04/13/18 Don Wirtshafter

Cultural Baggage Radio Show
Don Wirtshafter

Don Wirtshafter re deadly synthetic "marijuana", Doug McVay re forthcoming Patients Out of Time Cannabis conference, Katherine Neill Harris at Rice Panel on Cannabis, Okla Solicitor General Mithun Mansinghani at Rice

Audio file


APRIL 13, 2018


DEAN BECKER: I am Dean Becker, your host. Our goal for this program is to expose the fraud, misdirection, and the liars whose support for drug war empowers our terrorist enemies, enriches barbarous cartels, and gives reason for existence to tens of thousands of violent US gangs who profit by selling contaminated drugs to our children. This is Cultural Baggage.

And we have a busy show for you today, I guess we've got to get started.

DON E. WIRTSHAFTER: Hi Dean, I'm Don E. Wirtshafter, you've known me for years in drug policy. I was an attorney here in Ohio, fighting the good fight, and these days I'm retired, and mostly living in Colombia.

DEAN BECKER: Well, Donnie, what's caught my attention of late, there is this, I don't know, this plague that's attacking folks all over the country, but it gets focus where it hits a lot of people, and that just happened in Illinois, where over a hundred people have been affected by this stuff they call synthetic cannabinoids. And it's killed at least three people in recent days. What is that stuff, Don?

DON E. WIRTSHAFTER: Well, you just don't know. There are probably fifty thousand known chemicals that affect the cannabinoid system, and so, you don't really know which one of these it is, or what its contaminants are, or one of these cases turned out to be somebody using rat poisoning and selling it as cannabis.

You have to understand this, there is no relationship between this and cannabis, other than the fact that these chemicals affect one of the receptors that cannabis also affects. They found it in cannabis so they call them the cannabinoid receptors, but, scientists figured out chemicals they could use to mimic the effects of cannabis because they weren't allowed to work with cannabis.

And then later, the underground market took these studies, and these research chemicals, and commercialized them. Mostly out of China, these things have been coming in the United States for about 20 years.

DEAN BECKER: Well, and it occurs to me that the affects are, for the most part, what I'm reading on CNN and in the newspapers, have no real relevance or similarity to actual cannabinoids. Your thoughts there, sir.

DON E. WIRTSHAFTER: Well, the only similarity is that people do this because they either can't get cannabis, or because they're being urine tested against using cannabis. And -- or, maybe because this stuff's a little cheaper than cannabis.

But, all these are effects of prohibition. People who have access to cannabis in places like California, this isn't an issue. This is only an issue in prohibition states, where people are looking for these alternatives.

DEAN BECKER: Well, earlier this year, or late last year, I did an interview with then-sheriff of Seattle John Urquhart, and we were talking about the fact that it's parolees and it's probationers that, as you indicated, are subject to urine tests that take this stuff because it doesn't show up as marijuana in your system. Right?

DON E. WIRTSHAFTER: Right. Now, you have to understand the evolution of these things, and I should preface this by saying I'm not an expert on this issue. I studied it a lot about seven or eight years ago. I've never tried any of these synthetic cannabinoids. I could be an expert on cannabis, I've used it for fifty years, but this stuff I'm no expert on. I've just studied it more than most people.

DEAN BECKER: Well, sure.

DON E. WIRTSHAFTER: But, this was a very simple cannabinoid that was used in labs all around the world that was called JW18, that a man named John Huffman -- JWH18 -- and John Huffman invented this to be able to use it in the lab to discover how these cannabinoid receptors work.

And, he had nothing to do with the fact that this became an underground chemical twenty years later. But, the first things that they were using worked pretty good and they achieved a market because people liked it.

The first JWH18 was probably 10 tens times stronger than pot, you could get higher on it if you used a lot of it, but there were a lot of problems with it, like, how people took these chemicals and mixed them in was very haphazard, and some people got overdoses. There was -- there's no FDA or any kind of approval on any of this stuff, and it was just a crazy market that the government stepped in.

And, my interest in this arose because I saw this as a hole in the whole premise we have around drugs, that we have that schedule of controlled substances, and there used to be a hundred and fifty some substances that Drug Enforcement Administration had jurisdiction of.

But, over time, they expanded it and expanded it, and one of the ways that they expanded it was with the Analog Drug Act. And this said, oh it's not just these chemicals, but anything that mimics these chemicals and is intended for human consumption, and it went on from there, and they've expanded on the analog act, an analog act, and they stopped prosecuting under the analog act for a while because it got really cumbersome.

So then, they started adding individual chemicals. They added five of these commonly used "spice" chemicals eight years ago, and then all the analogs of those. And all of a sudden now, how many thousand chemicals are on that list? Manufacturers used to have a clear path of what they could do and what they couldn't do, and all of a sudden, now they -- the DEA added a lot of fuzz into that definition, and that fuzz is entirely at the DEA's discretion, what they're going to prosecute or what they're not going to prosecute.

And believe me, they're overwhelmed, and don't have near the time to prosecute it, so, what they choose to prosecute becomes more of a political decision. And what they choose to publicize against is a political decision. And the "spice" has been very handy for the DEA, because it's allowed them take all that energy they used to pour into marijuana, and now they have their quote "synthetic marijuana" that they're after instead.

DEAN BECKER: Well, I tell you what, Don, we, you know, we hear the stories of, some of these kids wind up paralyzed, many of them, we had a situation here in Houston where about 18 or 20 kids got overheated on a hot summer day and they had ambulances hauling them out of there. Some wind up paralyzed, and some die, and it's, to me, it just an example of the futility of this drug war. The more they go after certain drugs, the more dangerous other drugs become. A classic example, heroin turned into carfentantyl now --

DON E. WIRTSHAFTER: Yeah, and it's the same here. There was a little war between the DEA and these guys, mostly out of China, who were bringing in these chemicals, and the DEA would outlaw a chemical, and they'd bring in three more. And then there were fifteen chemicals outlawed, and now there's a couple hundred new ones.

