Tag Archives: Public Policy

Middle Class Relaxing With Marijuana – Science Daily article reports

Middle Class Relaxing With Marijuana

Adapted from materials provided by University of Alberta, via EurekAlert!, a service of AAAS. Reposted here for education use

ScienceDaily (May 15, 2008) — A variety of middle-class people are making a conscious but careful choice to use marijuana to enhance their leisure activities, a University of Alberta study shows.

A qualitative study of 41 Canadians surveyed in 2005-06 by U of A researchers showed that there is no such thing as a ‘typical’ marijuana user, but that people of all ages are selectively lighting up the drug as a
way to enhance activities ranging from watching television and playing sports to having sex, painting or writing.

“For some of the participants, marijuana enhanced their ability to relax by taking their minds off daily stresses and pressures. Others found it helpful in focusing on the activity at hand,” said Geraint Osborne, a professor of sociology at the University of Alberta’s Augustana Campus in Camrose, and one of the study’s authors.

The focus was on adult users who were employed, ranging in age from 21 to 61, including 25 men and 16 women from Alberta, Quebec, Ontario and Newfoundland whose use of the drug ranged from daily to once or twice a year. They were predominantly middle class and worked in the retail and service industries, in communications, as white-collar employees, or as health-care and social workers. As well, 68 per cent of the users held post-secondary degrees, while another 11 survey participants had earned their high school diplomas.

The study also found that the participants considered themselves responsible users of the drug, defined by moderate use in an appropriate social setting and not allowing it to cause harm to others.

The findings should open the way for further scientific exploration into widespread use of marijuana, and government policies should move towards decriminalization and eventual legalization of the drug, the study
recommends.

“The Canadian government has never provided a valid reason for the criminalization of marijuana,” said Osborne. “This study indicates that people who use marijuana are no more a criminal threat to society than are alcohol and cigarette users. Legalization and government regulation of the drug would free up resources that could be devoted to tackling other crime, and could undermine organized crime networks that depend on marijuana, while generating taxes to fund drug education programs, which are more effective in reducing substance abuse,” Osborne added.

The study was published recently in the journal Substance Use and Misuse.

University of Alberta. “Middle Class Relaxing With Marijuana.” ScienceDaily 15 May 2008. 18 September 2008 <http://www.sciencedaily.com­ /releases/2008/05/080514111721.htm>.

http://www.sciencedaily.com/releases/2008/05/080514111721.htm

Drug Court – Observations on Restorative and Rehabilitative Justice

Drug Court – Observations on Restorative and Rehabilitative Justice

By Dave Olson

Originally written for “Visions of Justice” program The Evergreen State College, Winter 2004

An Overview of the Drug Court Model

The Drug Court program of the Thurston County Superior Court is designed as a rehabilitative program for non-violent drug and related property crime offenders. The program features intensive counseling, strict supervision, payment of treatment fees, and therapy techniques aimed at assisting the successful participant in becoming a responsible community member.

The program relies on a working partnership between prosecutors, assigned defense counsel, sheriff and police departments, and a third-party chemical dependency counseling facility. These entities work together in co-operation with the aim of bringing a disposition that benefits both society, and the offender. With each successful program graduate, society reaps increased public safety as well as economic rewards. Unlike traditional retributive punishments such as incarceration, the successful drug court program client learns the emotional and vocational skills to build a productive life while dealing with chemical addiction problems.

At a Thurston County Chamber of Commerce forum about the Drug Court program and the proposed $120,000,000 “Regional Justice Facility”, I engaged in short discussion with Thurston County Superior Court Judge, Richard A. Strophy. Besides adjudicating his share of cases, he also is the presiding judge for the Drug Court program, he remarked that, “For a quarter of what they want spend on the new jail, we could expand drug court program and we could get by on what we have.” He went on to express his opinion that prevention, rehabilitation, and personal responsibility for actions were critical steps in addressing both drug problems and the related crimes which support drug addict’s habits, particularly property crimes such as theft, as well as domestic violence.

The need for Drug Court is wrought from the endless cycle of re-offenders who are unable to break their habit and have limited capacity to find adequate resources to help. As a result, the same drug offenders revolve through the court system causing significant expense both in a jail beds and court costs, but also societal opportunity costs as drug offenses pull money away from public health and prevention programs further exacerbating the situation.

In his book “Reinventing Justice: The American Drug Court Movement,” James L Nolan, Jr. puts forth, “The burgeoning drug court movement first developed in response to the growing number of drug cases overcrowding America’s criminal court calendars. … The innovative adjudicative model draws heavily on the American therapeutic idiom to give direction and meaning to its philosophy, forms, and procedures.i”

A study by the Scottish Executive called “International Experience of Drug Courts”, points out that, “The main impetus for developing drug courts at a local level came from individual judges who were frustrated at the single ‘revolving door’ of drugs and crime. Nationally, however, drug courts have come to be seen as a part

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© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

solution to the United States quadrupling of the national prison population since the 1980s (making it the highest among Western democracies).”ii

The Thurston County Drug Court is not the first nor alone in this progressive foray into alternative justice. As Nolan continues, “Since the first drug course was launched in Dade County, Florida, in 1989, more than eight hundred similar courts have been initiated or are in the planning stages. The model has received almost uniformly positive media coverage and overwhelming support at both the national and local levels. Judges celebrate the drug court as an exciting movement, a new way of justice, even a revolution in American jurisprudence.” iii

The Scottish Executive study found that, “Since the first programmes (sic) started in 1998, more than 140,000 drug using offenders have entered comprehensive programmes that include frequent drug testing, supervision, treatment, and judicial monitoring and court-mandated sanctions.”iv

The Drug Court provides a process which enables offending members of society to heal themselves and become contributing members of society by offering combination of rehabilitative, restorative justice, as an alternative to (or in combination with), retributive justice methods.

Specifically, the Drug Court states their goals as:

• Reduce the revolving door of crime and drugs by providing treatment to drug-addicted criminal offenders

• Require strict accountability from program participants through frequent in-person court hearings and intensive monitoring

• Abstain from alcohol and drug use • Reduce emergency room and other medical costs • Reduce domestic violence • Reduce property crimes • Require completion of education • Require tax-paying employment • Decrease use of public assistance • Reduce court, jail, and prison overcrowding and costs v

But what drugs are Drug Court participants treated for? In my observations, the highly addictive and easily produced drug methamphetamine is the primary substance abuse problem handled by Drug Court program. All cases I observed save two, were for meth related charges. Incidentally, the exceptions were cocaine and prescription pain-pills.

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© 2004-5 Dave Olson, Drug Court – Observations on Restorative and Rehabilitative Justice

While beyond the scope of this paper, I feel it is worth pointing out that ‘drugs’ is a somewhat nebulous moniker, which includes myriad illicit substances, which are organized by federal law into ‘schedules.’

While the State Board of Pharmacology ostensibly makes decisions for the state pertaining to classification of illegal drugs in the schedules, in reality the federal DEA and FDA (as well as International treaties) dictate policy.

The Washington RCW states that Schedule One drugs: (1) have high potential for abuse; (2) have no currently accepted medical use in treatment in the United States; and (3) lack accepted safety for use in treatment under medical supervisionvi.

Drugs in this category run a laundry list from heroin, to hallucegenics, to cannabis. Schedule Two contains opium, cocaine, morphine, methamphetamine, and methadone.

However, cannabis possession under forty grams is a misdemeanor in Washington and offenders are (usually) not referred to Drug Courtvii.

Nevertheless, cannabis charges cause a significant strain on the court system as a whole. Indeed in 2000, 730,000 people were charged for some cannabis offense. Approximately 60,000 Americans are in jail for cannabis-related charges, 16,000 of which are simply for possession. Since 1992, the US has increased pot charges laid by 200%,viii a statistic, which calls to question the motives behind society’s choice to arrest and punish non-violent offenders.

Judicial Philosophy

Drug Court is an example of a Utilitarian approach to justice. Rather than making the offender “pay” for the crime (addiction) at significant expense, Drug Court seeks to counsel and reduce the opportunity for further harm to society “fixing” the problem when the opportunity arises through an arrest incident.

Besides the program’s emphasis on rehabilitative concepts of justice, there is some amount of restorative justice (improving yourself to be a better member of community) as well as retribution justice through jail time as deterrent/punishment for program infractions.

The Judge constantly emphasizes taking responsibilities for actions, making and keeping promises to self/court/other, discipline and organization – all tools need to contribute positively to society. This includes forming relationships, trusting others, and working in groups in a non-adversarial, results-oriented environment.

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The Scottish Executive report found that, “one of the important differences between drug courts and other types of criminal justice based treatment interventions is the unique linkages and partnerships. In addition, drug courts depart from the traditional court structure through its encouragement of a non-adversarial relationship amongst the key players. These qualitative impacts are somewhat difficult to measure and there is no national data that fully explores the impact of this. However, a number of drug court evaluations have sited the successful development and implementation and criminal justice/treatment partnerships and a high degree of satisfaction among drug court staff with the inter-agency relationship.”ix

Drug Court Process

Arraignment

The Drug Court is the first stop for most all felony drug–related offenses in the county which do not have additional aggravating factors (such as assault or weapons charges), and if the accused does not have significant prior convictions.

At this stage of the process, the Drug Court is rather similar to most any other courtroom with a few key differences. At the arraignment hearing, the Judge is joined by the “usual cast” of prosecuting and defense attorneys, clerk, reporter, bailiff, and a jury box with (rather haggard-looking), cuffed prisoners in orange jumpsuits. Additionally, at least in addition to (I believe) Drug Court program administrators, two counselors were in attendance, working closely with the attorneys to determine eligibility for the program, and scheduling Drug Court candidates for intake counseling.

Not all of the arraigned defendants request participation in the Drug Court program, nor would all qualify. Other defendants arraigned pled “not-guilty” with the advice of either a personal attorney or an attorney from the Office of Assigned Counsel. In such cases, a pre-trial and trial date was set along with conditions of release. Also as per usual, in the event of a “no-show”, the Judge issues a no-bail warrant.

My observations lead me to believe that the Drug Court team are accustomed to working together and are committed to fairness and respect to the participants who sincerely seek help. There seems to be a somewhat unspoken flow to their process and the atmosphere, while dignified, is much less adversarial than a ‘normal’ court proceeding.

Eligibility and Admission

The Judge, attorneys and counselors review the defendant’s record to ascertain initial eligibility. In each arraignment I observed, the charges were felony possession of meth-amphetamine though the Drug Court program also accepts non-violent perpetrators accused of property crimes which are likely associated with substance abuse lifestyle (i.e.: breaking and entering, theft, vandalism). The Deputy Prosecuting Attorney reviews the case to determine eligibility based on the existence of prior and/or pending charges which would disqualify the defendant.

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One example I witnessed during a non-Drug Court arraignment hearing with Judge Casey presiding, a woman (Anderson, Monte Jean vs. State of Wa. 2/4/04), was read her charges of felony possession of meth- amphetimine and ephedrine (charges 04-00122-0, 125-4, 178-5, 124-6, 121-1, 154-8). I immediately wondered why she was not a Drug Court candidate, however I realized after the prosecutor pointed out that she had seventeen prior felony convictions for similar charges, that she would not be a candidate for Drug Court.

The Drug Court’s eligibility requirements exclude offenders with numerous prior convictions at the discretion of the Prosecutor. Thus, only candidates with a higher chance of success are generally referred to the program. Instead this defendant would likely go to trail (or plea) and, if found guilty, sentenced according to Chapter 9.94A of the RCW Sentencing Reform Act of 1981 and Article IV “Offenses and Penalties” of RCW 69.50.4013 in which possession is usually a Class ‘C’ felony.

