Charge First, Research Later

When Bismarck, North Dakota, police found eight ounces of the newly illegal psychedelic herb Salvia divinorum in Kenneth Rau's house last April, they claimed it was enough for about 900 doses. Rau—who appears to be the first American prosecuted for possession of salvia, which remains legal in most of the country—therefore faced a charge of possessing salvia with intent to deliver. Press accounts say that's a Class A felony, punishable by up to 20 years in prison. The online version of the North Dakota Code (PDF) says it's a Class B felony, punishable by up to 10 years in prison (Class A being reserved for possession of narcotics, methamphetamine, or more than 100 pounds of marijuana with intent to deliver). Either way, the potential penalty was much more severe than Rau anticipated when he bought the salvia for $35 on eBay in December. North Dakota's salvia ban had taken effect the previous August, and Rau (quite plausibly) says he was not aware of it.

The Drug War Chronicle reports that Rau recently was offered a plea bargain under which he would have spent five years in prison, which someone facing the possibility of 10 or 20 years might seriously consider. Rau, who insists (again, quite plausibly) that the salvia was strictly for his own use, turned down the offer. It's a good thing he did, because shortly thereafter the prosecution admitted that police had overestimated the number of salvia doses in Rau's possession by a factor of more than 100. According to a story in today's Bismarck Tribune, "Burleigh County Assistant State's Attorney Cynthia Feland said in court on Wednesday that authorities researched salvia divinorum and learned that the amount Rau had was about 8 doses." The salvia charge therefore has been reduced to a Class C felony, which carries a maximum penalty of five years.

The Drug War Chronicle notes another example of the drug cops' ignorance about drugs: Rau was initially charged with possession of psilocybin because he had, in addition to the salvia, Amanita muscaria (a.k.a. fly agaric) mushrooms. Police later dropped that charge because they "figured out that amanita does not contain psilocybin."

The Tribune profiles Rau here. My previous post on his case is here. My comments on the broader salvia crackdown are here and here. Last year I touched on the distinction between psilocybin mushrooms and the cooler-looking (but less fun) fly agaric in a book review.