And, it's messing up the whole idea of enforcement of drugs, because the chemistry is not up to finding all this stuff. The DEA is spending a lot of money right now on research into how they're ever going to be able to analyze this stuff, in its herbal form, and in the urine and other fluid tests.

DEAN BECKER: Well, and doesn't seem there's an easy solution on -- doesn't seem there's an easy solution on the horizon, but, your thoughts on the future of this situation. It's just going to get worse until they legalize pot nationwide. What's your thought there.

DON E. WIRTSHAFTER: That's exactly what I'm saying, that this is not a problem in California, like it is in Illinois. Why? Because they've slowly begun to legalize cannabis in Illinois, and in such an inefficient fashion that nobody has access to it. Same in my state of Ohio, we're not going to see real access for a long time because of all the corruption and collusion that's going on.

DEAN BECKER: Well, Don, I know you're going to a trade show. Can you tell us a little bit about that?

DON E. WIRTSHAFTER: Well, one of my retirement projects is putting together the cannabis museum. And, I've been a collector my whole time in pot, and drug policy, and I was especially challenged to prove that marijuana had an acceptance in -- a hundred years ago, you know, that it had mainstream acceptance. And all this knowledge was wiped out over the last 50, hundred years by the prohibition, that even museums and research institutions threw away their cannabis collections because they were afraid of getting busted.

And so, you go to the Smithsonian, it's got one point -- sorry, 13.5 million things in their basement, one cannabis ingredient cure, of all their apothecaries and drugs and drug stores, there catalog includes one corn cure that had cannabis in it, that's it. And otherwise, all that stuff got thrown away, except by a handful of pharmaceutical collectors who thought it important to collect these things, and they were very secretive in their collecting and hid this stuff away, and I've been very successful in finding it -- in finding things on eBay and finding other collectors around the world, we've put together quite a museum.

But this stuff is difficult to transport, hard to show securely, and so our emphasis turned to photography, and in the last couple of years I've learned to be a photographer. We've built a whole photo lab, and bought the best of photo equipment, and so we're going to Pittsburgh, this is a whole crew of volunteers and I. People are really excited by what's going on here, and we're going to Pittsburgh to sell these photographs to try to support our work here at the museum.

DEAN BECKER: And, that's a classic example of hopefully history repeating itself, people learning the truth of this matter and going back to the real deal. Your thought there, Don.

DON E. WIRTSHAFTER: Well, it's a long lecture, and it's something, especially if you had video, we could do this. But, basically, these practitioners of a hundred years ago, they didn't have any of the scientific tools that we have today, they don't have any, anything, you know, the tests or any of that, they only had their own senses, and their observation of their patients, and based on that, and, you know, very crude publishing at the time, these scientists figured out cannabis really well.

They understood the difference between CBD and THC. They understood the carboxylation, they understood, you know, that tinctures and the syrups were different, and that, you know, how to incorporate these things into modern medicines and how to standardize them to dose and how to package them properly, all these things evolved over the golden era of cannabis medicines, or at least the first golden era, which was 1830 to 1937, when it was just suddenly kaboshed.

Some of the best part of our collection comes out of Texas, where a revenue agent down there collected cannabis from all the drug stores on October First, 1937, and put them in his closet instead of turning them into headquarters, and made his wife promise not to sell the for ten years after he died.

And 25 years after he died, she sold them to a few of us, and they're just fantastically well kept examples of what was on the shelves in 1937. And so we're going through the work of getting chemical analysis of what's inside these jars, getting genetic analysis of the DNA that remains inside the medicines, and it's going to be fascinating to see how this all comes together over the next few years.

DEAN BECKER: Well, Donnie, as we wrap this up, I think it's important we tell the kids and the inexperienced folks out there to steer clear of this damn K2 and Spice, it is not marijuana, it is dangerous and deadly. Am I right?

DON E. WIRTSHAFTER: You have no idea what you're getting. Even John Huffman, who invented the most widely used of the stuff says anybody who uses this must be an idiot. He can't understand why anybody would try this stuff. He can't even give it to rats, you know, so why would you want to give it to people.

DEAN BECKER: Thank you, Donnie, and is there a website you'd like to share, closing thoughts?

DON E. WIRTSHAFTER: Well, we do have photographs available at cannabismuseum.com. And you can reach me through there if you have any questions.

DEAN BECKER: The following report comes to us out of Michigan state.

DEVIN SCILLIAN: Now to the politics of pot. It may take yet another turn in Michigan. A ballot proposal asking if you'll support recreational marijuana's pretty much a foregone conclusion on this November's ballot, but, tonight there's talk in Lansing about legislative approve -- legislatively rather approving it before it goes to the ballot. Mara McDonald in Lansing with the backstory on why. Mara?

MARA MACDONALD: Devin, here is the deal. All the polling we've seen on recreational pot shows that it passes, but it also shows that that issue alone can drive voter turnout, so the question here becomes, is that voter turnout enough to impact other races?

Medical marijuana usage passed by a huge margin back in '08. Sixty-three percent of voters said yes. Now in 2018, recreational pot is heading to the ballot, and while the signatures are still being vetted, I don't know anybody in Lansing who doesn't think it will appear on the ballot and win. As a matter of fact, if we voted right now, according to polling:

DENNIS DARNOI: If it were on the ballot today, and we were to vote today, I think it would pass probably with 55 or 56 percent of the vote statewide.

