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The Sports Stadium and Arena Debacle

sam.staley@reason.org (Samuel Staley) — Wed, 01 Jul 2009 08:20:00 EDT

Anyone following the plight of America's sports stadia and arenas should take a look through this article in the New York Times chronicling the debacle we've created with public subsidies. We have more arenas then ever, and often pit private venues against public ones. They all lose.

"In Glendale, Ariz., the city-owned Jobing.com Arena — which is losing money and events to US Airways Center in nearby Phoenix and a third arena at Arizona State — may lose its National Hockey League franchise, the Phoenix Coyotes, which filed for bankruptcy last month.

"In the Minneapolis-St. Paul region, the Target Center, which is owned by the city of Minneapolis, vies with the publicly subsidized Xcel Energy Center in St. Paul. The Minnesota Timberwolves basketball team plays at the Target Center; the Minnesota Wild hockey team plays at Xcel Energy Center. Both sites are losing money, and they must also compete with the University of Minnesota, which has two arenas.

"In Columbus, Ohio, the Blue Jackets hockey team recently opened negotiations to sell its money-losing Nationwide Arena to the county, but the recession has made the sale somewhat unlikely. Nationwide Arena competes for concerts and other nonsporting events with Ohio State University’s Jerome Schottenstein Center, which barely breaks even, according to a report by The Columbus Dispatch."

Perhaps the only thing more stunning is the degree to which owners of these venues continue lobbying for public subsidies and favors to protect their own franchises.

"In New Jersey, the owner of the Devils hockey team, which abandoned the Izod Center in the Meadowlands to play at Prudential Center, wants Gov. Jon S. Corzine to tear down the Izod Center, in the hopes of eliminating a competing venue."

For those interested in knowing whether these projects make economic sense even in good times, I recommend reading Holycross College economist Victor Matheson's working paper on the subject.

Cutting Government Workers and Raising Taxes

adrian.moore@reason.org (Adrian Moore) — Wed, 10 Jun 2009 11:36:00 EDT

On the side of appropriate reactions to the economic downturn, many states are cutting their workforce, even accounting for "stimulus" spending.

Already, 16 states downsized their staffs in fiscal 2009, which for most ends on June 30, according to a report last week from two state industry groups. Another 17 states are planning reductions for fiscal 2010.

Some 17,000 state workers have lost their jobs and another 98,000 layoffs have been proposed, according to a compilation by the American Federation of State, County and Municipal Employees, a labor union.

On the other hand, most states are considering tax hikes totalling about $24 billion, half of which is in California.

Some 29 states are recommending tax and fee increases for the coming fiscal year.

California, which is struggling to close a $21.3 billion budget gap, accounts for $11.3 billion of the hike. Illinois makes up another $4.4 billion, while New York is proposing $4 billion in additional levies.

Gov. Schwarzenegger Says Its Time to Discuss Legalizing Marijuana

adrian.moore@reason.org (Adrian Moore) — Wed, 06 May 2009 15:09:00 EDT

It a good idea for a bad reason. Arnie says it's time to talk about legalization, but not because of the harms of the war on drugs or the silliness of treating marijuana differently from alchohol, but because if it were legal it could be taxed and bring in more money for the state to spend.

Sigh.

How about these 10 good reasons to legalize?

Heck the aricle mentions a poll showing 56% of registered voters approve of legalization. If majority support is enough to justify banning gay marriage, why isn't it enough to justify legalizing marijuana?

But most of all, Jacob Sullum here parses why a focus on excise tax revenue is off base when talking about legalization.

From the government's (and taxpayer's) point of view, the real fiscal benefit from abandoning the war on marijuana would come from no longer arresting, prosecuting, and jailing pot smokers, sellers, and growers. Drug law enforcement costs something like $40 billion a year, and marijuana accounted for 43 percent of drug arrests in 2005. That doesn't mean legalizing marijuana would save two-fifths of the money spent on the drug war, since marijuana offenders are much less likely to be imprisoned than other kinds of drug offenders. But the savings certainly would be substantial. And that's not counting all the indirect costs, such as marijuana offenders' legal expenses, loss of freedom, forgone income, and so on.

In short, the focus on the excise tax bonanza that legal marijuana supposedly would bring—a theme that is often emphasized by opponents of the war on drugs—is misplaced. Which is just as well, since I'm not a big fan of excise taxes.

L.A. City Council Votes to Study Parking Meter, Garage Privatization

leonard.gilroy@reason.org (Leonard Gilroy) — Fri, 01 May 2009 17:28:00 EDT

Earlier this week, the L.A. City Council took a big step towards implementing Mayor Villaraigosa's budget proposal by approving a $500,000 contract to study the feasibility of privatizing its 41,000 parking meters and six parking garages:

A plan to sell six city-owned garages and 41,000 parking meters was a step closer to becoming a reality Tuesday as the Los Angeles City Council agreed to spend $500,000 to determine the fiscal feasibility of privatization.

The contract directs JP Morgan Chase, Ramirez & Co. and Loop Capital to assess the benefits and risks of selling garages and meters in Los Angeles. Chicago completed two similar deals over the last three years, netting more than $1.7 billion for the Windy City.

It's unclear how much Los Angeles could net by selling its parking facilities, but the mayor's office assumes at least $80 million of whatever is raised would be used to balance the 2009-10 budget. Most of the proceeds would be put into reserve accounts.

"There are a number of pieces that are part of this puzzle," said interim Chief Administrative Officer Ray Ciranna."We're asking for the authority to enter into some contracts with financial advisers that will help us look at our revenue stream, both today and certainly over the life of the concession."

As proposed, the city would sell off 41,000 parking meters and garages at the Hollywood & Highland complex, Pershing Square, the Cinerama Dome and lots on Robertson Boulevard and Broxton and Cherokee avenues.

The city's parking meters gross about $46 million a year, Ciranna said, but the Department of Transportation will have to spend $25 million to $30 million to upgrade the equipment if the meters continue to be owned by the city. Los Angeles also has $138 million in outstanding debt on three parking facilities.

For more on parking facility privatization, see my recent posts here and here.

Queue No More

rbailey@reason.com (Ronald Bailey) — Tue, 14 Apr 2009 10:08:00 EDT

From Canada, the land of long health care queues, comes a genuinely promising idea for speeding new medicines into the hands of patients—a fast track approval process called progressive licensing. Which is exactly what the U.S. needs. In 2007, the Food and Drug Administration (FDA) approved only 19 new drugs, the lowest number since 1983. Last year saw a minor uptick to just 24 new medicines.

In 2007, Health Canada, the Canadian government's lead agency on health care issues, launched a national discussion on how to transform the country's drug approval system. Currently, the Canadian drug approval process operates much like the FDA's version does. Pharmaceutical companies submit new drug applications to regulators who then set out criteria for securing bureaucratic approval of the drug—including a series of clinical trials to prove that the medicine is safe and effective.

This venerable drug approval model focuses on prohibiting sales until new products have been carefully tested and then approved by regulators. The chief goal is to keep unsafe drugs from reaching patients. As we shall see, regulators are much less worried about mistakenly rejecting safe and effective drugs.

To keep unsafe drugs out of the market, new pharmaceuticals must undergo a series of clinical trials. Phase 1 trials, involving a few subjects, evaluate how a new drug acts in the body and looks for dangerous side effects. Phase 2 tests the new drug for effectiveness in a few patients. Phase 3 expands the trials to confirm effectiveness and to obtain further indications about risks versus benefits. Increasingly, regulators now ask for Phase 4 trials as well, which are post-marketing studies that evaluate the treatment's risks and benefits once the public has begun using it. Rare side effects frequently don't show up until the drug has been used by hundreds of thousands of patients.

Part of the domestic slow down in drug approvals comes from the fact that since the 1980s FDA regulators have more than doubled the number of clinical trials required to get a new drug approved from 30 to about 70. This increase in trials has raised the cost of getting a new drug through the regulatory maze to over $1 billion, thus limiting the number of new drugs that pharmaceutical companies can afford to pursue.

This is where progressive licensing could rescue our creaky pharmaceutical regulatory system. While the final regulations in Canada are still being hammered out, one exciting possibility is that drugmakers could submit some of their new medicines for approval after completing relatively fast and inexpensive Phase 1 and 2 trials. Such trials would provide preliminary information about a drug's safety and efficacy. In exchange for this fast track pre-marketing approval, drugmakers would agree to greater post-marketing surveillance of drug safety. Which means that patients using a new drug would essentially enroll in the equivalent of a Phase 4 trial. This post-marketing information would allow companies and regulators to continually adjust the balance of benefits and risks over the life cycle of new drugs. One important caveat is that such post-marketing scrutiny must not become as costly as the current system of pre-market regulatory review.

