Hallucinogens and the Law

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Chapter 5
Hallucinogens and the Law

The past fifty years have witnessed considerable debate among policy makers over the legal status of hallucinogens, although that debate has yet to reach a clear resolution. Five decades of illicit hallucinogen use by millions of Americans, coupled with legitimate scientific research, have prompted many people to challenge government claims that hallucinogens represent a serious health risk to individuals and to the nation in general. At the heart of this disagreement are the standards that since 1970 have been used to classify certain drugs as illicit while others are listed as legal.

The DEA and Drug Classifications

In 1970, Congress authorized the Food and Drug Administration (FDA) to study all drugs, both licit and illicit, to determine which are potentially dangerous and should be strictly regulated as controlled substances. The Controlled Substances Act, Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970, is the legal foundation of the government's fight against the abuse of drugs and other substances. This law is a consolidation of numerous laws regulating the manufacture and distribution of narcotics, stimulants, depressants, hallucinogens, anabolic steroids, and certain chemicals that can be used in the illicit production of controlled substances.

If the FDA believes that a specific drug constitutes a potential danger to the public, it places it on the controlled substance list and then notifies the DEA of its decision. The DEA, in turn, determines which of five illicit drug categories, called schedules, is appropriate for the drug. Each schedule specifies different conditions under which a drug can be legally used.

The Alcohol Exclusion

The exclusion of alcohol from the DEA's schedule of controlled substances has been widely criticized. Those who support legalizing hallucinogens wonder why drugs they feel are less harmful than alcohol remain on the DEA schedule of controlled substances. The DEA is aware of this inconsistency, but it still opposes the legalization of hallucinogens because it believes alcohol has created many problems in the United States and legalizing drugs would only add to the situation.

Many responsible citizen organizations, however, disagree with the DEA. An independent study of licit and illicit drugs performed by the Consumer Union Report concludes, "Until people are willing to enforce alcohol prohibition, ... they are simply wasting their efforts in trying to enforce heroin prohibition, marijuana prohibition, and other drug prohibitions."

According to William Bennett, the "drug czar" for President George H. Bush, in a speech at Harvard University, "We should admit that legalized alcohol, which is responsible for some 100,000 deaths a year, is hardly a model for drug policy." This number of deaths, however, is considered low by some health agencies. According to the National Institute on Alcohol and Alcohol Abuse, roughly 200,000 deaths a year are caused by alcohol-related diseases, and another 16,000 are due to alcohol related auto accidents.

The schedule to which the DEA assigns a drug is determined by whether or not the drug has legitimate medical value and by its potential danger if it is misused by the public. Schedule I is the most restrictive category and Schedule V the least restrictive. Schedule I is reserved for those drugs that have a high potential for abuse, that have no accepted medical value, and that are not considered safe for use even under medical supervision. Because of these criteria, most hallucinogens are Schedule I drugs, as are heroin, cocaine, crack, opium, methamphetamine, and a few others.

The only legal use of a Schedule I drug is for tightly controlled medical and scientific research. The DEA allows legitimate researchers and doctors to apply for licenses to possess Schedule I drugs, but the number of such licenses is extremely small. The DEA has approved about one thousand licenses for physicians and drug companies to handle this class of drugs.

The DEA provides two explanations for why most hallucinogens, which the DEA recognizes are nonaddictive, are grouped with such highly addictive drugs as heroin, cocaine, crack, opium, and methamphetamine. The first reason is that, at the time the Controlled Substances Act was passed and the drug schedules devised, the FDA had already banned their use entirely because no research had yet been conducted to determine the potential danger of hallucinogens. As a result of their unknown potential dangers, when the drug schedules were established in the early 1970s, hallucinogens were added to the Schedule I drugs, and they have remained there ever since.

The second reason hallucinogens are Schedule I drugs, articulated by General Barry McCaffrey, the drug policy adviser, or "drug czar," under President Bill Clinton, is that hallucinogens are "gateway" drugs whose use may lead to experimentation with harder drugs. As gateway drugs, General McCaffrey reasons, if hallucinogens are kept off the streets, there is a reduced likelihood that users will move on to the more dangerous addictive Schedule I drugs.