MARA MACDONALD: In Darnoi's estimation, it would also likely up the voter turnout by two or three percent, which GOP sources in Lansing tell me has them wondering if they ought to just legislatively pass recreational pot now. Why? Concerns that a pot voter bump could cause them to lose control of the state house, which in an unpredictable election year is a very real concern and conversation.

DENNIS DARNOI: It is a legitimate concern, and if I were with the House Republicans, I would certainly take it seriously. But I don't think it's reached critical mass at this point.

MARA MACDONALD: Back here live, let's also remember that right now, all of this is merely behind closed doors discussions, and let's also remember that the GOP, in the not-so-distant past, has tried to get recreational pot moving through the legislature. It always gets stopped because of deep divisions in the caucus, and those are divisions that exist today but Devin, Kimberly, it is a weird political year, and I think at this point, anything's possible.

DEAN BECKER: Regular listeners to the Drug Truth Network know that there's a major Patients Out of Time event happening next month. Here to fill us in is one of the planners of this event, our reporter, Mister Doug McVay. Yeah, fill us in, what is this conference again, how can folks get involved?

DOUG MCVAY: Sure. I do social media and website work with Patients Out of Time. The Twelfth National Clinical Conference on Cannabis Therapeutics is being planned for May 10 through 12 in Jersey City, New Jersey.

The theme of this year's conference is Cannabis: Relieves Pain, Treats Addiction. It's -- I mean, these are themes that are really well known, and we've been looking at them for, well, for several years. But, this year's conference is going to have some terrific, terrific people.

We've got folks like, well, Ethan Russo, doing an overview of the history. Got Greg Gerdeman, who's a PhD researcher, talking about endocannabinoids and neural systems of addiction. We've a Harvard professor, Stacy Gruber, PhD, who examines cannabis and its effects on the brain. Her presentation is on "Keeping an open MIND: Assessing the impact of medical cannabis use on the brain."

And, you know, we have so many of these, these are researchers doing the actual research, the presentations are part of the main conference, which is accredited for continuing medical education and continuing education units, so doctors, nurses, other healthcare professionals, can not only attend and learn, but this is learning that, well, that their license really requires, your continuing medical education is a requirement of practice, and so physicians coming to this are actually, you know, really learning.

I mean, the top people in the world presenting the results of their research, some of the stuff that they're publishing. It's, I mean, it's truly an impressive crowd. Really impressive crowd.

DEAN BECKER: Well, you know, Doug, the heck of it is, is that the government, or leaders within government, keep talking about, oh there's not near enough studies, and the fact is there's been, well, practically too many studies, there's a lot of truth that's been brought forward, and it's just not recognized yet. Your thought please.

DOUG MCVAY: Well, absolutely. I mean, it's a very well studied plant, although there have been problems in the United States with getting, for instance, just decent quality cannabis, or the kind of cannabis that people actually use, for research. I mean, that was a stumbling block for a long time. But even there, we're -- things are improving.

Now of course, we have, you know, hundreds of thousands of people across the United States who are using cannabis medically. I mean, a lot of these people are seeing their physicians on a regular basis. We have, I mean, god rest his soul, my physician, Tom O'Connell, who passed away a few years ago, I was part of his database. He talked to thousands of medical cannabis patients about their use, and assembled a great deal of data that eventually was published a few years ago, and, you know -- I mean, it's a fascinating study.

And, you're quite right, the officials keep standing in the way, or some don't, we just saw former House Speaker John Boehner is going to be joining a medical -- or, a marijuana company now.

But you know, interestingly, because policy is such a major thing, on Thursday, before the conference officially starts, we're going to have our pre-conference workshop, and that one is going to have a number of the scientists and medical folks as well as some legal experts and policy people.

Mara Felsen, Alan Silber, Shaleen Title, all will be speaking at this year's policy workshop. Brandon Wyatt from DC, Sue Sisley, Doctor Sue Sisley, Ken Wolski, who's a nurse in New Jersey, Lynn Paltrow, the executive director of National Advocates for Pregnant Women.

It's a great, great, broad kind of look at the policy, and not just, you know, the changing the laws and descheduling, but also things like the racial disparities and cultural competencies, we have a panel on Thursday about veterans and PTS(d), another on children and families, as you and I both know, the -- that's a, you know, it's patients, parents as patients, or trying to -- or the children are patients, trying to treat them.

And things like employment and housing as well. We're trying to cover a lot of the ground there, but, we have some terrific people. Oh, and in fact Deborah Small, from Breaking the Chains, is also going to be joining us on Thursday. I mean, a tremendous program, really, really a tremendous program.

DEAN BECKER: Well, Doug, the fact of the matter is, it's not too late to get involved. They can get their tickets, they can get their airfare, and they can be there. One more time, the details, where they -- when this is, and how they can get involved, please.

DOUG MCVAY: Oh, sure. The easiest way to find out all of this, the agenda, the speakers, just go to PatientsOutOfTime.org. The web address is simply the name of the group. PatientsOutOfTime.org. You can also go to our other website, MedicalCannabis.com, and find the links there. There are -- registration is an easy process, you can register for the full conference or for just the Thursday, or for just a Friday, or just a Saturday if you really want.

We also have a benefit dinner that will be going on, on the Friday, a tremendously fun event that is, and we'll have some other stuff that -- I mean, yeah. PatientsOutOfTime.org, and you can easily register. There's still hotel rooms available in our group block at one of the hotels at least, the other one's sold out. And it's regular registration prices at the moment, the late fees won't go on for another couple of -- for a few weeks, so people have time to register. May Ten through Twelve, Jersey City, New Jersey.

And, you know, I'm not from -- I never lived in New Jersey, I don't know where the place is. Turns out, Jersey City is right across the water from Manhattan. I mean, from this place, we're going to be able to look across and see the city of Manhattan, I mean, yeah. It's nice to be in there, but gee, it really is pretty from across the water. And it's a short trip to just get into Manhattan if people want to make a quick trip there.

