Jacob Sullum

Tripping on Tea

Never mind the vomiting. For members of O Centro Espirita Beneficiente Uniao do Vegetal, drinking ayahuasca, a foul-tasting psychedelic tea brewed from two Amazonian plants, involves four hours of recitation, chanting, questions and answers, and religious instruction.

That may help explain why the church has only 130 or so followers in the U.S., despite the drug trips at the center of its rituals. But the federal government does not want to take the chance that Uniao do Vegetal, a synthesis of Christianity and indigenous South American beliefs that originated in Brazil, will do for ayahuasca what Timothy Leary did for LSD.

So in 1999, after intercepting a shipment of ayahuasca extract bound for Uniao do Vegetal's U.S. headquarters in Santa Fe, customs agents searched the home of the group's president, Jeffrey Bronfman, and seized 30 gallons of the tea. In a case the U.S. Supreme Court recently agreed to hear, the group's members are demanding that the government stop harassing them and start respecting their religious practices.

The Customs Service and the Drug Enforcement Administration say ayahuasca is illegal because it contains dimethyltryptamine (DMT), which is banned by the Controlled Substances Act. Uniao do Vegetal members say their use of ayahuasca is protected by the Religious Freedom Restoration Act (RFRA), which prohibits the government from imposing a "substantial burden" on the free exercise of religion unless it is "the least restrictive means of furthering [a] compelling governmental interest."

In 2002 a federal judge, concluding that Uniao do Vegetal was likely to win this argument, issued a preliminary injunction barring the government from interfering with the church's rites. A three-judge panel of the U.S. Court of Appeals for the 10th Circuit upheld the injunction in 2003, and last year the full appeals court concurred.

For the Bush administration, which is big on religion but down on drugs, this case ought to pose a dilemma. RFRA, passed in 1993 with strong support from religious conservatives, was aimed at maximizing religious liberty by requiring the government to meet a stringent test when it prevents people of faith from acting on their beliefs.

The law was a response to a 1990 decision in which the Supreme Court ruled that the First Amendment's guarantee of religious freedom does not require the government to tolerate the peyote rituals of the Native American Church. While the First Amendment bars the government from deliberately targeting a specific religion, the Court said, it does not require exemptions from "neutral laws of general applicability" that happen to interfere with religious practices.

"To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling'...contradicts both constitutional tradition and common sense," wrote Justice Antonin Scalia for the majority. "Any society adopting such a decision would be courting anarchy."

Notwithstanding Scalia's warning, Congress passed RFRA with the intent of restoring the "compelling interest" test the Court had applied before the peyote case. Although the Court ruled in 1997 that RFRA was unconstitutional as applied to the states, it still binds the federal government.

In a 2002 case that foreshadowed Uniao do Vegetal's fight for the right to drink ayahuasca, the U.S. Court of Appeals for the 9th Circuit suggested that RFRA might protect possession (but not distribution) of marijuana by Rastafarians. No doubt that possibility gives drug warriors nightmares in which everyone arrested on marijuana charges claims to consider the plant a sacrament.

Yet it's not as if the idea of exempting religious groups from drug bans is unthinkable. The Volstead Act allowed Jews and Catholics to continue drinking wine as part of their rituals, and the federal government (like many states) lets members of the Native American Church eat peyote, the very practice that gave rise to the Supreme Court's abandonment of the "compelling interest" test. It's hard to see why ayahuasca rituals, which are officially pemitted in Brazil, are less tolerable.

Still, Scalia had a point: Religious beliefs cannot be a license to break the law. The government would never allow a religious group to commit murder because its god demanded human sacrifices. Then again, preventing murder is a pretty compelling interest, part of government's central mission to protect people from aggression.

A good rule of thumb might be that when a religious group can reasonably demand an exemption from a law, it's the law rather than the group that deserves scrutiny.

