tell, but if history is any guide, the answer is probably yes. And I for one was not interested in yet another demonstration of what not to do. Unfortunately, history likes to repeat itself. One more nationwide drug menace in the making.

Proof and Prejudice

Years after candidate George Bush's non-answers to questions about his possible drug past fueled controversy and a sense that he indeed had such a past, proof for some of it at least has at last emerged. Taped excerpts from a conversation, released by the author of a new book, reveal the future president essentially admitting to past marijuana use and explaining why he would never acknowledge it in public.

On one level, the educated reaction to this news is something along the lines of, "So what?" Tens of millions of Americans have used marijuana during their lives. It wasn't a big deal for most of them. Even the more dangerous drugs aren't a problem for most of their users – that's not the strongest argument for legalization of them, but it's true. All the more so for marijuana. Bill Clinton used marijuana. Al Gore used marijuana. It did not and should not have disqualified them from the nation's top job. Nor does it disqualify George Bush.

On other levels, however, the information is troubling, for two reasons. One is that candidate Bush criticized his opponent, Al Gore, not for having used marijuana but for having admitted to it. "I want to lead," he explained on the tapes, and "I don't want some little kid doing what I tried." He couldn't criticize Gore for having used drugs because he had also used drugs. So instead he criticized him for being open and truthful.

There is a level on which one could legitimately hold that it is counterproductive for kids to be keenly focused on the drug use of famous role models; this is an area on which reasonable people can hold varying points of view. But the way to accomplish that would be through legalization and treating private drug use as not a big deal. And that is not what George Bush has advocated.

Which leads us to the second reason, one of hard policy. As governor, Mr. Bush escalated sentences for some drug offenses, putting other people in prison for longer time periods for things that he himself had done or supported. As president, under his authority the federal government has targeted medical marijuana cooperatives, escalated the war on pain doctors, campaigned against drug policy reform initiatives or legislation, promoted drug testing and vastly overreaching drugged-driving laws, gone to court against any reform to drug policy that it could no matter how modest.

So if marijuana use in the distant past is not relevant to judging the president, hypocrisy on the drug issue is very relevant. And if not being open or candid about one's own youth is not exactly the same as lying to children, it verges on that. Not to suggest that his predecessor and failed opponents have stellar records on the issue by any means; they most certainly don't. But they're not president right now.

So if it is unimportant that George Bush used marijuana, it is kind of sad that he opposes honesty about it. And it is very sad that he continues to support cruel and repressive drug policies – policies which could have ruined his life if they had been in place back then, but realistically only in theory.

I am glad, therefore, that now there is proof of George Bush's drug use. If only by providing one more bit of rhetorical ammunition, it will make it slightly harder for the drug warriors to continue to escalate their pogrom against the American people.

Travesty of Justice

Not a day goes by in the drug war without something happening that shouldn't. This week an innocent and heroic doctor was convicted in a court, by a jury that wasn't afforded information they should have had, of charges that should never have been brought, under laws that shouldn't exist. Soon he will be given a prison sentence that any right-thinking person should regard as obscene.

He is William Hurwitz, the most prominent advocate, and at one time practitioner of, aggressive treatment for severe chronic pain for patients who suffer from it. I have written about Dr. Hurwitz since 1996, the year the Board of Medicine of Virginia yanked his license, to his patients' detriment, and I have met him on multiple occasions, including the day he received an award from the American Society for Action on Pain for the risks he took.

One of those patients was David Covillion, a former police officer who became disabled from a fight with a suspect. Covillion, like most of Hurwitz's patients, was not able to find another doctor willing to treat him. His pain was so great that he saw no way out but to end his life. He recorded a dramatic videotape the day before, explaining his decision, a tape that was played on 60 Minutes when it reported on the case.

The media, unfortunately, has not been clear in its more recent reporting on this history. Hurwitz, in fact, was essentially exonerated by the medical board, which restored his license, though not before much damage was done. He was able to return to practicing medicine and treating pain – until two years ago, when, knowing that the federal investigation was coming, he closed his practice. He wanted to give his patients a chance – whatever little they had of one – to find other doctors willing to treat them. Two and a half months after Hurwitz announced his decision, the feds raided his office and home.

It is a simple concept – one would think – that patients should get what they need for pain. But the drugs patients need for pain are also among the drugs that drug police make a living hunting down. The enforcement bureaus devoted to that nexus – anti-diversion bureaus – must draw blood to justify their existence and expand. The convictions they have now obtained against Dr. Hurwitz – which will put him in prison for life if the situation goes un-remedied – are bad news for pain patients. As one advocate told the media on getting the news, doctors are going to "run for the hills" whenever they meet a pain patient from now on. Who can blame them? Life in prison is a steep cost to risk for any cause, even the cause of obeying one's physician's oath.