So it -- I think it's going to be a lot of fun.

DEAN BECKER: This segment comes to us courtesy of CBS out of Houston, Texas.

REKHA MUDDARAJ: But we begin with one of the first patients in the Houston area to start using medically prescribed marijuana.

LEN CANNON: This comes in the form of cannabis oil, and only a small group of Texans are able to use it: epilepsy patients who are not getting any relief from any other medications.

REKHA MUDDARAJ: Yeah, we've been telling you about the medical cannabis dispensaries that have started growing marijuana. Now the drug is in the hands of patients.

LEN CANNON: Ron Trevino talked to the family at their church in southeast Houston.

REKHA MUDDARAJ: And Ron, they told you this is something they've been praying for for years.

RON TREVINO: That's right, Rekha, Len, this family's very involved in their church community, Sagemont Church. In fact, the patient is the grandson of one of the associate pastors there. They know there may be a stigma surrounding marijuana, but they feel this has been a godsend.

JAMES CHALLENGER: He goes with me everywhere, even on road trips.

RON TREVINO: Ten year old James Challenger relies heavily on his service dog.

MIKELLE CHALLENGER: That's about fifteen pills a day from the neurologist.

RON TREVINO: And all the pills he takes to control his seizures. But now, his parents have new hope, in this small bottle.

MIKELLE CHALLENGER: I can show you the -- school records have just horrible marks, to where we've not had one bad mark since we started the medicine on Tuesday afternoon.

RON TREVINO: I'm going to get CBD oil for my seizures. First time.


RON TREVINO: They recorded the moment on their cell phone. The CBD oil, the family says, has already had a positive effect.

MICHAEL CHALLENGER: We saw a drastic improvement in him, his face lit up, his personality just lit up, he's -- he is much happier.

RON TREVINO: Their goal is to get him off the daily dose of over a dozen powerful pills that have major side effects.

MIKELLE CHALLENGER: He had been described as being unhinged, just out of his mind. He wasn't there. You'd look at him and his eyes just weren't there.

RON TREVINO: Now, they say their son is back, thanks to the oil he takes twice a day that comes from marijuana.

MICHAEL CHALLENGER: It's not the same thing that, you know, people use for recreational purposes, you know, this is a medicine that's highly controlled.

JAMES CHALLENGER: That's the little pup.

RON TREVINO: The family says their fellow parishioners at Sagemont Church have been very supportive. The way the family sees it, the cannabis oil is the answer to their prayers.

And the oil here is being prescribed by their neurologist, Doctor Josh Rotenberg, and it's not covered by their insurance. They figure they'll be spending $200 a week on the oil, but if James continues to show improvement, they're okeh with that. Len and Rekha?

LEN CANNON: Yeah. No money is too much when your kid is showing improvement. Absolutely. Thank you, Ron.

DEAN BECKER: It's time to play Name That Drug By Its Side Effects!

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DEAN BECKER: Some folks told me that last week I unfairly played just my presentation to the Federalist Society at Rice University, so, here's the other two.

One of the other panelists was Katharine Neill Harris. She's the Alfred C. Glassell III Fellow in Drug Policy.

MODERATOR: Please begin.

KATHARINE NEILL HARRIS: Okeh. So, so I'm just -- I'm going to talk very briefly just about some of the impacts that marijuana reform has had so far, and also about some of the alternative models for regulating marijuana, other than the commercial market that we've seen so far in most of the states.

So, economically, there have been some significant benefits of legalization. I actually moderated another marijuana event that was on campus last night, and several of the panelists there were -- part of them were familiar with marijuana industry in states where it's legal. They all reported seeing an increase in jobs related to the industry, as well as a rise in all these ancillary services for the industry: security services, legal services, marijuana focused real estate agents, marketing specialists, software development, packaging, extraction equipment for oils and edibles, and you name it.

So there's a lot of other businesses associated with the marijuana industry, other than just growing and selling marijuana. Also states are bringing in a lot of tax revenue, so since it legalized in 2014, Colorado has collected over half a billion dollars in taxes and fees. Nevada made thirty million in tax revenue in the first six months that it opened its adult use market. And a lot of this money, you know, states are saying that they're putting it towards, you know, public health related issues.

In Oregon in 2017, the state put eighty-five million of its revenue collected through taxes toward schools, public health, police, and local government. So that's just an example of how some of that money is being reinvested by states.

When you look at the industry itself, they're -- it has faced some challenges. One of the biggest is banking, and this gets kind of directly at some of the issues of state and federal conflict.

So, most large banks in the US will not accept marijuana businesses as clients. This being said, a majority of the business is a cash only business, which creates a security risk for people, because then they end up having stores with, you know, thousands and hundreds of thousands of dollars in cash, and also have to physically transport hundreds and thousands of dollars in cash.

This is one of the reasons that marijuana related security services have become such a profitable industry as well.

There are some regional banks in certain areas that are starting to do business with marijuana companies, but again, right now it's just so very difficult for individuals in the industry to use banking services, because large banks don't want clients who are operating illegally under federal law. You know, banks are very risk averse, and it's seen as a large risk.

And recently, attorney general Jeff Sessions announced that he was going -- he was rescinding the Obama era Cole Memo. Now, the Cole Memo was essentially a directive telling federal prosecutors to refrain from enforcing federal marijuana laws against individuals or organizations if they were operating legally under their state's laws [sic: the Cole Memo advised US Attorneys to make such prosecutions a low priority, and it set out guidelines for prosecutors to use in determining whether to prosecute].

So, by rescinding that memo, Sessions essentially gave prosecutors the okeh to use their discretion to enforce prohibition, federal prohibition laws, even against people operating legally under their state laws.

