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Drugs and Drug Policy

Bill Marcus, Deputy Attorney General - California (Retired 2001); Narc Officer, 6(5), 23-29, 1989.  Posted: 2006-01-17; Modified: 2006-03-02.
Related resources:
Drug War Journalism and Advocacy  ;  War on Doctors: Academic, Reports, and Legal documents
See also:
Drug Crime Is a Source of Abused Pain Medications - Joranson and Gilson, J. Pain Symptom Management, 30(4): 299-301, 2005
WAR ON PAIN SUFFERERS archive series - Table of Contents
About the Author:
Bill Marcus retired as a deputy attorney general in 2001, but continues to consult and lecture in the areas of pain management and pharmacy law, teaches law and ethics at the UCSD Skaggs School of Pharmacy, and is a part-time (retired annuitant) administrative law judge.  He is on the advisory board of the Northern California Pain Initiative, chairs its professional education committee, and is a member of the Medical Board of California Task Force on Pain Management Laws.

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It is hard to begin any discussion of drugs and society without discussing the National Drug Strategy recently formulated by the Office of Drug Control, but to intelligently discuss what is generally called the “drug war” we must first discuss the place drugs have in society and some of the major causes of drug misuse. In the face of federally dictated nationally drug policy, the importance of state and local input also needs to be addressed.

We must first recognize drugs are an integral part of our society. We need them for medical treatment, and we have built into our society vast use of drugs—such as alcohol, tobacco, and caffeine--for recreational purposes.

We do not want a drug-free America. Just ask the parent with an attention-deficit disorder child who is functioning again with the help of Ritalin. Ask the terminal cancer patient for whom synthetic marijuana controls nausea from chemotherapy. Ask the major surgery patient getting morphine sulfate post-operatively.

The assumption is that everyone knows we mean drug abuse free. But people don’t. When we fail to distinguish, we frighten people away from proper and necessary drug use. In the booklet called “What Works,” developed by the Department of Education for education of children, drugs are mentioned, including such drugs as morphine and benzodiazepines, but not one word is said about their legitimate uses. As far as I can tell the national drug control strategy does not even acknowledge prescription drugs and their necessary and proper use or their abuse and diversion. Such a focus (and omission) scares patients—especially children and their parents—from taking a positive approach to adequate drug therapy, especially when the child must self-medicate or be medicated by the parent with controlled substances like morphine.

If we knew all there is to know about the uses and effects of these drugs, referring to a “Drug-Free America” would not be such a problem. But we often approve and use drugs on the basis of observed effect, without full knowledge of why the effect we observe occurs. Journals, magazines and the daily newspaper are full of advances in drug therapy, including remarkable uses of drugs previously marketed for more limited or mundane purposes. We are also just learning how wrong we have been about artificial limits on frequency of use of narcotics for relief of pain, particularly long-term use for cancer-related pain and chronic, intractable pain. And many professionals—not to mention the public—know even less about how drugs work than do those who market or approve the drugs.

If we fail to distinguish between drugs and drug abuse, we risk perpetuating unreasoning fear and inadequate treatment as well as inhibiting legitimate research. Little is accomplished if a patient in real need is denied legitimate, marketed controlled substances due to unreasoning fear—on the part of the prescriber, dispenser or patient—exacerbated by ill-considered propaganda (or laws).

On the flip side, when professionals or manufacturers fail to educate themselves as to the abuses of certain drugs or hide from the evidence and continue to market, prescribe or dispense such drugs as Quaalude or Preludin in massive amounts and to sell a million or more doses of codeine-based drugs to small corner drug stores, enforcement programs may result which hamper patient care far more than they aid diversion control. Extremism may not always be a vice, but the world works better when we look for reasoned, balanced approaches, based on an accurate, honest exchange of ideas and information and needs.

As to the drug market and drug cultivation, recent information on marijuana and domestic cultivation of it are instructive. It is estimated to be a 16 billion dollar market, over a quarter of which is now grown in the United States. Those cultivating it include engineers, teachers, cattle ranchers, and elected officials. One rancher from Montana, whose family was in debt, was quoted as saying “I figured people who produce alcohol and tobacco sleep at night, and we should be able to live with this.” Similarly, much of the methamphetamine being used on the streets is manufactured here or using massive amounts of essential chemicals exported by American chemical companies.