Following Canada's preliminary framework, progressive licensing would initially apply just to drugs that address previously unmet medical needs and in those instances where obtaining extensive clinical information is difficult (such as drugs that treat only a small numbers of patients with rare diseases). But why stop there? Canada's free-market Fraser Institute thinks progressive licensing has the potential to fix the current over-regulation of all drugs. Every beneficial drug also has accompanying risks, after all; the question is who gets to weigh the risks and the benefits.

Currently, regulators make the crucial decisions about the risks and benefits of treatment. But this leads to unbalanced benefit-risk evaluations. Remember that from the point of view of pharmaceutical regulators it's far more important to avoid a single highly publicized death from a new drug than it is to worry about the hundreds of unknown patients who die because of delays in approving new life-saving therapies.

In a 2007 report, the Fraser Institute looked at how progressive licensing could be transformed into a more radically open system that allows patients and physicians to evaluate the benefits and risks of new therapies rather than relying on the judgments of timid bureaucrats. In the report, Fraser's Brent Skinner looked at how the risks of new treatments compare to the risks of alternative treatments that the public already accepts.

For example, consider the case of the over-the-counter pain reliever ibuprofen versus the new drug Vioxx. A novel painkiller introduced in 1999, Vioxx was withdrawn from the market because it was found to increase the risk of heart attacks. But further research indicated that many non-steroidal anti-inflammatory drugs (NSAIDs), such as ibuprofen, also increase the risk of heart attacks among users.

Both types of medicine effectively relieve pain, but Vioxx had the benefit of reducing the risk of gastrointestinal bleeding, which NSAIDs exacerbate. But who should weight the risk of dying from heart disease versus the risk of dying from bleeding ulcers versus effective pain relief for rheumatoid arthritis? One 1999 study estimated that there are 103,000 hospitalizations and 16,500 deaths in the United States due to complications from NSAID-associated gastric ulcers. As Skinner notes, a patient who is at high risk from gastrointestinal complications might well choose to take the cardiovascular risks associated with Vioxx. Why not let patients and their physicians have this risk information and choose for themselves?

Progressive licensing could modernize the current process from one where bureaucrats grant extensive permission before new drugs hit the market into a system based on initial indications of safety and effectiveness followed by ongoing risk evaluations. This would give patients greater say in their treatment, allowing those who willing to accept a certain amount of risk early access to the latest treatments, while risk-averse patients and physicians could wait until further information became available. It would also increase the scope for private groups—perhaps along the lines of the Underwriters' Laboratories certification process—to evaluate benefits and risks.

Progressive licensing might turn out to be just what the doctors (and patients) ordered for reducing the backlog of new drugs awaiting the nod from overly cautious regulators.

Ronald Bailey is Reason magazine's science correspondent. His book Liberation Biology: The Scientific and Moral Case for the Biotech Revolution is now available from Prometheus Books. This column first appeared at Reason.com.

Medical Rationing Masquerading as Quality Care

shikha.dalmia@reason.org (Shikha Dalmia) — Thu, 09 Apr 2009 11:12:00 EDT

Drs. Jerome Groopman and Pamela Hartzband wrote a column in yesterday's Wall Street Journal revealing a frightening new concept called "pay for performance" that Medicare bureaucrats are toying with to allegedly ensure proper patient care. Under it, Medicare would link doctor payments not to the services doctors provide, as is currently the case, but the quality of care they offer.

Sounds eminently sensible, right? And it would be if performance had something to do with patient satisfaction and actual clinical outcomes: whether, say -- and I don't want to go off on a limb here -- the patient actually lives or dies! That, however, is not the case. Rather, the quality of care is measured by a doctor's adherence to standardized protocols of care prescribed by a committee of experts.

Take diabetes, for instance, the good physicians note. In Massachusetts that has already institutionalized this new system, doctors are required to maintain normal levels of blood sugar in critically ill ICU patients. If a physician allows blood sugar levels to rise above pre-ordained levels, he might even have to attend "re-education sessions" to be indoctrinated into the importance of the rule.

But maintaining normal blood sugar levels requires administering insulin. Yet in some patients it might well be better to tolerate higher-than-normal sugar levels rather than expose them to risk of too much insulin. Indeed, the New England Journal of Medicine last month published the results of a randomized study conducted on 6,000 patients that found that more patients died in the group where doctors were required to tightly control sugar levels compared to the one in which they were allowed to follow a more flexible protocol.

The moral of the story? Medicine is more art than science and rigid rules that force doctors to ignore the trade offs in individual cases don't produce better overall outcomes - no matter how much bureaucratic backers of "performance based medicine" and "quality metrics" pretend otherwise.

Despite these emerging problems with this concept, the Obama administration is working with Congress to mandate that all Medicare payments be tied to "quality metrics." Why? Because ultimately, in my view, this concept has less to do with improving -- and and more to do with rationing -- care to control runaway costs. Standardized treatments, inevitably, cost less than unorthodox, experimental therapies - and pay-for-performance would incentivize the first and disincentivize - even penalize - the second.

In short, pay-for-performance is simply rationed care in sheep's clothing.

Welcome to 1984.

The French Patient

shikha.dalmia@reason.org (Shikha Dalmia) — Mon, 06 Apr 2009 21:59:00 EDT

The French health care system is the pride and joy of proponents of national health care. Unlike the horror that is the British National Health Care Service, it is claimed, the French have figured out a way to do it right. Their government, that can control neither its unemployment rate nor its (chronically striking) employed, is somehow still able to provide excellent care without waiting lines in a cost-effective way and without back-breaking taxes.

But if that sounds too good to be true, that's because it is. In today's Globe and Mail, Claire de Oliveria of the C.D. Howe Institute reveals that more than 92% of French residents supplement their stellar, government-provided health care with private insurance. "In fact, private insurance makes up 12.7 per cent of all health-care spending in France, a percentage exceeded only by the Netherlands and the United States." Why do the French have to turn to the rapacious private sector for help? Because most public health services require co-payments ranging from 10 to 40 per cent of the cost that, if patients had to cover solely out-of-pocket, they would likely get financially wiped out.

And despite this substantial infusion of private dollars, Oliveria notes, the French health care system has still been running deficits the past few years. "Indeed, the health system is the single largest factor driving France's overall budget deficit," he writes. "The impact will surely begin to affect the amount and quality of services provided."

So much for the French model!

Whole thing here.

Taxation by Mis-Representation

shikha.dalmia@reason.org (Shikha Dalmia) — Sat, 21 Mar 2009 17:26:00 EDT

Watch Norah O'Donnell nail California Congresswoman Maxine Waters for committing taxpayers to millions of dollars in AIG bonuses without even reading the stimulus provision.

Guaranteed to make you both laugh and cry at the same time.

Baseball's Persistent Drug Culture

schapman@tribune.com (Steve Chapman) — Thu, 12 Feb 2009 14:06:00 EST

The news about Alex Rodriguez's use of steroids is simultaneously distressing and encouraging. Distressing because we learned that yet another baseball star was cheating. Encouraging because the revelation is one more step toward putting the years of bogus biceps in the past.

Baseball and A-Rod were stained, but both have cleaned up and moved on. So now the Yankee slugger and everyone else will be competing on honest terms and records set in the future won't need an asterisk.

If only. True, Major League Baseball has gotten reasonably serious about curbing its drug problems. But the incentives for getting around the rules—stardom, records, big money, or merely hanging on to a roster spot—are as alluring as ever. The evidence suggests that plenty of players will take any help they can get. And for anyone who wants the benefits of steroids without getting busted, there's a good alternative.

You don't have to be a cynic to doubt that Rodriguez and any of his colleagues in crime have all had a moral epiphany. If they were willing to ignore the rules and use banned drugs before—and, in many cases, reaped impressive gains—why wouldn't they keep doing it?

The only obvious reason is the likelihood of detection. Baseball now has a system of year-round, unannounced testing for steroids and other artificial aids. But what if there were a steroid-like substance that couldn't be detected? Wouldn't it be just as tempting to anyone looking for an edge?

Judging from the steroid experience, that's enough players to fill several rosters. In 2003, the first year of drug testing, when Rodriguez got nailed, more than 5 percent of major leaguers flunked. In the years before testing became a deterrent, the number of steroid aficionados was undoubtedly higher.

But there is an alternative for anyone intent on a burlier body: human growth hormone, which is reputed to have the same muscle-inflating properties but doesn't show up in a urinalysis. To detect it, you need a blood test, which the players union has refused to accept.