The Pain of Being Hurwitz

In December, after a federal jury convicted McLean, Va., pain doctor William Hurwitz of running a drug-trafficking operation, the foreman told The Washington Post "he wasn't running a criminal enterprise." Don't bother reading that sentence again; it's not going to make any more sense the second time around.

Hurwitz, who is scheduled to be sentenced on April 14 and will go to prison for life if U.S. District Judge Leonard Wexler follows the prosecutors' recommendation, was charged with drug trafficking because a small minority of his patients abused or sold narcotic painkillers he prescribed for them. Prosecutors argued his practice amounted to a "criminal enterprise" based on a "conspiracy of silence"--i.e., a conspiracy in which Hurwitz did not actually conspire with anyone--because he charged for his services and should have known some of his patients were faking or exaggerating their pain.

Judging from the comments of the jury foreman, Ralph Craft, the jurors did not really buy this theory. Perhaps they still harbored the legally unsophisticated notion that drug traffickers are people who engage in drug trafficking. But they convicted Hurwitz anyway, because they didn't like the way he practiced medicine.

"I'm not an expert," Craft conceded, while expressing the opinion that Hurwitz was "a little bit cavalier" in prescribing opioids. "He ramped up and ramped up the prescriptions very quickly," he said. "This is stuff that can kill people. He should have been extra careful."

Craft and his fellow jurors were appalled by the sheer number of pills Hurwitz prescribed. "The dosages were just astounding," he said, calling them "beyond the bounds of reason."

As an example, Craft cited a prescription for 1,600 pills a day. As Hurwitz explained during the trial, this particular prescription, which was never filled, resulted from a nurse's calculation error that was discovered at the pharmacy. But it's true that many of his patients were taking very high doses of painkillers, doses that would kill someone unaccustomed to narcotics.

Although the jurors apparently considered such doses inherently suspicious, they are necessary for treating severe chronic pain because patients develop tolerance to the analgesic effects of narcotics. They are safe because patients also develop tolerance to the potentially fatal respiration-depressing effects of these drugs. Responses to pain medication vary from person to person, and there is no a priori limit to how high doses can be "ramped up."

The prosecution deliberately obscured these points during Hurwitz's trial, relying on the jurors' ignorance of pain treatment principles to convict him. The government's main medical expert, Michael Ashburn, testified that consumption of high narcotic doses by patients with chronic pain who do not have cancer is a sign of drug abuse.

In a letter they wrote before the verdict, six past presidents of the American Pain Society rebuked Ashburn for this statement, along with several other misrepresentations of pain treatment standards. "We are stunned by his testimony," they said. "Use of 'high dose' opioid therapy for chronic pain is clearly in the scope of medicine."

As these pain experts recognized, Hurwitz was not the only person on trial at the federal courthouse in Alexandria. So was every doctor who has the courage to risk investigation by treating people who suffer from severe chronic pain with the high doses of opioids they need to make their lives livable.

In poignant letters to Judge Wexler, who has fairly wide latitude in punishing Hurwitz now that the U.S. Supreme Court has made federal sentencing guidelines merely advisory, dozens of his former patients recount how he saved them from constant agony caused by migraines, back injuries, reflex sympathetic dystrophy and other painful conditions that left them disabled, homebound, despondent, and in some cases, suicidal. They outline the difficulties they had in getting adequate treatment before they found Hurwitz and the trouble they've been having since the government put him out of business.

"Good pain doctors are hard to find," writes one. "I am saddened that Dr. Hurwitz is branded a criminal for helping me and helping people like me." Another argues that Hurwitz's "crime"--trusting his patients--was one of his greatest virtues. "It is to Dr. Hurwitz's credit," he says, "that he chose to trust that his patients were genuinely seeking relief from pain that cannot be objectively measured. This trust is, in my experience, all too rare."

Threatening doctors with prison for viewing their patients with inadequate suspicion will make it even rarer.

Who Let the Dogs In?