So far to my knowledge, there hasn't been any case where federal prosecutors have done this, but one of the effects of Sessions's decision was to make banks even less willing to venture into the marijuana industry. Banks and also particular -- potentially large investors.

So, in addition to not having access to traditional banking services, it's also very difficult for marijuana entrepreneurs to get access to capital. So this means that it requires a lot of up front money to get involved in the business, and this is one of the reasons that so far the industry has been largely dominated by white men, as this group has -- just tends to have easier access to capital up front than do women and people of color.

So those are some of the things that are going on with the industry itself. It's certainly facing some growing pains, but then it also has additional conflicts, because of the discrepancies between federal and state law.

On balance, though, again when you look at the economics of it, it seems that marijuana legalization's been largely positive for states that have embraced it. And in some ways, those affects were never really disputed, not -- most people agree that yes, there will be tax revenue to be seen from legalizing marijuana.

And instead, a lot of the concern around marijuana legalization is in the impact it's going to have on public health, and specifically on use rates. So if you look at trends among teens, which tends to be the group people are most concerned about, national trends indicate that more trends -- more teens increasingly are perceiving marijuana use as less risky than they did in the past.

But perceptions of risk do not translate into higher rates of use. In Colorado, teen use now is lower than it was prior to adult use legalization. So, among 12 to 17 year olds -- and this is data from the National Survey on Drug Use and Health, which does -- has been conducting an annual survey on drug use since the 1970s -- they show that past month marijuana use has decreased from over 12 percent just prior to legalization in 2014, to 9 percent in 2015 and 2016. Rates of teen alcohol, tobacco, and heroin use are also down in Colorado.

Now, marijuana use among 18 to 25 year olds, and those 26 and older, has increased in Colorado since legalization, but alcohol use among these groups has declined, suggesting that some people might be actually substituting marijuana for alcohol.

So, at this point, it doesn't seem likely that legalization is leading to significantly higher rates of use, but it's also too early to tell what the overall public health impacts of legalization will be.

But then another important indicator is not just whether legalization contributes to more people using, but whether it contributes to people using more often. So alcohol and tobacco companies make the majority of their profits from the heaviest users, not the occasional users, and while the majority of marijuana users use infrequently, the small proportion of daily users account for over fifty percent of marijuana consumed.

Again, it's still too early to draw conclusions about long term impacts, but it does seem fair to say that under a commercial model like we see in states so far, marijuana businesses have a financial interest in more people using the product, and in more people using their product more often.

So, there's certainly a public health concern there, but, you know, I think it's important to realize that a commercial market's not the only way to legalize. I think we often get in this discussion, you know, we either have prohibition or, you know, maybe decriminalization, or you just -- you have full on legalization.

But states could also do other things. They could opt to keep production on a small scale by legalizing cannabis clubs. These are clubs that allow members to grow plants collectively, they can share and trade with each other, but not with non-members. And that would -- that's one way to keep production on a smaller scale, and there is still potential for a black market there.

There's also been talk in some states of limiting legalization to just allow people to grow their own plants for personal use only. But in reality, this also still leaves the door open for a black market, because, you know, not everyone's going to want to take the trouble to grow their own plants, and some people that do grow their own are going to have an excess amount that then they can -- they would still want to sell for a profit.

And one of the panelists at the event last night spoke of how in DC, where they have legalized but they don't have commercial stores, people will sell t-shirts for fifty dollars, but then along with the t-shirt you get a bag of weed. So, there's ways that people have -- can get around those kinds of things and still allow a black market to proliferate.

But there are ways that states can allow for sales that do reduce the black market and create revenue for the public coffers, without having full-fledged commercialization. The market can be limited to nonprofits, or to for-benefit companies, those are companies which maximizing shareholder profits is not their only goal, or they have more than just one goal, so, you know, they could be interested in public health -- positive health outcomes as well.

States could also choose to control marijuana production and sales themselves, sort of like the way some states have a monopoly on liquor stores. I come -- I'm from Virginia, we have ABC stores there, so, you can only buy liquor from state owned stores.

And that kind of state monopoly model isn't feasible right now because of federal prohibition. If federal prohibition were to change, this could be then possible for states to consider. It would also still generate tax revenue and it could also be better for public health.

At this point though, it seems likely that most states will choose to go the way of the commercial market, maybe with some exceptions, and a big reason for this is that so far, all states that have legalized, with the exception of Vermont, have done so through the ballot initiative process. So that's where, you know, voters are essentially allowed to vote for legalization versus the process of going through the state legislature.

And with this process, when voters vote to legalize on the ballot initiative, state legislatures are essentially required to enact the law that's written in the proposition that passed. And most of these propositions call for a commercial market model.

Now you may not be surprised to also learn that a lot of the financial backing for these propositions comes from people that already have large financial stakes in the marijuana industry.

So, if we do start to see more legislatures acting to legalize, like we did in Vermont, or if there's major change to the federal law, then it may be possible to see some alternative systems set up. In either case though I think it's important not to lose sight of the fact that these alternatives do exist, and also to consider that, you know, if we are going to stick with a commercial market, then there are important ways to regulate that also serve public health interests, such as taxing marijuana products on the amount of THC that they have versus just setting a flat sales tax of, say, twenty percent.

So that's one thing that you can do. Also ensuring accurate product information and labeling, which we still, there's a lot of that lacking, in a lot of instances.

And I'll just -- I'll just finish by saying that, you know, for me, the two most important reasons to end marijuana prohibition are one, to give people medical access to a plant that can help them with their pain or other chronic conditions, but also to ensure that no one's getting arrested or fined or a criminal record or any of the other collateral consequences that come with prohibition.

So, I'll support a commercial marijuana market, if it's the only alternative to prohibition, but I would prefer to see a market that balances the public health concerns as well. That's it. Thank you.