The hormone's appeal is not in doubt. Barry Bonds was indicted for perjury because he told a grand jury his personal trainer had not given him HGH. Roger Clemens' trainer said he had injected the pitcher with the stuff. Andy Pettitte admitted using it. This week, Miguel Tejada did likewise, as part of a plea agreement.

But absent a reliable test, it's not easy to catch hormone hounds. Even a blood test may not suffice. The World Anti-Doping Agency (WADA), which supervises testing of Olympic competitors, has screened 8,500 athletes for HGH since 2000. And how many positive results has it gotten? Zero. So anyone feeling puny and weak without steroids is bound to contemplate a switch.

We also know baseball's new testing regime has not miraculously dried up the demand for performance enhancers. After Major League Baseball outlawed amphetamines, an interesting thing happened: More than 100 players got "therapeutic exemptions" for banned stimulants to treat Attention Deficit Disorder.

Calling that number "incredible," Dr. Gary Wadler, a WADA official, told USA Today, "There seems to be an epidemic of ADD in major-league baseball."

For now, though, the broadest boulevard for cheating is HGH. That could change: At a recent conference sponsored by Major League Baseball at the University of California, Los Angeles, scientists said they were making progress toward a urine test for the agent. But it is still in the future, leaving dishonest players ample opportunity.

We may have banished steroids, but there is no reason to think baseball is any cleaner now than it was before. If and when an HGH test is developed, we are likely to get another round of failed drug tests. And one or more of today's stars is bound to be doing the confession-and-repentance routine.

Unfortunately, we won't know how bad things were back in 2009. In theory, current samples could be preserved and retested in the future. But Major League Baseball doesn't preserve samples. That means today's players—possibly including the supposedly repentant Rodriguez—can use HGH with little fear of someday being unmasked.

It's slightly comforting to think we have moved beyond the steroid decade. But the drug-free era hasn't begun, and it may never.

This column first appeared at Reason.com.

What Michael Phelps Should Have Said

rbalko@reason.com (Radley Balko) — Mon, 02 Feb 2009 13:21:00 EST

Dear America,

I take it back. I don’t apologize.

Because you know what? It’s none of your goddamned business. I work my ass off 10 months a year. It’s that hard work that gave you all those gooey feelings of patriotism last summer. If during my brief window of down time I want to relax, enjoy myself, and partake of a substance that’s a hell of a lot less bad for me than alcohol, tobacco, or, frankly, most of the prescription drugs most of you are taking, well, you can spare me the lecture.

I put myself through hell. I make my body do things nature never really intended us to endure. All world-class athletes do. We do it because you love to watch us push ourselves as far as we can possibly go. Some of us get hurt. Sometimes permanently. You’re watching the Super Bowl tonight. You’re watching 300 pound men smash each while running at full speed, in full pads. You know what the average life expectancy of an NFL player is? Fifty-five. That’s about 20 years shorter than your average non-NFL player. Yet you watch. And cheer. And you jump up spill your beer when a linebacker lays out a wide receiver on a crossing route across the middle. The harder he gets hit, the louder and more enthusiastically you scream.

Yet you all get bent out of shape when Ricky Williams, or I, or Josh Howard smoke a little dope to relax. Why? Because the idiots you’ve elected to make your laws have, without a shred of evidence, beat it into your head that smoking marijuana is something akin to drinking antifreeze, and done only by dirty hippies and sex offenders.

You’ll have to pardon my cynicism. But I call bullshit. You don’t give a damn about my health. You just get a voyeuristic thrill from watching an elite athlete fall from grace–all the better if you get to exercise a little moral righteousness in the process. And it’s hypocritical righteousness at that, given that 40 percent of you have tried pot at least once in your lives.

Here’s a crazy thought: If I can smoke a little dope and go on to win 14 Olympic gold medals, maybe pot smokers aren’t doomed to lives of couch surfing and video games, as our moronic government would have us believe. In fact, the list of successful pot smokers includes not just world class athletes like me, Howard, Williams, and others, it includes Nobel Prize winners, Pulitzer Prize winners, the last three U.S. presidents, several Supreme Court justices, and luminaries and success stories from all sectors of business and the arts, sciences, and humanities.

So go ahead. Ban me from the next Olympics. Yank my endorsement deals. Stick your collective noses in the air and get all indignant on me. While you’re at it, keep arresting cancer and AIDS patients who dare to smoke the stuff because it deadens their pain, or enables them to eat. Keep sending in goon squads to kick down doors and shoot little old ladies, maim innocent toddlers, handcuff elderly post-polio patients to their beds at gunpoint, and slaughter the family pet.

Tell you what. I’ll make you a deal. I’ll apologize for smoking pot when every politician who ever did drugs and then voted to uphold or strengthen the drug laws marches his ass off to the nearest federal prison to serve out the sentence he wants to impose on everyone else for committing the same crimes he committed. I’ll apologize when the sons, daughters, and nephews of powerful politicians who get caught possessing or dealing drugs in the frat house or prep school get the same treatment as the no-name, probably black kid caught on the corner or the front stoop doing the same thing.

Until then, I for one will have none of it. I smoked pot. I liked it. I’ll probably do it again. I refuse to apologize for it, because by apologizing I help perpetuate this stupid lie, this idea that what someone puts into his own body on his own time is any of the government’s damned business. Or any of yours. I’m not going to bend over and allow myself to be propaganda for this wasteful, ridiculous, immoral war.

Go ahead and tear me down if you like. But let’s see you rationalize in your next lame ONDCP commercial how the greatest motherfucking swimmer the world has ever seen...is also a proud pot smoker.

Yours,

Michael Phelps

Bongs Away!

jsullum@reason.com (Jacob Sullum) — Fri, 16 Jan 2009 11:23:00 EST

A few weeks before Barack Obama was elected president, Mary Beth Buchanan, the U.S. attorney for western Pennsylvania, filed criminal charges against the makers of the Whizzinator, a fake penis used to deliver clean urine for drug tests. The strap-on phallus, which comes in assorted “natural, lifelike skin tones,” is connected by a tube to a hidden bladder containing urine (sold separately) that is untainted by marijuana metabolites. According to its manufacturer, Puck Technology of Signal Hill, California, the Whizzinator is so realistic that “we can’t show you the whole thing,” which is why ads for it in publications such as High Times had to be censored, with a marijuana leaf obscuring a photograph of the product in action.

Puck openly sold the Whizzinator and a companion product aimed at women, Number 1, through its website for several years. Its president, Gerald Wills, and vice president, Robert Catalano, did not believe they were violating any laws. But Buchanan argued that Wills and Catalano were selling illegal drug paraphernalia, a federal crime punishable by up to three years in prison and a $250,000 fine. A 1986 amendment to the Controlled Substances Act of 1970 defines drug paraphernalia as any item “primarily intended or designed for use in manufacturing, compounding, converting, concealing, producing, processing, preparing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance.” After some research (presumably focused on possible interpretations of concealing), Puck’s attorney concluded that Buchanan might have a case, so Wills and Catalano decided to plead guilty.

It was fitting that one of Buchanan’s last prosecutions before the election involved drug paraphernalia disguised as a penis. Taking up causes championed by the Bush administration in response to the demands of social conservatives, she has shown a conspicuous enthusiasm for attacking both paraphernalia and pornography, areas that were of little interest to the Clinton administration and are not likely to be high priorities under President Obama. In addition to taking down the Whizzinator and investigating the manufacturer of Urine Luck,a drug-masking product, Buchanan spearheaded a highly publicized 2003 operation that resulted in drug paraphernalia charges against dozens of defendants, including comic actor Tommy Chong, nabbed for selling bongs. That same year, she charged Robert and Janet Zicari, operators of the porn studio Extreme Associates, with 10 obscenity violations that carry penalties of up to 50 years in prison. After being dismissed by the trial judge and reinstated by an appeals court, the Extreme Associates case is finally scheduled to be heard by a jury in March.

It’s no coincidence that Buchanan and her former bosses, John Ashcroft and Alberto Gonzales, are known for worrying about pornography as well as drug devices. At bottom, both kinds of prosecutions aim to punish offensive speech. Just as pornography implicitly endorses recreational sex, drug paraphernalia implicitly endorses recreational drug use. Both are an affront to the moral values of the officials who choose to crack down on them.

Like obscenity prosecutions, paraphernalia cases often target people for conduct they believed was legal. The law in both areas is fuzzy, and drug paraphernalia, like obscenity, tends to be judged by the “I know it when I see it” method. When they go beyond gut reactions, police and prosecutors often focus on the expression of opinions about drug use or the drug laws: A pipe is more likely to be deemed illegal, for example, if it is sold next to High Times or a “Legalize It” T-shirt. It makes a kind of perverse sense that antiprohibitionist speech can earn you a conviction on paraphernalia charges, since it was the message sent by drug paraphernalia that led governments to ban it in the first place.