Here's how it works: An officer pulls you over because you're driving a bit too fast or a bit too slow, or because you have a broken tail light, or because you're not wearing your seat belt, or because you forgot to put your new registration sticker on your license plate. He is soon joined by another officer with a drug-sniffing dog, which "alerts" when it gets near your trunk.

Or so the officers say. You have no idea what this particular dog does when it smells contraband, and the dog isn't talking. But now the police can look in your trunk. A minor traffic stop is thus transformed into an embarrassing, invasive, intimidating, time-consuming search for illegal drugs.

The Supreme Court recently gave its approval to this sort of stop-and-switch in a case involving a man named Roy Caballes, who was pulled over on Interstate 80 by an Illinois state trooper for driving six miles an hour faster than the speed limit. Caballes happened to have 282 pounds of marijuana in his trunk, but even those of us who are not pot smugglers should worry that the Court saw nothing wrong with the circumstances that led to his arrest.

Trooper Daniel Gillette testified that he became suspicious because Caballes was well-dressed and seemed nervous, the car smelled of air freshener, and the only visible belongings were two sport coats, even though Caballes said he was moving from Las Vegas to Chicago. Gillette asked for permission to search the car, which Caballes, not surprisingly, declined to grant.

Gillette got permission from a dog instead. Trooper Craig Graham, upon hearing Gillette call in the stop, decided to swing by with a drug-sniffing canine, conveniently arriving just as Gillette was writing Caballes a warning ticket. For Caballes, one sniff by that dog was the difference between a warning and a 12-year prison sentence.

But according to the Supreme Court, the sniff was not a search. "A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment," wrote Justice John Paul Stevens for the six-member majority.

The decision built on a 1983 ruling that said "subjecting luggage to a 'sniff test' by a well-trained narcotics detection dog does not constitute a 'search' within the meaning of the Fourth Amendment" because it "discloses only the presence or absence of narcotics, a contraband item." In other words, the only privacy interest it violates is a drug smuggler's desire to conceal his stash, which is not protected by the Fourth Amendment's prohibition of "unreasonable searches and seizures."

This argument is based on a myth. As Justice David Souter, one of two dissenters in Illinois v. Caballes, pointed out, "the infallible dog ... is a creature of legal fiction."

Souter cited examples from court cases of dogs with error rates of up to 38 percent. "Dogs in artificial testing situations return false positives anywhere from 12.5 to 60 percent of the time," he added.

In short, it is simply not true that a drug-sniffing dog "discloses only the presence or absence of narcotics." Even leaving aside the possibility of deliberate deception or honest error by police officers eager to turn a hunch into probable cause, the dogs themselves make mistakes, responding to subconscious cues from their handlers, alerting to food or residual odors of drugs that are no longer present, mistaking items associated with drugs for the drugs themselves, and so on.

Whatever the cause of a false alert, it exposes innocent people to the inconvenience and humiliation of drug searches they have done nothing to justify. Now that the Court has said police need no special reason to bring in the dogs, provided they are otherwise complying with the law, such searches will become more common, and they need not be limited to routine traffic stops.

Justice Ruth Bader Ginsburg, the other dissenter in this case, warned that the Court's analysis "clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots," even of cars stopped at traffic lights. If you happen to be caught in such a dragnet, just keep telling yourself it's not really a search.

Gluttons for Punishment

Last November, Weldon Angelos, a 24-year-old record company executive with no prior convictions, was sentenced to 55 years in federal prison for selling a pound and a half of marijuana to a government informant. The judge who imposed the sentence, Paul Cassell of the U.S. Court for the District of Utah, urged President Bush to commute it, calling it "unjust, cruel, and irrational."

The Supreme Court's recent decision restoring broad sentencing discretion to federal judges is expected to make this sort of situation, in which a judge agonizes over a draconian punishment he feels legally compelled to impose, less common. But the ruling, which made federal sentencing guidelines advisory rather than mandatory, does not help Angelos.