And in many communities money from sale of street drugs or participation in diversion scams is an essential, ingrained part of the local economy. What do we say to the woman who makes $50 a week for her family by posing as a patient for a guy who transports people to weight clinics and cooperative pharmacies? What do we say to the 12-year old child who makes $500 or $1000 in a typical week as part of the crack distribution system? For that matter, what do we say to the farmer in Colombia when we ask him to give up the greatest cash crop he has ever known—not to mention the amenities it has brought him? Do we tell the farmer to go back to a subsistence existence or tell the woman her family must do without the food, clothes and other things the $50 buys? Do we tell the 12-year old child to release the power that money gives him because it is bad or because he will—at some point—go to prison or be killed by a competitor when what he faces is a lifetime of poverty and despair in an urban pit?

It is not enough to stridently and publicly promise to come down on sellers and their agents or to declare war on foreign and domestic cultivators without considering the social and economic forces which have involved them (putting aside those whose motivations are purely and simply greed and a lust for power). We must consider why some of those people are part of the process and what will become of them if they are removed from the process (or the drugs themselves are removed). We need to understand why the site of the greatest social experiment in history is also the place where 1 in 20 of the world’s people consume about 3/5 of the world’s illicit drugs.

By the way, does that rancher talking about cultivating marijuana have a point? Can we continue to attack illicit drugs as we do when alcohol and tobacco are not only legal, but essential sources of government revenue and—at least as to tobacco, strongly subsidized by the government. After all, nicotine is highly addictive, and tobacco kills over 390,000 Americans each year, far more than illicit drugs or illicitly used prescription drugs kill, directly or indirectly.

The direct and indirect evils attributable to alcohol are well known. On the other hand, while alcohol consumption is dropping slightly, and smoking is declining more dramatically, there is too much invested in the “recreational” alcohol and tobacco industry to shut them down; anyway, prohibition of alcohol was already tried.

Ultimately, any analogy between alcohol and tobacco and “drugs of abuse” breaks down. Most of us can use alcohol or go without it. That is not true for some of the street drugs. Most of us can use alcohol from time-to-time or even tobacco and feel reasonably safe occasional use will be unlikely to harm us either short-term or long-term; some of the street drugs or their cutting agents used once can have devastating effects. Ice is an amphetamine which can, among other things, cause serious delusional behavior or death. Even the crude street methamphetamine popular 20 years ago played a large part in the “Helter Skelter” delusions driving Charles Manson and the behavior of the Hells Angels which led to deaths at Altamont. Tobacco or a small amount of alcohol does not drastically affect behavior or last for any great length of time. Sensamilla is powerful, and one piece of crack can dramatically affect short-term behavior. One piece of ice can leave you stoned for many hours.

There are many other differences, which may be far more obvious to chemists and pharmacological experts and others more expert in addictive behaviors. However, keeping in mind the affective and societal similarities which do exist among alcohol, tobacco, and other drugs, we might look to some of the solutions—both restrictions and incentives—being used to deal with alcohol and tobacco use for application to the drug problem, since we know that at least some drug use will continue, even if efforts to deal with drug trafficking and drug abuse are substantially more successful than they have been to date.

If we cannot bar alcohol and tobacco, must we necessarily legalize drugs? Legalization comes up more and more frequently, not just from the Libertarian Party or a few freaks who have been stoned since the Summer of Love, but in The New Republic, The Economist, U.S. News and World Report, and from other representatives of the media and respected thinkers. It may be raised out of a belief the government is wrong to try to regulate private behavior or it may be based on the frustration we all feel when innocent people die from it, when people are corrupted by it or when 20 tons of cocaine is seized in a Sylmar, California, warehouse, and the cocaine market is hardly fazed. But whether the issue is principle or frustration, there are many—former Secretary of State George Schultz is a recent example—who have expressed support for some form of legalization, and they must be answered.

But the use of drugs for non-medical purposes is not innocuous: it is not even—as I used to chant in the late 60’s and—maybe—even in law school—a victimless crime. “When I was a child, I thought as a child.” And the fact we have not found adequate solutions or do not have the patience or political courage to acknowledge them and put them into place, fund them, and patiently stay with them is hardly an excuse for legalizing activity which we believe is fundamentally wrong and dangerous to society.

