“Window”:

How the Prohibition of Ecstasy Revealed the Fundamental Flaws in United States Drug Policy

Kyle Moore

GE 400—Spring 2010

Paper 3

The chemical compound 3,4-methylenedioxymethamphetamine, referred to as MDMA, was first patented by a German pharmaceutical company in 1914 for use in manufacturing a blood coagulant. 1 As a pharmaceutical byproduct, it failed to garner much scientific interest, appearing in research literature only twice over the next 40 years. 2 In 1976, however, a man named Alexander Shulgin synthesized the drug in order to investigate its possible psychotropic effects. After much testing and experimentation, Shulgin published the first report on the drugs effects, describing an “altered state of consciousness with emotional and sensual overtones.”3 Shulgin often referred to the drug as “window”—a window through which one could see the world as it truly existed.4 He began sharing the drug with friends and colleagues working in drug research and psychotherapy.

One such psychotherapist, Leo Zeff, was so impressed by the effects of MDMA that he came out of retirement in order to travel around the U.S. and Europe in order to share the drug with the therapeutic community.5 He claims to have personally trained 150 therapists in its proper use.6 He called it “Adam”, because he likened the state of emotion and empathy to that of Adam in the Garden of Eden.7 One of his colleagues, Ralph Metzner, saw extreme potential in the drug because, as he explained, “it doesn’t change ordinary perception very much. It changes the feeling tone, the feeling quality, and reduces fear thereby allowing you to look at, in kind of an impartial way, things that are normally just too anxiety provoking.”8 MDMA was used in treating victims of violent crimes, those suffering from post-traumatic stress disorder, and other cases of emotional trauma. The initial results being reported by psychotherapists were very promising.

As its reputation grew, however, the popularity of MDMA spread into the general public . The primary catalyst in its rising popularity was a man named Michael Clegg. After trying the drug himself, Clegg determined that it was his calling in life to share MDMA with the world. He dubbed the new drug “Ecstasy” and began sharing it with his friends in Dallas, TX. Those friends started sharing it with their friends and, almost overnight, Dallas became saturated in the new designer drug, with Clegg distributing 500,000 pills a month.9 Ecstasy was being sold at bars and nightclubs across the city. When Alexander Shulgin heard about the widespread use of what was now being called Ecstasy, he was deeply saddened: “I was convinced from what I had

1 Julie Holland, The History of MDMA, in ECSTASY: THE COMPLETE GUIDE, supra note 34, at 11, 11.2 Id.3 Shulgin AT; Nichols DE (1978). "Characterization of Three New Psychomimetics.". in Willette, Robert E.; Stillman, Richard Joseph. The Psychopharmacology of Hallucinogens.. New York: Pergamon Press. pp. 74–83. ISBN 0-08-021938-1. 4 Myron J. Stolaroff (2005). The Secret Chief Revealed.. MAPS. pp. 16–18. ISBN 0-9660019-6-6. 5 Id.6 Id.7 Holland, supra note 187, at 11, 138 Ecstasy Rising, Peter Jennings9 Id.

seen that it was going to have a marvelous role in medical use but this broadcast popular usage would inevitably lead to its removal from rehabilitation.”10

Among widespread media attention of the new drug culture in Texas, the United States Drug Enforcement Agency declared its intent to classify Ecstasy as a schedule I drug on July 27, 1984.11 Schedule I is a category of drugs (the first of five) which are defined by The Controlled Substances Act of 1970 as the most dangerous drugs in existence. Schedule I drugs require the following findings:

1. The drug or other substance has a high potential for abuse2. The drug or other substance has no currently accepted medical use in treatment; and3. There is a lack of accepted safety for use of the drug or other substance under medical

supervision.12

Placing MDMA under Schedule I would disallow any research involving human subjects. Many people involved in therapy, psychiatry, and research became upset with the news of an upcoming ban on MDMA-based therapy and research, as the drug had shown very promising results in the field of psychoactive therapy. A group of those involved in the early trials of MDMA secured legal counsel and requested hearings on the DEA’s scheduling intentions.13 Five hearings were held before the DEA Administrative law Judge, Francis L. Young, over a period of eight months.14 Young heard testimony from thirty-three witnesses and received ninety-five exhibits into evidence.15 On May 22, 1986, Young issued his Opinion and Recommendations with regards to the scheduling of MDMA. He thoroughly concluded that the drug should be placed in schedule III after finding that it:

1. Has a currently accepted medical use in the U.S.;2. Has an accepted level of safety under medical supervision; and3. Has less than a high potential for abuse.16

Under Schedule III, the drug would remain available for use in therapy and could be obtained with a doctor’s prescription. It would also be approved for use in research on human subjects, which would allow scientists to further uncover its short term and long term effects.