That's because his sentence was determined not by the guidelines but by statute. It is therefore perfectly constitutional under the Supreme Court's decision in U.S. v. Booker, which found that the guidelines violated the Sixth Amendment right to trial by jury by lengthening sentences on the basis of facts determined by judges.

The ruling does not affect penalties prescribed by Congress for offenses that are admitted or proven to a jury, no matter how absurdly disproportionate the sentences are. In fact, one possible outcome of the decision is that we will see more such mandatory sentences, as tougher-than-thou members of Congress who thought judges were abusing what little discretion they had under the guidelines panic at the prospect of penalties determined by judicial whims.

The Angelos case suggests the dangers of that course. His 55-year sentence was dictated by a federal law that imposes extra punishment on people who commit felonies while carrying or using a gun: five years for the first offense and 25 years for each subsequent offense. Angelos, who completed three government-arranged marijuana sales, each involving about eight ounces, was convicted of having a pistol in an ankle holster during two of the sales; guns that police found in his home were the basis for a third conviction.

Angelos never used or even brandished his pistol, which he carried for self-protection. Yet as Judge Cassell noted, his punishment "is far in excess of the sentence imposed for such serious crimes as aircraft hijacking, second degree murder, espionage, kidnapping, aggravated assault, and rape."

If Angelos had been sentenced under the guidelines alone, the penalty range would have been roughly eight to 10 years. (Anticipating the Supreme Court's ruling in Booker, Cassell departed from the sentencing guidelines to give Angelos a one-day sentence for his other offenses.) If he had been convicted of the same offenses under Utah law, the prosecution estimated, Angelos would have ended up serving five to seven years.

Sentencing guidelines and mandatory minimums were supposed to reduce unjust variations in punishment, making it more likely that similar defendants who committed similar crimes would receive similar penalties. But as this case shows, they can also cause unjust variations in punishment by making big sentencing differences hinge on which prosecutors (state or federal) bring charges and which charges they choose to bring.

Prosecutors initially told Angelos that if he pleaded guilty to marijuana distribution and one count of carrying a gun, they would recommend a sentence of 15 years. After he turned down that deal, they filed a new indictment with a total of 20 charges, including five gun offenses that by themselves exposed him to a mandatory minimum sentence of 105 years.

Mandatory minimums thus replace judicial discretion with prosecutorial discretion, which isn't necessarily better and is often worse, since prosecutors tend to aim for the most severe punishment they can get, whereas judges are supposed to take a more balanced approach. This does not mean there is no cause for concern about unconstrained judicial discretion, but Congress should also be aware of the injustice that results from giving prosecutors too much power, especially since the vast majority of federal cases are resolved by plea agreements.

The wisest approach at this point is to wait and see how the implications of Booker are worked out in the lower courts. While the sentencing guidelines are no longer mandatory, trial judges are still required to consider them, and appeals courts will be reviewing their sentencing decisions for "reasonableness."

Given the perils of excessively rigid sentencing rules, Congress should hesitate before creating new mandatory minimums. Instead it should revisit laws under which selling someone pot can trigger a more severe penalty than killing him.

The Oral Snuff Ruse

The European Union's highest court recently upheld the E.U.'s 12-year-old ban on oral snuff, saying it serves "the objective of health promotion." Since cigarettes, a far more hazardous form of tobacco, are still legally available in Europe, the E.U.'s policy is rather like banning bows and arrows as an intolerable threat to public safety while allowing a free trade in machine guns.

Worse, tobacco consumption patterns in Sweden, the one E.U. country where oral snuff (known there as snus) remains legal, suggest that Eurocrats are contributing to smoking-related disease and death by foreclosing a safer alternative to cigarettes. As the vice president of Swedish Match, the leading snus producer, put it, "Snus is clearly a significantly less harmful product than cigarettes and could play an important role in a much more responsible harm reduction strategy than the current cynical Quit or Die approach."