“These shops sell a dangerous lie about drugs and drug use,” declared an Immigration and Customs Enforcement agent after raiding five South Florida head shops in March 2006. “It is obvious they want people to think it’s OK to take drugs. This is simply unacceptable.” The message that “it’s OK to take drugs” offends drug warriors in the same way that Hustler offended Jerry Falwell or Janet Jackson’s nipple offended Brent Bozell.

Because so much hinges on people in power taking offense, enforcement of local, state, and federal paraphernalia laws, like enforcement of obscenity laws, is sporadic and spotty. A business can operate openly for years before being identified as a criminal enterprise, even while competitors continue selling the same stuff unmolested. That is especially true nowadays, when drug paraphernalia, like pornography, is readily available online from both domestic and international sources. In both cases, this conspicuous online presence allows prosecutors to invoke the specter of the unregulated Internet, which brings bad influences into every home, while holding businesses based anywhere in the country to the standards of the most conservative communities. At the same time, the Internet complicates the only goal crusaders like Buchanan reasonably can expect to accomplish: not to eliminate the messages that offend them but to make them a little less visible.

‘We Will Eliminate the Demand’

“By enforcing the drug paraphernalia laws,” Buchanan tells me, “we will…eliminate the demand for illegal substances by eliminating those products that are used to ingest and inhale illegal substances.” Yet if the war on drugs seems futile, the war on drug paraphernalia seems doubly so. Even if bongs, vaporizers, and carburetors became more difficult to obtain, it’s hard to believe the result would be fewer marijuana users. After all, there’s no shortage of alternatives for pot smokers to choose from, whether dual-fuse products such as rolling papers and corncob pipes or equipment improvised from everyday materials such as aluminum foil, soda bottles, and apples (see “You Can Put Your Weed in There,” page 34).

To get a sense of how realistic Buchanan’s expectations are, consider Operation Pipe Dreams, the big paraphernalia crackdown she led in 2003. Together with Operation Headhunter, a companion investigation run by the U.S. attorney in Des Moines, it nabbed more than 50 people, including Chong, who was swept up because of his involvement with Chong Glass, a business started by his son that produced multicolored, hand-blown pipes. The results of these operations could generously be described as mixed.

At the February 2003 press conference where he announced the indictments, then-Attorney General Ashcroft said the government “has taken decisive steps to dismantle the illegal drug paraphernalia industry by attacking their physical, financial, and Internet infrastructures.” John B. Brown, acting head of the Drug Enforcement Administration (DEA), made it sound as if the entire industry had been shut down: “These criminals operate a multimillion-dollar enterprise, selling their paraphernalia in head shops, distributing out of huge warehouses, and using the worldwide web as a worldwide paraphernalia market. With Operations Pipe Dreams and Headhunter, these criminals are out of business.” John P. Walters, director of the Office of National Drug Control Policy, called the arrests “a devastating blow to the drug paraphernalia business.”

Six years after that press conference, the drug paraphernalia business seems to be doing pretty well. Ads for marijuana accessories in High Times, which dipped sharply right after the 2003 arrests, have rebounded, although the mix is noticeably different nowadays (fewer pipes and more vaporizers, which heat dried plant material to release the active ingredients rather than burning it). In Google searches for “bong,” “vaporizer,” and “chillum” (a funnel-shaped pipe), the top results are dominated by online head shops based in California, Canada, the U.K., and the Netherlands that also sell various other kinds of dry and wet pipes, screens, rolling papers, grinders, roach clips, scales, and stash containers.

Similar merchandise is available across the country from brick-and-mortar retailers, which occasionally are raided by the feds or local police, seemingly at random. One telling example was a 2005 federal investigation in Montana, which yielded results similar to those of Operation Pipe Dreams.

Operation Heads Up involved raids on five businesses, including a Missoula store, The Vault, whose owner, David Sil, had gone to considerable lengths to stay within the law. In 1997 Sil wrote a letter to the DEA, informing it of his plans to open a shop selling “smoke delivery systems.” He said he wanted to make sure he was complying with federal law. “If there be any questions as concerns legal compliance,” he wrote, “please let me know.” Sil received no response until May 2005, when DEA agents swooped down on The Vault, seizing his merchandise and records. At that point he had been in business for eight years without any complaints from local, state, or federal authorities. In fact, even though The Vault sold unconventional pipes of the sort commonly used to smoke marijuana, the local prosecutor’s office had told Sil his business was legal.

The DEA saw things differently. So did the U.S. Attorney’s Office in Billings, Montana, which charged Sil with selling drug paraphernalia. Indignant at being accused of a felony after openly running what everyone seemed to think was a legitimate business, Sil refused to plead guilty. At his trial in February 2006, he was able to bring as a witness for the defense Missoula County Chief Deputy County Attorney Mike Sehestedt, who said he did not consider The Vault’s merchandise to be drug paraphernalia because there was no drug residue or other concrete evidence it was used to consume illegal substances. The jury also heard about the measures Sil had taken to obey the law, including signs announcing “All pipes are for tobacco use only” and a statement on the store’s receipts that customers had to sign, promising to use their purchases legally. But Assistant U.S. Attorney Joshua Van de Wetering successfully argued that none of these precautions mattered under federal law.

At his sentencing in June 2006, Sil emphasized that he had not behaved like a criminal. “There was nothing clandestine about this operation,” he noted. “Nobody was hiding out in the bushes. This stuff is sold over the Internet.” Presiding U.S. District Judge Don Molloy expressed dismay at the case, suggesting that such prosecutions of legal-seeming enterprises undermine respect for the law. He sentenced the then-61-year-old retailer to six months of home arrest and two years of probation. “This case will have all the effectiveness of a single solitary snowflake falling on the bosom of the Potomac,” Molloy said. “I don’t think cases like this deter anyone.” U.S. Attorney Bill Mercer took a different view. “I am confident,” he declared in a press release, “this prosecution will deter others from engaging in the commercial distribution of drug paraphernalia in Montana.”

Molloy’s prediction proved to be more accurate. Operation Heads Up was supposed to put Montana retailers on notice that disclaimers and discretion were no longer enough to avoid prosecution for selling drug paraphernalia. To some extent, it worked: At least two Montana shops pulled glass pipes from their shelves after Sil’s conviction. But others continued selling them, including Zoo Town Glass, a hand-blown pipe shop that took over the very same space once occupied by Sil’s store.

‘Do-Drug Messages’

The roots of the campaign against drug paraphernalia lie in the anti-drug activism of parents who were alarmed by adolescent pot smoking in the late 1970s, the peak period for marijuana use by American teenagers. Those anxieties were echoed and amplified by anti-pot polemicists such as Peggy Mann, who between 1979 and 1981 published three widely read Reader’s Digest articles warning parents about the dangers of marijuana. Mann, whose work won an award from the National Federation of Parents for Drug-Free Youth, expanded those articles into the 1985 book Marijuana Alert, described in the foreword by first lady Nancy Reagan as “a true story about a drug that is taking America captive.” In Marijuana Alert, Mann identified paraphernalia sales as a major source of “do-drug messages,” along with peer pressure and rock music. She complained that “drug paraphernalia may be purchased by teenagers not only in headshops, but also in numerous record shops, boutiques, smoke shops, card shops, and novelty shops in posh suburban shopping malls.…In some areas, full-fledged headshops can be found only a few blocks away from the local high school.”

As with pornography, it was the in-your-face aspect of paraphernalia sales, especially in locations frequented by minors, that really upset people like Mann. Allen St. Pierre, executive director of the National Organization for the Reform of Marijuana Laws (NORML), recalls that “up until the late 1970s you could literally win a bong at the county fair.” Since selling drug paraphernalia was legal in most places, store owners did not post disclaimers or eject indiscreet customers. “There was no need to be self-conscious about it,” recalls Jon Gettman, a former NORML director who managed a shop called Earthworks in the Dupont Circle area of Washington, D.C., during the ’70s. Its slogan: “Everything You Need but the Weed.”

Such openness was intolerable to drug warriors, who saw themselves as fighting the libertinism of the ’60s counterculture. “We’re telling young people it’s against the law to use drugs yet we’re providing them with things to violate the law,” a Louisiana district attorney complained to UPI in 1981. UPI also quoted Harry Myers, the DEA attorney who in 1979 had written a model anti-paraphernalia act for states to adopt. “You can put drug education programs on TV until they outnumber cat food commercials,” Myers said. “But you can’t do that and still have legal [paraphernalia] sales. It sends a dual message to the kids.”

