The "Americanization" and Politicization of International Steroid Law

by Philip Sweitzer, Esq.

I. Foreword – Hegemony and the Quashal of Political Dissent under the Guise of “Law Enforcement” and the “War on Terror”

Anyone who does not believe that the right of political and social dissent is under serious threat in the United States in year 2008 is living in a state of cultural and political disassociation. This is particularly true of dissenting commentary or terminology viewed as “politically incorrect.” [1] The idea that there is a “correct” way to think or speak is not a recent phenomenon: traditionally, however, the right of free assembly and free speech has been protected to authorize speech or “symbolic speech” considered patently offensive, rather than merely “contrarian.” [2]

In Street v. New York, 394 U.S. 576 (1969), for instance, the Supreme Court held that flag burning was protected, symbolic speech, and that the appellant, was not inciting others to commit crimes, instead engaged in “excited public advocacy.”The hot-button issue in Brandenburg v. Ohio, 395 U.S. 444 (1969) was the freedom of a Ku Klux Klan member to assemble and speak, advocating the moral necessity of use of force and resort to violence against a racially hegemonic government and society.  The Court ruled that arguing these positions in the abstract was not the same as advocating criminal syndicalism.  Id.

As early as 1937, moreover, the Court had struck down a similar criminal syndicalism statute in DeJonge v. Oregon, 299 U.S. 353 (1937).  Then, there was the offensive-free-speech high-watermark case:  National Socialist Party of America v. Village of Skokie, 432 U.S. 43 (1977), in which members of the American Nazi party contested the denial of their application to assemble, march and demonstrate in the Village of Skokie, Illinois. 

Skokie is a Chicago suburb with a significant Jewish population:  at the time, between eight hundred to one thousand two hundred (800-1,200) were Holocaust survivors.  One can scarcely imagine speech less politically-correct than in National Socialist Party of America.  In response, the right-wing Jewish Defense League pressured community leaders to obtain an injunction against the NSP.  Litigation ensued, with the United States Court of Appeals for the Seventh Circuit eventually ordering Skokie officials to permit the offensive political speech, assembly and march.  Less than a month later, the Supreme Court of the United States refused to intervene and stay the Seventh Circuit’s order.  [3]  Eventually, however, the fight turned out to be only about the right to speak and not the actual act of speech, because – armed with Orders from the Seventh Circuit and the Supreme Court of the United States - the Nazi organizers of the Skokie assembly elected not to mount the demonstration.

Today, however, we are a nation of ideological conformists, with few people courageous enough to even express “contrarian views.” [4]Imus and several others bear witness that political correctness is the order of the day. We also have an Administration in Washington that has been widely criticized and investigated for its politicization of the process of “law enforcement,” for limiting public access to information, for undermining the basic constitutional framework of separation of powers, oftentimes organized around benefiting specific individuals and a partisan agenda.  [5]

The idea, however, that individuals with dissenting, but reasonable, views should be subject to the censure, social opprobrium and sanction of criminal prosecution, is a more recent phenomenon.  We can relate this directly to government efforts and to the political philosophy that sponsors and approves of quashal of political dissent and opposing points of view by force: fascism. [6]  First, the criminal prosecution of Lynne Stewart, a radical civil rights and criminal defense lawyer cast in the Bill Kunstler tradition, [7] signaled that an overreaching Bush Administration intended not only to take on criminals, but to silence their defense lawyers as well. [8]  Subsequently, the NSA decided to invade the province of attorney-client privilege with its domestic surveillance program, the very program whose legitimacy has once again come under fire in the Gonzalez/U.S. Attorneys scandal. [9]The Bush Administration also opted to “punish” career government covert agent Valerie Plame, by “outing” her in the media, a criminal abuse of government power to which the august New York Times even admits it was an unwitting party. [10]

II. The Press as Government’s Messenger:  The Steroid Debate

Such is the current state of the debate about anabolic steroid legislation and regulation.  Nearly a year ago, the Albany Times Union, in an article on March 11, 2007, suggested not so subtly, that simply by giving clients legal advice, Richard D. Collins, Esq., had engaged in an act of conspiracy.  Here’s the money quote, from the piece whose title itself implies suspicion:  Adviser to Pharmacies in Steroid Case Identified. [11]  Obviously, those with “contrarian views” about steroid regulation, who offer prophylactic legal advice, bring down the wrath of the politically-correct media as well as the law enforcement establishment:

James E. Long, an Albany attorney who represents Palm Beach Rejuvenation’s owners, brothers Glen and George Stephanos, declined to confirm they had hired Collins for legal advice.  However, another person familiar with the company said the Stephanos brothers had retained Collins.

Long said his clients had a “high confidence” their business was complying with the law. “They had consulted with New York counsel, who I am not at liberty to disclose,” Long said. [12]

Long said a "majority" of Palm Beach Rejuvenation's prescriptions were forwarded to Signature Pharmacy. Investigators in the case  said Signature's business, fueled by its booming Internet-based clients, saw its sales revenue jump from $500,000 in 2002 to nearly $40 million last year.

Contini, whose clients shut down their Fort Lauderdale wellness center last week, said they told him Collins had helped set up the blueprint for their business after they paid him a $1,500 retainer and additional fees related to Collins' $500-an-hour rate. The wellness center was a referral agency for Signature, and workers at Signature also steered business to the company, according to transcripts of wiretaps filed in the case.

"I believe he (Collins) is going to end up needing a lawyer himself," Contini said.