If the prosecutor recommends Drug Court program eligibility, the Office of Assigned Counsel advises the defendant of his/her options. The Judge asks the Defendant if they wish to participate in the Drug Court program. If the Defendant chooses the Drug Court option (instead of going to trial, or pleading guilty), the program administrator then interviews him/her.

Upon acceptance into the program by the program administrator, the candidate is obliged to sign a contract and he/she is given a Program Handbook, and assigned to numerous tasks and appointments required as part of the treatment and restitution process.

Intake

The next step is an appointment to St. Peter’s Chemical Dependency Unit for an intake interview with treatment counselors, along with baseline urinalysis testing. After the intake, the participant is assigned to a primary counselor who then works out a treatment schedule and plan addressing the needs of the individual participant.

If the defendant is incarcerated, the Judge issues a furlough order allowing the defendant to travel to the appointment. The Judge carefully informs the defendant of the additional felony charges if the expiration time of the furlough order is not carefully observed.

Treatment and Supervision

Though it is beyond the scope of the paper to tackle the various levels of addiction, suffice to say that the Drug Court program usually takes 12-18 months. On-going throughout the phases of the program, various supervisory and treatment techniques are employed. Specifically:

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Random urinalysis for illicit drug and alcohol – UA requirements are very strict and frequent. Missed tests and non-standard test results (ie: too-watery, evidence of tampering, not watery-enough), are considered the same as a “dirty” test result. Such failure results in court-imposed sanctions (usually jail time) and reduction in treatment phase level.

Court progress review – Beginning at once per week in Phase One to once a month in later phases, the Drug Court participant appears before the bench and discusses progress with a Judge and treatment counselors to maintain consistent accountability. Additionally, the Drug Court staff, including the Judge and treatment counselors, meet weekly to discuss participants’ progress or problems and bring up topics from their meetings with the participants during their review hearings.

In my observation, the tone of the court progress reviews can perhaps best be described as “parental” though at the same time, the mood is (oddly) casual. The participants address counselors in a first name basis and ask the Judge, “How ya doing?” Clothes are sometimes grubby, hats not immediately removed, and manners somewhat lacking, but the focus is clearly on real results, not appearances.

Judge Strophy plays his role as a stern, but caring father figure who seeks to help the participant help themselves. He is conversational and sincere, but terse and commanding as needed. He asks about home life situations, jobs, meetings, relationships, kids, significant others and just about anything else.

A sample paraphrasing from his conversation with a 23-year-old white female named April:

Judge: Congratulations, 239 days clean and sober. (Applause in the crowd) Judge: So what’s been going on in your life? April: Still under house arrest (from a charge in Lewis county) so I haven’t really been going anywhere.

Judge: How are you doing at your Phase three studies? April: Working on anger management (brief conversation about what she’s learned about dealing with anger). Judge: Sounds like things are going well, congratulations again on your sobriety. How’s your living situation? April: Boyfriend just got out of jail but he went to live with his dad in Lake Havasu Arizona. Judge: How do you feel about that? April: Actually glad and relieved. Judge: What are your plans for your living situation? April: It is really crowded at my house now so I hope to move once I am off house arrest and on my feet with bills. Judge: You seem to be making progress. Anything else? April: Can I go “Clean and Free” on (such and such date)? Judge: (reviews record) OK (sets stipulation on UA) Anything else?

In another review with a 20-something white male named Jason, the Judge and participant discussed progress with therapy work. Additionally, the Judge admonished the participant to be part of positive change to the community, and to “take life on it’s own terms,” plus learn the tools to cope with the issues and challenges in life. The Judge asked about the participant’s father who had recently fallen ill. Jason discussed how his dad

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had been supportive during recovery and now they are closer than ever. Jason also related an anecdote about being rear-ended on the highway and how he is able to cope better thanks to his therapy. The Judge remarked how “blessings sometimes come disguised” and scheduled the next court date. He also presented a “purple coin” to commemorate nine months of sobriety and the defendant (rather proudly) announced he had made payment on his fines. The Judge commended him on using his tax return to pay his treatment costs and fines although scoffed somewhat when Jason said that he had paid (only) $300 out of a $3500 tax return.

Another progress review featured the Judge getting a bit more stern with a participant who wasn’t really “buying into” the program. In fact, the participant had once dropped out of the program before and was given a second chance. The Judge discussed how “change is a process” and then extolled him to “get real,” “speak from the heart,” “no masking your emotions,” “don’t manipulate,” “dig deeper,” “toe the mark,” and “decide who you want to be, you are in your thirties, you have to figure it out.”

My anecdotal observations of the court proceedings suggest a pattern of additional aggravating factors in offender’s lives, notably: challenging domestic situations, trouble at school, adjusting to life after high school, difficulty handling unforeseen stress, and other extenuating lifestyle circumstances, intentional or not.

Meetings – In addition to the court dates, participants are heavily scheduled with meetings and treatment sessions throughout the week. My personal observations noticed one participant reviewing her schedule with a counselor (paraphrasing), “Education session on Saturday, group process on Monday, 3 twelve-step program meetings and 12 more community service hours (to make up for a missed meeting), by next court date on Tuesday.”

Participants also must attend a required number of court-approved “12-step” group support meetings. In my observations, the court allowed the participant to attend Alcoholics Anonymous, Narcotics Anonymous, or Analon. Attendance is supported with signed logbooks and the participant may attend only once per day (ie: cannot double up on one day and skip the next).

Failure to attend required meetings of any kind results in court-imposed sanction, usually community service, and the participant must take responsibility for failure to attend. In other words, the Judge doesn’t want to hear excuses and expects the individual to do whatever it takes to attend. Responsibility is rewarded by permission to attend out of town events.

During a Drug Court progress review session, I observed at least three participants requesting permission to attend an event called, “Clean and Fee.” The Judge reviewed their record carefully before granting permission contingent on doing a UA test on the Friday before leaving and again on the following Monday before noon. Failure to perform test would result in revocation of privileges and additional sanctions.

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Payment of treatment fees – Drug Court participants pay for their own treatment through Providence St. Peter Chemical Dependency Center. Doing so saves tax dollars for other programs and increases participant’s sense of responsibility for personal improvement. Additionally, some participants have punitive fines stemming from other related charge that need to paid before graduating.

Moral Reconation Therapy (MRT) – While not privy to actual therapy sessions, my understanding is the MRT is a trademarked and copyrighted series of training tools for instructing participants in morals, thinking, attitudes, decision-making, and other characteristics of a “Normal, Ordinary, Responsible Person (NORP).”

In court process review sessions, the Judge frequently asked participants about various concepts discussed in lessons books that are a part of this therapy technique.

A study by the University of Maryland for the Washington State Legislature describes MRT further, “Moral Reconation Therapy was developed in the tradition of the moral development approach as a way of reducing the recidivism by increasing the moral reasoning abilities of offenders. Specifically, the program incorporates seven elements of treatment; confrontation and assessment of self, assessment of current relationships, reinforcement of positive behavior, identity-formation, enhancement of self-concept, decreasing hedonistic orientation and increasing delay of gratification, and development of higher stages of moral reasoning.x”

Eye Movement Desensitization and Reprocessing – EMDR is an innovation technique designed to provide rehabilitation from Post Traumatic Stress Disorder including irrational negative beliefs, unregulated emotions, and trigger responses.

While not used extensively according to St. Peter Chemical Dependency Center counselor, Hollie Christiancy, due to the expensexi, EMDR is basically a therapeutic technique in which the patients move their eyes back and forth while concentrating on the problem. The therapist waves a stick or light in front of the patient and the patient is supposed to follow the moving stick or light with their eyes.xii

Proponents of EMDR (developed by Francine Shapiro) suggest that, “after EMDR processing, clients generally report that the emotional distress related to the memory has been eliminated, or greatly decreased, and that they have gained important cognitive insights.”xiii

Comprehensive Treatment Services – The Drug Court program emphasizes the participant taking responsibility for all aspects of life. This tasks include: gaining employment (complete with W-2); organizing finances and paying fees and fines; re-building relationships with family and friends; tending to medical, dental and exercise needs; improving home living situation as needed; and even getting in touch with one’s spirituality.

Phases

The treatment program is divided into three Phases providing obtainable targets to the participant.

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Phase One: Orientation/Intake: 3-4 months Intake, assessment, and treatment plan Drug and alcohol education Moral Reconation Therapy

Individual and group counseling

Phase Two: Intensive Counseling: 5-8 months Relapse prevention sessions Referral to community resources and services Vocational and educational service referrals

Phase Three: Referral Monitoring: 4-6 months Individual and group counseling Completion of individual needs workbook Completion of personal recovery plan Community linkagesxiv

At each phase-level obtained, and at various sobriety milestones, the Judge in a brief ceremony in the courtroom presents the participant colored, commemorative coins designating achievement. In the event of a transgression, the participant is obliged to return the coins and earn them back through continued sobriety and passing phase requirements.

Graduation

Graduation Requirements

Completion of all three phases of treatment Six months minimum abstinence Payment of all fees and fines (if any) Four months full time employment and/or education GED or High School diplomaxv

Graduation Ceremony Upon fulfilling the graduation requirements, the participants are feted with at a festive ceremony held right in the Courtroom. Attending the Drug Court graduation is a unique courtroom experience complete with punch and cookies, applause, embracing, presentation of gifts, crying, cheering and even Judge Strophy “teasing” the participants in his paternal manner by showing their intake “mug shots” to the assembled crowd.

Rather than the usual somber but anxious courtroom atmosphere, the Drug Court graduation crowd is filled with relieved families, beaming spouses, and proud counselors and even a few police officers and curious community members. The mood is akin to an “old time revival” crossed with an “AA” meeting. Each graduate is afforded the full attention of the courtroom while his or her full Drug Court history is read aloud. The narrative report includes a description of the participant’s attitude upon first entering Drug Court and significant events (both positive and negative) throughout their Drug Court supervision period. Plus a complete timeline of their substance abuse history, significant challenges, achievements, personality characteristics, school and work successes and even family matters are discussed on the record.

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The graduate’s primary counselor then speaks from a treatment standpoint more about performance during the myriad counseling sessions. The emotion expressed by the counselors clearly shows the difficult yet rewarding bond they develop with the participants. The counselor then presents the graduate with a ceremonial mug filled with various symbolic tokens of encouragement and they share an embrace. Indeed, considering the perseverance required to graduate, the counselor must feel a significant sense of pride and satisfaction with each successful participant.

Next up is the Judge who makes some remarks about the graduate path towards becoming a responsible person in significant detail. In some cases, he described the “vacant spaced out look” when they started the program, or cited a bad attitude or rebellious nature requiring focusing onto positive tasks. Finally, he presents a graduation certificate then poses with the grad for a photo.

At last, the graduate takes the stand to address the crowd and thanks those who supported him/her through the process. Amongst the frequent applause, there are at least a few tear-jerking moments and tissues are common as the graduates speak with near religious zeal about their life changes and future plans to be a responsible member of society.

Effectiveness

How does one rate the effectiveness of the brand of justice dispensed in the Thurston County Drug Court? I think three factors are crucial to balance both the tangible and intangible integers of success. 1) Recidivism – How many graduates are re-arrested compared with non-participants?; 2) Cost Benefit – How much does it cost to administer the program combined with the savings in related problems caused by drug addiction?; and 3) Societal Gain – Is the benefit of a responsible member of society worth more than the ‘moral satisfaction’ of retributive punishment?