Swedish Match obviously has a strong interest in reversing the oral snuff ban. But its position has a solid enough empirical basis that prominent European health researchers and a leading British anti-smoking activist likewise have decried the "Quit or Die approach."

In the U.S., where smokeless tobacco remains legal, this approach takes the form of a misinformation campaign that encourages people to think oral snuff is just as dangerous as cigarettes. That belief, which seems to be widely accepted by smokers, is clearly wrong.

Based on the incidence of tobacco-related deaths among users, University of Alabama at Birmingham oral pathologist Brad Rodu estimates that smokeless tobacco is 98 percent safer than cigarettes. The difference is so stark that public health officials have been forced to quietly retreat from their false risk equivalence.

Last year, for instance, Surgeon General Richard Carmona told a congressional subcommittee that "smokeless tobacco is not a safer substitute for cigarette smoking" – a claim that is scientifically unsupportable. But in the version of his testimony that appears on the Web site of the Centers for Disease Control and Prevention, he says "smokeless tobacco is not a safe alternative to cigarettes" – the same true but misleading warning that appears on oral snuff packages.

Similarly, a CDC Web page aimed at children asks, "Is smokeless tobacco safe?" The answer: "No way!" But the search listing for the page shows that the question used to be, "Is smokeless tobacco safer than cigarettes?" I suspect the CDC's answer was not "You bet!"

Perhaps the most telling recent change in the official line on smokeless tobacco was made to a pamphlet published by the National Institute on Aging. When I looked at the online version of the pamphlet in March, it said: "Some people think smokeless tobacco (chewing tobacco and snuff), pipes, and cigars are safer than cigarettes. They are not." The passage now reads: "Some people think smokeless tobacco (chewing tobacco and snuff), pipes, and cigars are safe. They are not."

This change came in response to a March 16 complaint from the National Legal and Policy Center arguing that the pamphlet violated the Data Quality Act by disseminating erroneous information. Among other sources, the complaint quoted a 2001 report from the National Academy of Sciences that said "the overall risk [from smokeless tobacco] is lower than for cigarette smoking, and some products such as Swedish snus may have no increased risk" (because they're especially low in carcinogens).

The fact that public health officials seem less inclined to tell outright lies about smokeless tobacco is a small victory. They are still obscuring the issue by doggedly repeating that smokeless tobacco is not risk-free when the relevant point for a cigarette smoker who is thinking about switching is that it's much less likely to kill him than his current habit.

Meanwhile, their allies in the private sector, unconstrained by the Data Quality Act, continue to explicitly promote the myth that smokeless tobacco and cigarettes are equally dangerous. "Some people believe that using smokeless tobacco is safer than smoking," the American Cancer Society says on its Web site. "This is not true."

The staffer who wrote that might want to ask Michael Thun, the society's chief epidemiologist, for a copy of the December issue of ,i>Cancer Epidemiology, Biomarkers & Prevention. That issue includes a study in which a panel of experts estimated that the mortality risk posed by Swedish-style oral snuff is at least 90 percent lower than the risk posed by cigarettes. What makes me think Thun has a copy? He was one of the experts.

From Donuts To Heroin

An online gourmet food shop calls its Maple Cream Cookies "truly delicious and addictive." In John Banzhaf's view, that description should be treated not as a selling point but as a warning.

Banzhaf, a George Washington University law professor who never saw a problem that couldn't be solved by suing someone, argues that food sellers have a legal duty to warn consumers about the dangerous deliciousness of high-calorie products such as ice cream, cheeseburgers, and potato chips. "Bet you can't eat just one!" presumably wouldn't count.

Banzhaf cites "growing evidence...that eating some fattening foods can cause addictive reactions in the brain just like nicotine," evidence he says is sufficient "to warrant at least a warning about possible addictive effects." He advises food companies that such warnings would help shield them from liability – very sporting of him, since he is a leading advocate of suing them for making people fat.

