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

Reason – by Jacob Sullum

Yesterday 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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Jacob Sullum is a senior editor at Reason magazine and a nationally syndicated columnist.

http://reason.com/blog/2017/07/13/house-advances-bill-that-would-broaden-t