The Salvia May Be Simulated, but the Bars Are Real

You know about Salvia divinorum, the psychedelic herb that is sometimes mistakenly described as a legal marijuana substitute. And you know about imitation marijuana, the herbal "incense" sprayed with synthetic cannabinoids, five of which were recently banned by the DEA. But did you know about simulated salvia? On Monday state police in Kentucky, one of the 19 states that have banned salvia, arrested Jo Ann Warner, owner of Dusty's Adult World in Mortons Gap, and charged her with 23 counts of "prohibited practices concerning substances that simulate controlled substances," a Class A misdemeanor punishable by up to a year in jail for each count. A local news website describes the police work underlying the charges:

The investigation began on March 9, 2011. During the execution of a search warrant on Dusty's Adult World, troopers located items that appeared to be salvia or a simulation of salvia. The store had display cases of which one display case had salvia or simulated salvia and salvia paraphernalia items in it.

If the "simulated salvia" turns out to be real salvia, Warner could face felony charges that carry a penalty of up to five years in prison for a first offense and up to 10 years for subsequent offenses. But even if she was selling nothing but oregano, she would still be subject to the simulated salvia charges, because the relevant statute (PDF) applies to anyone who sells "any substance, other than a controlled substance, with the representation or upon creation of an impression that the substance which is sold or transferred is a controlled substance."

Here the government takes a law that should not exist and kicks it up another nonsensical notch, criminalizing not only consensual drug transactions but actions that resemble them. Warner was hit with a second set of meta-charges: 79 counts of possessing drug paraphernalia (real pipes used to smoke the fake salvia), also a Class A misdemeanor. Finally, the cops who noticed the simulated salvia and the pipes while browsing the shelves at Dusty's Adult World also determined that some of the pornographic DVDs and magazines crossed an invisible line into territory where the First Amendment does not apply, so they also charged Warner with 16 counts of yet another Class A misdemeanor, distributing obscene matter.

Last week I discussed drug sentencing reform in Kentucky. It looks like they have a ways to go.