Banzhaf's latest evidence is an article in the December Psychology Today that likens overeating to drug addiction. "Like addicts," it says, "overeaters may be compensating for a sluggish dopamine system by turning to the one thing that gets their neurons pumping... It's a mark of changing times – and more sophisticated science – that the head of the National Institute on Drug Abuse is thinking about doughnuts as well as heroin."

Perceiving a threat to personal responsibility, conservatives tend to reject such comparisons as outlandish exaggerations. Surely donuts – a familiar product that most of us consume in moderation, if at all – are nothing like heroin, which everyone knows is the most addictive drug around. (Except for crack. And methamphetamine. And nicotine.)

But such scoffing reflects a misunderstanding of drug addiction, which is neither inevitable nor inescapable. The government's own statistics indicate that the vast majority of people who use drugs – even such reputedly powerful substances as heroin and crack – never become addicts. Those who do often manage to stop or moderate their use. There are about as many former smokers in this country as smokers, for example, and they typically quit without formal "treatment."

It's hard to deny the parallels between overeating and drug addiction: People find eating pleasurable, often eat more than they initially intend, regret their overeating, and have trouble cutting back to lose weight despite the health risks and social costs of being fat. Most striking is the ambivalence, the conflict between short-term and long-term interests that creates the appearance that people want to change their behavior but can't.

The mistake lies in accepting that appearance at face value. People do, after all, shed pounds when their reasons for eating less outweigh their desire to eat more. Just as important, people can avoid overeating in the first place, no matter how "truly delicious and addictive" the food they encounter.

By focusing on brain scans and analogies to drugs widely (though wrongly) believed to be irresistible, activists like Banzhaf obscure the possibility of self-control. As the psychiatrist Sally Satel observed at a 2003 conference on obesity, "virtually every pleasure we encounter is associated with surges in dopamine," and brain images "cannot distinguish between an irresistible impulse and an impulse that is not resisted."

Yet anti-vice crusaders continue to cite such research as evidence that people cannot reasonably be expected to control themselves, and the tendency is not limited to activists on the left. At a recent hearing convened by Sen. Sam Brownback (R-Kan.), Judith Reisman of the California Protective Parents Association testified that "pornography triggers myriad kinds of internal, natural drugs that mimic the 'high' from a street drug. Addiction to pornography is addiction to what I dub erotoxins."

In Reisman's telling, the conscious mind plays no role in people's reactions to pornography. She called the effects of sexually explicit material "brain sabotage," warning that "pornographic visual images imprint and alter the brain, triggering an instant, involuntary, but lasting, biochemical memory trail, arguably subverting the First Amendment by overriding the cognitive speech process."

This is the sort of choice-negating reductionism, leaving no room for tastes, values, or learning, that conservatives usually reject when it comes to, say, fast food ads. All experiences "imprint and alter the brain." That fact tells us nothing about how people respond to those experiences – whether with disgust or enthusiasm, moderation or excess.

Reisman and other critics of pornography say it's dehumanizing, reducing people to genitals. The same could be said of a behavioral theory that looks at people and sees only biochemicals.

Healers and Dealers

Prosecutors say McLean, Virginia physician William Hurwitz, who is on trial at the federal courthouse in Alexandria, knowingly supplied OxyContin and other narcotic painkillers to patients who sold them on the black market. "A self-proclaimed healer, he crossed the line to dealer," Assistant U.S. Attorney Mark Lytle declared in his opening statement. "He thought he could hide behind the pain he treated."

When Hurwitz was indicted last fall, U.S. Attorney Paul McNulty called him a "major and deadly drug dealer." Charged with 62 counts related to what prosecutors describe as a multistate drug trafficking conspiracy, Hurwitz faces a possible life sentence.

Yet the details of the government's case do not fit the picture it has tried to paint. Instead, they suggest that if Hurwitz is guilty of anything, it's inadequate skepticism and excessive compassion. By prosecuting him for trusting his patients too much, the government is criminalizing the sort of mistake doctors already are so keen to avoid that they routinely turn away or undertreat patients in pain.