Contini contacted Albany County prosecutors last week, pledging his clients' cooperation in exchange for a deal that might prevent them from being charged in the case. [13] Albany County Assistant District Attorney Christopher Baynes confirmed prosecutors are in discussions with Contini. [14]  He declined further comment except to say his office is consulting with federal prosecutors who may be conducting a parallel investigation involving Contini's clients.

The Fort Lauderdale wellness center operators are ready to tell authorities about the legal advice they received from Collins during a conference call witnessed by four people, Contini said. [15]

Here, as in the N.Y. Times/Judith Miller case, the press – rather than being an independent voice to question government action and call it to account - has lost its objectivity, reduced to the role of a sycophant.  The free press abdicates its role when it becomes simply the government’s messenger, whether that is a state or the federal government.  The Plame/Libby scandal demonstrated this irrefutably. [16]

With respect to the content of the “culture war,” in its current form, both conservatives and liberals are equally to blame for the somewhat schizoid calls for imposition of prior restraint.  From the liberals, the rationale is generally class, race or gender offense; [17] from the conservatives, the complaint is the breakdown of traditional morals, obscenity and decency. [18]  These two forces coalesced, however, in the battle against pornography with the convention of the Meese Commission on Pornography in 1986.  With the emergence of the AIDS epidemic in the early Eighties, the Reagan Administration adopted regulation of the nation’s morality as its principal responsibility.  The “war on drugs” and suppressing sex were its principal means. [19]  In the AIDS plague, those two issues also intersected.  As will be shown, this is a very important nexus in the anti-steroid crusade, because steroids lie directly at the confluence of those two prohibitions as well. [20] 

This is specifically why the debate, which has largely been spearheaded on “moral” grounds, has achieved such legislative success: both lesbian feminism and the Christian right synergistically targeted straight pornography,  the war on drugs gained strength, and the suppressive effect of those two prohibition-based programs (stressing abstinence to the exclusion of treatment on both counts) eventually worked its way up the legislative chain to reach the naked masculinism of bodybuilding subculture. [21] 

As urged in previous articles for this online publication, at base, the anti-steroid campaign is founded upon two things 1) a religious or quasi-religious aversion to the [pagan] objectification of the glorified nude and 2) moral notions of the constitution of masculinity. [22]  To some extent, it’s about taking us back to the Middle Ages.  That’s why musclemen have been made such bad guys and steroids, their elixir, become so suspect:  we must not have glorified, muscled gods, overtly celebratory of their own masculine ethos and eros, wandering the streets either 1) unchecked by obligations to family, or 2) unchecked by male-hating, standard feminist cant.  Real masculine testing in sport, moreover, cannot be undermined by “synthetic” supermen. 

III. Prohibition and the “Moral” Objection to AAS goes International:  The World Anti-Doping Agency and its Anti-Doping Code

Formed largely in reaction to allegations of doping in the world of cycling during the 1998 Tour de France season, the World Anti-Doping Agency has picked up the mantle of “morality” against doping in sport.  In February, 1999, the Lausanne Conference produced the Lausanne Declaration on Doping in Sport. [23] Arising out of the Declaration, WADA was formed, eventually becoming the principal anti-doping “policing” agency for the 2000 Sydney Olympics, setting up headquarters initially in Lausanne.  It expanded and grew over the course of the next few years, adopting a “Code” incorporating a “prohibited list” of banned, performance enhancing substances by reference. [24]  The “Fundamental Rationale” for the World Anti-Doping Agency’s Code, and anti-doping as a regulatory scheme in amateur athletics is as follows:

“Anti-doping programs seek to preserve what is intrinsically valuable about sport. This intrinsic value is often referred to as “the spirit of sport;” it the essence of Olympism.  It is how we play true.  The spirit of sport is the celebration of the human spirit, body and mind, and is characterized by the following values:

§ Ethics, fair play and honesty.

§ Health.

§ Excellence in performance.

§ Character and education.

§ Fun and joy.

§ Teamwork.

§ Dedication and commitment.

§ Respect for rules and laws.

§ Respect for self and other participants.

§ Courage.

§ Community and solidarity.

Doping is contrary to the spirit of sport.” [25]

WADA expressed its objection to doping as central to its very mission, therefore, and incorporated that objection in the preamble of its constitutional document, its “Code.” [26] And, though it extended the objection on largely moral grounds, it is very important to note the “fundamental” differences between the reasoning of the “rationale” and the reasoning driving the adoption of anti-steroid legislation in the United States.

First, WADA, as a regulatory body overseeing the “anti-doping” integrity of the most prestigious field of competitive athletes in amateur sport – the Olympic Games – poses its ethical and moral objections to the use of performance-enhancing drugs on humanistic – rather than religious – grounds. [27]  Second, WADA seems far less disposed to rely on pseudo-science, than U.S. legislators.  Part of the objection WADA has to doping, in fact, is that many substances and techniques employed by athletes to enhance performance are extremely effective, particularly in sports where pure strength is the primary athletic determinant.  [28]  In other words, WADA explicitly concedes that androgenic, anabolic steroids work.  WADA, however, like the Congress of the United States, has adopted an inherently intractable legal position:  it is committed exclusively to prohibition as a regulatory scheme, completely disinterested in subjecting that presupposition to any serious intellectual scrutiny. [29] 

A. Historical and Political Context:  The Olympic Movement and the Cold War

The legal framework for the WADA and its code evolved from a very specific impetus:  the discovery of rather widespread use of anabolics and other substances at the 1998 Tour De France was only its most recent and obvious source.  Intermittent, “fragmented” enforcement efforts by the small number of IOC member countries who actively took an interest in the issue, however, eventually coalesced to form the International Intergovernmental Consultative Group on Anti-Doping in Sport after formation of WADA, which acted as a liaison between respective government and inter-governmental policy-makers such as the United States, EU, etc. [30]  Enforcement efforts prior to the establishment of WADA and IICGADS, however, were highly politicized, often developed in isolation.  [31]