“Not in front of the kids!” quickly became a demand for complete prohibition. The first paraphernalia law to be considered by the U.S. Supreme Court, adopted by the Illinois town of Hoffman Estates in 1978, required paraphernalia dealers to obtain a license and refrain from selling to minors but permitted them to continue operating (albeit with recordkeeping requirements that might have intimidated customers). By the time the Supreme Court upheld the law in 1982, more than 20 states had passed versions of the DEA’s model statute, which bans products “used, intended for use, or designed for use” in consuming illegal drugs. Today every state has a drug paraphernalia ban except West Virginia, which requires a license.

The attorney for Hoffman Estates conceded the cultural nature of the anti-paraphernalia campaign, telling the Supreme Court during oral arguments, “We have a right to legislate against lifestyles.” Justice Thurgood Marshall, who wrote the majority opinion rejecting the argument that the town’s paraphernalia law was unconstitutionally vague, also dismissed a First Amendment claim. “The ordinance is expressly directed at commercial activity promoting or encouraging illegal drug use,” he wrote. “If that activity is deemed ‘speech,’ then it is speech proposing an illegal transaction, which a government may regulate or ban entirely.” Yet as evidence that the defendant, a record store called The Flipside, had violated the ordinance by selling drug paraphernalia without a license, Marshall noted that it had “displayed the magazine High Times and books entitled Marijuana Grower’s Guide, Children’s Garden of Grass, and The Pleasures of Cocaine, physically close to pipes and colored rolling papers.” He seemed untroubled by the prospect that a store could in effect be punished for selling material protected by the First Amendment, referring dismissively to “the theoretical possibility that the village will enforce its ordinance against a paper clip placed next to Rolling Stone magazine.”

Four year later, at the height of Ronald Reagan’s war on drugs, Congress banned products “primarily intended or designed for use” with illegal intoxicants. When the Supreme Court upheld the federal ban against a vagueness challenge in 1994, it interpreted the law as requiring an “objective” definition of paraphernalia, based on “a product’s likely use,” as opposed to a “subjective” definition, based on “the defendant’s state of mind.” Writing for the majority, Justice Harry Blackmun said it was not necessary to show “knowledge on the defendant’s part that a particular customer actually will use an item…with drugs. It is sufficient that the defendant be aware the customers in general are likely to use the merchandise with drugs.”

This standard is stricter than, say, the rule for hardware or software that can be used to make unauthorized copies of copyrighted material, under which selling the item is legal as long as there are substantial non-infringing uses for it. Robert Vaughn, a Nashville defense attorney specializing in drug paraphernalia cases, sums up the federal intent requirement for drug paraphernalia this way: “Did you intend to sell those items? Well, obviously [you did]. OK, we’ve got that intent to sell out of the way. ‘Now, ladies and gentlemen of the jury, look at these items we’re setting in front of you, and you decide whether or not they’re drug paraphernalia. And oh, by the way, how many of you remember your grandfather sitting on the porch rocker smoking from one of these four-foot-tall acrylic things?’ ”

‘For Tobacco Use Only’

The federal ban lists specific examples of drug paraphernalia, including “water pipes,” “carburetion tubes,” “smoking masks,” “electric pipes,” “chillums,” “chillers,” “wired cigarette papers,” and “metal, wooden, acrylic, glass, stone, plastic or ceramic pipes with or without screens.” But it includes an exception for any item “traditionally intended for use with tobacco products.” In practice, then, the “objective” standard is often subjective, based on a prosecutor’s idea of what drug paraphernalia looks like. The same sort of thing happens in state cases, where courts consider an item’s appearance in judging its intended use.

It is easy to mock the transparent subterfuges of head shop owners who insist their merchandise is “for tobacco use only.” The satirical Comedy Central debate show Crossballs once featured a merchant who insisted with a straight face that “there are a lot of people in society who enjoy smoking tobacco in very elaborate ways.” Mary Beth Buchanan becomes audibly angry when she talks about “those absurd, disingenuous advertising statements that people who want to violate the law make when they try to sell this product that is clearly illegal.”

Still, paraphernalia bans do raise serious definitional issues. “Anything can have a dual use,” notes New Orleans defense attorney Bill Rittenberg. “There’s nothing that can be used as a smoking or snuff accessory for tobacco that can’t be used for marijuana.” While a giant plastic bong may seem like an obvious example of drug paraphernalia, people do use other sorts of water pipes, as well as dry pipes made from materials other than the conventional briar, meerschaum, or corncob, to smoke tobacco. Buchanan maintains that an item listed in the federal ban is illegal “regardless of what you do with it, regardless of whether some idiot actually goes and puts tobacco in it.” But that interpretation would make hookahs—water pipes traditionally used to smoke sweet, fruity tobacco mixtures—illegal. Even Buchanan concedes that rolling papers, which can be used to make cigarettes as well as joints, are not necessarily drug paraphernalia. The targets of Operation Pipe Dreams did not include any convenience stores that sold rolling papers, even though many of those end up wrapped around marijuana. Likewise, vaporizers, which are not listed in the federal ban, can be used with marijuana or with legal medicinal herbs (not to mention the fact that in California and 12 other states marijuana is a legal medicinal herb).

Law enforcement officials themselves can have trouble telling the difference between legitimate smoking accessories and illegal drug paraphernalia, as illustrated by the travails of the Smoke Signals Pipe and Tobacco Shop in Dover, New Hampshire. Police first raided the store in October 2001, seizing various items they identified as drug paraphernalia. The store’s manager, Susan Hargrove, ultimately pleaded guilty to a single charge of selling drug paraphernalia, resulting in a suspended $1,000 fine. As part of the plea agreement, the government returned most of the seized merchandise, including glass pipes, a glass chillum, various water pipes, and metal one-hitters (small, narrow pipes), saying they were OK to sell.

In March 2004, less than two months after the plea agreement, the same police department raided the same store and seized several of the same items prosecutors had just given back. After the government filed new paraphernalia charges against Smoke Signals, a judge acquitted the company in a bench trial, concluding that Hargrove and her mother, Kelly, the store’s owner, could not knowingly have possessed drug paraphernalia, a requirement for conviction under state law, since the items had been returned by the government. But when Smoke Signals filed a motion asking for the merchandise back, the judge said no. Despite the fact that the government had told Susan and Kelly Hargrove the items were not drug paraphernalia, the judge concluded they were, based mainly on the testimony of a detective who conceded he was not an expert on the subject and could not explain the methods he used to identify paraphernalia.

Smoke Signals’ lawyer, Jonathan Cohen, took the case to the New Hampshire Supreme Court, arguing that the state paraphernalia law was so vague that people could not reasonably be expected to know when they had violated it. In April 2007, the court rejected that argument but ordered the return of Smoke Signals’ merchandise, saying it could not be considered contraband in light of the store’s acquittal on paraphernalia charges and the government’s earlier assurances that it was legal.

Despite experiences like the Hargroves’, defendants in state paraphernalia cases have some advantages over those facing federal paraphernalia charges. For one thing, the feds tend to come down a lot harder. In addition to paraphernalia charges, each of which carries a penalty of up to three years in prison plus a $250,000 fine, federal prosecutors can bring money laundering and racketeering charges based on the same actions. If you deposit the proceeds from paraphernalia sales in the bank, that’s money laundering; if you make more than one sale or deposit, that’s a “pattern of racketeering activity.” The penalties add up fast, creating tremendous pressure for a guilty plea. “The doo-doo gets deep,” says Vaughn. “I can show you theoretically how you could get life in prison.” And then there’s the uncomfortable fact that the government is apt to seize all your assets before you can hire a lawyer.

Assuming you nevertheless choose to go to trial, the government’s burden is pretty easy to meet, thanks to the Supreme Court’s interpretation of the federal paraphernalia ban. In a federal trial, says Vaughn, “They don’t really give a shit if you have a sign in there that says, ‘Not intended for illegal use.’ ” He describes the government’s attitude this way: “We don’t care about the way you displayed it. We don’t care about the way you marketed it. It was illegal sitting there.”

‘You Have to Leave Here Right Away’

Under state laws, by contrast, the defendant’s state of mind is relevant, so such disclaimers can make a difference. So can the sale of tobacco or legal herbs alongside smoking equipment and the avoidance of marijuana leaf decorations and other countercultural signifiers. It does not help your case if you advertise in High Times, sell it or other drug-related magazines in your store, or distribute NORML literature. In 1981 NORML unsuccessfully challenged Virginia’s drug paraphernalia ban in federal court, arguing that it infringed on freedom of speech by encouraging police to seize the group’s leaflets as evidence of a merchant’s intent.