If a society demands both freedom for its members and responsibility from them, society has both the right—and the obligation—to control self-destructive behavior which directly threatens others (such as piloting a passenger plane under the influence) or indirectly threatens society (such as where chemical abuse causes health damage to the individual and costs—in care for that person, damage to family members, and economic support for him or her and those whom his or her conduct leaves in need, injured, or otherwise bereft. The very existence of a mutually agreed-to society presumes its continuity and, therefore, the obligation of its members to work toward that continuity.

That means we—society as a whole—have the right to deter or stop conduct which threatens society and its future. As Thomas Hobbes said, although the first law of nature is that every man has the right to everything and to protect himself from any intrusion on those rights, the second law of nature is that a man be willing, when others are too, to lay down the first right and be contented with so much liberty as he would allow others against himself.

Whether it called a law of nature, a contract, or something else, we all give up—almost invariably—at least a little more than we want so that we can live securely and provide for ourselves and our families. It is the strength and—perversely—the challenge of our pluralistic society that we join so much disparity, all giving a little, while we strive to maintain our identities. It is the obligation to society as a whole and the perception—and often the reality—that we are no longer secure and that drug abuse and its side effects have a lot to do with it which creates much of the pressure for ceding more rights for the sake of safety. And if a few of us have so little tendency toward addiction that we can or could experiment with illicit use of drugs—yes, even crack, crank, or ice—without becoming addicted or dangerous or a burden, our interest in “relaxation” or “recreation” must be outweighed by the danger acceptance of use poses for a much greater number of people and, consequently, for society as a whole .

At the same time, for most of us freedom and privacy—especially in the highly bureaucratic, heavily-regulated and often intensively and overwhelmingly technological world in which we live—is a fragile and elusive possession. From the ideal which Jefferson described we have come to the point where most of our privacy is purely internal, since nearly everything we do or say is subject to recordation, observation and/or analysis by anyone with the time, intent and resources to do so.

The communication explosion may well be largely responsible for the abortive uprising in China and the many and remarkable successful, succeeding and incipient collapses of totalitarian governments around the world. At the same time—again—the increasing universal awareness of events in the world and the ability of any event—large or small—to be communicated, not to mention observed, from one point on the Earth to the point most remote from it, makes the ability and right to think and act as we wish ever more essential to our sanity as individuals and the sanity of society.

This means, as well, that even where we agree, as the vast majority of Americans do, that expansive, expensive efforts are necessary to combat drug abuse, including broad use of local, state, federal and international authority, we must not get so caught up in the “War” as to restrict or interfere with our personal freedom any more than absolutely necessary to preserve society. So, too, do we need, as Mill said, protection against the tyranny of the prevailing opinion and feeling. And we must be ever sensitive to whether programs or efforts proposed as part of the War on Drugs threaten the civilian, republican nature of our government or the essence of society, in the fullest sense of the word.

Am I expressing concern about the use of the military to combat drug abuse? The use - effectively - of the military in a police capacity? The encouraging by government and newspapers of people anonymously informing on others and children turning in their parents? The proposal by apparently serious people to house drug offenders in tent prisons in the desert? The suggestion that portions of our cities be closed off to all traffic, controlling entrance and exit through manned gates? The ever-increasing pressure to modify our constitutional rights in the name of the drug war? You bet I am.

Am I saying that efforts have gone too far? Gone in the wrong direction? Oddly, not so far. After all, we are not murdering people wholesale in the name of drug control, as governments in Iran and Malaysia are. And the crazy ideas are not—so far—being employed (although we are getting closer). Most prosecutors still use good discretion in filing and prosecuting cases and in the pleas they accept. Judges still use discretion in how they sentence. Legislatures do not give in to every demand for more and stiffer crimes or to the wildest proposals.

On the other hand, if we are not vigilant, our rights will continue to be bent and, eventually, broken, and enforcement tools will be adopted with far-ranging consequences, ill-considered in the urgent demand for tools to combat what drugs and related activities are doing to us. Niebuhr talked about silence when the Nazis came for each succeeding religious group, until they came for him and no one else was left to protect him. When rights are abridged in the name of expediency, they are rarely restored.