With respect to anabolic steroids, several historical facts are well-established.  First, androgenic anabolic steroids as a performance aid in strength sports, largely picked up steam during the escalation of the Cold War. [32]  John Ziegler, a physician from Olney, Maryland, and medical adviser to the United States weightlifting team, brought the pharmacological secret for Dianabol directly from the 1954 Vienna World Championships, one he supplanted from the Russians. [33]  Steroids, thus, burst onto the competitive athletic scene in America in the run up to the arms race, matching the actual muscle of American weightlifters to their USSR counterparts, in a clear analog to the escalation of emerging military might on both sides. [34]  This east-versus-west component of anabolic steroids’ history has been largely missing from the current debate. [35]  There is credible authority and argument to suggest, however, that the ups and downs of the modern Olympic movement should be read in pari materia with the Cold War:  the emergence of performance-enhanced-sport in the mid-Fifties through the mid-to-late Sixties has been primarily driven not strictly by athletics, but by nationalism.  [36]  As Charlie Francis and others have pointed out, the history of outlawing steroids – at least internationally – largely tracks the history of the eradication of the Soviet Union.  Now that steroids have outlived their geopolitical utility at the Olympic Games, there is strong pressure by the United States to get them out of the international arena, because they are coming home to the United States from abroad.  The United States, thus, is exerting pressure on international allies to adopt uniform criminal legal regimes and to step up prosecution efforts.

B. Laws in Europe:  Prohibitions on Trafficking Evolve into Prohibitions on Personal Use and Possession.

On August 30, 2006, when the New York Times announced the criminal prosecution of German bodybuilder “Boris K,” the facts sounded eerily familiar.  [37] With the case currently playing out in the Polish courts, though comment on the particulars simply is not possible, the pattern has already been well-established in the United States, one I detailed in a law review piece in 2004 for the DePaul Journal of Sports Law & Contemporary Problems: [38] that bodybuilders, to support their own use of anabolics, will frequently both experiment with and traffic not only in steroids, but also the more typical street drugs on the black market. This is a trend that Yesalis noted as far back as the late Eighties, inextricably linking AAS criminalization to involvement in trafficking by bodybuilders:  because use of the drugs is illicit, covert use being the only current modality in the United States, steroids have been thrown into the general CDS aggregate with heroin, cocaine, Ecstasy, and other prescription drugs used recreationally.  [39]  Steroids, arguably the only “creational” drugs in the mix, have thus acquired the specter of “recreational” abuse largely by association and, concurrently, through routine overdosing and lack of medical oversight and supervision. [40]  Armen Keteyian’s investigative piece for HBO in 2005 conclusively proved this proposition, which, to the author’s knowledge, has never been seriously challenged.  [41]

Aggressive AAS prosecution efforts in Poland, and the former eastern bloc countries, and Scandinavia, however, are a novel story line twist, demonstrating the pervasive influence toward uniformity that both the “Prohibited List” adopted by WADA and U.S. law enforcement regimes have on other western nations. In Denmark, for instance, the Queen signed into law in 1999, an act broadly banning the personal use and possession of AAS, though the statute gives a great deal of discretion to the Minister of Health in terms of naming banned substances, and does not have nearly the definitional specificity or draconian sentencing regime attached, as here in the United States.  [42]  In France, conversely, penalties for use and possession are generally aimed at administrative sanctions against the user/athlete, with much more severe criminal penalties aimed at the parties distributing “prohibited substances,” and the most severe penalties directed against distribution to minors. [43] WADA and other organizations in Europe broadly recognize that there is virtually no proscription against personal use and possession of AAS in the United Kingdom, the Netherlands and Germany.  [44] 

As another example, the Swedish statute appears to reflect the basic idea of American steroid law, prior to adoption of the highly restrictive and proscriptive Anabolic Steroid Control Act of 2004, 108 P.L. 358 (codified in the United States Code, adding 42 U.S.C. § 290bb-25f, amending 21 U.S.C. §§ 802, 802 note, and 811 and appearing in part as notes to 28 U.S.C. § 994 and 42 U.S.C. § 290aa-4):  that inhibiting trafficking in the drugs should be the policy goal of legislation, rather than targeting of individual athletes for criminal prosecution as a result of personal use.  Personal use, however, is also criminalized, though likely considered a “petty” offense, punishable by – at most – six months imprisonment. [45]

A direct result of Congressional hearings on March 17, 2005 [46]investigating steroid use by professional baseball players, a concurrent investigation initiated by the General Accounting Office for then-chairman of the House Committee on Government Reform, Tom Davis, [47] and a push to enhance sentencing penalties and increase deterrence of possessing anabolic steroids at the United States Sentencing Commission, [48]the Government of the United States sought out the assistance of foreign governments to procure reciprocal prosecutions of steroid distribution “rings” in Europe, eastern Europe, Canada, Mexico and China. [49]

Those efforts came to fruition not only with the prosecution of athletes like Kleine in Europe.  Rather, in late summer, 2007, the United States Department of Justice initiated broad prosecution efforts in what it specifically touted as a “global” effort to stem steroid traffic coming into the United States from abroad, mostly by Internet sales and mail.  Operation Raw Deal, as the effort was dubbed, was widely touted as a “global success.”  [50]  