Retailers also have to be careful about what they let customers say. “If somebody comes in and says, ‘Sell me a dope pipe,’ and [he’s] body wired and you sell it to him,” Vaughn says, “you’re screwed.” Jon Gettman, who never had to worry about such things when he was running a head shop in the ’70s, says he recently visited a store in Miami that was “selling what I recognized to be bongs, and they had to be very, very careful about the language anyone used in the store in referring to these things. In fact, I…made some reference [to marijuana], and they politely asked me to leave.” At a similar store in San Diego, Allen St. Pierre offered the clerk his NORML business card. “He looks at it,” St. Pierre recalls, “and he goes, ‘Holy shit, you’ve got to get out of here. You have to leave here right away.’ ”

Maybe those clerks were excessively cautious. But it’s clear that pipes coupled with controversial drug-related speech can get a business into trouble when the pipes alone would not. In February 2006, police in Middletown, Pennsylvania, filed paraphernalia charges against the manager of the Spencer’s Gift store at the Oxford Valley Mall and the CEO of the company that owns the chain. The crime ostensibly was selling water pipes, but according to the Trentonian police also objected to posters, T-shirts, hats, and other items “depicting marijuana themes,” some of which were seized as evidence. “When you combine the various above items depicting marijuana usage with the hookahs or water bongs,” said a police detective, “it is apparent that the company is creating the appearance that the hookahs are for marijuana use. The message on all these items being sold is certainly pro–drug use.”

Richard Cowan, publisher of Marijuana News, has proposed a sales tactic that would highlight the speech-suppressing aspect of paraphernalia laws. He urges head shop owners to “undermine the enforcement of the marijuana laws” by selling legal herbs alongside pipes and encouraging customers to smoke the stuff openly as an act of protest. There would be “no subterfuge, no pretense,” he wrote in a 2002 essay on his website. “This is an explicitly political action.” It would be interesting to see the government’s response to such a campaign. Along similar lines, reason considered including rolling papers labeled “For Marijuana Use Only” in each copy of this issue to illustrate the silliness of paraphernalia laws but decided against it because of legal concerns.

One of the clearest recent examples of how these laws punish speech was the case against Tommy Chong, famous for playing a clueless stoner alongside Cheech Marin in movies such as Up in Smoke and on his own in the sitcom That ’70s Show. Chong’s publicist initially argued that the colorful, elaborate pipes produced by Chong Glass were not marijuana smoking devices but works of art. This claim was not as disingenuous as it sounds: Many of the pipes were too pricey for casual use, and some had been featured in a Los Angeles art exhibit. But Chong quickly dropped that argument, presumably after getting legal advice. Under federal law, Vaughn explains, “the bottom line is this: If it’s a cylindrical tube with a base on it with a stem projecting from the side with a bowl on it that you face over to smoke, that’s a bong.…It’s per se illegal. I don’t care if you say that it’s for your mantle. I don’t care if you say that it’s art for art’s sake.”

In the end, Chong never got the chance to try any sort of defense. To avoid charges against his son and his wife (who co-signed the loan used to start Chong Glass), he pleaded guilty and was sentenced to nine months in prison, which he completed in July 2004. He also paid a $20,000 fine and forfeited $120,000 in assets. The sentence, one of the more severe punishments received by defendants charged in Operation Pipe Dreams, was imposed after Assistant U.S. Attorney Mary Houghton urged the judge not to let Chong off lightly. In a pre-sentencing brief, she complained that “the defendant has become wealthy throughout his entertainment career through glamorizing the illegal distribution and use of marijuana. Feature films that he made with his longtime partner Cheech Marin, such as ‘Up in Smoke,’ trivialize law enforcement efforts to combat drug trafficking and use.”

It was a remarkable concession that the government wanted to punish Chong at least partly for making fun of drug warriors and mocking prohibition. “This was the government’s payback for all the Cheech and Chong movies that ridiculed the hypocrisy of the government’s War on Drugs,” Chong wrote in his 2006 memoir The I Chong. “The DEA… hated the way we portrayed them in movies...The Feds took a fictional movie and prosecuted the actor and writer for exercising his freedom of expression.” When I ask Buchanan, Houghton’s boss, about the prosecution’s references to the Cheech & Chong oeuvre, she says one of the factors the judge considered at sentencing was whether Chong had followed through on a post-indictment promise to educate children about the dangers of drugs. When I ask what bearing the films he made years before his arrest had on that question, she says, “The court had a number of factors to consider.”

As for “glamorizing” drug use, it hardly seems an apt description of movies featuring two stoned doofuses. “I’ve seen every Cheech & Chong movie,” says High Times Associate Publisher Rick Cusick, “and glamour is not a word I’ve ever attached to that experience. I’ve never walked away from a Cheech & Chong movie saying to myself, ‘Gee, I want to be more like those guys.’ ”

In a weird coda to the Chong prosecution, the comic told the Pittsburgh Post-Gazette that federal agents seized 8,000 to 10,000 copies of a/k/a Tommy Chong, a documentary about his case that’s highly critical of Buchanan, when they raided the Newport, Kentucky, offices of Spectrum Labs in May. The raid was part of Buchanan’s investigation of the company for selling drug-test-beating products such as Urine Luck. Margaret Philbin, a spokeswoman for Buchanan’s office, says Chong’s claim of a mass DVD seizure is “completely false,” though “we may have taken one.”

‘They’re All Over the Country’

Federal prosecutors were not alone in resenting Tommy Chong’s high profile. In 2002, shortly after being busted on federal paraphernalia charges in Florida, the pipe manufacturer Chris Hill complained to the Drug War Chronicle that he had been unfairly singled out. Describing the Contemporary Tobacco Trade Association’s annual show in Las Vegas, he said, “They’ve got Tommy fucking Chong selling bongs there.…I boycotted that show because I thought it was too close to the edge.”

Hill prided himself on running his company, Chills, conservatively, eschewing the more flamboyant head shops in favor of tobacconists. “We were a company that was pushing paraphernalia for legitimate uses,” he told High Times in 2004, after serving a 14-month sentence in a federal prison for selling drug paraphernalia. “Obviously we know people are smoking pot with it, but we strived to stay in compliance.” He again contrasted Chills with Chong Glass, saying Tommy Chong “was asking for it.” Chong being who he was, he couldn’t have avoided the cannabis connotations of his business even if he had wanted to, but neither was there ever anyreal question that pot smokers were Chills’ target market.

Still, Hill’s bitterness is not hard to understand. While serving his sentence, he recalled, he was “leased out” to do grounds maintenance at the Pensacola Naval Air Station. “Every day,” he said, “on the way to work and on the way back to prison, I had to pass at least one head shop and two billboards for other head shops selling the same pipes I went to prison for selling. They’re all over the country. So is it illegal? I guess so. I went to federal prison for it.”

Yet he also was honored for it by the National Republican Congressional Committee, which gave him a business award in 2001. Two years before that, Inc. recognized Chills as one the country’s 500 fastest-growing businesses. Hill went to sleep the night before his arrest a respected entrepreneur, and he woke up an accused felon, based on the same actions that had won him accolades.

Vault owner David Sil experienced a similar transformation when his Missoula store was raided in the 2005 Operation Heads Up. So did Steve Andriakos, whose hippie accessory emporium in Bozeman, The Grateful Shed, had been around for 15 years. Like Sil, Andriakos insisted on a trial, after which the judge dismissed the charge against him, finding there was insufficient evidence for the case to go to the jury. Andriakos’ lawyer, Chuck Watson, notes that The Grateful Shed, which had two cases of smoking accessories that accounted for a small share of its business, was burglarized in January 2006. “A bunch of this so-called paraphernalia was stolen,” he says. The local police “caught the guy who did it and told [Andriakos’ partner] to come get the merchandise. They didn’t want it. He put it right back in the store.” Watson adds that “the county attorney told [Sil] that what he was doing was not illegal.…If you get the government’s permission to do something, how many governments’ permission do you have to get?”

At least two. Susan Halonen, a DEA public information officer in Denver, says Sil and Andriakos were able to operate “under the radar” because their communities were “tolerant” and Montana’s paraphernalia law has been interpreted to require some sort of “drug nexus,” such as residue or a nearby stash. As Sil and Andriakos discovered, the DEA’s reading of federal law does not leave the same wiggle room. Asked why only a handful of Montana merchants were targeted even though others were selling the same stuff, Halonen says the DEA, which did not have any presence in western Montana until 2002, has limited manpower. “They can’t target everybody,” she says, “even though they’d like to.”