It is that oath that Hurwitz was following. Frank Fisher, another pain doctor who had (relatively) better luck, has described Dr. Hurwitz as the most ethical of the pain doctors – the most ethical because he would always treat a pain patient for the pain, absent proof of the patient's misconduct. This included the patients other doctors most feared to treat – the patients with addictions, the poor, those with an unsavory look – those for whom the risk to the doctor of being fooled and ending up facing a prosecution is the greatest.

But as Dr. Hurwitz told the jury when he took the stand, to deny a patient pain treatment is tantamount to torture. If he had proof that patients were diverting the drugs, he would cut them off. But without proof, he was obligated to treat the pain they seemed to have, because to do otherwise would violate medical ethics. Dr. Hurwitz was unwilling to torture his patients by denying them medicine, even though that was what was needed to protect himself from the drug police.

This is the basic issue of the case, the issue that Hurwitz and his lawyers tried to convey to the jury, but there is more to it. Other issues are the misuse of the law by federal prosecutors, the lack of clarity in the law, the sheer length of the federal mandatory minimum sentences, and the willingness of the judge to aid and abet the prosecutors in their successful endeavor to obscure the issue for the jurors. Judge Wexler made a series of bad decisions that will probably constitute the basis for the appeal.

Wexler would not instruct the jury clearly, in response to their query, that it is legal to prescribe opiates to people with addictions to them, so long as the prescriptions are for pain control. Wexler did not communicate the "good faith" standard, that doctors who prescribe in good faith are innocent, even if the faith they showed some of their patients turns out to be misplaced. Both of these are errors of law which biased the jury's deliberations toward conviction.

Wexler also disallowed the defense from presenting a document published recently by DEA and pain treatment experts to the jury, because the DEA had withdrawn the document by that time. Would it not have been more in the spirit of truth – the "whole truth," as the witness oath goes – to show the jury the document, as well as the DEA's letter explaining their withdrawal of it, as well as the response by DEA's former physician partners which outlined how distorted and dishonest DEA's reasons really were, as well as the evidence that is suggestive that DEA withdrew the document to improve their chances of convicting Hurwitz himself? And there were other errors on Wexler's part.

I don't know whether Judge Wexler was biased or whether he meant well and was merely manipulated into his bad decisions by smart prosecutors. I also don't know whether prosecutors McNulty or Lytle or Rossi meant well but are merely misguided – truthfully I consider their motives deeply suspect, but that is only a speculation. Regardless, they are all participants in, and perpetrators of, a profoundly destructive attack on the rights and lives of pain patients everywhere. Some of the people reading this editorial are patients who may regard their hopes for relief from pain as having been dealt a blow yesterday in the courthouse. All of us could be in that situation one day and become the victims of McNulty and Lytle and Rossi and Wexler.

But they are also perpetrators of a travesty of justice against an individual – a lynching, in effect – of an innocent doctor whose only crime is that he would not torture his patients by denying them the medicine they needed. And that is not what the law is meant to achieve.

In 2004 we do not need or want martyrs, but we seem to have them. I am sure Dr. Hurwitz does not want to spend years in prison awaiting his appeal, nor spend the remainder of his life there if the appeal fails and no other relief is obtained. But if that is what happens, the reason may at least be some small source of comfort and large source of pride: He would not torture.

A Tragedy in the Capital

The District of Columbia saw a tragedy last week. Jonathan Magbie, a 27-year-old quadriplegic medical marijuana patient, died while under the care of the D.C. court and jail. Magbie had been arrested for marijuana possession, and Judge Judith Retchin sentenced him to 10 days in jail, despite recommendations from officials against it. Her reason? There was a loaded gun in the car with him.

But Magbie didn't use the gun on anyone. And now I've learned it wasn't even his.

Things went haywire immediately after Magbie entered custody. He wound up getting sent back and forth between the jail and the hospital. His mother was not allowed to bring him his ventilator in jail, for two days. By the time the jail finally agreed to it, it was too late.

I don't believe that any of the officials involved in this debacle wanted what happened to happen. Some combination of incompetence and/or overloading of the system and/or poorly crafted regulations or procedures all combined to end Jonathan Magbie's life. But that doesn't mean there's no one to blame.

Surely Judge Retchin shares the blame. According to the Washington Post article, she is known for harsh sentences. In a nation with two million prisoners, whose incarceration rate has been criticized by prominent human rights organizations, such an impulse is part of the problem. The attitude that drove her to send a helpless, wheelchair-bound young man, who had hurt no one, to jail, is a barbaric one that our society desperately needs to leave behind. And knowing how dangerous the jails can be, even for the healthy and strong, it was especially reckless. If she didn't understand that, it is to her discredit.

Others are to blame too. Why did the hospital send Magbie back to the jail and refuse to take him back? Where did the miscommunications take place in the court and jail? The more basic truth, though, is that gulags breed carelessness and error.

It is too late to save Jonathan Magbie – the decision-makers who needed to do that didn't try hard enough. But this sad episode must not be allowed to go gently into the night. Magbie and his family deserve a full accounting, and a reflection on the sad state of criminal justice in this country is long overdue. Let it start here.

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