If we start putting people involved in the drug trade in desert prison camps, how long before we justify putting a great many others there, too? If we start establishing permanent, guarded enclaves, as has been seriously proposed in Los Angeles to keep drugs out, rather than treating the root cause, how long before we are just a collection of such enclaves, with armed guards? Do we really want to close ourselves off from each other, retreating to ethnic, religious and racial ghettos (whether rich or poor)? Many of the rich and affluent elderly increasingly live in such conditions. If one area of a city walls itself off, without our actually doing anything about the demand for drugs, the sellers will simply move to another part of town or to another town. Inevitably each district will probably demand similar barriers or simply erect them on their own initiative.

America ahs always been as much a vision as reality. No nation has ever dreamed so broadly, so magnificently. Our failures are only distressing in the context of the dream. We have succeeded in building an open society almost beyond the imagination before we attempted it. That dream is built on the concept of opportunity and freedom and a sense of community of ideas and people melting together regardless of origin. Defense of that dream is a constant battle. What a triumph for America, as its philosophy and tradition leads the way for the peoples of Eastern Europe, to build its own little walls and retreat from its own community, not to mention the world.

I am a long-time (and, since 1988, card-carrying) member of the ACLU; it and other groups—sometimes seemingly strange groups—advocate and defend nearly every viewpoint a person can express. I have a deep and abiding fear of government overstepping its bounds in the name of some stated public emergency and somehow never yielding the broad emergency powers thus obtained. I am cynical about government motives in loudly declaring war on drugs while ignoring the classism, urban blight and general social concerns which plague us. That is why I endorse and support groups like the ACLU even as I am occasionally personally revolted by some of the people or positions they choose to defend. But, as long as such groups are free to advocate and take legal actions, or be civilly disobedient—in the name of the Constitution and the Bill of Rights—on behalf of even the lowest cretins, I am confident our rights will be protected.

There are many in the executive branch, including those involved in enforcement, and the legislative branch who are sensitive to, and even vigilant about, infringement on freedom and privacy, but, it is usually very hard for them to be heard through the hardened walls of the bureaucracy. And, despite politicization in recent years, it is the judicial system and the judiciary which is—substantially—independent and thoroughly committed to the Constitution and the Bill of Rights above mere statutes and relatively transient public sentiment, and the executive and legislative branches, particularly in recent years—which are enslaved to political winds and biennial or quadrennial elections and the need of many politicians to pander to the simplest, most demagogic level of issues.

We have forgotten Edmund Burke’s admonition that we must have leaders, because if none will lead us right, we shall find guides who will continue to conduct us to shame and ruin.

I do not blame those entrusted with administering the drug control programs. I really blame those who set the direction of the national debate and who control what resources are provided, whether it be through enforcement, regulation, treatment, research or education. They talk a fair game, but have little real vision. And, as I will discuss, I especially blame those—both our leaders and us—whose apathy, cruelty and demagoguery allows us to avoid the social obligation which is at the root of so much of the drug problem. Government—when it is held accountable—generally does well with what it has, but lacks the political courage to address the long-term, ongoing needs for dealing with various aspects of the drug problem, and government totally lacks the courage today to go beyond the drug problem to treat what it is—to a great extent—symptomatic of.

The systemic analysis and cohesive, coherent plan and ongoing commitment that is necessary to strike at the ice problem in Hawaii, to the spread of L.A. drug gangs throughout the country, the innocents being slaughtered on the streets, the children being born addicted, the IV users becoming the most prolific vector for the spread of AIDS to the community, and so on, and so on, is still missing, with all respect to the Office of Drug Control. The support for local and state efforts must be financial and consistent, as well as verbal and on paper, and it must extend to social programs as well.

The debt is no excuse: the damage the debt is doing to our future can hardly be worse than the drug-related damage. We must go beyond personal notions of what is right to recognize what is. As C. Everett Koop realized and, to his enormous credit, declaimed in print, on the air and to every political and religious group, monogamy and heterosexuality may be the ideal, but a condom is reality. AIDS babies are reality. Addicted babies are reality.