In reality, armed with knowledge of the history of steroid law, the futility and inherent dishonesty of the enforcement effort literally jumps off the page.  In 1994, Burge predicted that an “enforcement resistant supply” chain would arise, because criminalizing use of anabolics would not only force the drugs underground; rather, it would actually increase demand! [51]  It is obvious from the Department of Justice’s own description of the prosecution efforts, this increase in demand and rise of an uncontrollable global, underground supply – as with the black market in opiates – has already come to pass.  [52]

Operation Raw Deal purported to remove “conversion” stocks of anabolic steroid powders, distributed to be reconstituted at their point of arrival by “end users,” in the parlance of computer technology, from a chain of suppliers located in China, Mexico and Canada, though the Government also secured pledges of cooperation from European allies.  The United States Government, capitalizing on a lead-paint toy manufacturing scandal coming out of China, pressured China for reciprocity in helping the DOJ shut down illicit steroid imports into the U.S.  [53]  The Government also targeted Internet message boards and bodybuilding websites. [54]

IV. Conclusion

The internationalized, fascistic nature of current steroid law enforcement policy thus emerges.  Hegemony is its stated goal, that U.S. policy must be tantamount to international policy:  all nations must conform to the legal standard of the United States.  We must all think alike.  This is – obviously – consistent with the broader policy goals of a quasi-monarchical Bush Administration which – ostensibly - has become widely known as the least effective, most mendacious, least competent, and most internationally-alienated American Administration in recent memory.  The “internationalization” of steroid law, however, is also troubling for its politicization and heavy-handed reliance on dishonest notions of morality, cheating, and “protecting our children,” rather than science, which the author has previously addressed.  The history of doping associated with the Olympic movement in particular, and the broad expansion of the steroid underground, demonstrating a complete failure of policy, prove beyond reasonable dispute that calls for legal reform advocated by this author, Richard D. Collins, Esq., and John Burge – whose clarion call to reason rang out nearly fifteen (15) years ago – require immediate implementation.

Androgenic, anabolic steroids should be removed from Schedule III, legal for controlled, adult use as before 1990 when this country – ignoring all expert advice and suggestions to the contrary – made a legally and scientifically incorrect policy decision.  The remedy to that error is, moreover, a very simple one:  repeal the law.

Endnotes

[1] The recent Don Imus controversy, for instance, is a case in point.  Very few people, of whom the author is specifically aware, would defend his good judgment in making racially-tinged, misogynistic slurs; and, the issue of making those remarks over the publicly-licensed airwaves is a legitimate question.  The sad fact is, however, that calls for censorship in any direction affect freedom of speech in every direction, because everyone has an offense threshold over which he or she expects another not to tread.  The “offensiveness” of free speech, moreover, can never be a test for another perfectly healthy reason:  political satire exists to offend.  We need more – not fewer – Bill Mahers in the current media and public discourse.  Let freedom – and offensiveness – ring.  Our media, dominated by corporations whose only interest is the bottom line, has become the grist of predictability, with uniformity of content the norm across the media gradient.  Imus’s hiring of prominent First Amendment attorney Martin Garbus, of the preeminent media firm Davis & Gilbert, appears to send a very clear shot over the bow, demonstrating he intends to engage in a legitimate argument with CBS and MSNBC over exactly what constitutes protected speech over the public airwaves.  Mr. Garbus, Imus’s advocate, is a champion for free speech rights, particularly in the media context, establishing the “national community standard” test for judging obscenity in film in Jacobellis v. Ohio, 378 U.S. 184 (1964), for example.

[2] HBO Real Sports, The Contrarian View, available at:  http://www.hbo.com/realsports/stories/062105_contrarianview.html (last visited July 4, 2005).  At the time of writing this article, a full transcript of the program does not appear to be available on the legal databases LEXIS or Westlaw. Video clip available at: http://www.hbo.com/realsports/stories/2005/episode.99.s2.html (last visited Feb. 11, 2007).

[3] Id.

[4] See, HBO Real Sports, note 2, supra.

[5] Robert Pear, Legal Group Says Bush Undermines Law by Ignoring Select Parts of Bills, The N.Y. Times, (July 24, 2006)(detailing ABA’s disapproval of President Bush) at A12.

[6] “Fascism” is defined as:  “a political philosophy, movement, or regime (as that of the Fascisti) that exalts nation and often race above the individual and that stands for a centralized autocratic government headed by a dictatorial leader, severe economic and social regimentation, and forcible suppression of opposition.”

The Valerie Plame case is but a recent example of executive abuse of power, resulting in the criminal conviction of Lewis “Scooter” Libby, in which the government attempted to exact punishment and suppression of opposing political ideas. See, e.g., Associated Press News Wire, Libby Learns Sentencing Outcome Tuesday, The N.Y. Times, (June 2, 2007) at --- (no page citation available at the time of this article). 

In a recent speech to the graduating cadets of the United States Military Academy at West Point, Richard  Cheney, Vice-President of the United States said:

“As Army officers on duty in the war on terror, you will now face enemies who oppose and despise everything you know to be right, every notion of upright conduct and character, and every belief you consider worth fighting for and living for. Capture one of these killers, and he'll be quick to demand the protections of the Geneva Convention and the Constitution of the United States. Yet when they wage attacks or take captives, their delicate sensibilities seem to fall away.”

In other words, terrorists are not the only problem, here:  the rule of law – embodied in the Geneva Conventions and the Constitution of the United States – is also the problem.  And, to deal with terrorists, we need to suspend the rule of law, and cede complete authority to an unchecked executive, so an authoritarian executive can carry out whatever actions it deems required to support, “every belief [I] consider … living for.”