I will address each in turn with a few empirical notes:

First of all, recidivism. The aforementioned Scottish Executives report cites a study by the National Center on Addiction and Substance Abuse at Columbia University which found that in a Delaware Adult Drug Court, 4% were re-arrested during treatment. In Ventura County, California, drug court participants produced a 12% re- arrest rate compared to a 32% re-arrest rate for a comparison group over an eight-month period. In Jackson County (MO?), the study found a 4% re-arrest rate compared to 13% over a six-month period.xvi

Thurston County Drug Court supplied statistics put forth recidivism rates which appear favorable in comparison with other State penal entities. Specifically: State of Washington Prison: 47% Thurston County Jail: 72%

Thurston County Drug Court: 6%

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The University of Maryland study agrees when discussing MRT’s (the primary therapy technique used by the Drug Court) success rate, saying, “Moral Reconation Therapy is effective in reducing the recidivism of offenders. At least five studies of sufficiently rigorous scientific methodology, have found significantly lower recidivism rates between MRT participants and comparison groups on at least some measures of recidivism.”xvii

Second, cost benefit. Again, the Scottish Executive study cites a Multnomah County, Oregon criminal justice system cost savings of $2,476,795 over a two-year period. After the one million dollars of operating the drug court program. The savings increase to $10,223,532 over two years when estimated savings in victimization, theft reduction, public assistance and medical costs are added in.xviii

Thurston County Superior Court produced materials also compare average treatment duration and cost per day in various supervisory institutionsxix: State of Washington Prison: $67 – Average length of supervision/treatment: 76 days Thurston County Jail: $54 – Average length of supervision/treatment: 95 days

Thurston County Drug Court: $14 – Average length of supervision/treatment: 365 days

Finally, the societal benefits. This is the most difficult benefit to gauge since questions of a moral payment of a debt to society clouds the objectivity required to effect a just ruling. All we humans carry unique subjective political and emotional conceptions which color our feelings as to whether the offender has wronged society. The US legal system tries individuals against the State as though society (or one of it’s parts) is harmed each time a law is broken. However, in case of a crime when the only victim is the offender herself, the case for a moral payment to society becomes less relevant.

Rather, treating addiction from a harm reduction trajectory – specifically comprehensive treatment supervised by the Courts – serves society’s interests better than incarceration because: the offender becomes a contributing member of society (or at least not a perennial drain on government resources); the victim (usually the offender and his/her family) gains a sense of closure and therapeutic healing; and the community as a whole enjoys increased public safety (or at least a reduction in public nuisance), and economically both through decreased criminal justice costs, and the ancillary cost savings (further such savings also provides opportunity for prevention and education programs).

Additionally, I will also contend that society also benefits morally by showing empathy in treating and preparing non-violent drug offenders for life in society. The additional negative attributes of incarceration (introduction to more criminal elements, violent society) further supports rehabilitation for non-chronic offenders. In all, considering whether “Justice is Served,” I would suggest, yes.

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Endnotes

i Nolan, James L. Jr., “Reinventing Justice: The American Drug Court Movement,” Princeton University Press, 2002. Quoted from http://pup.princeton.edu/chapters/i7085.html.

ii Scottish Executive, “International Experience of Drug Courts,” Chapter 1: Background to the US Drug Court System. Quoted from http://www.scotland.gov.uk/cru/kd01/green/courts05.htm.

iii Ibid, Nolan.

iv Ibid, Scottish Executive.

v Thurston County Superior Court “Drug Court Program” brochure, 2004(?).

vi Revised Code of Washington, RCW 69.50.201-212 “Authority to change schedules of controlled substances.” ARTICLE II STANDARDS AND SCHEDULES

vii RCW 69.50.4014, “Possession of forty grams or less of marihuana — Penalty.” viii Cannabis Culture magazine, Marc Emery Publisher, Vancouver BC, Canada, Feb./March 2004. ix Ibid, Scottish Executive, Chapter 2.

x University of Maryland: Department of Criminology and Criminal Justice, “An Examination of the Effectiveness of the Type of Rehabilitation Programs offered by Washington State Department of Corrections,” Chapter Six, “Cognitive Behavioral Therapy Programs: Moral Reconation Therapy and What Works In Corrections?” Submitted to the State of Washington Legislature Joint Audit and Review Committee, June 1998.

xi Christiancy, Hollie, “Personal correspondence with author via e-mail”, March, 2004.

xii Robert Todd Carroll, “Eye Movement Desensitization and Reprocessing,” The Skeptic’s Dictionary. Quoted from http://skepdic.com/emdr.html.

xiii Shapiro, Francine et al, “A Brief Description of EMDR.” Quoted from http://ww.emdr.com/briefdes.htm.

xiv Ibid, Thurston County Superior Court.

xv Ibid, Thurston County Superior Court.

xvi Scottish Executive International Experience of Drug Courts,” Chapter 2: Drug Court Evaluation of US Drug Court System. Quoted from http://www.scotland.gov.uk/cru/kd01/green/courts06.htm.

xvii Ibid, University of Maryland. xviii Ibid, Scottish Executive, Chapter 2. xix Ibid, Thurston County Superior Court.

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Privacy Issues in Workplace Drug Testing

Privacy Issues in Workplace Drug Testing

By Dave Olson

Originally Written for Privacy, Freedom and Security Program At Evergreen State College Spring 2004

– 1- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

The Straight Dope, an Introduction

Laws maintain that employment in the private sector is “at-will” meaning employers may fire employees whenever they choose without reason. In the public sector, workers are afforded somewhat more privacy under the Fourth Amendment prohibiting unreasonable search and seizure, and under the Fifth Amendment that protects against self-incrimination while ensuring due process. Certainly collective bargaining on the private side, and discrimination laws in both arenas mean to protect workers from undue harassment. However, due to the difficulty in determining a universally applicable standard of “what is reasonable,” especially on balance with social safety concerns, most any employee may be subjected to analysis for illicit drugs at the employer’s whim. Indeed, employers conduct about 45 million drug tests each year,i despite conflicting reports of effectiveness and degrees of privacy which vary from state to state, court to court.

While most people feel that workers in immediate control of public safety (bus drivers, airline pilots, nuclear technicians) should be sober and clear whilst working, the wide-spread of use of drug testing in non-safety sensitive vocations presents a conflict. On one hand, the possibility of advances in workplace safety and efficiency, while on the other hand, the acceptable level of intrusion into an employee’s most personal details.

To find the fulcrum in this conundrum, I seek to identify the privacy issues surrounding work-related drug testing and resultant ramifications (both positive and negative) to employers, employees and the public at large.

To do so, this report will reference noteworthy Executive Orders, Federal legislation and relevant Court rulings to address workplace drug testing as a privacy issue. Additionally, I’ll examine workplace studies to answer questions such as: What are the workplace environment advantages or disadvantages or maintaining a “drug free” workplace? What substances (legal or illegal) actually adversely affect workplace performance?

Additionally, using and relevant anecdotal and personal experiences, I’ll address practical situations which employees and employers face when drug testing actually occurs. What are procedures for actually ‘performing the test’? Who is required to submit? Who can refuse? What can happen? What can employers and employees do to mitigate the risk? What can past-employers say to inquiries about employee drug test results?

I’ll review the processes and procedures for conduct drug tests, methods to cheat tests and find the economic beneficiaries from the drug testing industry. Finally, I’ll suggest alternative solutions and strategies for achieving the same stated goals of increased workplace and public safety.

– 2- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Up To Here, The Origins of Workplace Drug Testing

Since 1986 when the Federal government began testing employees for drugs, thirty-two states have enacted varying drug testing statutes of some kind. While some states’ laws seek to protect employees from unwarranted testing, others seek to encourage employers to conduct tests. This, among other problems, causes confusion for employees and employers who operate in multiple jurisdictions.

For example, California courts determine if a test is permitted by balancing the employer’s business need against the employee’s right to privacy outlined in the state constitutionii and rule in favor of the most compelling interest. California courts also ruled that asking applicants to disclose prescription drug use prior to the test was illegal under the American with Disabilities Act. In New York, employers may not refuse to hire or fire based on use of alcohol or prescription drug use off the job.iii

Though the Supreme Court has never specifically ruled on the legality of random workplace drug testing, prior to 1986, U.S. Courts maintained a record of striking down mass drug testing programs as unreasonable searches and seizures. Particularly poignant is the 1973 ruling by the U.S. Ninth Circuit Court in U.S. v. Davis that addressed the argument that by disclosing the existence of required testing lowers the expectation of privacy. This thinking would leave public sector employees at the mercy of giving up their Constitutional rights to gain employment. The court decided that, “The government could not avoid the restrictions of the Fourth Amendment by notifying the public that all telephone lines will be tapped, or that all homes will be searched.” Additionally, the court put forth that, “If a blanket search program has little or no effectiveness, it is in substance merely a kind of harassment, a show of power, or a ‘fishing expedition’, and therefore, per se, unreasonable under the Fourth Amendment.”iv

Specifically, in Lovvorn v. City of Chattanooga, the US District Court of Tennessee ruled against the mass testing of fire fighters without individualized “reasonable suspicion” despite arguments from prosecutors that firefighters have less presumption of privacy since they live in the same quarters and use common restroom facilities. A similar conclusion was reached in a 1985 case (Odehiem v. Rutherford Regional School District) dealing with a policy requiring students to submit urine samples as a part of a routine physical. The New Jersey Supreme Court pointed out that 28 of 520 who tested positive did not represent a justifiable reason to test all students.v

In 1986, former President Ronald Reagan (b. 1911, d. 2004) signed Executive Order 12564 entitled, “Drug-free Federal Workplace.” The order which cited “billions of dollars of lost

– 3- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

productivity each year,” a concern for “the well-being of its employees,” and “profits from illegal drug use provide the single greatest source of income for organized crime, fuel violent street crime, and otherwise contribute to the breakdown of our society.” The Order ordered each Executive agency to establish drug-testing programs when there is reasonable suspicion, in the event of an accident or unsafe practice, or as part of follow-up for rehabilitation program. Though the Order also put forth that, “procedures for providing urine specimens must allow individual privacy, unless agency has reason to believe that a particular individual may alter or substitute the specimen to be provided.”vi

In 1988 during the “crack cocaine epidemic,” the 100th Congress enacted the Drug-free Workplace Act. P.L 100-690, Title V, Subtitle D of the omnibus anti-drug legislation required federal grantees and contractors to certify that they maintain a drug-free workplace with the exception of law enforcement agencies in undercover operations.vii

Requirements vary depending in type of organization administering the contract but are mostly governed internally through notices and policies. For example, individuals receiving federal contracts must sign a certification stating, “as a condition of the grant, I will engage in the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance in conducting any activity associated with the grant.”

This law created an explosive new industry for certification associations as well as a boon to the lab testing industry and trade associations for the testing labs themselves. The Drug and Alcohol Testing Industry Association’s web-site cites numerous reasons for certification from their association including, “builds self-esteem,” “offers greater professional recognition from peers,” and provides for greater earnings potential.”viii

In a 1989 case National Employee’s Union v. United States Custom Service the Supreme Court ruled that urine testing is considered search seizure under the Fourth Amendment but not necessarily a violation of such. They established the rather vague gauge of the reasonable expectation of privacy.

In 1989, the Supreme Court upheld the requirement that U.S. Customs agents who carry a gun, participate in drug interdiction operations, or handle classified materials may be tested. Justice Scalia in dissent said that testing Customs employees was an, “immolation of privacy and human dignity in symbolic opposition to drug use” and “this was a “type of search particularly destructive of privacy and offensive to personal dignity.ix”

In a 1995 case, the U.S. Supreme Court ruled that student athletes may be tested, regardless of suspicion, despite only twelve positive tests in four and a half years of blanket testing. Yet

– 4- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

in this ruling, Justice Scalia ruled that students lack many fundamental rights to self- determination and student athletes specifically have a lower expectation of privacy since they shower together and act as role models for the student body. Justice Scalia’s argument seems to ignore that all students generally shower communally in physical education classes, and role models may come from school band, chess club, drama club, or honor societies which are not obligated to test.

