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House Advances Bill That Would Expand the DEA's Power to Make Legal Highs Illegal

Plodding prohibitionists try once again to ban drugs that do not exist yet.

Senate Judiciary CommitteeSenate Judiciary CommitteeYesterday the House Judiciary Committee approved a bill that would expand the attorney general's unilateral authority to ban psychoactive substances in a vain effort to keep up with inventive underground chemists. The Stop the Importation and Trafficking of Synthetic Analogues Act of 2017, a.k.a. the SITSA Act, would create a new category under the Controlled Substances Act (CSA) known as Schedule A to facilitate the administrative prohibition of new drugs that resemble those in the law's other schedules. The bill, introduced by Rep. John Katco (R-N.Y.) in the House (H.R. 2851) and by Sen. Chuck Grassley (R-Iowa) in the Senate (S. 1327), is both an alarming expansion of bureaucratic power and a vivid illustration of prohibition's absurdity.

In theory, the drugs that Katco and Grassley can't name but want to ban—synthetic opioids, stimulants, cannabinoids, and psychedelics—are already banned by the Controlled Substance Analogue Enforcement Act, a law that has been on the books for more than three decades. The Analogue Act criminalizes production and distribution of compounds that are structurally similar to controlled substances and have similar effects (or are represented as having similar effects). But the Drug Enforcement Administration (DEA), the Justice Department agency that would exercise the authority that the SITSA Act grants, complains that prosecuting people under the Analogue Act is difficult. Prosecutors have to show the substance was intended for human consumption and the seller was aware of its structural and psychoactive similarity to a banned substance.

Even worse (from the DEA's point of view), the prohibited status of any given analogue has to be re-established in each case, since it hinges on what the defendant knew and intended. As Demetra Ashley, the DEA's acting assistant administrator for diversion control, noted in her testimony regarding the SITSA Act, "each prosecution requires expert testimony to obtain a conviction, even if the same substance was determined by a jury to meet the criteria of the analogue definition in a prior case." Although "this process is workable," Ashley said, it is "resource-intensive for DEA, federal prosecutors serving in United States Attorney's Offices, the defense bar, and the court system."

The Synthetic Drug Abuse Prevention Act of 2012 offered a partial solution to this problem, banning 26 cathinones, cannabinoids, and phenethylamines by name. That law also includes a general ban on "cannabimemetic agents," defined as "any substance that is a cannabinoid receptor type 1 (CB1 receptor) agonist as demonstrated by binding studies and functional assays" if it has been tweaked in one of five specified ways.

The DEA already has the authority (delegated by the attorney general) to ban drugs without congressional action. By Ashley's count, it has done so with "44 synthetic designer drugs" since March 2011. To permanently schedule a drug, the DEA is supposed to consider eight factors and consult with the Department of Health and Human Services (HHS). "These scheduling evaluations by both HHS and DEA require extensive collection and evaluation of scientific, medical, law enforcement and other data," Ashley complains. "The acquisition of this data is often an arduous and time-consuming process. The public continues to be impacted adversely while this data is being obtained in support of control under the CSA."

If the DEA administrator believes a substance poses an "imminent hazard to public safety," he can ban it temporarily while beginning the process for permanent scheduling. As the aborted attempt to prohibit kratom illustrates, the scientific standards for a temporary ban are laughably lax in practice.

In short, the DEA already has a lot of power to target distributors of novel psychoactive substances. But as always, it wants more.

The SITSA Act addresses the DEA's complaints about the burdens of due process by making a dealer guilty of distributing a Schedule A drug, a felony punishable by up to 10 years in prison for a first offense, even if he did not know what he was selling. That scenario is hardly far-fetched in a market where one drug (heroin, say) may be mixed with another (a fentanyl analogue, say) in a foreign country long before a retailer obtains it, so that neither he nor his customer knows exactly what is in that white powder. "We believe that any criminal offense should require a culpable mental state," say four conservative groups in a letter opposing the SITSA Act. "Nevertheless, H.R. 2851 would enact harsh penalties while ignoring the defendant's mens rea."