In the best sense of federalism, private economic self-interest, and volunteerism, government must encourage local initiative in all areas of enforcement, treatment and education and other methods of prevention and support the programs which work, as well as understanding of legitimate use. The DARE program is hardly a cure-all, even in the long-term, but at least its emphasis not on a “drugs are evil” message, but on self-esteem and family support, and its spread throughout the country is the kind of innovative effort which has some chance to actually impact on demand 20 years from now, so that the trench battles being fought overseas, in our forests, at our borders and in our streets are more than a perpetual chess match.

This brings me to the importance of state input and groups such as the National Association of State Controlled Substances Authorities . Everyone recognizes we need a national strategy with substantial federal input and financial support. For instance, everyone recognizes that when it comes to interdiction, California, Texas, Florida, Hawaii and other border states cannot do it alone. And nearly everyone concurs in the need for consistency in laws among the various states and with federal law. This all calls for national leadership.

But, and increasing paralysis on the federal level in most areas underlines this, the federal government is no longer, as it was from the New Deal to the Great Society, a laboratory for innovative governmental thinking. The states are—and local and regional government bodies. I do not mean that federal programs do not exist, and I do not mean that federal programs do not work. Nor am I saying there is no federal effort at the local level; many of us regularly work cooperatively with various federal agencies on both an informal and formal basis, and there is some federal grant money available to the states or at the local level. But it is very hard—and always has been—for the federal government to practice the federalism it has recently preached.

And the states ensure that different viewpoints are heard. The experience in a state with relatively small exposure to drug trafficking is vastly different than in a state like California. A large state with a small population like Wyoming or an ocean state like Hawaii may have vastly different insights than a highly urban state on the Eastern seaboard like New Jersey or a state with a long international border like Texas. A state with a unified controlled substance board, like Wisconsin, or a unified enforcement program, like Missouri, may have a very different viewpoint than a state where responsibility is not unified or entirely cohesive—and there are a fair number of examples here, including California.

And for differing viewpoints, substitute differing experience, differing laws, differing needs and even differing philosophy of states, and how can the need for strong state input be doubted.

While individual representatives and some states can, although often on an ad hoc basis, be heard before federal agencies and the Congress, an organization dedicated to airing and representing the states’ needs is essential. With all respect to the federal agencies involved in various aspects of drug policy, they typically start from the premise there should be one, national voice on the issue and that leaves relatively little room for states to participate as opposed to listen and accept.

Despite the way in which street drugs, and especially crack, domestic marijuana and—now—crank and ice have permeated and are permeating every community in this country, the rate of infiltration varies and not every state needs or wants the same approach.

An organization of state agencies, committed first to open communication, exchange of information, and discussion, is more able to understand and help with such varied needs than the federal government. It is safe to say that each of us involved in some aspect of drug control has our own experience and practical approach. It is equally safe to say that all of us have some of the answers and none of us has all of them. So, too, can it be said that an organization of states is needed as a way for each of us to extend our knowledge and ideas and to receive them from as many people as possible from as many settings as there are in the United States. The product of that exchange, including through conferences held by such groups as NASCSA, among others, is invaluable to cogent drug control policy and laws and as a complement to federal programs and actions.

Whether the focus is interdiction, enforcement, education, rehabilitation or prevention there must be an understanding and consideration of the local community and its idiosyncrasies, so each state can vary its approach to take that state’s nature—and the nature of communities within the state—into account. It is not that federal agencies are incapable of doing that, but when states work with each other, it tends to be as equals or partner to partner; even if it sometimes unfair, the federal government is often perceived as handing down programs or directives or philosophy.

And, although some seem to be unable to see it, a large part of the drug problem still involves prescription drugs. State controlled substances agencies are particularly able -especially since so many of us have responsibility for regulation of licit controlled substances--to consider and develop, with the input from trade and professional associations, and their inter-state counterparts and other government agencies, approaches which balance drug delivery and control and to come together to discuss, exchange and fine-tune concepts and successful programs. Everyone benefits, on the national level as well as state-to-state.

For these reasons, and many more this already lengthy article does not permit me to describe, while a national strategy and program is both inevitable and, more importantly, absolutely necessary, state and local programs and input and organizations which promote understanding and open exchange of ideas and programs are at least as needed. There are enforcement groups out there; there are diversion groups; there are professional, trade and board associations. But there is also an urgent need for an organization—such as NASCSA—specifically dedicated to a state-level approach to controlled substances policy and scheduling, the elements which form the pillars upon which all the rest of controlled substances laws stand and will stand, as I have said before, when the political hysteria has long been swept away and the day-to-day administrators and regulators are left to carry out long-term policy.