This kind of talk – in the author’s estimation – is a high crime.  The Vice-President took an oath to defend the Constitution of the United States, not to ensure it is suspended under his subjective test of military expediency.  This is fascism in its most naked form:  usurpation of the rule of law, to concentrate power in the hands of an unchecked executive.

[7] See, William Kunstler Wikipedia Page, available at: http://en.wikipedia.org/wiki/William_Kunstler(last visited April 30, 2007).

[8] United States v. Ahmed Abdel Sattar, et al., No. 02-CR-395 (superseding indictment filed November 19, 2003).  Counts One and Two of the original indictment were dismissed by the Honorable John J. Koeltl on void for vagueness grounds, with the remaining counts Four and Five surviving Stewart’s Motion to Dismiss.  The National Association of Criminal Defense Lawyers filed an Amicus Memorandum in the case as to Count V.  Unhappy with the dismissal of the first two counts, the Government brought new charges against Stewart.  Generally, threats or implied threats of criminal prosecution to achieve a particular result have been considered an act of extortion, when used by private parties.  See, e.g., Flatley v. Mauro, 39 Cal. 4th 299, 139 P.3d 2 (2006).  Yet, the Government, at both the federal and state levels, regularly pressures criminal defendants using coercive and/or extortionate means.

[9] See, e.g, When the Government Becomes a Law Breaker, News Release of the National Association of Criminal Defense Lawyers (February 3, 2006), available at: http://www.nacdl.org/public.nsf/newsreleases/2006mn001?OpenDocument ; see also, American Civil Liberties Union et al., v. National Security Agency et al., No. 06-2095 (E.D. Mich. filed Jan. 17, 2006), Complaint available at:  http://www.aclu.org/images/nsaspying/asset_upload_file137_23491.pdf  (last visited April 30, 2007); see also, Dan Eggen and Paul Kane, Gonzales Hospital Episode Detailed, The Wash. Post (May 16, 2007) at A01.

[10] Adam Liptak and Katherine Q. Seelye, News Analysis:  After Libby Trial, New Era for Government and the Press, The N.Y. Times, (March 8, 2007) at A18.

[11] Brendan J. Lyons, Adviser to Pharmacies in Steroid Case Identified, The Times Union (March 11, 2007).  The investigation has expanded over the course of the past several months in the wake of the Chris Benoit tragedy to implicate professional wrestlers in the WWE, as well as other professional athletes.  Reporting in the Times Union, in the interim, is highly sensational at best, and - at worst – completely scientifically inaccurate.  In several articles, for instance, Lyons refers to human growth hormone in the same breath as “anabolic steroids.”  He regularly quotes officials who decry the procurement of prescription medicines and syringes through the mail.  (The author’s insulin-dependent diabetic mother procured prescription medicines and diabetic supplies, including syringes, through the mail for years, and did so out of complete medical necessity.)  Lyons, who won an award for the series, does not engage in serious investigative journalism:  instead, as shown earlier, he resorts to the role of the sycophantic cheerleader for the local district attorney, David Soares, who is conducting what appears to be a sizeable part of his “investigation” extra-judicially, in the press.

[12] Under ethical rules in most jurisdictions, the very existence of an attorney-client relationship is itself privileged.  Therefore, by indicating he was “not at liberty to disclose” whether or not an attorney client relationship existed between the Stephanos brothers and Mr. Collins, Mr. Long was only acting ethically in maintaining the privileged/confidential nature of the relationship, rather than being evasive, as the author implies.  Mr. Contini, conversely, felt it appropriate to disclose the existence of Mr. Collins’s professional relationship with his clients.

[13] In Boykin v. Alabama, 395 U.S. 238 (1969), the Supreme Court of the United States discussed the reasons that both the federal government and the states prefer guilty pleas and plea bargains as a prosecutorial tool:  they make getting convictions far easier for prosecutors. The Court commented that, of all convictions, approximately 90% are obtained through plea agreements or “deals,” all of which subject the state’s evidence to no meaningful testing at trial.  Boykin, further, recognized the fundamentally unequal power of state and defendant in the context of a criminal prosecution:  in short, the state’s hugely disparate access to legal process and production of evidence is overwhelming for most criminal defendants. Id.  Typically, challenging the means used to procure that evidence is the criminal defendant’s only viable means of defense.  Id.  For this reason, the Boykin Court put very specific “knowing and intelligent” requirements on guilty pleas, to limit the government’s power to “coerce” confessions and plea agreements.  Id.  Guilty pleas are self-imposed verdicts, in the process of which the criminal defendant waives his constitutional right against self-incrimination and many other post-trial statutory rights, such as the statutory right of appeal.  Id. 

[14] Prosecutors have been known, on occasion, to anonymously “leak” details of criminal prosecutions or investigations to the press, which appears to have occurred here – or, even worse – to make extra-judicial statements, in efforts to sway public opinion.  In the process of playing the case out in the press, they so pollute the jury venire that obtaining an impartial panel of one’s peers for trial is impossible.  This, in turn, forces the defense into an even more defensive posture, frequently making a plea deal more attractive than going to trial, getting the prosecutor his “easy” conviction in the process.  In Maryland, this very sort of conduct subjected the Montgomery County State’s Attorney, Douglas Gansler – now Maryland’s Attorney General – to the professional discipline of a reprimand.  Attorney Grievance Comm’n of Maryland v. Gansler, 377 Md. 656, 835 A.2d 548 (2003).

[15]   Lyons, note 11, supra, (emphases added).

[16] See, Litpak, note 10, supra.

[17] What the author calls the “Rosie O’Donnell-effect.”

