Introduction to the Legal Records of the DEA Administrative Law Judge Hearings

On July 27, 1984, the DEA announced in the Federal Register its intention to place MDMA in Schedule I, the most restrictive category of regulated drugs. Because Schedule I drugs are considered to have a high potential for abuse and no accepted medical use, they are the most difficult substances for which to obtain permission and funding for clinical research, and all non-research medical uses are prohibited.

Unknown to the DEA, however, their action had been anticipated by a group of people who strongly believed that MDMA had therapeutic benefits that, if the drug was prematurely scheduled, could be lost to the scientific and medical communities. As MAPS president Rick Doblin said in an interview with Dr. Julie Holland in Ecstasy: The Complete Guide, "When I learned about MDMA [in 1982], I realized that this was an extraordinary situation in which there was a semisecret underground river that was nourishing the psychedelic community." Quietly, psychiatrists, marriage counselors, and therapists were using MDMA to enhance the therapeutic process. As the drug became used recreationally, however, the DEA response seemed likely, and the psychedelic community began to prepare. Rick Doblin, Alise Agar, and Debby Harlow organized a non-profit group called Earth Metabolic Design Laboratories (EMDL), which they intended to use to support the therapeutic use of MDMA.

When DEA's scheduling announcement came, EMDL collected letters from respected members of the scientific and medical communities, petitioning the DEA for a scheduling hearing. "I later learned that the DEA had absolutely no knowledge of the underground therapeutic use of MDMA and were taken totally by surprise by our petition. The DEA Administrative Law Judge saw that we had sufficiently credible people requesting a hearing and decided to grant our request," said Doblin.

EMDL coordinated the group that argued for the continued therapeutic use of MDMA during the DEA hearings. Among the witnesses who actually spoke for MDMA during the hearings were Dr. George Greer, Dr. Lester Grinspoon, Professor James Bakalar, and Professor Thomas Roberts. They argued that MDMA belonged in Schedule III, a less restrictive category which would make future research with MDMA more feasible and would still permit the therapeutic use of MDMA by physicians. Schedule III drugs are defined as having a moderate abuse potential and some accepted medical use, though they are still regulated by the government and illegal for non-medical purposes.

At issue during the hearings were two important questions: whether MDMA could be considered to have a high potential for abuse despite the lack of animal or human studies to show this, and how "accepted medical use" should be defined. In regards to the first issue, DEA agents testified that MDMA was being used non-medically as a street drug, which was all that was required to prove high potential for abuse. DEA also argued that MDMA's similarity to the already scheduled MDA and amphetamine showed its neurotoxicity and potential for abuse. However, even some of the government witnesses agreed that the closeness in chemical structure did not prove that MDMA would be similar in action. Witnesses for EMDL testified that because tolerance to MDMA builds quickly, it was unlikely to be widely abused.

The "medical use" question drew heated debate as a possible precedent for other drug scheduling cases. The DEA argued that accepted medical use meant that a drug had already been approved by the FDA, while the petitioners said that this definition was too limited. They argued that if respected members of the established medical community saw potential medical use in an unscheduled substance, they should be allowed to use it and further research should be encouraged. Though without any interest in MDMA particularly, the pharmaceutical company Hoffman-LaRoche, Inc. participated in the hearings to support a broader definition of medical use.

While DEA was trying to schedule MDMA nationally, it also attempted to place MDMA in Schedule I internationally, through the World Health Organization and the Treaty on Psychotropic Substances. Rick Doblin went to Geneva in February of 1985 to present information about the therapeutic potential of MDMA to an Expert Committee on Drug Dependence that was gathering information about a group of 30 phenethylamines, including MDMA. In April of 1985, WHO's Expert Committee recommended that MDMA be placed in Schedule I, but with the dissent of its chair, Dr. Paul Grof, the brother of Dr. Stan Grof.

Before waiting for the hearings to conclude, the DEA surprised even the Administrative Law Judge by taking matters into its own hands. On May 28, 1985, the DEA announced that it was placing MDMA in Schedule I on an emergency basis, the first time that DEA had attempted to emergency schedule any drug. Congress had recently granted the Attorney General the power to temporarily schedule drugs without following regular procedures, when there is imminent risk to public health. The hearings continued after the emergency scheduling, but meanwhile the DEA arrested several individuals for MDMA distribution. These cases were later appealed on procedural grounds, the arguments stating that the DEA did not have the authority to use the emergency scheduling powers granted to the Attorney General, who had not formally sub-delegated the powers to the DEA. The procedural argument prevailed and the emergency scheduling was ruled illegal.

After several rounds of hearings, DEA Administrative Law Judge Francis Young issued his opinion in May of 1986: MDMA should be placed in Schedule III. DEA lawyers responded to the Schedule III recommendation by claiming that Judge Young was biased, had refused to consider the evidence, and as a result his recommendation should be disregarded. The petitioners responded to this by arguing that allegations of bias were unfounded and improper, and they asked the DEA Administrator to strike these accusations from the record. The Administrator agreed, and struck them from the record. However, he overruled the judge's recommendations, and placed MDMA in Schedule I, arguing that lack of FDA approval was sufficient grounds to decide that MDMA lacked an accepted medical use.

In late 1986, Dr. Lester Grinspoon appealed DEA's rationale for rejecting Judge Young's recommendation to a federal appeals court. In 1987, the Appeals Court judges ruled in Dr. Grinspoon's favor, stating that DEA's definition of accepted medical use was indeed too narrow, contradicted Congressional intent, and needed to be revised. On February 22, 1988, DEA placed MDMA in Schedule I again and published in the Federal Register a new rationale for rejecting Judge Young's decision, based on a DEA-created eight-part standard for determining accepted medical use. Grinspoon did not appeal again.

Dr. Grinspoon chose not to appeal DEA's eight-part standard in large part because the eight-part standard for determining accepted medical use was going to be litigated in the context of medical marijuana rescheduling hearings, also conducted before Judge Young. The Appeals Courts once again rejected DEA's criteria. However, DEA eventually came up with a five-part definition of currently accepted medical use that the Appeals Court finally accepted. Both MDMA and marijuana remain in Schedule One today.

Rick Doblin reflected on the DEA hearings and their outcome: "I felt proud. We had educated a lot of people through the media about the therapeutic benefits of MDMA and created a public record of support for MDMA's therapeutic potential. We delayed the criminalization of MDMA, so I felt satisfaction in thinking of all those people who had legal MDMA experiences in that time who would not have done so otherwise. I had never thought that we would win anyway…We were in the Reagan era; the drug war was escalating. But the victory was communicating to the public the potential benefits of MDMA."

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