10 Id.11 Mullen, F.M. Schedules of Controlled Substances Proposed Placement of 3,4-Methylenedioxymethamphetamine into Schedule I. Federal Register 49 30210-30211 (1984).12 Controlled Substances Act, 21 U.S.C. [section] 812 (1996).13 Mullen, F.M. Schedules of Controlled Substances Proposed Placement of 3,4-Methylenedioxymethamphetamine into Schedule I. Federal Register 49 30210-30211 (1984).14 Controlled Substances Act, 21 U.S.C. [subsection] 801-971 (1996). Temporary Placement of 3, 4-Methylenedioxymethamphetamine (MDMA) Into Schedule I, 53 Fed. Reg. 40061-01 (Oct. 13, 1988). Schedules of Controlled Substances; Scheduling of 3, 4-Methylenedioxymethamphetamine (MDMA) Into Schedule I of the Controlled Substances Act, 51 Fed. Reg. 36552-01 (Oct. 14, 1986), supra note 195[hereinafter Final Scheduling Rule].15 Id.16 Id.

The Judge had apparently not been sufficiently expedient in his ruling, however, as the newly-appointed DEA Administrator, John Lawn, placed MDMA into schedule I almost a year prior to the conclusion of the hearings.17 This abrupt scheduling was made possible by emergency scheduling provisions which were conveniently enacted just months prior to the DEA’s declaration of their intent to place MDMA under schedule I.18 Although the Final Report on temporary placement stated that “the temporary placement is not meant to interfere with the hearing,”19 it is clear that the DEA Administrator Lawn had preconceived notions regarding the danger posed by MDMA. Although Lawn, a former FBI special agent, had no medical training or experience, he believed that leaving the drug unscheduled for six additional months posed an “imminent hazard to the public safety.”20 It was, therefore, of little surprise when Lawn, having already made his decision, refused to accept the recommendations of the DEA Administrative Court.21

Administrator Lawn’s primary disagreement with Young’s opinion was his statement that Ecstasy had a currently accepted medical use. The Controlled Substances Act fails to define what constitutes an accepted medical use. The DEA Administrator reasoned that “accepted medical use” was synonymous with approval from the Food and Drug Administration and nothing less.22 Young disagreed, reasoning that it is defined by what is “actually going on within the health care community.”23

Lester Grinspoon, an associate professor of Psychiatry at Harvard Medical School and one of those who had initially requested the DEA hearings, petitioned the United States Court of Appeals to review the DEA’s decision to place Ecstasy under schedule I.24 The Court focused on the issue of what constitutes “accepted medical use” and found that the Lawn’s interpretation was “strained,” “unpersuasive,” in direct conflict with the intent of the Administrative Procedure Act.25 The Court ordered the Administrator to reconsider his classification of MDMA while unable “to rely on lack of FDA approval to demonstrate the absence of an accepted medical use.”26 Undeterred, Lawn focused on the lack of medical evidence regarding uses for MDMA . He dismissed the positive testimony of approximately 200 patients as “merely anecdotal” and noted that “recognized text, reference books, and pharmacopoeia contain no references to the therapeutic use of MDMA.”27 Citing a lack of published research and scientific data, Lawn

17 21 U.S.C. [section] 811(h)(1) (1996).18 Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976 (1984)19 Final Scheduling Rule, supra note 195.20 U.S. v. Emerson (9th Cir. 1988) 846 F.2d 541; accord, U.S. v. Spain (10th Cir. 1987) 825 F.2d 1426, 1429.21 Id.22 Final Scheduling Rule, supra note 195.23 Id.24 Grinspoon v. DEA, 828 F.2d 881, 881 (1st Cir. 1987).25 Id. at 89826 Id.27 Schedules of Controlled Substances; Scheduling of 3, 4-Methylenedioxymethamphetamine (MDMA) Into Schedule I of the Controlled Substances Act; Remand, 53 Fed. Reg. 5156-01 (Feb. 22, 1988).

essentially banned any further continuations of such research. MDMA was permanently placed in schedule I on March 23, 1988.28

The actions taken by Administrator Lawn were in well-coherence with the Reagan Administration’s notorious anti-drug mantra: “Just say no.” The catch phrase spawned from a drug awareness campaign run by Nancy Reagan in the 1980’s. Rather than address the question of “why” and explain the negative effects of drug use, the anti-drug campaign focused on the question of “how,” illustrating methods by which one could refuse drug solicitations. The campaign was run on the assumption that all illegal drugs were inherently bad. Administrator Lawn and other DEA policy makers seem to reflect that mindset in their actions with regards to MDMA, as they all believed the drug to be an inherent threat to the American public despite a complete lack of evidence. The only study suggesting that Ecstasy could be harmful was a 15 year old study in which MDA, a drug similar to MDMA, was shown to be neurotoxic in the brains of mice. Researchers were divided about that validity of the study’s findings, however, and most agreed that nothing about MDMA could be determined from the data.29 However, despite the complete lack of evidence, the DEA maintained a headstrong belief that the drug was a serious threat to public safety and had to be completely restricted. Even when faced with hundreds of positive testimonies from both doctors and patients, the DEA refused to acknowledge any benefits that MDMA regulation might bring. While the message to Ecstasy users was to “just say no,” the message to the DEA was apparently to “just make it illegal.”