Four Drug Policy Models

The reasons given by the DEA for grouping hallucinogens in Schedule I along with the so-called hard addictive drugs are rooted in assumptions about drug use, drug users, and their perceived dangers to American society. In fact, much of American drug policy has been driven by a series of specific models, or sets of assumptions, about how illicit drugs operate, affect users, and impact American society. Over the past century, four models have evolved, and each one has had an impact on how the nation handles drug offenders.

The first model, called the punitive model, dominated drug policy during the first half of the twentieth century. At its core is the assumption that illicit drugs cause addictive and destructive behavior, which ultimately leads to antisocial and criminal behavior. Those who adhere to this model believe that illicit drugs should remain illegal and that illicit drug users should be punished with incarceration and fines.

During the 1940s and '50s, following psychiatric studies of illicit drug users, a second model called the disease model developed. This model holds that taking illicit drugs leads to uncontrollable addiction, which, like many other diseases, is not the fault of the addict. The disease model further concludes that those who use drugs are victims of those drugs. The assumptions of the disease model are that current drug laws should remain in force, but they recommend drug counseling and therapy for addicts along with lenient prison sentences.

A third model arose during the 1960s called the social welfare model. Its core assumption is the belief that social and cultural deprivations are the cause of addiction. Factors most often cited include various combinations of poverty, lack of education, unemployment, dysfunctional homes, and pervasive violence. This model advocates the legalization of "soft drugs" such as hallucinogens and infusions of money for education and job training to prevent drug use.

The fourth model, the libertarian model, is the most recent and most extreme. Its core tenet is that the individual is responsible for drug addiction as well as any antisocial or criminal behavior committed while under the influence of drugs. A significant position of those who adhere to the libertarian model is that all drugs should be legal, but the criminal or antisocial behavior they cause should continue to be illegal.

The present model for drug policy in America is a complicated synthesis of these four models. American policy recognizes the need to help addicts with treatment yet also recognizes the need for imprisonment to stop criminal activity. It also expects individuals to accept responsibility for the choices they make—including the wrong ones, which may send them to jail.

Jimmy's Story

Information about drugs and the drug debate can influence public opinion, especially when reported by respected newspapers, magazines, and television news programs. Few citizens are in a position to research news stories to determine their veracity, so stories are more often than not accepted as true and believable.

Sometimes, however, widely published stories about drugs that can influence the debate over drug law reform are false. One such story, "Jimmy's Story," appeared on a front-page feature in the Washington Post on Sunday, September 28, 1980. The reporter, Janet Cooke, began a series of articles about an eight-year-old boy named Jimmy growing up in a squalid drug house where drugs such as LSD, marijuana, and heroin were being sold. In subsequent articles, the author described in detail the horrible life of the young boy and the fact that he was an addict.

The response to these articles in the Washington, D.C., community was outrage that an eight-year-old should be subjected to such degrading and harmful circumstances. Jimmy's plight was heralded by organizations opposed to drug legalization as an example of why drugs should never be legalized. Health and school officials began a concerted effort to locate Jimmy and remove him from such an unwholesome environment. When the author of the article was asked to identify Jimmy's home, she refused, citing the need to keep the source's identity confidential. Nonetheless, the search for Jimmy pressed forward unsuccessfully for several months. Meanwhile, Janet Cooke received the most prestigious award a journalist can receive, the Pulitzer Prize, on April 13, 1981.

Just two days later, on April 15, 1981, the front page of the Washington Post reported, "The Pulitzer Prize Committee withdrew its feature-writing prize from Washington Post reporter Janet Cooke yesterday after she admitted that her award-winning story was a fabrication."

At least some experts believe that, with regard to hallucinogens, U.S. drug policy is that all four models that form this synthesis assume that users of all illicit drugs are prone to violence. As a rule, however, most violent drug-related crime in the United States is not committed by people under the influence of hallucinogens. According to a report commissioned by President Richard M. Nixon, Drug Use in America: Problem in Perspective, "Except in relatively rare instances generally related to drug-induced panic and toxic reactions, users of hallucinogens . . . are not inclined toward assaultive criminal behavior."38 This conclusion is substantiated by the U.S. Department of Justice, Bureau of Justice Statistics, which in 1998 reported that of all adults who were under the influence of drugs when arrested for violent offenses, those under the influence of hallucinogens ranked lowest behind all other drugs in the report, which included marijuana, hashish, cocaine, crack, heroin and other opiates, barbiturates, and stimulants.