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Privacy Issues and Conundrums

Drug testing relies on a compliant workforce to submit to the testing. Indeed, the economic motivator is sufficient to compel most workers to test despite personal misgivings and widespread chagrin such is outlined in activist writer Abbie Hoffman’s book “Steal this Urine Test.”

Though employers maintain that “if you don’t have anything to hide, then you why do you resist” tests regularly cause casual (or causal) users to attempt to deceive tests to maintain their livelihood. This creates an industry of both drug testers (including test kit makers and laboratories and hospitals specializing in testing) as well as carpet-bagger companies marketing all sorts of snake-oil remedies for beating tests.

Indeed a look through so-called counter-culture magazines reveals an increasing assortment of sophisticated of test beaters from “guaranteed” powdered drinks to fake penises to fill with dehydrated urine (one advertises that all urine is taken from a bible study group). Additionally, anecdotal home remedies abound from loading up on the herb goldenseal and vitamins, to drinking copious amounts of white vinegar, to putting Drano crystals under fingernails to pollute the test.

Regardless of the method used to conduct or defraud the test, the fundamental privacy issues at stake remain the same and can be divided into internal issues (those to do with things inside the body) and external issues (those to do with the surrounding context of the test).

‘Internal intrusion’ issues start with the questions: What exactly are they testing for? And what else are they finding out? Examples of ethically inappropriate, but not necessarily illegal, findings could include a number of characteristics that employers may wish to avoid for a variety of reasons. This list includes: – Pregnancy (in Washington DC, the police admitted that they routinely tested all female

applicants’ urine collected for drug tests for pregnancy without knowledge or consentx); – Use addictive but legal prescription painkillers (e.g.: oxycontin), habitually abused

tranquilizers (e.g.: valium), or anti-depressant drugs (e.g.: prozac); – Details on genetic makeup (i.e.: tendencies towards illnesses that could affect health

insurance premiums).

Additionally, within this internal context, legally protected discrimination issues arise as the ADA maintains that alcoholism and drug addictions are diseases and employees cannot be discriminated if they are dealing with such an affliction.xi An example is methadone a drug commonly prescribed as a treatment drug for heroin addicts. Certainly the presence of such

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chemical would indicate a past (or present) narcotic problem, certainly limiting a recovering addicts employment chances.

‘External intrusion’ issues begin with the embarrassment of authoritative observation of one’s ‘private’ parts which most humans (naturalists not withstanding) feel much more comfortable keeping concealed. Certainly since childhood, the personal act of urination is one performed with the door closed and in some cases can only be done in private. Medically recognized conditions such as ‘shy bladder’ syndrome, medically called paruresis, may cause an employee to be physically or psychologically unable to perform a urine test causing a violation in an employer’s policy.xii

A recent example of this situation involves an employee who was terminated after being unable to urinate, even after drinking a substantial amount of water. With the threat of termination for non-compliance with the test, the employee paid for and passed a more hair- based test (generally considered more accurate). Yet the company would not accept the result and fired the employee who is now suing for wrongful dismissal under the ADA. The company in question put forth through a spokesperson that, “We believe that our drug testing policy does not violate the Americans with Disabilities Act, and we intend to defend against the allegations.”xiii

Besides the observation is the handling of test results which may pass through many hands, including hospital and lab staff, compromising integrity and confidentiality especially in a small community. Further, results or rumors may be inappropriately distributed amongst company or industry causing damage to professional and personal reputation. Anecdotally, while in a hospital waiting room, I overheard the loud conversational voice of the receptionist check in no less than eight people coming in for pre-employment urinalysis and chatting about other people who had been in recently to test. While the employee’s intent was (likely) not malicious, one does not need to project very far to imagine such irresponsible coffee room chatter about results.

– 7- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Effectiveness of Drug Testing Programs

Results of scientific studies regarding drug testing and increased workplace safety, absenteeism and performance vary greatly. One research study lists accidents among bus drivers reduced while another shows higher drug use among employed people versus unemployed people. Other studies show increased alcohol abuse resulting from drug testing.

An article by Ellen Nakashima in the Detroit News discussing Federal employees protesting random drug tests cited a 1993-98 study by the Health and Human Services Department. Over this six-year period and 257,576 random drug tests, 1,345 people (0.52%) tested positive at cost of over thirty one million dollars (not including administrative costs), or $232,637 per positive test.xiv

As expected, different sides interpret the data differently. The agency’s workplace director purports that the program, “sends a signal to a person who is even thinking of using illegal drugs that they are putting their jobs in jeopardy.”xv

A statistician for the American Management Association points out the absence of a statistical case that screening acts a deterrent mentioning that, despite increase in random tests, rates of positive tests remain constant. As a result of this and the associated lab expenses, more employers are moving towards suspicion and accident based tests, even using undercover operatives to ferret out offenders.

The U.S. Navy boasted to a Senate subcommittee that with the advent of testing, positive results dropped from 48% to 21% over a two year period (1980-82) however the glowing proud Rear Admiral neglected to mention the corresponding increase in alcohol usexvi.

The U.S. Department of Labor puts reinforces this double standard pointing out that “Alcohol is the most widely abused drug among working adults” and is responsible for 86% of costs imposed on businesses by drug abuse. A study by the National Comorbidity Survey points out that about 9% of marijuana smokers meet the American Psychiatric Association criteria for “Substance dependence” while the figure jumps to 15% for alcohol.xvii

The argument of whether “users of illegal drugs make less productive workers” is inconclusive since topical studies are subject to faulty science, small test populations, and malleable statistics.

In a 1990 New Republic article writer John Horgan discussed J. Michael Walsh’s scientific procedures, (Walsh is the director of National Institute of Drug Abuse’s whose findings form

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the basis of Federal drug enforcement policy). Horgan suggests that Walsh’s zero-tolerance line “doesn’t discriminate between use and abuse, between a secretary smoking marijuana on weekends and an AIDS-ridden prostitute smoking $100 worth of crack a day.”xviii

Indeed studies which lump illicit substances together as though the societal costs were equal begs the question of: What is the point behind testing at all? Walsh hints at the reasoning when he puts forth that, “I think we have reached the point where the involvement of marijuana in accidents exceeds that of alcohol.” Where is the proof in this dramatic statement Horgan asks? Walsh doesn’t have any but says, “it’s one of the things in my research program we’re trying to prove right now.”xix

– 9- © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Fill the Cup – Testing Processes and Procedures

While beyond the scope of this paper to extensively detail, it is worthwhile to briefly outline the types of testing and the procedures involved in provided sample to better understand the level of intrusion associated with any kind of test and the associated risks.

The types of samples obtained for testing are: Urine – the most common and hence the least expensive, detects past use of drugs but not current intoxication; Blood – can detect current intoxication but not past use, drawing blood is uncomfortable for may people and requires training to handle draw and handle sample; Hair – newer technology which proponents suggest is most accurate and can be read like timeline, others argue the test is bias against dark-haired people and inaccurate for marijuana use; Saliva and sweat patch – least sensitive and can only measure for a few hours after use.xx

Specifically addressing urinalysis, depending on the stringentness of the tests, the routine varies in the degree of invasiveness. In general, the testee is obliged to pee in a controlled area under some degree of observation. In some cases, the tester watches the actual genitalia, in others cases, the merely stands next to, or a stall and monitors for unusual behavior.

In some cases, the testee changes into a hospital gown to prevent concealment of a bladder (a technique detailed in Hoffman’s aforementioned book) while in other situations, testees are simply patted. In most all cases the subject must vigorously wash hands and arms and remove wristwatch to prevent fouling the tests with a foreign substance. The toilet bowl is usually colored with a dye agent to prevent the testee from watering down the sample. In other cases, an empty pail is used to catch excess sample urine.

When labs use proper care and sophisticated tests, false positives are increasing rare. This however is not always the case as drug test kits are available for purchase by anyone at prices starting at about ten dollars (incidentally some online brokers sell both the drug kits and drug test cheat kits). In these instances, a variety of substances can trigger false positives.

“Even a 99% accurate test produces one false positive result out of 100 people tested. Given that more that 30 million Americans were tested last year, this means 300,000 false results were delivered!”xxi

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In addition to substance related false positives, numerous human means of human error can create an unscientific result. Potential human errors include mislabeling, mixing up samples, tampering, mixed up paperwork, unclean sample jars and improper lab work.

The professional (read: expensive) routine is to first use an “immunoassay test” and confirm positive results with a more accurate “gas chromatograph mass spectrometer test” measuring metabolites.xxii Advanced labs will also use “split samples” allowing an extra portion to retest if results are inconclusive or contested. An employee may want to request a split sample to be re-tested by another lab depending on result.

In less accurate tests, false positive are obtained with otherwise benign substances like poppy seeds (heroin), hemp oil products and over-the-counter drugs like ibuprofen (marijuana), cold remedies and allergy medication (amphetamines). Plus, numerous prescription drugs (which you may be requested to disclose beforehand) may cause interaction with the tests. Various medicated shampoos (for dandruff) have produced false positives in hair tests.

It is worth noting the confusion over which are ‘bad drugs, e.g.: medical marijuana is recognized in thirteen states yet not on a Federal level preventing an established prescription routine. Drug test timeframes vary by drug – i.e.: alcohol (hours), meth-amphetamine & cocaine (days) marijuana (weeks), LSD (years) creating an uneven playing field. Showing ironically, substances with high risk of habitual abuse often stay in system for a shorter period than those with less habit-forming characteristics.

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Drug Testing Situations and Scenarios

To test or not to test, that is the question. While companies have the legal ability to institute a drug-testing program, before doing so, the company should clearly define what the ‘big picture’ of testing is. In other words, what is the company trying to prevent or produce by instituting a drug testing policy?

Many companies rely on outside contractors and labs to administrate and enact policies however a policy customized to the needs and culture of the company is a worthy consideration.

Some of the reasons a company may wish to institute a program include:

• Creates a public marketplace impression of being a ‘clean’ workplace; • Ability to discover medical data beyond drug use about employees or applicants; • Deters habitual users who would otherwise apply because other companies are testing; • Qualify for Federal contracts by being a ‘certified clean workplace’; • Appeases shareholders’ who think drug testing is the industry norm and protects assets; • May reduce on job injuries and workplace accidents; • May reduce absenteeism and/or increase efficiency; • Way to ‘weed out’ undesirable workers by singling out for testing; • May reduce overall group medical insurance costs; • Limits liability in event of accident of illegal behavior.

Notable reasons for companies not to test include:

• Expensive to test all applicants (the higher the quality the test, the more expensive); • Lose out on creative and ‘libertarian-minded’ workers who use soft drugs casually; • Doesn’t eliminate alcohol use/abuse on or off the job (most abused drug in the

workplace); • Doesn’t address tobacco use (largest drain on medical insurance costs); • May create contentious relationship with workers if the policy is non-reciprocal or

penalized differently compared with managers; • False sense of security (workplace efficiency and safety not necessarily reduced); • Risk of unlawful dismissal lawsuits – even when settled, may be expensive and distracting

to fight.

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Any company deciding to institute a drug testing policy should establish a specific policy reflecting the goals of the individual company’s program and prepare contingencies for positive tests and challenges.

In brief, the policy should address:

1) 2) 3) 4) 5) 6) 7) 8)

9) 10)

Are the workplace safety reasons compelling enough to warrant testing? Are there collective bargaining agreement related issues with union workers? Who will be tested and under what circumstances? How does the company change the policy or make exceptions or exemptions (if any)? What substances will be tested for and what are the reasons for testing for each? Who will administrate the program and who will supervise the program administrator? What lab will perform the tests and what are their accreditations and exact procedures? What processes will be triggered in the event of a “positive” test? (i.e.: second test with split sample to a different lab; suspension with/out pay; counseling/treatment option) What are the employee grievance and dispute resolution procedures? Who will counsel the company in the event of a challenge or legal proceeding?