[18] What the author calls the “Bill O’Reilly-effect.”

[19] C. Everett Koop, the Surgeon General of the United States and a “born-again” Christian, created a lot of internal dissension within the Administration and made a lot of Reaganites and the Christian right unhappy with his frank discussion of AIDS, however.  Eventually, after the Meese Commission report, Koop released his own report on HIV-AIDS, recommending the use of condoms.  During preliminary discussions with members of the Reagan White House about the report in 1986, Koop was instructed that he was never to use four words in discussing the disease:  1.)  Penis; 2.)  Vagina;  3.)  Rectum or anus; and, 4.) condom. Koop, however, refused to comply.  See Fran Hathaway, From Five Infected to Thirty Six Point One Million, Palm Beach (Fl.) Post, Opinion, 2E (June 10, 2001).  It is out of this vacuum of social policy that the anti-steroid legislation of the early Nineties emerged.

[20] Androgenic, anabolic steroids also lie at the center of AIDS therapy. Andrew Sullivan, The He Hormone: Testosterone and Gender Politics, N.Y. Times Magazine (April 2, 2000).  Sullivan makes the argument that “as our economy becomes less physical and more cerebral, as women slowly supplant men in many industries, as income inequalities grow and more highly testosteroned blue-collar men find themselves shunted to one side, we will have to find new ways of channeling what nature has bequeathed us. I don't think it's an accident that in the last decade there has been a growing focus on a muscular male physique in our popular culture, a boom in crass men's magazines, an explosion in violent computer games or a professional wrestler who has become governor. These are indications of a cultural displacement, of a world in which the power of testosterone is ignored or attacked, with the result that it re-emerges in cruder and less social forms.” The author disagrees, in particular, that the sport of bodybuilding is a “less social form,” though it certainly is an exaggerated form.  The level of exaggeration, interestingly enough, has become more pronounced after cosmetic, recreational use the drugs was outlawed.  To the contrary, bodybuilding, as Camille Paglia has pointed out, is really more art than sport, the heightened, “in-the-flesh” realization of the super-muscled late Renaissance ideal, something the august Whitney Museum expressly understood when it put on a show of static, sculpturally-posed bodybuilding icons Schwarzenegger, Corney and Zane, to promote the original release of George Butler’s film, Pumping Iron, in 1975.

[21] Straight pornography, however, eventually wasn’t the only target, as Jesse Helms later got wind of the NEA’s funding of the Robert Mapplethorpe exhibit, and instigated a moralistic uproar that ended in the criminal prosecution of the Contemporary Arts Center of Cincinnati, Ohio’s curator, Dennis Barrie.  Cincinnati v. Contemporary Arts Center, 57 Ohio Misc.2d 15, 566 N.E.2d 214 (1990).  Interestingly, the Mapplethorpe prosecution and stringent anti-steroid legislative activity occurred nearly simultaneously.

[22] Kenneth R. Clark, The Nude: A Study in Ideal Form (Princeton Univ. Press, 1972).  Feminism’s objection to pornography goes not only to the more lurid XXX features and “snuff” films, but includes what it considers “politically incorrect” works of art like Manet’s now-classic Olympia, the streetwise courtesan staring her upper-class johns squarely in the eye, whose face-on gaze shocked Paris. Now, because her naked power shocks victim feminists, Manet must be censored.  See National Coalition Against Censorship, Arts Advocacy Page, available at: http://www.ncac.org /art (accessed, April 10, 2007)); see also, Clifford Putney, Muscular Christianity:  Manhood and Sports in Protestant America, 1880-1920 (Harvard Univ. Press, 2001).

[23] See, WADA Home Page, available at: http://www.wada-ama.org/en/ (last visited April 15, 2007).

[24] The Prohibited List includes several categories, the most prominent of which is a list of androgenic, anabolic steroids, nearly identical to the list included in the “Definitions” section of 21 U.S.C. § 802 (2007).

[25] World Anti-Doping Code, Introduction:  Fundamental Rationale (World Anti-Doping Agency, Montreal, 2003) at 3, available at: http://www.wada-ama.org/rtecontent/document/code_v3.pdf (last visited May 2, 2007).

[26] Id.

[27] The World Anti-Doping Agency is established under governing Swiss law, under Arts. Eighty (80) et seq., of the Swiss Civil Code, at Lausanne. See Constitutive Instrument of Foundation of the World Anti-Doping Agency, Art. One (1) (June, 2007). Its not-so-veiled reference to the Trinitarian concept of “spirit, body and mind” notwithstanding, is generally viewed as a human analog for theological concepts of a Trinitarian Godhead in several different religious traditions.

[28] Exemptions for therapeutic use, for instance, are grounded upon a requirement that use of the prohibited substance therapeutically does not “significantly enhance performance.”  See, e.g., International Standard for Therapeutic Use Exemptions,  available at: http://www.wada-ama.org/en/dynamic.ch2?pageCategory.id=373 (last visited, May 2, 2007).

[29] See, Electronic Mail of Violet Maziar, Assistant, Director of Science, World Anti-Doping Agency to Philip J. Sweitzer (June 8, 2007) (on file with the author), in which she indicates that WADA supports no legal research whatsoever with grant monies, despite the fact that its entire enforcement and regulatory regime is an inherently “legal” construct.  From the standpoint of establishing a baseline in amateur sport, though a “zero-tolerance” standard might well be the only “reasonable” alternative for WADA, this is not entirely clear. It does not seem possible – from the author’s limited perspective – to argue a dichotomous standard of regulated use and physician oversight in the ranks of professional sport, while maintaining a standard of complete prohibition in the amateur ranks.