MODERATOR: Thank you.

DEAN BECKER: Another panelist at the Federalist Society gathering there at Rice University was the solicitor general of Oklahoma, Mister Mithun Mansinghani.

MITHUN MANSINGHANI: I want to spend some time thinking today about the legal issues surrounding what's been going on with marijuana policy reform. It's been sort of brought up several times that there's this tension between what the states are doing and the reality of federal law, and I want to kind of explore what that means for our legal system.

I'm not going to really talk about whether, you know, marijuana legalization's a good idea or how we should do it, you have policy experts on the other side of me. I'm a lawyer, I'm a humble lawyer, I don't really know too much about that, and on top of that, it's on the Oklahoma ballot in June, and -- but I am a constitutional law lawyer, and so I think talking about the constitutional law implications of what's been going on is important.

And, I want to suggest that the course of the way things have been taking place over the last five years is not one of the ways that it should take place under our constitutional system. I want to suggest that we shouldn't allow our enthusiasm for policy reform to lead us to tearing down the constitutional order that we set up over the last two hundred and fifty years, and I want to suggest that this is probably a good learning moment to think about what that system is, to think about the rule of law, and to think about the nature of our democratic republic.

So, let's start with the baseline truth that's been mentioned several times now. Marijuana is illegal under federal law. Its use, its possession, its manufacture, it's illegal everywhere in the nation by everyone, with some small exceptions for medical testing and things like that.

It's been illegal since 1970, and it's a federal law, just like the Civil Rights Act of 1964. So, if you wanted to engage in marijuana policy reform, how would you go about doing that? Well, there's at least three ways I can think of, so option one is for the government, the executive branch, to administratively reschedule marijuana.

Under the Controlled Substances Act of 1970, I'll say CSA a couple of times, that means Controlled Substances Act, drugs are put into different schedules. Schedule One is where marijuana is, that's for drugs with a high potential for abuse and no generally accepted medical use, and those drugs in schedule one can't be possessed for practically any purpose.

There's some other schedules, like schedule two or schedule three, which allow certain uses for those drugs under controlled circumstances, like by prescription or in hospitals and things like that.

And so one option is to reschedule marijuana from schedule one to some other schedule. And, that can be done by the attorney general, acting through the Department -- sorry, the Drug Enforcement Agency [sic: Administration], the DEA, and it's been tried, it's, they've asked for the attorney general to do so, since 1972, since two years after the Controlled Substances Act was passed to begin with, and it just hasn't happened, over and over again, administration after administration, from Nixon to Reagan to Clinton to most recently the Obama administration two times rejected the idea of rescheduling marijuana.

So that's option one, the executive branch can administratively reschedule it.

Option two is Congress can pass a thing called a law. They can -- they can reschedule marijuana in the Controlled Substances Act by passing a law. They can take marijuana completely out of the Controlled Substances Act. They can repeal the Controlled Substances Act altogether.

This is probably the most straightforward way of doing things. It's the way we should all want things to be done, our representatives go to Congress and a majority vote on changing the national policy as we want them to change it. That's how law is made, that sort of Schoolhouse Rock level basicness, I hope kids are still watching Schoolhouse Rock, otherwise I've just dated myself.

And, this hasn't happened, despite numerous bills attempting to do so, for many, many years. But I fear that, in this country, we've forgotten that that's how the law should work. We heard in the last administration, President Obama say a thousand times he's got a pen and a phone, and we forget that's not how national policy should be set, by the whims of just one man, even if that man happens to be sitting in the Oval Office.

We have a system of representative democracy and we shouldn't be just giving more and more power to the president and to his bureaucrats merely because we don't like the results of that system because it's difficult to change things through that system.

And this goes for other things, other than just marijuana policy, but I think the biggest indication that we've, as a society, are starting to forget that that's how things should operate, is the reaction to general Sessions's action she referred to, because the senator from Colorado, Cory Gardner, said, well, you know, Jeff Sessions, I really don't like what you did so what I'm going to do is I'm going to hold up all the nominees to the Department of Justice that I can, US Marshalls, US Attorneys, national security posts, until, you know, you change your policy.

And this is particularly ironic because Cory Gardner is a senator. He has more power than anybody else in this nation to introduce a bill to change the Controlled Substances Act and get his colleagues to vote for it, and yet, instead of pursuing that route, i.e. doing his job, he gets mad at the attorney general for doing his job, which is, as an executive branch official, to execute and enforce the law [sic: Sen. Gardner is co-sponsor of S.777, the Small Business Tax Equity Act of 2017; S.1803, the Marijuana Effective Drug Studies Act; and S.1152, the Secure and Fair Enforcement Banking Act].

And so, I think when we've gotten to a place where our lawmakers themselves have sort of forgotten completely or not that it is their job to set national policy by passing laws, we're at a dangerous point in understanding our democracy.

So that's option two. You can pass a law to amend the Controlled Substances Act. But federal law is not the end all be all of things. Federal statutes aren't, because federal laws themselves can be unlawful, that is, they can be unconstitutional.

And to think about what, how that works, we have to sort of take a journey back to 1940. I'm going to ask you to use your imagination, to go back to 1940, on a small farm outside of Dayton, Ohio. I want to close your eyes, please don't try to use your imagination with the help of THC right now, but, there's a small farm on Dayton Ohio and there's a guy named Roscoe, he's a farmer on this farm, Roscoe Filburn, and Roscoe, you know, he has cows and chickens and so him and his family, they make eggs, and milk, and they sell it to local customers who come by, maybe about 75 customers a week come by his farm and buy their fresh eggs, and fresh milk.

And he also raises wheat, and he uses that wheat mainly to feed his farm animals, sometimes to feed his family, sometimes to sell on the market. And one day, these officials from the Secretary of Agriculture in DC come onto his farm and they say, Roscoe, you've been growing too much wheat, you have to pay a heavy fine.