In general, situations in which drug tests are administered can be divided into three categories: Pre-employment, Random on-going and Incident (on demand) testing.

Pre-Employment Testing

While drug testing is (at least to some degree) intrusive to one’s privacy, most job seekers are resigned to offering bodily fluids and agree to the testing for personal chemicals in the hopes of employment but without any guarantee of wage compensation.

Because (as mentioned earlier) hiring an employee is an “at-will” decision by an employer, companies may obligate most any kind of testing by voluntary job applicants. Since a majority of employers require pre-employment drug screening, prudent workers must understand the ramifications and processes of testing.

Besides the physical intrusion of being watched as you pee, the applicant’s employment chances are also dependent on somewhat faulty science. Because of the expense of drug tests, pre-employment tests tend to be of a lower quality and more susceptible to false positives. This could result in bad news for someone who unwittingly uses a legal product, which is an indicator of illegal drug use.

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A responsible (and ethical) company choosing to test applicants should advertise the policy to prospective employees, including details of the test and results of a ‘dirty’ test.

The applicant, in most cases, does not receive the results of the test, as the employer owns the results of the employee’s chemistry. However, with these results, and the applicant’s blanket approval, the employer can find out all manner of information about a potential employee.

Aside from totally abstaining from any illegal drug use and/or abstaining long enough for any trace of illegal drugs to leave the body system, applicants who do not wish to submit to a pre- employment drug screening test have a scant few options, though none well-suited to securing employment.

1) Choose not to do the test and take their labor elsewhere; 2) Choose to not test and suggest working as a freelance or contractor.

Option two is increasingly common, particularly in the high-tech industry where capable programmers and specialized technicians are increasing valuable and such employees are generally not in a position to affect co-workers’ safety. Two recent examples using this approach suggest there are ways to protect one’s privacy while successfully gaining work.

In both cases, after successfully completing the application and interview process, the applicants were offered jobs, one as an Internet technician for a telecommunications company,xxiii and another with an international microchip manufacturer.xxiv The employment offers were contingent on a passing a urine analysis drug test. In both cases, the applicants declined the test at the risk of losing the job offer because they recreationally used cannabis.

As for resolution, the microchip manufacturer offered the applicant the same work but to be performed as a contract worker (incidentally at a higher hourly rate and with more independence).

In the instance of the Telecommunications Company, the applicant spoke honestly with the employer and told that he smoked marijuana and he would not smoke at work. The employer was understanding and arranged for the applicant to work through a third-party temporary- staffing agency in order to circumvent their blanket policy of screening all new hires.

Both employees are still working under these auspices however this scenario is not ultimately desirable in all situations since employee may not enjoy the same insurance coverage and other benefits as drug test compliant employees.

– 14 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing

Random Testing Employers may conduct random testing with minimal recourse with established policy. Such a policy should outlines the terms of randomness including who is included in the ‘testing pool’. A random drug testing policy may be a successful deterrent to drug use by employees and is commonly used to such an end. A fair program should include all employees including management to foster a cooperative attitude to the testing program. Indeed random testing forms the basis of many programs including the military, commercial transportation operators covered by the Omnibus Act and professional or amateur athletes.

Anecdotal findings show that a “modified random” program is sometimes chosen to weight the test somewhat. In this scenario, employees may know a ballpark date range in which they are likely to be tested, or in some cases, they are told weeks in advance allowing time to ‘clean up’ if needed. In a similar vein, an employee’s name may be removed from the list after being chosen once or twice over a certain period of time.

In most cases though, the employee is notified at work and instructed to proceed directly to a lab for testing. In an anecdotal situation, a professional scuba diver was radio-ed in to shore from a vessel in the harbor to take a test. He went to the test in wearing his wetsuit, which incidentally kept a concealed condom of clean urine (at an appropriate temperature) which he obtained from his girlfriend.xxv

If you choose to submit to testing and wish to pass despite use of illicit drugs, other last resort options include:

1) 2) 3)

Prepare to ‘cheat’ the test using one of many and “cross your fingers”; Declare use of several false positive indicators to make the test inconclusive: Use the “second hand smoke” or “unwitting ingestion” defense.

Incident-based Testing Employer’s drug testing policy may request a test after an accident or based on ‘suspicious activity’ but test are the most legally volatile with the greatest risk of repercussions to both sides. To prevent costly civil lawsuits, must balance employee’s reasonable expectation of privacy vs. compelling safety reasons. Additionally, such tests are often based subjective observations and/or unknown accusers who may have a personal agenda for implicating someone for testing. With this in mind, tests requested due to specific incidents should be approached with extreme care.

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First, the employee should carefully the company’s review policy to see if the incident qualifies under the guidelines. Document all events surrounding the incident for the record and determine if there is a reasonable remedy in the established policy.

Second, if ‘dirty’ test results may result in significant punitive measures (i.e.: loss of job, negligence lawsuit), the employee should consult an attorney or union representative for advice and advocacy. Competent advice will ensure full knowledge of the possible ramifications from any test outcome allowing for clear decision making.

Third, if the company’s chosen lab’s procedures are unclear, or the lab offers any reason to doubt their strident professionalism, the employee should request either a split sample to be tested elsewhere or purchase their own test at another lab facility. This will allow the employee to mount a more strident defense in the face of faulty lab work.

An example of an incident based testing occurred when an Internet marketing executive was summoned to a Vice-president’s office for a hastily called meeting with a Human Resources director.xxvi In the meeting, the employee was informed of “accusations from the community” that the employee was smoking marijuana at a company sponsored golf tournament three months previous. Despite recent commendations for exceptional work, and five-plus years of work, the employee was instructed to take a drug test or face termination as per the company policy.

The employee took the lab paperwork and requested administrative leave to review the situation. After reviewing the company’s policy for aberrations and consulting an attorney, the employee refused to take the test. In a letter written to the Vice-president, the employee cited policy-based reasons for refusing the test.

Specifically the reasons cited were: 1) The policy included drugs and alcohol yet complimentary beer and liquor was widely

available (and encouraged) at the event; 2) The policy stated that only employees needing access to secure and sensitive areas

needed to be tested yet this employee had no such access; 3) There had been no vehicle accident or workplace injury which would have required a test,

and; 4) The results of the test would not prove or disprove the allegations of marijuana use three

months prior.

After reviewing the matter with corporate counsel, the company did not terminate the employee. However, the company but cast assumption guilt in stating, “Your refusal creates a

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concern for us that the allegation is in fact true.” The company also offered dependency counseling and reminded the employee of the employer’s right to terminate without reason at any time. The employer also saw fit to include the reprimand in the employee’s permanent record. While irritating, the contents of such a record could in no circumstances be revealed to anyone outside of the company, particularly to another future employer verifying past employment or inquiring about workplace performance.

In a similar example that resulted in a firing and subsequent lawsuit, a manager alleged an employee as appearing to be “acting unlike herself.” He said she was slumping, avoiding eye contact, slurring speech, and possibly suffering from “female problems.” She was asked if she was under the influence of alcohol or prescription drugs. When she denied such use, the manager sent her to go take a UA at a lab over an hour drive away. She refused (stating she had never sued drugs in her life) and was fired. In court, she refuted the manger’s account of events and contended an ulterior motive was involved (based on her protesting an overtime policy at a recent staff meeting). She prevailed in her suit for invasion of privacy and wrongful termination in violation of public policy as the drug test was judged to be pre-textual rather than based on objective individual suspicion.xxvii

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Moving Forward – Conclusions and Strategies

After reviewing the numerous issues and considering alternatives, I offer a few harm reduction points strategies to consider for both employees and employers.

First, drug use in general is not going to go away. Thus, accurate scientific distinctions should be made between drugs less harmful drugs from more harmful substances (i.e. marijuana vs. meth-amphetamine). Further, a scientific distinction needs to be made between “use” and “abuse.”

Second, society should be so lucky to have chronic drug abusers seeking work rather than relying on crime, and draining criminal justice systems and social welfare programs. Effectively barring them from work through testing further marginalizes addicts.

Third, honesty and disclosure is a better policy for fostering a safe and clean workplace. If employees can reveal off-work drug habits without risk of termination so such employees can be placed in non-safety sensitive jobs. Employees should be judged by observation of workplace aptitude and performance and fired if inadequate.

Fourth, if studies can show that drug users are medially more expensive, employees can be offered incentives to test clean rather than punishment for testing dirty (i.e. reduced health insurance premiums).

Fifth, when testing is desirous in a workplace, employers should exercise utmost care and study to introduce a policy which respects employees privacy by outlining terms and objectives of the test including sharing the results and offering alternative solutions besides firing such as counseling, treatment and reassignment.

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Endnotes

i “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Cited from CNN.com May 20, 2004. ii “Understanding the Laws of Drug Testing” Jane Howard-Martin / USA Today 12/19/02, Referenced from

http://usatoday.com on 4/20/2004. iii “Keeping it Legal is the Key to Success” – Buddy T. from About.com Alcoholism and Substance Abuse

section.

iv U.S. v. Davis, 1973 Cited from “Drug Testing at Work: A guide for Employers and Employees” Beverly Potter and J. Sebastian Orfali, 1990.

v “A Look At The Historical Legal Basis For Urine Testing” Paul Armentano, Donna Shea, 3/19/03. Referenced from National Organization Reform Marijuana Laws www.norml.org 4/20/04.

vi U.S. National Archives & Records Administration – “Executive Order 12564 – Drug-free Federal Workplace” Ronald Reagan Sept. 15, 1996. Cited from www.arhives.gov.

vii “Section D – Drug Free Workplace Act of 1988” Laws of 100th Congress – 2nd Session, Nov. 18 1988. viii “DATIA’s Stamp of Approval: Top Ten Reasons to Seek Certification” Drug and Alcohol Testing Industry

Association website. www.datia.org. ix “Urine – or You’re Out” Jacob Sullum 11/02, Reason online http://reason.com/0211/fe.js.urine.shtml

4/20/2004. x “Workplace Drug Testing” ACLU brochure in Privacy in America series.

xi “Keeping it Legal is the Key to Success” – Buddy T. from About.com, Alcoholism and Substance Abuse section.

xii “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Cited from CNN.com May 20, 2004.

xiii “Lawsuit Claims Shy Bladder Got Man Fired” Associated Press. Linda Fairbanks, spokesperson for “Caterpillar” cited from CNN.com May 20, 2004.

xiv Health and Human Services department data from fiscal 1993-98. Cited from “Government Employees Protest Drug Testing Policy” by Ellen Nakashima, The Detroit News, June 2, 2001.

xv Robert Stephenson, Director of the Division on Workplace Programs, Health and Human Services’ Center for Substance Abuse Prevention. Cited from “Government Employees Protest Drug Testing Policy” by Ellen Nakashima, The Detroit News, June 2, 2001.

xvi “Drug Testing at Work: A guide for Employers and Employees” Beverly Potter and J. Sebastian Orfali, 1990.

xvii “Urine – or You’re Out” Jacob Sullum 11/02, Reason online http://reason.com/0211/fe.js.urine.shtml referenced 4/20/2004.

xviii “Your Analysis is Faulty (How to lie with drug statistics)” John Horgan, New Republic 4/2/90. Referenced from The National Organization for the Reform of Marijuana Laws (NORML) www.norml.org 4/20/04.

xix “Your Analysis is Faulty (How to lie with drug statistics)” John Horgan, New Republic 4/2/90. Referenced from The National Organization for the Reform of Marijuana Laws (NORML) www.norml.org 4/20/04.

xx “Feds To Overhaul Employee Drug Testing Standards” News article from NORML.org, 1/15/2004. xxi “Policy Paper on Workplace Drug Testing” by the Marijuana Reform Party of New York, 2/7/03.