‘Nobody Said Anything’

Sil and Andriakos’ complaint is a common refrain among manufacturers and retailers hit with paraphernalia charges: No one ever told us this was a problem. “If anyone had ever said, ‘You’re breaking the law; you need to stop,’ I would have called my attorney and then I would have stopped,” Chris Hill told the Sarasota Herald-Tribune after his arrest in 2002. “But it’s not that kind of party. They want to shoot first and ask questions later.” Even after Hill’s prosecution, many people in the industry were not up to speed on the federal paraphernalia ban.

The government’s response, of course, is that ignorance of the law is no excuse, that anyone who gets into this business should realize the risks he’s taking. “If you violate the law, you have to accept the consequences,” says Buchanan. And if you haven’t heard of the law, “that’s your problem.”

But suddenly being charged with selling illegal paraphernalia after years of apparent legitimacy still strikes many people as unfair, especially given the vagueness of state and federal law. “All of a sudden, a shop that has been operating in full view, a member of the chamber of commerce, all that good stuff, the next day they’re a pariah within their community,” says Allen St. Pierre. After the federal arrests in 2003, he recalls, NORML’s phone rang off the hook with calls from worried manufacturers and retailers. “Those people were totally dumbfounded,” he says. He sums up the typical response this way: “This is outrageous. How can this possibly be? I’ve been making these products for years, and nobody said anything to me.”

That story is especially plausible in parts of the country that are relatively tolerant of the drug culture’s accoutrement and symbols. “Certainly in California people assume that things are a lot more lax than they really are,” says Bill Rittenberg, who notes that retailers in places like New Orleans and Key West also do not seem terribly worried about running afoul of paraphernalia laws. “They’re in certain areas, and they’re not in other areas—just like pornography.” But as with pornography, prosecutors can lure distributors to sell their merchandise in places where jurors are less likely to take it lightly. “We play by the rules, we don’t break the law, and we don’t do business in Des Moines,” a Chong Glass spokesman told the Drug War Chronicle a year before the DEA raided the Gardena, California, business. Unfortunately for Tommy Chong, they did do business on Buchanan’s turf, western Pennsylvania, where DEA agents set up a fake head shop that ordered his pipes.

The celebrity sting attracted considerable media attention, prompting Chris Hill to complain in his High Times interview that “nobody cared [about paraphernalia laws] until Tommy Chong got arrested.” But six years later, it’s hard to discern the impact of Chong’s bust or the other arrests generated by Operations Pipe Dreams and Headhunter, which the DEA says put 42 paraphernalia dealers and manufacturers out of business.

“If there were any individuals out there who were unaware of the law,” says Buchanan, “they’re now aware of the law.” She says the arrests also raised awareness among parents and educators, and she claims “there are less illegal products available.” But to people with more intimate knowledge of the paraphernalia market, it doesn’t look that way. “I hate to say it because I don’t want to poke a gorilla in the eye, but what happened in 2003 was cosmetic,” says Rick Cusick, the former High Times editor. “It didn’t eliminate any industry, and it didn’t slow down a whole lot.…They made everybody go underground a little bit for a little while, and then it started to creep back again.” Vaughn, who helps clients set up smoke shops that will pass legal muster by meeting with local law enforcement officials and asking them to clear the merchandise ahead of time, agrees the intimidating effect of the arrests has dissipated. “I would say that the impact today based on what happened in February 2003 is minimal,” he says.

Stephen Dillon, an Indianapolis defense attorney with extensive experience in paraphernalia cases (and chairman of NORML's board of directors), perceives some subtle changes. “They probably won’t advertise the same way they did before Pipe Dreams,” he says. “The smart ones won’t. And they won’t have items that are per se paraphernalia, only designed for one purpose.…They don’t put marijuana leaves on the bongs anymore.”

This sort of adjustment, akin to slapping black plastic covers on dirty magazines at the newsstand, is the most that the on-again, offagain crusade against drug paraphernalia is likely to accomplish: a somewhat more discreet version of a business that will continue to operate in one form or another as long as people are interested in smoking pot. “The aggressivemarketing of the tools and paraphernalia of drug use has been an active affront to the efforts of parents, educators, and community leaders who are trying to help young people stay away from drugs,” drug czar John Walters complained in a statement issued the day of Ashcroft’s Operation Pipe Dreams press conference. “Today’s actions send a clear message to those who would poison our children.” The message: Get those marijuana leaves off your bongs.

Senior Editor Jacob Sullum is the author of Saying Yes: In Defense of Drug Use (Tarcher/Penguin). This column first appeared at Reason.com.

The Nonviolent Offender Rehabilitation Act: Prison Overcrowding, Parole and Sentencing Reform (Proposition 5)

skaidra@reason.org (Skaidra Smith-Heisters) — Wed, 01 Oct 2008 00:00:00 EDT

Introduction

California’s prisons are overburdened because state policies have created an endless cycle of incarceration that does little to promote public safety. An estimated one-third of inmates in California prisons are nonviolent recidivists who have never been sentenced for a violent crime. Meanwhile, as a result of sentencing changes in the late 1970s and early ’80s, the prison population has quadrupled, the parolee population has more than quadrupled, and general fund expenditures for the Department of Corrections and Rehabilitation (CDCR) have ballooned from 2 percent to 10 percent, or more than $10 billion today. State institutions are at double their capacity, resulting in such poor performance that portions of the state’s criminal justice system are now run by federal mandate. The threat of federal takeover of more of the state’s failing prison system is real and significant.

Proposition 5, the Nonviolent Offender Rehabilitation Act, will be decided by voters in the November 4, 2008 General Election. The proposition contains within it some of the important reform measures that numerous advisory committees have for years urged the state to implement.2 These reforms would help to break the state’s appallingly high prison recidivism rate by bringing California’s parole terms and sanctions for parole violation more in line with other states’, which have managed incarcerated populations more effectively. Proposition 5 would also build on the cost-saving drug treatment programs approved by voters in 2000 under Proposition 36, the Substance Abuse and Crime Prevention Act.

State Governments Have a Drug Habit: Crack Taxes and Drug Stamps

Thu, 15 Feb 2007 15:18:00 EST

Los Angeles (February 15, 2007) – Tennessee's "crack tax" brought in $1.77 million last year and has added nearly $3.5 million to the state's coffers since it was first collected in 2005. The Tennessee law, which an appellate court has ruled unconstitutional, requires anyone possessing certain amounts of illegal drugs to buy tax stamps for the drugs' packages.

A new Reason Foundation report finds 21 states are taxing illegal drugs today. Eight other states have had to repeal their taxes on illegal substances, most after having the laws declared unconstitutional.

"States are basically looking for another way to squeeze revenue out of the war on drugs," said Adrian Moore, vice president of research at Reason Foundation. "Governments aren't making money selling the stamps, the big money comes from fines charged to people who are busted on drug charges and then charged additional fines for not having the stamps."

"It's clear that taxing illegal drugs does nothing to discourage either the sale or use of illegal drugs," said Paul Messino, the Reason study's author. "In fact, doing so is hypocritical. By taxing an activity that is unlawful, states are trying to have their cake and eat it too. States are hungry for that extra dollar and they're willing to skirt the Constitution to get it."

The 21 states taxing illegal drugs are: Alabama, Connecticut, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Massachusetts, Minnesota, Nebraska, Nevada, North Carolina, Oklahoma, Rhode Island, South Carolina, Tennessee, Texas and Utah.

The eight states where illegal drug taxes have been repealed in recent years are: Arizona, Colorado, Maine, Michigan, Montana, New Mexico, North Dakota and South Dakota.

In 2004 a federal court struck down Wisconsin's drug tax, and while the state no longer uses the law, it has yet to repeal it. Prosecutors in Wisconsin said the law had negligible impact and they wouldn't miss it because the state was actually collecting such a tiny amount of the fines assessed. Several other states, unlike Tennessee, report very small revenues from the taxes and subsequent fines as well.

The Reason study says nearly every drug tax law faces legal and constitutional challenges. Courts have found numerous drug tax and stamp laws unconstitutional under the Fifth Amendment, because the laws punish offenders twice for the same crime and/or infringe a defendant's right against self-incrimination.

Full Report Online

The full report, Taxing Illegal Drugs: How States Dabble in Drugs and Why They Shouldn't, is available online at www.reason.org/ps357.pdf.

About Reason

Reason Foundation is a nonprofit think tank dedicated to advancing free minds and free markets. Reason produces respected public policy research on a variety of issues and publishes the critically acclaimed monthly magazine, Reason. For more information, please visit www.reason.org.

Contacts

Adrian Moore, Vice President of Research, Reason Foundation, (661) 477-3107
Chris Mitchell, Director of Communications, Reason Foundation, (310) 367-6109

Taxing Illegal Drugs: How States Dabble in Drugs and Why They Shouldn't

info@reason.org (Paul Messino) — Thu, 01 Feb 2007 18:00:00 EST

For around $8.00, you can get a gram of marijuana most places in the United States. Most of this is profit. It's not necessary to be a dealer in order to get a piece of the potpie; in fact, 21 states are already carving themselves a slice.