[30] The United States, unsurprisingly, was one of the more vocal advocates of closer monitoring. In the Olympic context, however, this has had far less to do either with the actual promotion of “human rights” or the humanistic ideals of the Code, than it did with pure nationalism and self-interest.  See, e.g., Barrie Houlihan, Civil Rights, Doping Control and the World Anti-Doping Code, included in, Richard Giulianotti and David McCardle, Sport, Civil Liberties and Human Rights (Routledge, 2006) at 127.  The United States, particularly during the early 1980s/late cold war period of the Reagan Administration, was especially suspicious of Eastern Bloc athletes’ use of steroids, and steroid testing regimens at the Olympic level grew out of U.S. efforts to “catch up” to the Russians and East Germans in swimming and strength sports like weightlifting.  See, Robert Janofsky, Doctor Says He Supplied Steroids to Medalists, The N.Y. Times, (June 20, 1989) at C-2. According to Robert  Kerr, the physician profiled in Janofsky’s article, the Eastern Europeans were so sophisticated in their use of anabolics in the early Eighties, they had already established “centers” whose entire raison d’etre was investigation of possible “blocking agents,” so the presence of the drugs could not be detected. The first emergence of serious drug testing efforts at the 1976 Olympics, therefore, had very little to do with concern for the safety of the athletes, for the spirit of sport, and for the noble values espoused by WADA today:  fundamentally, testing grew out of U.S. efforts – efforts that were blatantly nationalistic – to exercise authoritarian control over what it perceived to be a skewed advantage favoring the Eastern bloc.  Houlihan somewhat euphemistically refers to this as “low levels of trust between policymakers.”

[31] Houlihan, note 29, supra.

[32] John D. Fair, Muscletown, USA:  Bob Hoffman and the Manly Culture of York Barbell (The Pennsylvania State Univ. Press, 1999). 

[33] Id.

[34] Id.

[35] Rob Beamish and Ian Ritchie, The Spectre of Steroids:  Nazi Propaganda, Cold War Anxiety and Patriarchal Paternalism, 22 Int’l J. of the History of Sport 777 (September, 2005).

[36] Charlie Francis, Anabolic Athletics:  A Brief History of Drugs in Sport, T-Nation Online (Oct. 25, 2001), available at: http://www.t-nation.com/readTopic.do?id=459625 (an excellent short history on doping in sport, in which Francis suggests that, despite complaints to the IOC of Russian and East German steroid abuse on a massive scale, the United States Olympic team was among the most sophisticated users of anabolic steroids, consuming a cocktail of Dianabol, Anavar and testosterone in such high doses that it assuredly had the imprimatur of official blessing.  As such, the Americans became known as the “World Champions … of Doping,” by former IOC Medical Commissioner, Manfred Donike.  Francis also gives WADA no quarter: “The World Anti-Doping Agency (WADA) is flushed with victory after catching their first group of athletes for blood doping offenses 31 years after they invented the practice of testing. (Actually, the Finnish athletes were caught because their coach dropped a suitcase out of his car at a gas station that was filled with drugs. Whoops!) WADA president, Dick Pound, crowed, ‘Athletes who compete clean should be able to do so with the confidence that cheaters will be caught and dealt with accordingly.’

Yes, this is the same Dick Pound who is vice president of the International Olympic Committee (IOC). The IOC keeps WADA under its wing to ensure that this "independent" doping agency is run with the integrity the IOC is famous for. But who is Pound talking to? And now that the IOC has added marijuana to its banned list, what’s he smoking?

It’s now a matter of record that the systematic use of performance enhancing drugs in sport for more than 50 years has punted performance standards clear out of sight, so far out of sight that no human can attain them without chemical assistance. The magnitude of the benefit available from drugs was suggested in a secret East German report compiled by the STASI (secret police) in 1968, long before doping expertise reached its peak. In this report, Dr. Manfred Hoeppner, East Germany’s Chief Medical Officer, recommended the universal administration of steroids to East German athletes. Over the next 20 years, the drug-fueled East Germans wrought havoc upon the record books.

How then have performances continued to improve — even beyond East German standards — since the fall of Communism, if sport has been cleaned up? Either the vast majority of top athletes must not be clean, or they must not be human. Fear not! WADA will protect these superior alien beings from the occasional doped-up earthling!”

[37] Brian Montopoli, Ten are Arrested in Europe as Part of Steroids Raid, The N.Y.Times (Aug. 30, 2006) at D3.

[38] Philip J. Sweitzer, Drug Law Enforcement in Crisis:  Cops on Steroids, 2 DePaul J. of Sports L. & Contemp. Probs. 193 (2004). Available at: http://www.law.depaul.edu/current_students/student_orgs/lawslj/pdf/Fall 2004/Cops On Steroids.pdf

[39] See, Testimony of Charles E. Yesalis,  Steroids in Amateur and Professional Sports – The Medical and Social Costs of Steroid Abuse, S. Hrg.  101-763 (1988).

[40]   Sweitzer, supra, note 38.

[41]   See, HBO Real Sports, note 2, supra.

[42] The Act on Prohibition of Certain Doping Substances (No. 232 of 21 April 1999) provides, in pertinent part:

1. This Act shall apply to the following groups of doping substances:

1) Anabolic steroids.

2) Testosterone and derivatives thereof as well as similar substances with androgenic effects.

3) Growth hormone.

4) Erythropoietin and substances that have a similar effect by increasing the number of

erythrocytes in the blood to a level above normal values for the relevant age and gender.