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xxii “Dealing With Urinalysis on Short Notice” California NORML Publication; updated 03/97, Referenced from NORML www.norml.org 4/20/04.

xxiii Dave Olson personal experience regarding David T. in Olympia, WA USA 2004.

xxiv Dave Olson personal experience regarding Keith Y. in Olympia, WA USA 2004.

xxv Dave Olson personal experience regarding Eugene M. in Guam, Micronesia USA 1994.

xxvi Dave Olson personal experience and letters regarding self in Olympia, WA and Advanced TelCom Group of Santa Rosa CA in 2000. Thanks to Attorney Ken Friedman of Tacoma, WA.

xxvii “Employee wins for firing after refusing drug test” 7/1997 Article from www.FairMeasures.com, referenced on April 20, 2004.

Other Bibliographical notes

• • • •

Advertisements for commercial drug testing products and products designed to thwart drug tests Courttv.com, Legal Café Q&A on Employee privacy rights Drug-free workplace manifest from www.ncsu.edu Various company’s drug testing policies

– 20 – © Dave Olson 2004-5, Privacy Issues in Workplace Drug Testing


Vancouver park board approves Olympic RV parks despite residents’ objections | Vancouver, Canada | Straight.com

Vancouver park board approves Olympic RV parks despite residents’ objections | Vancouver, Canada | Straight.com

London Skypeing – DaveO on the BBC spieling forth about Olympics and Social Media

I am on the BBC Radio 5 show called “Blogs and Pods”  spieling forth about renegade media and Olympics.

I spoke to Jamillah via Skype last week – the show aired on BBC radio on Sunday and released as a podcast Monday, Dec. 8th.

NOTE: accessed from Internet Archive’s Wayback Machine, February 2017

The food, wine, opera and sport edition

This week: the campaign for the 2010 Winter Olympics in Vancouver to be more open to citizen journalists; the politics of festive food; wine online and a bit of opera to round it all off.

The podcast is poised and waiting for you to listen up! If there was something in the show that you missed and a link would come in handy – they’re all right here for you:

Should citizen journalists have full press access to Olympic events? Dave Olsen, community evangelist of Rain City Studios in Canada thinks so and explains why.

Here’s how to tune in:

Podfeed: http://feeds.feedburner.com/PodsAndBlogs

Show Site: http://www.bbc.co.uk/blogs/podsandblogs/

Subscribe via iTunes: itpc://downloads.bbc.co.uk/podcasts/fivelive/pods/rss.xml

Twitter: http://twitter.com/podsandblogs

Ian Mulgrew of the Vancouver Sun writes about the Emerging Medical Cannabis Economy

This is simply too important of an article to not spread around. Ian Mulgrew of the Vancouver Sun is the only MSM journalist in Vancouver who really speaks out sensibly and professionally about the pragmatic economics and realistic public policy options about cannabis in BC and Canada.

Thanks Ian for excellent work (PS Would you like to be a guest on a Choogle on podcast?)

Copied from the Vancouver Sun article: A bright green spot in the economy

A bright green spot in the economy

With courts striking down the government’s monopoly on supplying medical marijuana, private growers are clamouring to capitalize on pot’s commercial potential

Ian Mulgrew
Vancouver Sun

Saturday, November 15, 2008

Photo: Various types of marijuana are offered by former NDP candidate Dana Larsen at his marijuana dispensary on East Hastings Street. He says the medical pot market is about to expand.CREDIT: Bill Keay, Vancouver Sun “Various types of marijuana are offered by former NDP candidate Dana Larsen at his marijuana dispensary on East Hastings Street. He says the medical pot market is about to expand.”

DUNCAN – Eric Nash can barely contain his excitement waiting to hear from Health Canada whether he can start growing marijuana for 250 patients.

That would be just the start. There are tens of thousands more who are ailing across the country clamouring for his organic B.C. bud.

“There is a great opportunity here for the government to collect significant tax revenue currently being lost to the street market,” Nash, one of the best-known legal cannabis producers, enthused.

“With the current global financial crisis, this court ruling is certainly a bright light in dark economic times. We’re just waiting for clarification. I figure our production would increase significantly from several pounds to 150 pounds or more immediately.”

Now that the Federal Court of Appeal has struck down the government’s monopoly on supplying medical marijuana, Nash believes commercial agricultural production of pot is around the corner and the sky’s the limit.

His local company, Island Harvest, has cleared the industrial security regulatory hurdles so the company meets the standards set by Ottawa to grow the much-demonized plant.

“Our vision is to have a sustainable commercial agriculture operation,” he said. “There’s no reason we can’t achieve that. Look at the number of compassion clubs, look at the number of people using marijuana to relieve a headache or pre-menstrual cramps!”

More and more research is supporting previous anecdotal evidence that cannabis may have a wide range of therapeutic uses from the treatment of Alzheimer’s, depression, glaucoma, epilepsy and cancer to HIV/AIDS, hepatitis and ADD/ADHD. Its most ardent promoters say cannabis may be an addition to the modern pharmacopeia that rivals Aspirin in the breadth of its applications.

It doesn’t take a genius to realize the potential profits are staggering.

Until now, the government’s poorly administered medical program has artificially depressed that market by making it difficult for patients to qualify, supplied what many consider poor-quality marijuana and imposed an arbitrary restriction on qualified licensed growers to supplying only two patients.

Doctors, too, have exacerbated the situation with their reluctance to prescribe marijuana, claiming they have no guide on dosage or the usual pharmaceutical medical studies to rely on. That is changing, slowly.

Nash explained there have been three relatively recent, serious analyses of the medical marijuana market, which give an idea of its scope and potential.

The Canadian Medical Association Journal did a survey in 2000 and estimated the number of self-medicating marijuana patients to be 1.9 per cent of the population; a Price Waterhouse report prepared for Health Canada two years later concluded it was more like four per cent of the population, and a report in 2004 by a member of the federal government’s advisory committee on pot suggested the reality was closer to seven per cent.

(Health Canada, after eight years, has issued roughly 2,500 exemption permits to needy patients.)

Regardless, Nash said, based on the four-per-cent model, that puts sales at more than $400 million annually.

More optimistic projections say the medical market, including ancillary products such as vaporizers and paraphernalia, could be as high as $20 billion.

Add it up: The government sells maybe $1 million a year worth of the pot produced in a Manitoba mine, and compassion clubs across the country sell about $10 million worth of cannabis products.

By far the vast majority of patients who need marijuana as a medicine continue to buy their drugs from the black market. It’s a crazy situation: imagine if diabetics had to go to a corner dealer to score insulin.

That’s one of the fundamental reasons behind the court ruling Oct. 27: the medical marijuana program set up by Ottawa at the turn of the millennium isn’t working.

The government adopted the Medical Marijuana Access Regulations (MMAR) and accompanying bureaucracy in 2001. It has modified it since then in the face of judicial warnings that it was constitutionally inadequate, but it still can’t pass muster.

The courts find that offensive.

This new judgment heralds a tectonic shift in the country’s medical-marijuana regulatory regime and perhaps even the drug laws. It may even invalidate the cannabis prohibition.

Two B.C. Supreme Court justices sitting on separate cases (one about simple possession, the other production and trafficking) are currently seized with that question.

If they agree that because a section of medical program is unconstitutional the criminal law cannot be enforced, it would also mark the triumph of a Trojan horse strategy by cannabis activists to achieve legalization by expanding medical access.

Just as liquor was once obtained via prescription, cannabis could be regulated in a similar fashion, obviating the need for a criminal prohibition.

No matter how you look at it, the federal court decision promises an economic boon immediately for the hundreds of legal cannabis producers and increased opportunity for many others.

Nash said it was good news for both the consumer and producer.

The former government communications worker and his partner, Wendy Little, have been growing since 2002 and proselytizing longer than that. Their book Sell Marijuana Legally is a huge hit; they created an online users’ group for patients and growers, and they teach courses.

But medical growers across the country have been restricted, a policy that results in a huge gift of revenue to organized crime.

B.C. BUD’S STAGGERING NUMBERS

Stephen Easton, an economist at Simon Fraser University and with the Fraser Institute, has done the most respected work on the size of the domestic pot industry.

He sat down earlier this year in Denny’s with one of B.C.’s biggest dealers and went over his numbers.

“He figured it out differently than I did, using lights and ballasts,” Easton said. “But he worked out the numbers with me and it all worked out. He told me it was very close. He was quite surprised. I was very happy about that. We had a really good talk. He was really helpful for me.”

Since Easton’s original estimates, the domestic marijuana market has undergone some changes, but nothing cataclysmic.

“The fluctuations in the dollar are the main economic factor,” he said. “It has gone up and down and that pushes these guys.”

For most of the last few years, the most significant factor has been the various improvements in border security triggered by the 9/11 terrorist strikes.

In the 1990s and even throughout the early part of this decade, tons and tons of Canadian marijuana flooded into the U.S. market carried by anyone with moxy and a decent plan.

People were backpacking across with as much weed as they could carry in the Interior, or kayaking across with a stash of bud worth as much as emeralds.

Between 1990 and 2000, the Canadian pot market doubled in size fuelled primarily by the increased hydroponic production of B.C. bud.

Nationally, we apparently spent $1.8 billion toking up — just shy of the $2.3 billion we burned on tobacco.

By 2006, when he did his calculations, Easton said the numbers indicated a provincial wholesale market of $2.2 billion. You could increase that to $7.7 billion retail if consumers paid top dollar for their bud.

That dwarfed any other B.C. agricultural product.

The result on the street was easy to see: a proliferation of gangs duly documented by the RCMP, as every crook plucked what Easton called “the low-hanging fruit.”

The tightening of the border has had several effects.

Not just everyone can take it across now, with underground sensors, heightened air traffic scrutiny and the deployment of the military. Smuggling now is more the purview of the very organized and the very desperate.

At the same time, U.S. authorities have charted the rise of their own domestic production as American states relaxed enforcement and sentencing — the opposite of the 1980s and 1990s when their stiff attitude drove marijuana growers north.

In California alone, Berkeley, Santa Barbara, Santa Cruz, Santa Monica and San Francisco all have officially told police to make marijuana offences their lowest priority.

EVOLVING PRODUCTION

Pot production in California rivals Canada’s total output.

Similar initiatives have been adopted in other states and cities such as Seattle, Denver and even Missoula, Mont.

With the north-south route to market more problematic, more B.C. bud has moved east to feed eastern appetites or find a less monitored area of the border before turning south. The Mounties have responded by increasing surveillance along the Trans-Canada on the Prairies, resulting in large seizures.

By far the biggest factor in the marijuana market in recent years, however, has been the revolution in production — the ease, predictability and most importantly the portability that has come with advances in indoor cultivation that mean great weed can be grown anywhere.

The RCMP have been reporting huge busts in Eastern Canada as production has sprouted in the Maritimes and Ontario, reducing their appetite for West Coast pot.

In Ontario, whose provincial production is said to have surpassed B.C.’s, authorities have uncovered two separate operations each capable of producing $100 million worth of cannabis a year.

B.C. bud ruled in the 1990s when the underground marijuana trade was responsible for keeping afloat many small communities buffeted by resource-market gales.

Our pot even had cachet even up until four or five years ago but these days, be you in Charlottetown or Joe Batt’s Arm, Nfld., you can easily obtain good seeds and fail-safe equipment and within a few months be producing marijuana to rival B.C.’s best.

Nevertheless, Easton explained, when you are looking at a commodity and domestic production, it’s all about the money.

The rise of the dollar in recent years worked against growers and exporters, but its recent fall provides an upward fillip.

“I imagine with all the market turmoil the domestic marijuana industry will pick up a bit,” Easton said. “it’s just had a 15-to-20-per-cent bump in two months.”