Although violence accompanies the rivalries between gangs for control of the trade in drugs like ecstasy, growing numbers of people believe that the DEA should separate hallucinogens from addictive drugs and place them in a different, less restrictive schedule that would allow for less punitive policies.

Rethinking the Classification of Hallucinogens

One such proponent of reclassifying hallucinogens is Richard B. Karel, a writer who has researched the problems of drug law enforcement. He believes that law enforcement agencies should focus on apprehending users of drugs associated with violent crime rather than pursuing users of hallucinogens. To that end, Karel recommends that hallucinogens should not be considered as dangerous drugs and believes that "Psychedelics, including the naturally occurring plant drugs such as psilocybin and peyote, as well as synthetics such as LSD and MDMA [ecstasy], would be regulated quite differently from all other drug categories."39

The idea that hallucinogens are not as great a threat to the American public as addictive drugs is hardly new. The issue was taken up in the early 1980s by the Drug Abuse Council, which commented in the introduction to its report that its board of directors "perceived a pressing need for independent analyses of public drug policies and programs . . . and that the effectiveness of law enforcement and treatment strategies was often overstated."40

The Drug Abuse Council made seven general observations, one of which focused on the need to recognize that, although hallucinogens are widely used, they do not present a danger to the public because they are not frequently abused. The council reported,

While the use of psychoactive drugs is pervasive, misuse is much less frequent. A failure to distinguish between the misuse and the use of drugs creates the impression that all use is misuse or "drug abuse." . . . The frequent depiction of the minority who do misuse drugs, especially illicit ones, as typical conveys the mistaken impression that misuse is pervasive if not inevitable.41

Thus far, a call for a comprehensive review of drug policy resounds louder than a call for an outright legalization of hallucinogens. To a growing number of Americans, although still a minority, the prohibition on the use of hallucinogens is viewed as misguided. Hallucinogens, these critics argue, are nonaddictive and do not belong on the list of illegal drugs along with highly addictive drugs such as heroin, cocaine, and crack. Furthermore, these critics contend that the health risks for hallucinogen users are insignificant when compared to a drug like heroin, which, according to the DAWN reports, annually kills more than four thousand Americans.

DEA Assertions

In 1974, the DEA published a handbook called "Speaking Out Against Drug Legalization" in which it provided answers and information to DEA agents who "are frequently faced with the need to address many of the positions which are advocated by those calling for the legalization of drugs. . . . Legalization, however, is not an alternative, but rather a surrender that will further reduce our quality of life."

In addition to many tips and pieces of information to use when debating against the legalization of illicit drugs, the DEA listed the following ten assertions it believes to be factually true:

Assertion 1:
Crime, violence and drug use go hand in hand.
Assertion 2:
We have made significant progress in reducing drug use in this country. Now is not the time to abandon our efforts.
Assertion 3:
Legalization of drugs will lead to increased use and increased addiction levels.
Assertion 4:
Any revenues generated by taxing legalized drugs would quickly evaporate in light of the increased social costs associated with legalizing drugs.
Assertion 5:
There are no compelling medical reasons to prescribe marijuana or heroin to sick people.
Assertion 6:
Legalization and decriminalization of drugs have been a dismal failure in other nations.
Assertion 7:
Alcohol has caused significant health, social and crime problems in this country, and legalized drugs would only make the situation worse.
Assertion 8:
Drug control spending is a minor portion of the U.S. budget, and compared to the costs of drug abuse, spending is minuscule.
Assertion 9:
Drug prohibition is working.
Assertion 10:
Drug legalization would have an adverse effect on low income communities.

Despite the growing demand to reconsider hallucinogen laws, the DEA is adamantly opposed to any change in policy regarding legalization of hallucinogens. In its publication titled Speaking Out Against Drug Legalization, the DEA states, "Legalization, however, is not an alternative, but rather a surrender that will further reduce our quality of life."42 DEA leadership, supported by the president and many congressional leaders, believe that the current laws are fair, effective, and necessary for the good of the nation. Calls for any change in drug policies, the DEA contends, would be a serious mistake. Directors of the DEA believe the prohibition on hallucinogens is a successful and necessary policy. Legalization of these drugs, they contend, would lead to increased use.