5) Substances that increase the production and release of

a) growth hormone,

b) testosterone and derivatives thereof as well as similar substances with androgenic effects, or

c) natural erythropoietin.

2. The Minister for Health is authorised to stipulate to which other groups of doping substances this Act is to apply.

3.-(1) The doping substances mentioned in sections 1 and 2 may not be manufactured, imported,

exported, marketed, dispensed, distributed or possessed, except for use for prevention or treatment of illness or for scientific purposes.

(2) The use for prevention or treatment of illness mentioned in subsection (1) shall, as regards private individuals, be prescribed by a doctor.

(3) The Minister for Health may grant exemptions from the provision in subsection (1). The Minister may lay down more detailed terms of such exemption.

4.-(1) Violation of section 3(1) or terms as mentioned in section 3(3), 2nd clause shall be subject to a fine or imprisonment of up to two years.

(2) Companies, etc. (legal persons) may incur criminal liability according to the regulations in chapter 5 of the Criminal Code.

5.-(1) This Act shall enter into force on 1 July 1999.

[43] The relevant portion of Book II, Title III, Athletes’ Health and the Fight Against Doping, provides for the following criminal penalties:

Criminal proceedings

Article L. 232-25

Failure to comply with the performance of the duties for which the officials and persons authorised under Article L. 232-11 are responsible is punishable by six months imprisonment and a fine of 7500 euros. Failure to comply with prohibitions decided upon pursuant to Articles L. 232-22 and L. 232-23 is subject to the same penalties.

Article L. 232-26

Prescribing, in breach of the provisions of the second and third sub-paragraphs of Article L. 232-2 of this code, transferring, offering, administering or applying to a sportsman as mentioned in Article L. 232-9, a substance or practice mentioned in that article, facilitating or encouraging their use in any way, is punishable by five years imprisonment and a fine of 75,000 euros. The penalties outlined in the first sub-paragraph are increased to seven years imprisonment and a fine of 150,000 euros if the offences are committed on an organised basis, as under Article 132-71 of the penal code, or if committed with respect to a minor.

[44] See, e.g., WADA, Article on Dutch Legislation, available at:http://www.wada-ama.org/rtecontent/document/Dutch_Legislation _Concerning_Doping_Jan_2007.pdf (last visited June 1, 2007).  German-speaking Europe, including Austria and Switzerland, is surely the largest bodybuilding enclave outside the United States, producing a roster of past and current  bodybuilder athletes of the highest caliber, including Arnold Schwarzenegger, Nasser El Sonbaty, Jean Pierre Fux, Ronnie Rockel, Guenter Schlierkamp, Andreas Frey, Armin Scholz among others, as well as the now-notorious “Boris K.”  German bodybuilding athletes have enjoyed an environment fostering their continual emergence in the sport, principally because understanding of the drugs’ efficacy became part of East German sports culture. And, because legal regimes criminalizing steroids have been directed almost exclusively at traffickers, rather than individual “user” athletes, the legal landscape duplicates a point in time roughly equivalent to the mid-Seventies through late-Eighties in the United States, bodybuilding’s Butler/Gaines “Pumping Iron” Renaissance.  Armed with even greater knowledge of training regimens, “cycling” and dosing regimens, the post-millenium bodybuilding era portends to be dominated by the Europeans.

[45] See, Swedish Code of Statutes,  no: 1991:1969 (emphasis added), which provides:

The Swedish Act prohibiting certain doping substances (1991:1969)

Section 1 This Act applies to

a) synthetic anabolic steroids

b) testosterone and its derivatives,

c) growth hormones,

d) chemical substances that increase the production and release of testosterone and its

derivatives or of growth hormones.

Section 2 Other than for medicinal or scientific purposes, the substances specified in Section 1 may not be

1. imported into the country,

2. transferred,

3. produced,

4. acquired for the purpose of transfer,

5. offered for sale,

6. possessed, or

7. used.

The Act (1999:44).

Section 3

Any person who intentionally violates Section 2, subsections 2-7 shall be sentenced for a doping offence to imprisonment for at most two years. If, in view of the quantity of doping substances concerned and other circumstances, the offence referred to in paragraph one is regarded as petty, a fine or imprisonment for at most six months shall be imposed.

[46] Restoring Faith in America's Pastime: Evaluating Major League Baseball's Efforts to Eradicate Steroid Use, Hearing of the House Committee on Government Reform 109^th Cong. 8 (March 17, 2005).

[48] Richard D. Collins, Esq., Of Ballparks and Jailyards: Pumping Up the War on Steroids, Champion Magazine (National Association of Criminal Defense Lawyers, November 2006) at 22.

[49] Letter of Robert J. Cramer, Esq., Associate Counsel, General Accounting Office to Tom Davis, Chairman, the Committee on Government Reform of the House of Representatives, GAO 06-243R (November 3, 2005), available at: http://www.gao.gov/new.items/d06243r.pdf  (last visited February 11, 2007).

[50] Michael A. Schmidt, U.S. Arrests 124 in Global Steroid Ring, The N.Y. Times (September 24, 2007) at B-1.

[51]   John Burge, Legalize and Regulate:  A Prescription for Reforming Anabolic Steroid Legislation, 22 Loy. L.A. Ent. L. J. 33, 46 (1994).

[52] International Law Enforcement Operation Targets Underground Manufacture of Anabolic Steroids, Dept. of Justice Press Releas (September 24, 2007), available at: http://www.usdoj.gov/opa/pr/2007/September/07_crm_753.html (last visited December 29, 2007).

[53] Schmidt, note 49, supra.

[54] DOJ Press Release, note 41, supra.