Synthetic Drugs

Is Banning Designer Drugs Constitutional?

If Congress insists on telling adults what substances they may not consume, the least it can do is specify the substances.

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Back in 1986, Congress passed the Controlled Substance Analogue Enforcement Act, a law aimed at "designer drugs" that were similar to illegal compounds but different enough to escape prohibition. Nearly three decades later, the government is still scrambling to keep up with the output of creative underground chemists, banning one psychoactive substance after another, only to find substitutes already on the market.

As a case the Supreme Court heard on Tuesday illustrates, the analog drug law failed because it tried to do the impossible. It tried to stop people from achieving unsanctioned states of consciousness by banning chemicals based on criteria vague enough to cover unknown substances yet specific enough to give fair notice of which actions would lead to prosecution.

The Supreme Court case involves Stephen McFadden, a Staten Island entrepreneur who was indicted in 2012 for supplying synthetic stimulants to retailers who sold them as "bath salts." McFadden had been careful to avoid chemicals that were listed as controlled substances, and the stimulants he was charged with distributing—4-MEC, MDPV, and methylone—were not explicitly banned by federal law when he sold them.

McFadden nevertheless was convicted and sentenced to 33 months in prison under the analog drug act, which applies to compounds sold for human consumption that are "substantially similar" to forbidden substances in chemical structure and actual or intended effects. The law says such "controlled substance analogues" should be treated like the drugs they resemble.

Still, to be convicted of selling a controlled substance, you have to do so "knowingly or intentionally," and it's not clear what that means in this context. McFadden's lawyers argue, reasonably enough, that you shouldn't be convicted of selling an analog drug unless you knew you were selling an analog drug.

The problem is that the analog drug statute does not define substantial similarity, a crucial yet subjective feature on which a chemical's legal status hinges. Experts will disagree, as they did during McFadden's trial, about whether a given compound is substantially similar to a listed substance and therefore qualifies as an analog—a legal question disguised as a scientific one.

As the U.S. Court of Appeals for the 7th Circuit observed in 2005, "a substance's legal status as a controlled substance analogue is not a fact that a defendant can know conclusively ex ante; it is a fact that the jury must find at trial." That situation hardly seems consistent with the due process requirement that a criminal law be clear enough for ordinary people to understand what it prohibits.

The U.S. Court of Appeals for the 4th Circuit, which upheld McFadden's conviction, was untroubled by the fact that he had no way of knowing in advance whether he was committing a crime. The court said it was enough to show he knew people would consume the substances he was selling—a reading of the law that would make felons out of innocent individuals who distribute vitamins, cocktails, or cookies without realizing they contain analog drugs.

The Justice Department, which is asking the Supreme Court to uphold the 4th Circuit's ruling, nevertheless concedes that the appeals court was wrong about the knowledge requirement. But the DOJ argues that someone can be convicted of selling an analog drug if his behavior and comments suggest he knows the product is "a regulated or illegal substance," even if he does not know why.

The government complains that McFadden's reading of the analog drug act makes prosecutions harder, but that is beside the point. If Congress insists on telling grownups what substances they may not consume, the least it can do is specify the substances.

In this case, legislators had no particular drugs in mind. They merely anticipated that no matter what substances they banned, new ones would take their place. Perhaps it is time to reconsider this never-ending game of catch-up, which drives producers and consumers away from familiar intoxicants and toward exotic ones that may prove more dangerous.

© Copyright 2015 by Creators Syndicate Inc.

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  1. Why don’t they just make feeling good illegal? Case closed.

    1. They’ve been trying their best for a millennia.

      1. “By the cold and religious we were taken in hand.
        Shown how to feel good
        and told
        to feel bad”

        1. Wow, it’s not every day we get a Final Cut quote.

    2. Next up,the ‘bad things’ act,and bad will be determined by Top Men.

    3. Lawyer: “Officer, what led you to believe the suspect was in internal possession of an illegal narcotic?”

      Officer: “The suspect was smiling.”

      Jury: collective gasp

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  2. At some point it becomes easier to just list the substances that aren’t banned.

    1. Whatever is not banned is mandatory.

      1. Whatever is not explicitly allowed is banned.

        There, I think we covered it!

  3. Is ‘banning drugs or other substances’ a power delegated to the government by the Constitution? No? Then banning them is unconstitutional. There, that was easy.

    1. It was fairly uncontrovertial that the prohibition of a psychoactive substance required a consitutional amendment in the 1910s, so any other such ban should also require an amendment.

      1. That was before we understood the true meaning of the necessary and proper clause. You see, congress has these specific enumerated powers. Plus whatever the fuck else they feel like doing.

        /statist

        1. It was also before they discovered that the commerce clause somehow actually nullified the rest of the Constitution regarding limits on government power.

      2. Well, yeah. But constitutional amendments require super-majorities and potentially involve policy debates happening in every state in the country. Can’t have that, now can we?