And he says, what? They said, well, there's a federal law that says, that limits, gives you a quota of how much wheat you can grow, and you've grown too much wheat [sic: Filburn held an allotment under the Agricultural Adjustment Act to grow 11.1 acres of wheat, and instead that season he planted 23 acres]. And he says, well -- Roscoe's no average farmer, he says, like, well, okeh, hold on a second, the Constitution says Congress is an entity of enumerated powers.

This means that Congress only has the powers that the Constitution gives it, so, you know, normally we think about our rights as, like, freedom from the government doing something from us, from the government interfering with our freedom of speech, freedom of religion, but actually, far more important than that is that, the fact that the Constitution limits what the government can do more than what the government can't do.

And so the Constitution lays out a list of things the government can do and Roscoe says, look, nowhere on that list is something that says you can tell me how much I can grow wheat on my own farm to put into my own mouth. And, the Secretary of Agriculture, Claude Wickard, says, yeah, actually, I can, because Congress has the power to regulate interstate commerce.

And Roscoe's like, interstate commerce? I'm growing wheat on my own farm, putting it into my own mouth, how is that interstate commerce, there's nothing going to other states. And they can't really resolve this dispute so they go all the way to the US Supreme Court, in a case called Wickard v. Filburn, and if you're rooting for Roscoe, I've got bad news for you. Roscoe loses at the Supreme Court.

The Supreme Court says, look, well, you know, you're a farmer growing wheat on your own farm to use on your own farm, but, if you weren't using it on your own farm, you'd be selling it on the market. And if a thousand other farmers do the same thing, well, that might actually affect the interstate market for wheat, and so if you aggregate that over a thousand different farmers, you've actually affected the interstate commerce, therefore Congress can regulate you within their power to regulate interstate commerce.

Now, you might be thinking, well, by that logic, Congress could do practically anything. They have been transformed from an entity of limited enumerated powers, to one with near universal and unlimited power.

Now, why am I talking about this? Well, you fast forward sixty to seventy years and you get to 1996, when California authorizes medical marijuana in California.

And this guy named Angel Raich [sic: Angel Raich identifies as cis-female], he grows his own marijuana plants [sic: Angel, who uses medical cannabis to treat a brain tumor and to combat wasting syndrome, had her marijuana grown for her by others], and smokes them for medicinal purposes, all on his own.

And the DEA comes in, and raids his, his home and destroys marijuana plants, and he sues them, saying hey, what right do you have to regulate the fact that I'm just growing marijuana in my own home and smoking it? [sic: it was the other patient who was an original plaintiff in the Raich case, Diane Monson, who had her home raided and her six plants destroyed by the DEA in 2002; Diane also identifies as a cis-female].

[Note: the original memorandum of law in support of motion for preliminary injunction filed in federal court by Raich, Monson, and two John Doe plaintiffs (Angel Raich's growers) against the government can be found at
http://news.findlaw.com/hdocs/docs/drugs/raichashcrft102902mem.pdf ]

And the Supreme Court says, well, remember farmer Filburn? You're doing the exact same thing, you are impacting the interstate market for marijuana because if enough people do what you're doing, that's going to cause interstate trafficking, and that is banned under the Controlled Substances Act, and Congress can legitimately do that.

And so in order to, you know, prevent an interstate market for marijuana, Congress can nip it in the bud, no pun intended, and prevent all local growth.

So that leads us to option three. One way you can lead to state by state marijuana reform is to say that Gonzalez v. Raich, Wickard v. Filburn, they're wrongly decided, Supreme Court, overturn those things, and let states do intra-state markets of marijuana. If you want to regulate interstate trafficking, go ahead, but let's just say that Gonzalez v Raich and Wickard v Filburn were wrongly decided, and you can't control what goes on in the local market.

So we have these three different ways that you can go about doing policy reform in the marijuana sphere, that comports with the law and the Constitution, but the trouble in reality is over the last five or ten years, despite these many ways of the right way to reform, what's been happening is one of the wrong ways to reform [sic: in fact, state actions can be seen as efforts to force reconsideration of Filburn, which the DOJ has so far avoided].

What's happened is that individual states have decided to enact the opposite policy of federal, and the federal executive branch thus far has cooperated, said, yeah, we're just not going to enforce federal law in those jurisdictions. Despite their duty to take care that the laws are faithfully executed.

So we're at a Federalist Society meeting, and so I think it's appropriate to talk about something that's already been mentioned, which is federalism. What do we mean when we say federalism? What we don't mean is a caricature of federalism, which is a blind devotion to state's rights. What we mean is, the Constitution draws a balance between state and federal power, and most of the time, indeed it's the federal government that's violating that balance, but that doesn't mean the states can't also violate that balance.

But, assuming both are acting generally within their appropriate spheres but they enact conflicting policies, what happens to that conflict, what law controls? And the answer to that is in Article Six, Section Two, which is what's called the Supremacy Clause. It says federal law is the supreme law of the land, and any state law notwithstanding can't be enforced because federal law is supreme.

Now, the supremacy clause is a key component of our Constitution, and one way to think about it is, it's solving the collective action problem. Start with the idea that states can enact policies that are appropriate for their communities, that deal with the social and economic policy of their communities. But certain problems are interstate in nature. Think about, you know, throwing pollution into the air, or whatever.

And so when you have these interstate problems, you have a collective action problem, because unless you get buy-in from all the states, what happens is that there's no way to solve this problem without states free riding and without the problem actually being solved. So what do you do with the collective action problem? The solution was to get state representatives in Congress to go vote and pass a law and agree to a national policy.