Some estimates in the 1990s suggested as much as 50 cents of every dollar generated in some Kootenay towns could be traced directly to pot.

With the international financial tempest wreaking havoc again with commodity prices, B.C. bud may yet help ride out the storm but probably not to the same extent.

“We’ll just have to watch housing prices in Nelson,” Easton laughed.

MEXICO CONSIDERING LEGALIZATION

Sitting in Kitsilano eating breakfast before meeting the city’s police board, former Drug Enforcement Administration agent Celerino Castillo III nodded his head furiously.

“Yes, yes, it’s all about the money,” he said. “The money, it’s all so corrupt.”

Castillo spent 12 years in the USDA infiltrating Manhattan drug rings, destroying jungle cocaine labs and training anti-narcotics agents. The climax of his career was pulling the curtain back on drug-smuggling by the Nicaraguan Contras with links to Lt.-Col. Oliver North and the CIA.

From the Amazon to the slums of Mexico City to the ghettos of America, Castillo has had a front-row seat on the western hemisphere’s drug world and come to the conclusion it’s time to abandon our current approach.

Mexico is again considering legalization because of the violence and social upheaval caused by illicit drug trafficking, and Canada should be headed down the same path, he says. So should South America and, of course, the U.S.

The money is too corrosive.

“The corruption is everywhere — every month we arrest a law enforcement official, every month,” he insisted, “whether it’s a border patrol agent or a customs agent or a DEA agent or an FBI agent. We arrest a law enforcement officer once a month, It’s huge. The amount of money is just so big. ‘I have a mortgage to pay, I have to send my kids to college.’ That’s always the excuse.”

He shakes his head.

He explained that in his state, drug couriers once arrived with suitcases of cash to deposit in local banks: “Now they buy the banks. Especially now with this upheaval. Who else has the ready cash?”

He laughed.

“But that’s actually how they’re money-laundering today — they buy a bank,” Castillo added. “There’s no way we can keep up.”

In retirement, Castillo has become a featured speaker for Law Enforcement Against Prohibition, an association of former police, corrections and judicial officers who want to change drug policy.

“There’s more production, more product and more of everything than there ever was. The war on drugs doesn’t work,” he said.

“All I’m hoping for is people to start to listen and educate themselves about what’s going on in the world,” he said. “I know first-hand. I’ve seen it from an agent’s point of view.

“It’s affecting and destroying a lot of families. For 40 years we’ve been trying this John Wayne approach and it’s not working. The bottom line: There are a lot more drugs today than we had 40 years ago.”

‘THESE ARE THE DEALING TABLES’

Dana Larsen ushers me into his new marijuana dispensary in the 800 block of East Hastings Street.

The former NDP candidate, who stepped down during the federal election when his recreational drug use was publicized, has renovated the run-down storefront and is promoting a new compassion club.

Like Nash, he thinks the medical pot market is about to expand exponentially and legally.

“There’s no smoking in here,” he said as he showed me around the spartan office. “But there’s a vapour lounge two doors down in the Seed Bank where you can light up after you leave.”

There is a modest reception area and a large back room. It’s clean but unfinished.

“These are the dealing tables,” he said, pointing to a handful of folding tables separated by office screens to provide a measure of privacy.

He laughed.

“I guess I should call them dispensing tables.”

Larsen, who used to be the leader of the B.C. Marijuana Party and Prince of Pot Marc Emery’s lieutenant, thinks the time has come to move into the medical field.

“I think there’s enough of a market in town to support another dispensary,” Larsen said.

“There are more than enough patients who need reliable, quality cannabis products than the current two clubs in the city provide.”

His menu of cannabis products included six strains of dried marijuana, four kinds of hash, two pot products in capsules and double-strength bon-bons — cannabis-infused organic chocolates.

The pot ranged in price from $7.50 a gram for Pine Cross up to $8 a gram for Sweet Tooth; pressed Kif (soft hash made with a sieve) went for $8 a gram; and very potent Bubblehash, which was extracted using water and ice rather than a sieve, went for $25 a gram.

In Oakland, Calif., the private dispensaries that support the state’s medical marijuana program are said to be generating revenues in excess of $70 million a year.

MEDICAL MARIJUANA COULD HELP THE SICK

Michelle Rainey is one of roughly 2,500 Canadians with a licence to possess and use marijuana. She’s also a celebrity in the medical marijuana world and on YouTube.

Rainey has Crohn’s disease and finds her home-grown pot an effective replacement for her previous expensive regimen of pharmaceutical drugs.

She believes the country’s health-care system could save a fortune if there was a working medical marijuana program, and those who could benefit from cannabis could easily shift away from other medications.

The roughly 110,000 Canadians suffering from Crohn’s disease and the 90,000 living with ulcerative colitis, for example, are estimated to spend $162 million a year for prescription drugs.

Many of those people are already benefiting from marijuana, Rainey said, but many, many more could be.

Consider too that many battling cancer and HIV/AIDS find edible cannabis products work to stimulate the appetite, but they’ve got to buy them on the street.

“We have a huge problem with physicians being apprehensive about signing for patients even though the proof is there,” Rainey said.

“Our seniors, for instance, are spending their pensions on big pharma only to end up with more aches and pains when all they may need is a puff or a brownie!”

Rainey has facilitated more than 70 exemptions for local patients, 30 suffering from Crohn’s: “I receive dozens of e-mails from people suffering every day from all over the world who have discovered cannabis alleviates pain and nausea. The government should not be preventing people from getting access to an effective medicine.”

The courts agree.

In its decision, the Federal Court of Appeal did more than simply hand Ottawa a legal loss. It said the government had been knowingly dragging its heels since at least 2003.

As a result, lawyer Kirk Tousaw told B.C. Supreme Court that this decision renders the criminal law invalid based on that history of jurisprudence, which ties enforceability of the criminal law to the existence of a constitutionally adequate medical access scheme.

He said the judgments in Ontario courts and now the federal court mean the state of the law is unclear and therefore criminal sanctions cannot be imposed.

In this latest case — called Sfetkopoulos et al v. Attorney General of Canada — some 27 patients with exemptions to possess marijuana for medicinal use applied to Health Canada for authorization to designate Carasel Harvest Supply Corporation as their marijuana producer.

Health Canada refused, saying that violated the regulations that restricted growers to supplying only two patients at a time.

But the Federal Court Trial Division agreed with the patients and declared section 41 (b.1) of the MMAR was contrary to s. 7 of the Charter because it threatened their liberty and security of the person by preventing them from choosing their marijuana producer.

The judge accepted that sick people should have access to marijuana for the treatment of serious medical conditions and they should not be forced to risk imprisonment to buy their medication on the black market.

He interpreted the constitutional guarantee of security of person rights to include access to medication without undue state interference.

Ottawa appealed and lost.

COURT REBUKES GOVERNMENT

The appeal court agreed with the trial judge — the medical marijuana scheme was constitutionally deficient — and rebuked the government.

The three judges said the Crown had brought forward a case dismissed by the Ontario Court of Appeal in 2003, that nothing had changed and the marijuana access regulations remained flawed.

In the unanimous 2003 decision, the justices similarly complained about Ottawa’s failure to deal properly with this issue.

In their terse three-page decision a fortnight ago, the justices refused to suspend the impact of their ruling to give the government time to amend the regulations.

Health Canada spokesman Phillipe Laroche said the department was still studying the ruling and had not decided on its response.

Now, Tousaw has argued that those charged or convicted while the medical marijuana access scheme was deemed unconstitutional should have their convictions overturned or their charges stayed. That’s thousands of Canadians.

In particular, Tousaw says Ryan Poelzer should have his conviction overturned.

Poelzer was charged May 18, 2007 and there is no disagreement about the facts. He was smoking a joint on a B.C. Ferry as it pulled into Langdale and that offended an off-duty cop who called the RCMP. As he stepped off the ferry, Poelzer was arrested and in his backpack police found 78.3 grams of marijuana, 8.6 grams of hash, and assorted paraphernalia and pro-drug literature.

In spite of Tousaw’s argument that the cannabis prohibition was invalid, or alternatively that the status of the prohibition is so confused that prosecution constituted an abuse of process, the provincial court judge in the case decided B.C. jurisprudence had declared the medical marijuana scheme valid and therefore the criminal law was fine and Poelzer in clear violation of it.

But Tousaw says the B.C. precedents are wrong and fly in the face of this latest ruling.

The Crown disagrees.

Federal lawyer Peter Eccles said the MMAR requirements are reasonable given the legitimate societal interest in controlling the distribution of a “potentially harmful drug.”

“They ensure only those with a bona fide medical need for marijuana, verified by appropriate medical declaration, obtain legal access,” Eccles said. “Mr. Poelzer is not such an individual.”

Perhaps.

Two B.C. justices will render their opinions soon on whether there actually is a criminal marijuana law in force at the moment or whether de facto legalization has occurred because the medical access scheme is unconstitutional.

Market issues ‘need to be addressed’

The question is how will Ottawa respond to the federal court decision.

Since the impugned marijuana access scheme is a product of regulation rather than statute, the government can quickly promulgate new rules.

“They could make cosmetic regulatory changes,” Nash acknowledged, “which would force another court challenge. But I think the judges are pretty fed up with them doing that.”

And for good reason — sick people should not have to deal with the black market.

Nash said it’s time to get medical marijuana out of the courts, properly regulated and controlled.

“It comes down to consumer choice,” Nash said. “We have people across Canada who want our organic product. Patients want different price ranges, they want different strains, they want different hybrids. There are market issues here that need to be addressed. When you go to a pharmacy do you want to be told you can only have Bayer?

“This is about patients’ rights and a legitimate need.”

imulgrew@vancouversun.co

Note:

Ian Mulgrew is the Vancouver Sun’s legal affairs columnist and the author of several non-fiction books, including Bud Inc.: Inside Canada’s Marijuana Industry (Random House, 2005).

See also:

Choogle on podcast interview with Dana Larsen: Party at the Vancouver Seed Bank – Choogle on #59

Slow Train Coming – Talking Cascadia Trains in Vancouver Courier

from the article by Robert Alstead, Oct. 22nd, 2008
from the Vancouver Courier article by Robert Alstead, Oct. 22nd, 2008

I was interviewed (and used loquacious quotes like “super lame”) for an article about train travel in the Vancouver Courier.

I am including my quotes and a few other snippets about my pet-rant – inadequate train travel between here and points south as well as the photo by Dan Toulguet so it doesn’t disappear into the internet tubes like my previous photo appearance in this local newspaper. By the way, if someone could pick me up a paper copy, i’d be very pleased.

##

Slow train coming

Robert Alstead takes a journey north by rail from California and wonders if Canada’s vanished passenger trains will once again carry us from coast to coast – Robert Alstead, Vancouver Courier
Published: Wednesday, October 22, 2008

Print version of Slow Train Coming
Web version of Slow Train Coming

Dave Olson, who works in marketing for Gastown web design company Raincity Studios, travels six or seven times a year by train, on business and pleasure. “I don’t care for jet travel because of the incredible hassle and huge eco-footprint,” says Olson. Like many, he would take the train more if he could. “I like the pace and not having to drive, I like the rhythm and the scenery you normally don’t see, the rail yards and seashores and forgotten neighbourhoods. I find the train-riding experience somehow charming, even poetic and certainly creativity stimulating,” he says.

However, he complains Amtrak’s evening train south is hardly convenient for trips to Olympia or Portland, seeing as travellers must make an overnight stopover in Seattle. The Amtrak Cascades is also infrequent and often booked up. Amtrak does offer several “train buses” which Olson has found “super lame” with long border waits. He’d rather take the car if there are no seats on the train, although it did mean a $124 parking bill and a chipped windshield on a recent three-day trip to Seattle. “I know we would’ve enjoyed some work or playing cards or meditating on the train,” he rues.