With the DEA unable to cite any relevant data backing up their claims of Ecstasy’s danger, much of the user base remained unconvinced that the drug was harmful. Once made illegal, the number of people using MDMA continued to rise, attracting approximately 200,000 new users each year for the next 6 years.30 Whereas the drug was once sold at bars and nightclubs, it moved underground to be sold at massive, all-night dance parties known as raves. These raves took place in abandoned warehouses and other large, isolated areas. As the rave scene became more popular, Ecstasy consumption increased dramatically. The drug attracted 7.2 million new users from 1996 to 2001.31 This dramatic increase in underground consumption introduced two major health hazards.

First was an increased occurrence of hyperthermia, or overheating. MDMA hinders the body’s ability to regulate temperature and therefore increases the risk of hyperthermia. This relatively minor risk was significantly exacerbated for users who attended rave parties and danced for extended periods of time. Although the risks of hyperthermia are largely negated simply by drinking water, newcomers to MDMA use were largely uninformed about such preventative measures. The number of emergency room mentions of MDMA jumped from 319 in 1996 32 to

28 Id.29 Final Scheduling Rule, supra note 195.30 Department of Health and Human Services, Office of Applied Studies, 2003 National Survey on Drug Use & Health, http://www.oas.samhsa.gov/NHSDA/2k3NSDUH/2k3Results.htm#fig5.231 Id.

5,542 in 2001.33 When media outlets began covering the issues of hyperthermia with regards to MDMA usage, the risks were frequently exaggerated and as a result, cases of hyponatremia, or over-hydration, began surfacing among inexperienced users. In rare cases, over-cautious Ecstasy users were drinking water to the point where the salt in their body became diluted to dangerously low levels and their organs eventually shut down.34 The California Poison Control Center noted that, although rare among users, hyponatremia is among the most common causes of Ecstasy deaths or serious injuries.35

A larger risk created by the prohibition of MDMA, however, was the adulteration of pills being sold as Ecstasy. Because the pills were being produced in underground labs, usually by criminal drug distributers, they often contained substances which were far more dangerous than MDMA. Ecstasy pill data collected from 1999 through 2010 shows that only 30.7% of pills contained pure MDMA. 25.1% of pills collected contained MDMA in addition to other drugs while 44.1% of pills contained no MDMA at all.36 Some of the most common drugs mixed into Ecstasy tablets are stimulants such as methamphetamine and dissociatives such as PCP.37 These illicit substances carry a slew of health risks, including heart attack, stroke, hyperthermia, neurotoxicity, and death.38 Also, because MDMA is a schedule I controlled substance, Ecstasy pill manufacturers are encouraged to substitute MDMA with legal alternatives such as DXM, a legal cough suppressant, and PMA, a powerful stimulant. In the summer of 1999, DanceSafe.org, an Ecstasy pill testing/harm reduction organization, “discovered that tablets containing high doses of DXM were causing the majority of medical emergencies in the Oakland rave community, as well in many other cities across the US.”39 DanceSafe found that DXM in large doses could prevent the user from sweating and result in hyperthermia. DanceSafe also later discovered that a batch of Ecstasy pills containing pure PMA was causing some users to overdose and die. These pills which were causing medical emergencies and sometimes deaths were comprised of legal drugs, and were therefore exempt from the harsh restrictions placed on MDMA.

While the DEA had hoped to eliminate MDMA usage by placing it under schedule I, the ban served only to introduce significantly more risk to end users. Before it was made illegal, users could buy Ecstasy at bars and nightclubs where water was easily accessible and medical emergencies could be rapidly attended to by the supervisory staff. The pills were pure MDMA because mixing in other drugs would have been illegal. Once the drug was placed under schedule

32 SAMHSA, unpublished 1999 DAWN Emergency Department Data (http://www.ncjrs.gov/ondcppubs/publications/policy/ndcs01/chap2.html)33 Id. from 2001 (http://thedea.org/statistics.html)34 Erowid, Water Issues with MDMA use, http://www.erowid.org/chemicals/mdma/mdma_health_water.shtml35 Id.36 EcstasyData.org test result statistics, http://www.ecstasydata.org/stats.php?style=percent37 Id.38 Erowid, Amphetamine (& Methamphetamine) Health Issues, http://www.erowid.org/chemicals/amphetamines/amphetamines_health.shtml39 DanceSafe.org Ecstasy Pill Testing, http://www.dancesafe.org/documents/druginfo/pilltesting.php

I, however, Ecstasy users were driven underground into the isolated, hazardous environments of rave parties. The supply of Ecstasy became a supply of mystery pills—largely consisting of a variety of harmful, dangerous drugs. As these increased risks resulted in increased injuries, it became clear that the general public was uninformed about abundance of adulterated Ecstasy pills and the health risks associated with rave parties. But rather than inform the public about these risks, the government chose only to impose stricter criminal penalties on drug offenders.