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The Culture War's French Connection

shikha.dalmia@reason.org (Shikha Dalmia) — Tue, 07 Feb 2006 00:00:00 EST

Puzzling over the spectacle of 100,000 American men gathered to take a public oath that they would never again touch a drop of alcohol, Alexis de Tocqueville wondered in 1848 why "these abstemious citizens could not content themselves with drinking water by their own fireside?"

The answer the French philosopher gave in Democracy in America, his brilliantly observed account of American habits and character, was that these men "wanted to support sobriety by their patronage." Had it been his own countrymen, he noted wryly, they "would have made individual representations to the government, asking it to supervise all the public houses throughout the realm."

But if the state of the culture wars in this country is any indication, Americans are a lot closer to the French now: Instead of advancing their positions through example and moral suasion as those "abstemious citizens" Tocqueville observed then, both modern-day conservatives and liberals in America are eagerly unleashing big government on each other—a la the French.

The Washington Post reported recently that more than two dozen states, under pressure from powerful religious groups, are considering new laws that would give health workers the "right" to refuse care that conflicts with their conscience.

First conceived in the wake of the 1973 Roe v. Wade ruling, these so-called conscience clause laws got a new lease on life—so to speak—earlier this year when Americans United for Life filed a complaint in the Equal Employment Opportunity Commission (EEOC) against Target for firing a pharmacist who refused to dispense a morning-after pill. "Target discriminated against the employee because of her religious beliefs and her desire to exercise her conscience," the group claims. (Subsequently, the group sued Walgreens for similar reasons)

No subtle casuistry is needed to figure out the absurdity in this line of reasoning: The woman was not fired for her religious beliefs; she was fired for refusing to do her job.

If people like her find their professional duties too morally onerous, they are always free to opt for another career. Or they can try to work out their differences with their employer by offering something of value—extra hours, lower pay—in exchange for a reprieve from duties they find objectionable.

Instead, conservatives are seeking to employ the coercive power of the government to achieve their ends. In the process, not only will they short-circuit the give-and-take of the marketplace and undermine mutual cooperation and voluntary association, so essential to the functioning of a free society; but by making employers bear the cost of protecting an individual's conscience, they will weaken the moral fabric of the individual they are trying to aid. Indeed, in contrast to Tocqueville's citizens who gave up drinking to promote sobriety, conservative moralists fighting for conscience clause laws evidently feel they should have to give up nothing at all—time, pay, job—for the sake of their cause. Who can take them seriously under such circumstances?

But religious conservatives are not the only ones trying to promote their agenda on the cheap. Pro-choice liberals are doing the same.

They are countering conscience clause laws with ones that would force medical professionals—pharmacists, nurses and doctors—to dispense care even if it violates their beliefs. Illinois, for instance, has already implemented a law that forces pharmacies to fill morning-after prescriptions. Even more draconian versions proposed elsewhere might penalize doctors who refuse to perform procedures they find morally offensive on the theory that their personal views should not be allowed to interfere with providing necessary care.

Like conscience clause laws, these liberal antidotes substitute coercion for cooperation to settle legitimate moral differences. In doing so, they thwart market solutions that could well accommodate their needs without compromising anyone else's beliefs: For instance, every time a pharmacy turns away a patient for moral reasons, it creates an opportunity for a competitor with a less squeamish conscience.

This is not to deny that some people somewhere might suffer some inconvenience to obtain needed services. For instance, women in remote areas might have to drive several hours for a morning-after pill. But this inconvenience is minor and short-lived compared to the permanent damage that laws requiring people to go against their beliefs would do to bedrock freedoms that liberals themselves count on to advance other—far bigger—causes. Indeed, if doctors can be required to dispense treatment against their moral views, why can't conscientious objectors be forced to fight wars that they find morally repugnant?

One of the things that struck Tocqueville about Americans during his travels was that they eschew authority to combat the "ills and trials of life." Even children in their games, he observed, "submit to rules settled by themselves and punish offenses which they have defined themselves." Nor does this spirit of independence end with childhood. "The same attitude turns up again in all affairs of social life," he noted.

But that was then. Now neither conservatives nor liberals seem to understand that winning the culture war is not worth losing control over their moral destiny to the government. Like little children, who eagerly run to the insinuating teacher to resolve their petty quarrels, so too these cultural warriors run to the ever-meddlesome government.

How do you say crybabies in French?

Shikha Dalmia is a senior policy analyst at Reason Foundation.

Kill DARE Now

david.nott@reason.org (David Nott) — Mon, 10 Feb 2003 00:00:00 EST

Orange County Register

Cue the pomp and circumstance: Kids around Southern California are graduating from Drug Abuse Resistance Education (DARE) programs. Don't get too excited, though — these "degrees" aren't worth the paper they're printed on.

DARE's much-hyped plan to teach kids to "Just Say No" is short on success and long on evidence of failure. In 2001, the U.S. surgeon general and the National Academy of Sciences called DARE ineffective. And just a few weeks ago, the General Accounting Office — Congress' investigative arm — issued a report stating, "the six long-term evaluations of the DARE elementary school curriculum that we reviewed found no significant differences in illicit drug use between students who received DARE in the fifth or sixth grade (the intervention group) and students who did not (the control group)."

Translation: Kids that complete DARE's program are just as likely to use drugs as children who are never exposed to the "Just Say No" message. And that begs the question, how long will we as taxpayers dare to pay for a program that doesn't work? We're currently at 20 years and counting with DARE.

According to The New York Times, in 2001 the Department of Justice (read taxpayers) gave DARE about $1.7 million; police departments (read taxpayers) gave DARE approximately $215 million in indirect benefits in the form of officer salaries for speaking appearances and other duties; and DARE received around $15 million in private support.

Across the country, you can add millions of dollars in state (read taxpayer money), local (read taxpayer money), and school district (read taxpayer) money that is annually poured into the program.

We can applaud the efforts of well-meaning volunteers who invest personal time to advance their views. But the government gravy train should stop immediately.

Thanks to quickly escalating budget deficits and the program's failures, many local governments have already started slashing DARE-related expenditures. In Long Beach, budget problems recently forced the city to move half of the program's police officers back to where they belong - patrolling the streets. And in Huntington Beach, city officials suspended the police department's DARE programs at the Ocean View and Huntington Beach City school districts.

But like a junkie, DARE is desperately trying to hold on to its federal funds by somewhat altering its curriculum. Back in 2001, facing an onslaught of criticism after several studies highlighted the dismal results, DARE said it would revamp its programs to target kids in seventh and ninth grades, instead of fifth- and sixth-graders.

But DARE could only manage to overhaul its program in six cities. The University of Akron and DARE are working together to implement these changes and to study a group of students immersed in the "revised" program in six metropolitan areas, including Los Angeles. Of course, since this is an internal study, the findings are likely to be much more positive than the previous nonpartisan reports that have been extremely critical of DARE. And this in-house assessment won't be complete until 2006 - meaning millions more in taxpayer money will flow to the program in the interim. Furthermore, while select students in six cities may be getting a new lesson from DARE, the vast majority of kids continue to receive the same old tired message - a message that has proven to be completely useless.

So let's weigh the evidence: 20 years of data showing the program doesn't work; a track record of excruciatingly slow change; and law enforcement patrols stretched to the brink because officers who should be enforcing the law are assigned to classroom duties where they preach abstinence and reiterate the same worn-out statistics. And yet, DARE continues to expect our support just because they've decided to ever so slightly alter their game plan?

Even the federal Department of Education, a model in wasteful spending if there ever was one, refuses to endorse funding of the program. DARE was conspicuously absent from the department's 2001 list of nine "exemplary" and 33 "promising" school-based programs that "promote safe, disciplined and drug-free schools."

The grim reality is that there are no surefire ways to keep children away from drugs and alcohol, and the evidence shows DARE's scare tactics often backfire in the long run. I have two kids myself, and I must first show my children responsible behavior through my own actions. It is also my responsibility to teach my children rationally about the potential perils of drug abuse.

The billions of dollars spent on DARE clearly can't compete with parental involvement. DARE's results do not show success. And they do not show progress. We are staring at an ever-growing mountain of evidence demonstrating that DARE simply does not work - kids in the program are just as likely to use drugs as children not in the program. Reality doesn't get much harsher than that. It is clearly time to cut our losses with DARE and return to the tried-and-true approach of personal responsibility.

David Nott is the President of Reason Foundation.