    2. Could it draw people in from other states? Do you use roads to transport the ingredients?
      If so, Commerce Clause.

      1. Was the doctor who delivered you born in another state? Commerce clause.

        1. Did the money you used ever cross state lines, even electronically?

      2. Will it cause people to buy fewer illegal drugs in interstate commerce? Bam, Commerce Clause.

        Did any of the equipment used to make it move in interstate commerce? You know the drill

        No? What about the raw material used to make that equipment, did any of it move in interstate commerce?

        What about the equipment used to obtain or move that raw material? Did any of it move in interstate commerce? Was any of it made from materials that moved in interstate commerce?

  4. Scott Walker is a tranny Nazi.

    1. You know who else was named Scott Walker?

      /Niwdog

      1. Hitler?

      2. Adam Lanza?

    2. As Snopes says, it’s extremely doubtful that that is Walker. But it’s amusing to contemplate the political damage to a Republican if it were true, versus the sound of crickets if a Democrat were found to be wearing a Che tee shirt, etc. Real life example: Larry Craig was scandalized by displaying a “wide stance” (despite his disingenuous critics claiming that there’s nothing wrong with being gay!) while Barney Frank’s boyfriend ran an escort service).

    3. Wow, the left must be terrified of Walker.

    4. Automatic or stick shift?

  5. I have been calling for a ban on Substance D since 2006!

  6. It tried to stop people from achieving unsanctioned states of consciousness

    Mark my words, eventually kids will be suspended for spinning around.

    1. You’re shooting fish in a barrel, Rich. It’s already happened!

      https://reason.com/blog/2014/12…..d5ktf:MrNG

      1. Rotating metal saucers that kids ride … were recently welded into place so they can’t move

        Better to “weld” the *kids* into place so they can’t move.

        Hmm, perhaps there’s some drug medication that would have that effect ….

  7. On topic:

    http://www.cbssports.com/mlb/e…..-ballparks

    I won’t be around for the AM lynx and I’m posting from a tablet, sorry for the formatting.

    1. San Francisco moving closer to banning chewing tobacco at ballparks

      They had jolly well better ban chewing *gum*, too!

      1. Pretty soon, well be getting fined for scratching our balls. Oh, wait…

  8. The government complains that McFadden’s reading of the analog drug act makes prosecutions harder, but that is beside the point.

    Jacob, why do you hate the children?. Do you want our heroes to starve? How else will prosecutors obtain easy plea bargains triumph over criminal masterminds?

  9. As the U.S. Court of Appeals for the 7th Circuit observed in 2005, “a substance’s legal status as a controlled substance analogue is not a fact that a defendant can know conclusively ex ante; it is a fact that the jury must find at trial.” That situation hardly seems consistent with the due process requirement that a criminal law be clear enough for ordinary people to understand what it prohibits.

    I don’t know if it is the first, but there is a long standing precedence of this with obscenity, which is explicitly unknowable ex ante.

    1. Has the “Community Standards” standard been tested in the internet age? Because The Community Standards for the H&R Commentariat Community are vastly different from those of my apartment complex (Example – SugarFree still posts his opii here.)

  10. We can’t have people just messing with their neurochemistry, experimenting with their consciousness, etc. What do you think, people actually own their bodies or something? Anarchist.

    1. If people owned their own bodies, they’d be able to sell their own bodies. We just can’t have that you know.

      1. But is it own-own?

      2. Well, I would like to sell one of my kidneys before they aren’t worth anything due to the availability of manufactured organs. 10-20 thousand would be awesome. Maybe sell half of my liver also?

  11. We don’t know what you are going to be doing. But we are against it in advance.

  12. When will people understand that only natural highs are moral?

    Smoking or snorting something in the privacy of one’s home is an immoral act, deserving prison, while the thrill of tossing a grenade into an occupied crib is a moral high because it’s natural.

  13. Or we could, you know, just admit that banning drugs is a lousy idea that has not worked out well, and shift the law to punish drug addicts when they actually harm somebody other than themselves.

    And if anyone ever seriously suggested that in any State legislature 9 out of 10 politicians would explode.

    1. “And if anyone ever seriously suggested that in any State legislature 9 out of 10 politicians would explode.”

      Sounds like a win-win to me.

  14. With all due respect to Mr. Sullum, analogue and analog aren’t the same.

    1. Are they at least analogous?

      1. Apparently they are, at least in this context:

        Full Definition of ANALOGUE (from the online Merriam-Webster)

        3 usually analog : a chemical compound that is structurally similar to another but differs slightly in composition (as in the replacement of one atom by an atom of a different element or in the presence of a particular functional group)

        —-

        So I was wrong: they’re the same when applied to chemical compounds.

  15. Is Banning Designer Drugs Constitutional?

    No, but since when has that stopped them?

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