Peyote, American Indians, and the Law

One hallucinogen already has the unique status of being legally used under one specific circumstance: peyote. The Justice Department has made this one exception to accommodate a claim that peyote is a necessary part of a religious ritual.

Peyote has been a part of the religious ceremonies for several American Indian tribes for many generations. During the 1930s, when states passed laws prohibiting the use of peyote, members of the Native American Church, who had been using peyote in their religious ceremonies, protested the prohibitions. They fought the peyote prohibition in the courts, citing their rights to religious freedom and religious practices as guaranteed under the First and Fourteenth Amendments to the U.S. Constitution.

Attorneys arguing before the Albuquerque District Court on behalf of the Native American Church pointed out that, for hundreds of years, peyote had been viewed as a natural gift of God to humankind, and especially to natives of the land where it grows. They argued that no government has a right to tamper with traditional religious rituals.

In 1960, the Albuquerque District Court ruled in favor of the Native American Church, allowing them to legally use peyote as part of their religious ceremonies. Peyote remains on the DEA's list of Schedule I drugs; however, this prohibition does not apply to bona fide religious ceremonies of the Native American Church. Controls over peyote use are still closely regulated, and any person who prepares peyote or distributes peyote to the Native American Church is required to obtain annual registration from the DEA and to comply with all other requirements of the law.

Problems of Law Enforcement

The DEA adamantly opposes any further exceptions to the ban on Schedule I drugs. Yet this position presents most law enforcement agencies with a problem. Attempting to enforce all drug laws has become a near-impossible task for federal and local law enforcement agencies. Limited budgets and manpower exhaust the ability of nearly all police departments to keep up with the millions of Americans using a wide variety of illicit drugs.

Yet police agencies prefer not to be given the added job of deciding whether or not a particular law or regulation should be enforced. A spokesperson for the International Association of Chiefs of Police (IACP) stated that the policy of that group's members is to enforce all drug laws, including nonviolent hallucinogen use, without regard for their perceived seriousness. This has been a long-standing position because the job of law enforcement officers is to enforce drug laws, not pass judgment on whether the laws merit enforcement or not.

In 1996, however, the New York County Lawyers' Association (NYCLA) called for changes in drug laws to relieve law enforcement officers, such as members of the IACP, from the need to use valuable resources enforcing laws against hallucinogen use, which the NYCLA said is creating "a clogged criminal justice system unable to focus on society's larger crime problems. Courts jammed with drug cases inevitably results in insufficient resources available to properly attend to these [violent drug crimes] and other more serious crimes appearing on overburdened court dockets."43

Urban Legends and Hallucinogens

Many urban myths–false stories that are repeated as if they are true—have focused on hallucinogens, especially LSD. Often, these legends originate with people who believe that terrifying stories will deter illicit drug use.

One of the earliest urban myths that circulated in hundreds of newspapers was a story about a group of LSD users who began staring at the sun. The people portrayed in the story were allegedly so high that they failed to realize that they were blinding themselves until someone found them and pointed out to them that they had destroyed their retinas.

Another urban legend, circulated primarily on the Internet, warned people that the push buttons on public pay phones in some cities had been contaminated with LSD, and touching them would cause the victim to absorb a dangerously high dose of LSD through their finger tips. After a great deal of research by several groups, including the federal government's Centers for Disease Control and Prevention, this warning was determined to be a hoax. Yet it continues to surface from time to time.

Of all the LSD urban legends, the oldest and most well known is that of the blue-star tattoo. The story was first circulated by a church in 1992 that warned parents of LSD placed on children's stick-on tattoos that look like blue stars. The church flyer went on to say that this was a strategy used by drug pushers to hook children on LSD. The blue-star tattoo story was quickly picked up by dozens of major newspapers that failed to research it. Eventually, most of the newspapers debunked this myth.