Agreeing to give up a measure of state sovereignty in order to have a uniform national solution. So now what happens when a state breaks its bargain, right, it goes to Congress and says, we agree this law and then later on says, yeah, we're going to sort of step away from that.

Alexander Hamilton, who's gotten more popular in recent years, in the Federalist Papers Number Fifteen, said that the lack of the ability to solve this collective action problem, of getting states to agree to abide by a single national policy, was the great and radical vice of the Articles of Confederation, which was that governing document that governed our country for its first few years of existence that didn't work out, until the Constitution came along.

He said, you know, under that system, there were national laws, that though in theory were laws, were in practice mere recommendations which the states observe or disregard at their option. The country is then transformed from a true union of states, bound together by a constitution, to as Hamilton put it a mere treaty dependent on the good faith of the parties and not a government.

So the framers created a solution to that problem, which was the Supremacy Clause, which says federal law, when there's a conflict, reigns supreme. And James Madison, which, we're at a Federalist Society conflict, the logo for the Federalist Society is I think the silhouette of James Madison, he said, without that Supremacy Clause, the Constitution would have been eminently and radically defective.

So with all this in mind, let's think about the legal and structural implications of the federal Controlled Substances Act, and state efforts to authorize marijuana under state law. I don't like the term "legalize" marijuana because it -- it's not true, right, like, it's not that marijuana's legal in Colorado, it's still illegal under federal law, but there's state authorization for it, put it that way.

And, so, what happened with the Controlled Substances Act, through Congress, all the state's representatives got together and they voted and the vast majority of them voted to adopt this national policy that marijuana would be illegal, including by the way every single representative from the state of Colorado. And now, certain states, like Colorado, choose -- have chosen to renege on that bargain by taking affirmative steps to create a marijuana market for the express purpose of profiting off of it.

So for the economics majors in the room, they're reintroduced the collective action problem and are free riding off the benefits of their defection.

Now, all the while, the marijuana's being trafficked to other states, causing precisely the type of interstate problems that Congress was trying to prevent [sic: the Supreme Court and appeals courts have rejected that contention by Oklahoma in its lawsuit seeking to have Colorado's marijuana law overturned].

And I can't actually think of any other situation that's analogous to this at all in American law, unless you go back to the sort of nullification days, before the Civil War, and to think about, like, what type of things that may result from that, like, sort of think about what, how that might be extended to other situations, where a state grants a license to do something that's prohibited under federal law.

You know, imagine the Americans with Disabilities Act, and the state of Texas says, well, you know, it's really costly for our businesses to build all these wheelchair ramps and handicapped bathrooms and things like that, so we're just going to grant businesses -- the licenses to businesses to say, you don't have to comply with the Americans with Disabilities Act, and the president says, yeah, you know, Texas, you've got a good point, we're just not going to enforce the Americans with Disabilities Act in Texas.

I mean, that -- people would be up in arms about that, right? That's just, that wouldn't fly. And, you know, think about sort of other situations where the states are granting a property interest, a property right, in what's contraband under federal law. They're authorizing a market that federal law makes illegal, so, move it away from marijuana and take it to machine guns, which are illegal under federal law.

If a state started granting licenses for people to use, manufacture, possess machine guns, and the administration just didn't want to enforce the law, people would be up in arms, there'd be marches and rallies and hashtags and tweets.

But we don't have that in this situation, because, well, I mean, some people are upset about it, but generally people are okeh with the result, but not sort of thinking too much about the process. And some of the same people who are so concerned about our fabric of our democracy right now turn a blind eye to how marijuana reform has been taking place, and just because they like the results, even if those results undermine our most fundamental institutions.

In short, my basic message today is, our democracy provides several mechanisms for marijuana policy reform. We should be concerned about the fact that reform has not gone by any of those methods. It's instead chosen a path that tends to undermine our Constitutional order.

So to put it simply, light your joint if you want to, just don't burn the Constitution to do it.

DEAN BECKER: A little bit of a repeat of my closing thoughts from this panel.

What it's going to take, I mentioned it earlier, people are afraid to speak of what they know in this regard because of this quasi-religion that's been set up. It's a moral arbitrary, it decides how things should go, and people are afraid to speak up at work, at church, at school, in their own homes, you know, for fear of being ostracized or, you know, diminished somehow, through knowing or sharing what they know to be true.

And I guess it's the courage to say what we know to be true, to have the willingness. I say it on the radio, I've convinced the law enforcement in this county, I've convinced the DA, the sheriff, and the police chief, we changed the laws thanks to my influence, for the Misdemeanor Marijuana Diversion program, thousands of kids each year are not getting arrested, jailed, bonded, et cetera, because I had the courage to challenge them on air and to get them to admit that prohibition is a failure.

The first one was Clarence -- McClelland, December 2014, he said Dean, the drug war, you're right, the drug war is a miserable failure, and we opened up that discussion, and through that, his willingness to agree, that it's a failure. Fox News covered part of my radio show, NBC covered it, the Chronicle covered that interview six times, and awakened, you know, the people in this county, and it did make a change.

And I -- what I'm saying is, that's a small change, but it's one I'm very proud of. I wasn't a direct contributor, but we now have this bond system where people get public recognizance bonds rather than being required to pay to get their way out, and thousands of people are now free, and I was instrumental in that, though there were a lot of people involved in overturning that.

But, courage is what's going to change this, the willingness to say what's so god damn obvious and true.

And what becomes more obvious with every passing day is that because of prohibition, nobody knows what's in the freaking bag. Please be careful.

To the Drug Truth Network listeners around the world, this is Dean Becker for Cultural Baggage and the unvarnished truth. Cultural Baggage is a production of the Pacifica Radio Network. Archives are permanently stored at the James A. Baker III Institute for Public Policy. And we are all still tap dancing on the edge an abyss.