Over the years Hurwitz has acquired a reputation as one of the rare doctors brave enough to prescribe for patients with severe chronic pain the high doses of opioids they need to make their lives bearable. Inevitably, such a doctor will attract people who want narcotics to get high or to sell them on the street.

The government does not dispute that Hurwitz has helped hundreds of desperate patients who unsuccessfully sought pain relief from doctors who were afraid to risk unwanted attention from the government by treating them. But it faults him for "willful blindness" in prescribing "obscene amounts of pills" to patients who were selling or abusing them, including three who took overdoses.

A former patient called as a prosecution witness testified that "I had a lot of pain, but I exaggerated it, trying to get the drugs." On cross-examination, he added that he had "played a lot of doctors" over the years. He characterized Hurwitz as naive, saying: "He was concerned about me and my wife [also a patient]. Dr. Hurwitz is always concerned."

Such testimony does not make Hurwitz look like a drug trafficker. It makes him look like a sincere healer duped by tricky patients. Although prosecutors portray Hurwitz as a drug kingpin, they have no evidence that he received any money from drug sales. Instead, they say he profited by charging patients for his care.

Prosecutors cite Hurwitz's detailed medical records to support their allegation that "he prescribed incredibly large amounts of narcotics, well outside the boundaries of proper medicine." But as Patrick Hallinan, one of Hurwitz's attorneys, noted, "These medical records are in stone. You think someone involved in a scam selling pills would put it down in the records?"

That does not necessarily mean that every aspect of Hurwitz's practice was beyond reproach. But by threatening to imprison doctors for being less suspicious than the Drug Enforcement Administration thinks they should have been, the government puts the fear of pain patients into even the most scrupulous physicians.

Russell Portenoy, a prominent pain expert, warns that a conviction in this case would have a "strong chilling effect" on pain treatment. "I have a very profound concern," he told the Washington Post, "that the appropriate way to deal with these issues is not through criminal prosecution but through an evaluation of medical practice."

In this connection, it's significant that the Virginia Board of Medicine, reviewing allegations similar to those underlying the Justice Department's case, chose not to revoke Hurwitz's license but to place him on probation. It's also telling that when federal investigators discovered that some of Hurwitz's patients were selling the drugs he prescribed, they chose to build a case against him rather than alert him to the diversion they supposedly were trying to prevent.

"In this particular area," Hurwitz told the Post before his indictment, "doctors are expected to have perfect knowledge of everything a patient does. That presumption is invalid. Nobody could treat pain if they're going to hold doctors to that standard."

In a pamphlet published last August, the DEA conceded that "any physician can be duped"; that it's hard to distinguish between addicts and patients in pain; and that prescriptions that look suspicious to the government may be perfectly justified. The pamphlet disappeared from the DEA's website last month, a few weeks after Hurwitz's attorneys tried to introduce it as evidence in his trial.

The Next Fix

When I started preschool, I was still sucking my thumb. Concerned that this babyish behavior would damage my social adjustment and perhaps my teeth, my mother began painting my thumb with a foul-tasting solution. You could say she was trying to help me break a bad habit by making it less pleasant and less rewarding.

Or, if you think like a public health specialist, you could claim that my mother was treating the "disease" of thumb-sucking with a medicine designed especially for that purpose. And if thumb-sucking is something bad that happens to little boys, not something that little boys do because they like it, how could there be any objection to using a safe, effective cure?

Public health specialists routinely describe another "bad" behavior, tobacco use, not just as a risk factor for disease but as a disease in itself. They call smoking a "tobacco-use disorder"; writ large, it is "the man-made plague" (as the epidemiologist R. T. Ravenholt puts it) or "The Global Tobacco Epidemic" (the title of a 1995 article in Scientific American). The development of so-called nicotine vaccines, which are being tested by at least three companies in the U.S. and the U.K. (with Florida-based Nabi Biopharmaceuticals due to announce its highly anticipated Phase II trial results this fall), fits neatly into this paradigm.