Let me close by talking about long-term solutions. There are several immutable facts about the drug problem. First, drugs will never go away, primarily because no one wants them to—we need them. Secondly, we cannot entirely prevent illicit drug activity; someone will always find a way to make or steal drugs for illicit purposes, and some addictive personalities will always seek out such substances or be ready prey for pushers, no matter how much we monitor use, interdict drugs at our borders, search out domestic cultivators or manufacturers or test blood.

A society which fails to give every child the full opportunity—food, shelter, health care, education and a general sense of well-being and self-esteem—to succeed is an incomplete society, a self-destructive society. Such a society guarantees the continuing anger, frustration, and sense of inadequacy and hopelessness that help lead to the violence, destruction and self-abuse present in so many communities. That society ensures not only drug abuse, but explosions which might dwarf the riots of the 1960s, and embarrasses itself in the eyes of the World, which otherwise deeply respects the United States, even as it so often attacks it.

President Dwight Eisenhower, in his second inaugural address, and talking about those in need in other countries, said:

“We must use our skills and knowledge and, at times, our substance, to help others rise from misery, howe4ver far the scene of suffering may be from our shores. For wherever in the world a people knows desperate want, there must appear at least the spark of hope, the hope of progress—or there will surely rise at last the flames of conflict.”

Those words, echoing what Marshall said about the Marshall Plan six years before, are equally applicable in many parts of our own country today.

In 1932 Roosevelt said:

“Every man has a right to life, and this means that he has also a right to make a comfortable living. He may by sloth or crime decline to exercise that right, but it may not be denied him. Our government, formal and informal, political and economic, owes to everyone an avenue to possess himself of a portion of that plenty sufficient for his needs through his own work.”

Right now, we are entitled to be very proud of the political and social principles which have guided us for over 200 years; they really are sweeping the most unlikely parts of the World. Would that we had the courage to make and meet the commitment to our underclass, especially their children, not to mention our own children, which would make us truly great and, in my opinion, have a greater impact on the drug problem over the years than any jails, any border activities, any aerial spraying, any military attacks, any law, any propaganda and even any appeals to self-esteem.

I have always believed in the words of John Dunne:

“No man is an Island entire of itself; every man is a piece of the Continent, a part of the main. If a clod be washed away by the sea, Europe is the less, as well as if a promontory were, as well as if a manor of thy friends or of thine own were. Any man’s death diminishes me, because I am involved in mankind. And therefore never send to know for whom the bell tolls: it tolls for thee.”

Whether put in humanistic terms or placed in the context of religion and what awaits us in the hereafter, we do not exist by and for ourselves. We are not free when others are not as free as we are, including the freedom to dream, to hope and to accomplish. In recent years we seem to have forgotten that.

When the survival of a free Europe was in question, Churchill promised only blood, sweat, toil, and tears; our leaders are afraid to demand even a little sacrifice to save a dream.

On becoming President after 4 years of the Taft administration, Woodrow Wilson said:

“The great Government we loved has too often been made use of for private and selfish purposes, and those who used it had forgotten the people.”

But he also said;

“We see that in many things life is very great…Nowhere else in the world have noble men and women exhibited in more striking forms the beauty and the energy of sympathy and helpfulness and counsel in their efforts to rectify wrong, alleviate suffering, and set the weak in the way of strength and hope. We have built up, moreover, a great system of government, which has stood through a long age as in many respects a model for those who seek to set liberty upon foundations that will endure against fortuitous change, against storm and accidents.”

That is what has made America special and different and has called to so many from all parts of the world. Call it enlightenment, call it self-preservation, call it what you will, but we have to again meet the challenge Wilson threw out to us 77 years ago—and we have to do it now. As another great American said, shortly before his assassination:

“We may cry out desperately for time to pause in her passage, but time is deaf to every plea and rushes on. Over the bleached bones and jumbled residue of numerous civilizations are written the pathetic words: too late.”

Martin Luther King said that.

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Dr. DeLuca's Addiction, Pain, and Public Health Website

Alexander DeLuca, M.D.

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Originally posted: 2006-01-17

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