The SITSA Act addresses the DEA's complaint that science is hard by eliminating any need to consider it when banning psychoactive substances. While HHS is supposed to play an active role in scheduling decisions under current law, the SITSA Act relegates it to commenting on the order already prepared by the DEA. The bill replaces the eight current criteria for prohibition with two: 1) "a chemical structure that is substantially similar to the chemical structure of a controlled substance" and 2) "an actual or predicted stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance."

A temporary ban is even easier. There is no need to claim an "imminent hazard to public safety." The DEA only has to assert that "the drug or other substance satisfies the criteria for being considered a schedule A substance" and that "adding such drug or substance to schedule A will assist in preventing abuse or misuse of the drug or other substance." And instead of expiring after a maximum of three years, a temporary ban on a drug destined for Schedule A lasts five years. Why? Because five years is longer than three years. Duh.

Explaining the need for yet another legislative attempt to conquer the ineradicable human desire to achieve altered states of consciousness, Grassley notes that "illegal drug traffickers and importers are able to circumvent the existing scheduling regime by altering a single atom or molecule of a currently controlled substance in a laboratory, thereby creating a substance that is lawful." Things would be so much easier for plodding prohibitionists like Grassley if they could simply announce that all psychoactive substances are banned, except for the ones on a list drawn up by Congress. Instead they are left to grope about in the dark, trying to ban things that have not been invented yet, based on their anticipated effect on the central nervous system. If it makes people feel good, Grassley figures, it cannot be tolerated.

This pharmacological tyranny is not just foolish but positively pernicious, because it drives people to more dangerous alternatives. A policy that encourages the substitution of novel, untested, unlabeled substances for well-studied intoxicants that people have been using for decades or centuries is not a policy aimed at minimizing the harm caused by drug use. Nor is a policy that makes it impossible for a heroin user to know what he is injecting or for an MDMA user to know what he is swallowing. Observing the injuries and deaths caused by their previous attempts to police the bloodstreams of Americans, bumbling busybodies like Grassley automatically respond by redoubling their efforts. This time for sure.

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  • BYODB||


    Things would be so much easier for plodding prohibitionists like Grassley if they could simply announce that all psychoactive substances are banned, except for the ones on a list drawn up by Congress.


    I'm pretty sure this is their goal, unfortunately.

  • Robert||

    They did it in Britain.

  • Tony||

    Had enough "deregulation"?

    You do know that's for giant corporations and not for peons like yourselves, right? Hope it's worth it.

  • BYODB||

    If I didn't know better, I would say you use two-value logic to navigate the world. How classical of you.

  • ChipToBeSquare||

    As long as the corporations and Russians are paying us to support deregulation, we're gonna keep banging that drum

  • Vapourwear||

    Shut the fuck up, Tony.

  • Mark22||

    Compared to getting the same crap, plus tax increases and more wars courtesy of Hillary and the Democrats, yeah, it's actually worth it. In fact, not having to listen to that evil cackle is worth it. Did that answer your question?

  • Rich||

    the DEA's acting assistant administrator for diversion control

    WTF?

    Also, alt-text: "Mr. Grassley? Mr. Grassley? Earth to Grassley ...."

  • Rich||

  • Hugh Akston||

    Well fortunately the Deregulator-in-Chief will never sign a bill like this.

  • Calidissident||

    Didn't you hear? He's dismantling the federal government entirely!

  • loveconstitution1789||

    Yes, Rep. John Katco and Sen. Chuck Grassley are not advancing this legislation- it's Trump doing it!

  • Calidissident||

    I wasn't accusing him of being the one advancing it, but if you seriously think he'll veto it (which was the context of my reply) if it passes, I have a bridge to sell you.

  • Dillinger||

    "I didn't enjoy my life; you can't enjoy your either." - Chuck G.

  • Dillinger||

    yes, he typo'd his own quote.

  • loveconstitution1789||

    Clearly Congress makes too much money and has too much time on its hands to even discuss a law like this.

    Cut their pay by 50%+, make their pay dependent on passing a yearly balanced budget, and only have Congress in session one week a month.

    This way they have less time in session to advance ridiculous legislation. They will still advance ridiculous legislation but they will have less time to do so.

  • SomeGuy||

    sadly, they could spend 90% of their time on removing bad/pointless laws and it would tale the next 50-100 years to undo the damage.

  • DenverJ||

    Fuck these fucking fuckers. Why is it any of their business? Was it puritanism that was described as "the fear that somebody, somewhere, is having a good time"?