By stimulating the immune system to produce antibodies that bind with nicotine, the vaccines render the offending molecule too large to pass the blood-brain barrier, thereby neutralizing its psychoactive effects. In 1999, Alan Leshner, then director of the National Institute on Drug Abuse, explained the theory underlying this approach to smoking cessation in a press release about early, NIDA-funded testing of Nabi's product, known as NicVAX.

"A nicotine vaccine may be useful for preventing and treating tobacco addiction, because vaccinated persons would not be able to get a 'kick' from the nicotine in tobacco smoke or chewing tobacco," he said. "Since they would find tobacco less rewarding, they would be less likely to continue using it."

This idea has a certain plausibility, but there are a few caveats. In tests on rats, NicVAX stopped only about two-thirds of the nicotine placed in their bloodstream from reaching the brain – which raises the possibility that people treated with nicotine binders, rather than being "cured," could end up smoking more to get the dose to which they're accustomed. In any case, smokers can already obtain products – gum, patches, and inhalers – that deliver nicotine without any smoke at all. That the availability of these alternatives has not led to a wholesale abandonment of cigarettes suggests another drawback to nicotine binders: Evidently, there is more to the appeal of smoking than nicotine. Former smokers know that changing the personalized rituals associated with lighting up can be the hardest part of quitting.

More troubling is the likelihood that similar vaccines developed for illegal drugs – dubbed "neurocops" by the Center for Cognitive Liberty and Ethics – could be forced on people, such as drug offenders required to choose between "treatment" and jail, in the context of the war on drugs (in which NIDA is a key participant). But in order for the drug warriors to succeed in taking the battle to our bloodstreams, they would have to go beyond "curing" the small fraction of drug offenders who happen to get arrested each year.

Enter NIDA's "prevention" agenda: removing the potential for addiction to drugs in people who have not yet tried them. And just as antismoking activists for years have been comparing tobacco to crack and heroin, the hopes of "vaccine" promoters move easily from nicotine to illegal drugs. A BBC News story about U.K.-based Xenova's nicotine binder, "which may also help cocaine addicts," explains that "it could also be given to young children to prevent them from taking up these habits." Indeed, in late July, members of the British Parliament revealed that they were considering exactly that kind of scheme as part of a nationwide antidrug immunization proposal from their Brain Science, Addiction, and Drugs committee.

Tobacco foes such as David Kessler, former head of the Food and Drug Administration, have prepared the way for this sort of solution by characterizing smoking as a "pediatric disease," along with mumps, measles, and rubella. Parents accustomed to viewing little boys' boisterousness and distractibility as a medical problem to be treated with drugs should have little difficulty accepting the idea that a battery of vaccines can protect their children from destructive relationships with psychoactive substances. But this answer to the problem of addiction denies, and therefore undermines, the human capacity for temperance.

The federal government's own statistics show that the vast majority of people who use drugs – even such reputedly powerful substances as heroin, crack, and methamphetamine – are not addicts, just as the vast majority of drinkers are not alcoholics. The one exception to this rule seems to be cigarette smokers, who typically are under the influence of nicotine throughout their waking hours. But even here, it is not the inherent addictive power of the drug that determines the pattern of use: Pipe and cigar smokers tend to consume tobacco much less frequently than cigarette smokers do (and face much less serious health risks).

For the most part, people manage to use drugs without disrupting their lives; they find ways to balance this particular pleasure with other things they value. These are important skills to learn, since almost any pleasure can be taken to excess and it's unlikely that NIDA-funded research will find a vaccine for them all. Even if it could, who wants to live in a world where the automatic response to pleasure is not only to abstain from it but to suppress the very ability to experience it? That chilling prospect is a logical consequence of viewing drug use as a disease instead of a behavior. By giving short shrift to individual values and choices, preventive antidrug vaccines send a dangerous, demoralizing message: that we are powerless in the face of temptation.

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