Yet some contend that such urban myths, though untrue, still serve a purpose. As David Emery points out on his website Urban Legends and Folklore, "Are children really in danger of getting dosed with LSD through drug-laced tattoos? No. Are they endangered by the careless drug use of the adults around them? Clearly, they can be. This is another example of how a false story can paint a true picture of the things we most fear."

In fact, the DEA admits that confiscating hallucinogens such as LSD is such a low priority, it has virtually stopped attempting to do so. A report in one DEA publication summarizes the agency's position: "Six clandestine LSD synthesis laboratories have been confiscated by [the] DEA since 1981; however, there have been no seizures since 1987. This is due primarily to . . . the crack epidemic that began during the mid-1980's and continues into the present."44 The report by the DEA does not mean that it no longer enforces laws governing the use of hallucinogens, but it does indicate that its hands are tied by more serious, violent drug-related crimes in need of its limited resources.

Government Responsibilities vs. Individual Rights

Many people believe that the most fundamental issue involving hallucinogens and the law is the question of whether the government has the right in the first place to determine that hallucinogens cannot be legally purchased by the citizenry. This question represents a clash between the responsibility of the government to protect citizens from danger and the rights of individuals to decide for themselves how they conduct their lives.

For many Americans, however, controlling drugs and their use is sound public policy. Three drug researchers, Kenneth Jones, Louis Shainberg, and Curtis Byer, who study hallucinogens as well as other illicit drugs, assert,

[Drug laws] have been enacted to protect society. Legal controls such as quarantines, isolation, and penalties have always been necessary to stop the spread of various diseases and illnesses. Since the best evidence supports the view that compulsive drug abuse is an indication of an emotional illness in an individual, society is justified in insisting on some type of regulation on the manufacture, distribution, and use of drugs. Such regulation can be viewed as a part of preventative medicine.45

Although the views of Jones, Shainberg, and Byer are supported by many people, many opponents of the current policy governing hallucinogens challenge the idea that users of hallucinogens are compulsive drug abusers.

Besides the issue of determining which drugs are dangerous, many people believe that adults have the right to determine what substances they consume, regardless of whether the government thinks they are dangerous. A study released by the New York County Lawyers' Association regarding personal drug choices concluded, "In recognition of inherent rights to privacy and personal autonomy, reevaluate whether, and to what degree, government intervention is appropriate and justifiable with respect to casual use of drugs by its citizens."46

The conflicting interests of the government's responsibility to protect its citizens and the individual's right to make choices are often difficult to reconcile. Very often, defining what constitutes a danger is open to considerable disagreement among reasonable people. In any case, the Drug Abuse Council recognizes that to try to eliminate the use of hallucinogens is perhaps unrealistic: "Some psychoactive drugs are almost always readily available to enable people to achieve what they wish or need for alteration of mood or mind."47

The search for altered perceptions can take many different paths, only one of which is drug-induced. The use of hallucinogens began with the earliest civilizations and continues to the present. Whether for spiritual, medical, or recreational use, hallucinogens, far from falling into disfavor and disappearing from the human record, continue to be sought out and used in virtually all cultures regardless of their legal status.

Regardless of how many people use hallucinogens or why they do so, there remains an uneasiness that surrounds the unpredictability of their effects. Drug awareness groups such as the National Clearing-house for Alcohol and Drug Information and the National Institute on Drug Abuse have raised the question whether other methods could be found to alter moods and to achieve altered states of consciousness that do not involve drugs.

Dr. Vincent Nowlis, a psychologist at the University of Rochester, along with several colleagues, made the observation that throughout history people have found many ways to change moods and alter consciousness without using drugs. Most notably, he points to physical and spiritual experiences, diet, rest, recreation, travel, and the simple pleasures of music, theater, and sports.

Yet hallucinogens continue to be a part of American drug culture. Despite their continued use by significant numbers of Americans, the legal status of hallucinogens is unlikely to change soon. To the satisfaction of those opposing their legalization, hallucinogens are likely to remain on the DEA's Schedule I list of controlled substances for the foreseeable future. But, to the satisfaction of those who want to use them, hallucinogens are likely to remain available. Whether the use of hallucinogens will change and whether the laws governing hallucinogen use will or should be modified are questions that will continue to be part of the public debate over America's drug policy.