##

However, the Amtrak Cascades offers a good example of the difficulties faced in enhancing rail services.

For years, Amtrak has wanted to add a second roundtrip train between Eugene and Vancouver. However, congestion due to heavy freight movement on track this side of the border meant that a new siding needed to be added to allow trains to pass. For six years, Canadian and U.S. officials and railroad owners Burlington Northern Santa Fe had been unable to hammer out a deal over who should pay for the upgrade.

That means that a second Amtrak Cascades has been running only as far as Bellingham. Then in March of last year, spurred on by the onset of the 2010 Olympics, B.C. transportation minister Kevin Falcon announced that he was committing “up to $4.5 million” (reportedly 57 per cent of the upgrade cost) to build the siding.

In June last year, Premier Gordon Campbell marked the new service on the platform at King Street Station in Seattle by exchanging a large symbolic train ticket with Washington Governor Chris Gregoire in a photo op.

The siding was completed months ago. Amtrak is ready to go. But the service hit the buffers due to complications with the Canadian Border Services Agency, which reportedly wants $15,000 per day to clear the train.

Graham says the matter is in the hands of the B.C. government. A spokesperson for the province says it’s a federal government issue. Faith St. John, spokesperson for the CBSA, said she could not comment on the matter “because we are in discussions.” But she did say that “decisions to provide CBSA services at a new location or to expand current services take into account human resource requirements and the ability to provide security and service to the public.”

She could not say when the matter would be resolved.

##

 

What happened in Canadian Election?

My pal Raul asked this question at: What the heck happened this past Canadian Federal Election?

Here’s my brief reply:

The left was split and Canada’s true desires weren’t manifest. The Liberals ran a (sorry) lousy campaign, the Green acquitted themselves excellently but are out numbered everywhere and the Cons slipped right in strategically laughing while Layton attacked Dion.

We need a proportional representative system where the House reflects Canada. We need a run-off style ballot so we aren’t flummoxed by the “strategic voting” conundrum (i vote with my heart).

And the parties need to show – in short, clear statements – how we (they) can protect the environment while promoting the economy.

I am still worked up about they way this election went down and riffed more about it at A Few words for Democracy at happyfrog.

I have a Choogle on! podcast coming out shortly (really) with my emotional reaction to the results in Canada and the impending vote in the USA. And I discussed the Conservative minority win on the Dopecast on Dopefiend.co.uk.
While i am on topic, here are my democratic actionable items, observations etc. cross-posted from happyfrog post A Few words for Democracy:
flying coloursOhhhh Canada

With the Canadian Federal election behind us, a looming USA General election (which will effect everyone), plus a Vancouver Mayoral race in which the winner will preside over the 2010 Olympics and attempt to assuage the controversies around the development, democracy in action is catching the attention of everyone – or should be anyhow.

I’ve personally learned that policy is decided by those who “show up” and let their opinions be heard – not by throwing rocks but rather by civilized discourse and personal expression to the policy makers.

Here are a few tools, events and ideas I’ve come acress to help constructively participate in the political process, while not sinking to the mud-slinging which happens when the issues cut to the core of who we are as a community.

Media Democracy Day- Speak up!

Media Democracy Day LogoThis Saturday at SFU’s downtown campus come “Speak for Ourselves” and learn about the critical issues effecting the media – both in terms of content and delivery – at Media Democracy Day Vancouver 2008.

With mainstream conglomerates amalgamating local media into a generic mish-mash more focused on selling ad space than spreading critical information, and Telcos (with the encouragement of the Federal government) tightening their grip on the gates of what’s “acceptable” there is plenty to educate yourself about.

Noted speakers will share their opinions – including happyfrog columnist and co-founder of Greenpeace Rex Wyeler and Tyee’s chief David Beers – and relevant panels will present different perspectives on this dynamic landscape from open access to citizen journalism to copyright/wrong.

Now Polling Grassroots Opinions

happyfrog at Car Free Fests

I’ve seen and chatted with Pedro from NowPolling.ca at many community events as he spreads the message that “Participation is the essence of Democracy”.

Sign up for a free account at NowPolling.ca and you can weigh in with your opinion on current issues of concern to the community on a local, provincal and federal level.

Here’s how they describe their work:

“This is a non-profit forum where anyone can register their opinions on a broad range of issues. You can choose your answers now, and if you change your mind, you can return to change your vote anytime.

As far as we know, nowpolling.ca is the first in the world to provide a perpetual polling system which facilitates your democratic right to participate in the political process.”

Sign up for an free NowPolling.ca account and see how your opinions jibe with your fellow electors.

Fairer Voting

Despite the optimism I held from watching the debates and CBC engaging X Challenge debate (with a cameo by happyfrog pal Chris Livingstone of EPIC Sustainable Living Expo), the results were a split left and a stronger minority government for the Conservative Party. Ugh.

go green

During the election, many folks rallied for strategic voting for the environment in order to prevent Conservatives from taking seats. While I fervently support the environment, I personally don’t buy into strategic voting.

The solution which has come out of the election with some vigor is proportional representation. You can learn more about this at Fairvote.ca but briefly, this means a House of Commons which reflects the popular vote rather than the minority winner from the patchwork of ridings.

Here’s Fairvote’s statement about the recent election:

As usual, the first-past-the-post system played havoc with voters’ intentions. The Green Party, western Liberals, the NDP and urban Conservatives were among the political victims. The Parliament voters tried to create would have looked quite different from what the voting system gave us. Read the Fair Vote Canada press release.

The impetus for many to rally behind this is seeing the Greens leap up to just shy of 7% of the popular vote yet get no seats while the NDP led the Bloc Quebecois in the popular vote but trailed in the seats.

Sign the petition

Another related idea is to vote for your 1st, 2nd and 3rd choice to form a “run-off” in each riding with the lowest candidate dropped and the votes recounted until a candidate had over 50% of the vote rather than the “first past the post” system now.

Whichever way you feel, it is a big question for Canadians and there is a movement for a voting referendum to encourage *more* democracy.

Voteabroad.org & Democrats Abroad

happyfrog at Car Free Fests

Ex-pat BeccaJo explained in her post “Last chance to vote in the U.S.!” the process and importance of voting for Americans living in the Great White North.

Registering is the critical first step. Next up, voting! If you are from the USA, you should have received your ballot already – if not, get on the phone to the county auditor in your last county of residence.

If you have received it, fill it out and get it in the mail or drop it off at the US Embassy. Unlike mailing from within the USA, you gotta pony up for an international air mail stamp.

For Demo-politicos seeking bonding in Canada, consider hanging out with the Democrats Abroad in Vancouver or via email. They are likely to be hosting a results viewing party for a big Nov. 4th.

CBC using Twitter

Some netizens have noticed the new happyfrog_ca Twitter account. Like many new web apps, this is a bit strange to explain at first – basically 140 character mini-thoughts.

The recent General election provided a good example as CBC followed the chatter via Twitter as voters watched the Leader Debates and flowed out a stream on collective consciousness with their off the cuff, candid reactions to the Q&A flowed to OrmistonVotes Twitter account.

Ormiston Voting Twitter

If you aren’t using Twitter, it’s free and fun. If you are, follow happyfrog_ca and pay attention to #vanvotes and other keywords (known as “hashtags” and when preceded with a # sign) to keep a pulse on what the people are feeling/thinking/expressing right now – all in haiku-like length.

And Finally, a By-Election

If you aren’t all voted out yet, great because there is a provincial by-election coming up. happyfrog pal Miss604 has an awesome (as usual) overview BC By-Elections for Vancouver-Burrard and Vancouver-Fairview.

Monte Paulsen gives the low down in The Tyee’s The Hook political blog:

As if Vancouverites needed another fall election, Premier Gordon Campbell has called two provincial by-elections for October 29th in the Vancouver-Burrard and Vancouver-Fairview ridings.

Vancouver-Burrard became vacant in September after MLA Lorne Mayencourt, a B.C. Liberal, resigned to run for the Conservative Party in the Oct. 14 federal election.

Vancouver-Fairview became vacant in July after MLA Gregor Robertson, a B.C. New Democrat, resigned to run as Vision Vancouver’s mayoral candidate in the Nov. 15 civic election.

With some high-profile candidates in the mix, hopefully voter apathy and burnout will be thwarted and the turnout will be high and mighty.

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U.S. Dept. of Heath and Human Services Obtains Patent for Cannabinoids as antioxidants and neuroprotectants

As long rumoured, the The United States of America as represented by the Department of Health and Human Services, has indeed obtained patents on various forms of THC despite the endless litany of claims to the contrary, enforced by life damaging, draconian policies. Thanks to the remarkable Google Patent directory, you can explore the whole patent in details beyond the abstract provided below.

The Google directory is a fair bit easier to explore but here the USTPO reference as well for you wonks:

6,630,507 Full-Text Cannabinoids as antioxidants and neuroprotectants

Cannabinoids as antioxidants and neuroprotectants – Aidan J. Hampson et al

Abstract
Cannabinoids have been found to have antioxidant properties, unrelated to NMDA receptor antagonism. This new found property makes cannabinoids useful in the treatment and prophylaxis of wide variety of oxidation associated diseases, such as ischemic, age-related, inflammatory and autoimmune diseases. The cannabinoids are found to have particular application as neuroprotectants, for example in limiting neurological damage following ischemic insults, such as stroke and trauma, or in the treatment of neurodegenerative diseases, such as Alzheimer’s disease, Parkinson’s disease and HIV dementia. Nonpsychoactive cannabinoids, such as cannabidoil, are particularly advantageous to use because they avoid toxicity that is encountered with psychoactive cannabinoids at high doses useful in the method of the present invention. A particular disclosed class of cannabinoids useful as neuroprotective antioxidants is formula (I) wherein the R group is independently selected from the group consisting…

Patent number: 6630507
Filing date: Feb 2, 2001
Issue date: Oct 7, 2003
Inventors: Aidan J. Hampson, Julius Axelrod, Maurizio Grimaldi
Assignee: The United States of America as represented by the Department of Health and Human Services
Primary Examiner: Kevin E. Weddington
Attorneys: Klarquist Sparkman, LLP
Application number: 9/674,028

U.S. Classification
514/454

International Classification
A61K 3135

Bonus:

Although not owned by the US government patents are rather interesting as well:

7,285,687 Full-Text Cannabinoids
7,179,800 Full-Text Cannabinoids

or a general search for cannabis at USTPO

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Washington State hearings on medical marijuana limits and Hempfest

See Cannabis Defense Coalition for more info on this ongoing issue.

State’s proposed pot limit brings out critics
By Drew Mikkelsen, KING 5 News – Aug 25, 2008
http://www.king5.com/health/stories/NW_082508WEBDM_medical_marijuana_KC.10cb30f3.html

How Much Medicinal Marijuana Is Enough?
By Austin Jenkins, National Public Radio – Aug 25, 2008
http://news.opb.org/article/2907-how-much-medicinal-marijuana-enough/

Wash. medical pot patients protest caps on supply
By Curt Woodward, Associated Press – Aug 25, 2008
http://seattletimes.nwsource.com/html/localnews/2008137941_apwamedicalmarijuana1stldwritethru.html

Health officials want public input on medical marijuana
By Jeanne Lockhart, KIRO Radio – Aug 25, 2008
http://www.mynorthwest.com/?nid=11&sid=83713

Hempfest taunt: What’s Gregoire smoking?
The Olympian – Aug 22, 2008
http://www.theolympian.com/118/story/555658.html

Revelry, politics mix at Hempfest
By Bob Young, Seattle Times – Aug 17, 2008
http://seattletimes.nwsource.com/html/localnews/2008119349_hempfest17m0.html

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