  • Mark22||

    Progressives and Christian conservatives everywhere agree that it's the job of government to protect you from your sinful nature, by taking your money and throwing you into prison. They simply disagree about some details of the definition of "sin".

  • damikesc||

    I wouldn't trust the DEA on any issue that I can imagine.

    Listen, I don't care if Congress doesn't want to do the tough work and, instead, let bureaucrats do it. They still don't have the right to allow somebody to run my life without a vote being taken first.

    This is high-level bullshit. I have questions about anybody that wants to give an unaccountable bureaucracy MORE power than they already wield.

    Jesus this is a fucking stupid idea.

  • damikesc||

    And I have, literally, zero doubt Trump will sign it. Whether it is due to agreement or simple intellectual laziness, I don't see him vetoing much of anything ever.

  • Eman||

    The proverbial "they" are, slowly, realizing how powerful and unstoppable the confluence of tor and bitcoin is, and how they cant put that cat back in the bag without completely dropping the whole "nation of laws" pretense and going through peoples mail. So they're just responding to failure the only way they know how, by doubling down. I imagine it will work about as well as it usually does.

  • turco||

    I looked at the rule twice. No mention of "addiction" or chemical dependence, or biological harm. Did I miss it ?

  • fafalone||

    Prohibition hasn't reflected harm since day 1 when marijuana was deemed as dangerous as heroin and crack. Everyone knows those things don't matter so why bother.

  • IceTrey||

    Remember when Republicans were for less government.

  • fafalone||

    No, no I don't. They have *always* been about an ever-expanding police state to enforce the drug war, not to mention anywhere else they wanted "less government" just being code for "less government here, then use money for bigger military." They preach it but don't live it.

  • Mark22||

    they wanted "less government" just being code for "less government here, then use money for bigger military.

    A big military isn't the kind of big government I worry most about much.

  • jmlandry||

    1. Fuck the DEA

    2. See #1

  • Fear and loathing||

    I knew a guy who killed himself after being indicted by some cunt US Attorney under the Analogue Act. He shot himself in the head the day before the trial. Seems like you'd just eat your jail sentence before eating a bullet or at least try to take out some of your tormentors.

  • Tionico||

    eedjits!!! WHERE does the Constitution assign any authorith to FedGov to regulate or control anything we put/don't put into our bodies? And HOW do unelected hooh hahs get to make laws anyway?

  • Jickerson||

    The government does not have the Constitutional authority to regulate drugs, and insane interpretations of the commerce clause do not change that. Also, Congress doesn't have the authority to bestow lawmaking/regulating powers upon other organizations; those government organizations should, at most, play advisory roles.

  • antiestablismentarianism||

    I'm trying to understand how the federal government has the authority in the constitution to do this (or 90% of the laws they pass) when the constitution is clear that powers not delegated to Congress are reserved for the states and the people respectively. How has this part of our constitution been lost?

    The obvious argument is the Commerce clause of Article 1, Section 8 which reads:

    "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;"

    "Among the several states" interpreted in the language used at the time means that they regulate commerce between the states, also known as interstate commerce. This does not mean they can create laws that criminalize conduct happening within the borders of any state unless section 8 specifically allows them to. The courts have said as much, but because of politics, it continues to be ignored.

    Furthermore, nothing in Article 2 authorizes the President or any of his staff to "create" laws or regulations unless Congress, within their enumerated powers, gives him the ability to do so.

    It's time to give the power back to the states and the people respectively as the constitution requires.

  • Red Twilight||

    Plodding Prohibitionists?
    Republicans. Say it, after you reason.com libertarians let go of Paul Ryan's cock.

  • VicRattlehead||

    why cant these old fucks just die off finally

  • Angela Mackenzie||

    Kratom is a godsend for many people who are addicted to legal and illegal narcotics as well as for those experiencing mild depression and social anxiety. It is not physically addictive and taken in powdered leaf form (which is how it should be) is 100% pure and free of harmful pharmaceutical chemicals. You cannot overdose and it does not impair your coordination nor judgment. It is not a recreational drug and you cannot get high from it. It is no more potent than coffee. There was once a time in America when legislators valued individual freedom. This is no longer the case due to ignorance and lobbying from wealthy drug cartels.For more information:Kratom

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