Jun 062013

The legal haze over the war on drugs

By Marcus Flores 

Ginny Saville had been waiting. Several months passed before Lexington police realized they should probably obey a court order—not the first—requiring them to return tens of thousands of dollars of purloined bongs and rolling papers to The Botany Bay, Saville’s eclectic little store. By May 15, according to the store’s Facebook page, some of the goods had been returned.

It was a minor victory in a local battle in the national war on drugs. However, Saville cannot breathe a sigh of relief just yet: since this is not her first entanglement with the law, she runs the real risk of felony charges this time around. Understandably, both she and Chris Miller, one of the attorneys representing her, were hesitant to go on the record when I requested an interview.

According to the Herald-Leader, The Botany Bay employees allegedly sold synthetic cannabis to undercover officers on an unspecified date before the store was raided in August 2012. According to the warrant, one of the samples was determined to have been “XLR-11,” a form of synthetic cannabis whose chemical makeup may determine whether or not Saville ends up in jail.

Because of several recent amendments to the Kentucky Revised Statutes (KRS) regarding synthetic drugs, the case could wind up more a war of technicalities than a war on drugs. Last spring, an “EMERGENCY DECLARATION”—hyperbole for amendments to the KRS definition of synthetic drugs (see House Bill 481)—was passed to outlaw as many of the newly emerging chemicals as possible.

The problem with banning substances is somewhat similar to the banning of “assault” weapons: one must be able to define what one seeks to ban in the first place. KRS 218A.010 lists several highly technical definitions of synthetic cannabinoids. For example, one definition is “any compound containing a 3-(1-naphthoyl)indole structure with substitution at the nitrogen atom of the indole ring by an alkyl, haloalkyl…” You get the idea. There are six others, and lacking a degree in organic chemistry, I can’t tell you if XLR-11 would fit any of the descriptions.

But a catch-all final definition reads “any other synthetic cannabinoid or piperazine which is not approved by the United States Food and Drug Administration or, if approved, which is not dispensed or possessed in accordance with state and federal law.” So for the purposes of the Kentucky Revised Statues, a “synthetic cannabinoid” is also any other synthetic cannabinoid NOT listed among the seven technical definitions. This is the very act of defining a word by using the same word in the definition.

I would rather not know how many of my tax dollars will be spent on arguing out these semantic gymnastics in a court of law. Yet as I wrote last year, some synthetic drugs have caused bizarre and occasionally dangerous reactions in otherwise healthy individuals. So perhaps The Botany Bay should have known better and kept the synthetics off its shelves. Nevertheless, police left The Botany Bay with way more than just fake weed. Tens of thousands of dollars of pipes and papers were seized. Why?

Like chemicals, pipes and papers represent another ambiguous element in the war on drugs. NORML, a group established in the 1970s to reform marijuana laws, notes that a tobacco pipe is a tobacco pipe unless it is used for cannabis, in which case it undergoes a legal transformation and becomes “paraphernalia.” A recent case in Hudson, WI, demonstrates the sheer silliness of criminalizing glassware. Several employees of a sex shop were fined $6000 each for possessing unused pipes and bongs. Ultimately, the question for Hudson is whether or not said bongs or pipes are “paraphernalia” even if they have never been used to ingest illegal drugs.

But if they are, wouldn’t that mean essentially any household item (say, a spare PVC pipe) could be considered paraphernalia? What about a diabetic’s empty syringe?

What’s worse is that laws have been modified with the purpose of interfering with small businesses such as The Botany Bay. A bizarre 2010 “Bong Bill” passed in Florida required stores to generate at least 75 percent of their profits from tobacco products and accessories in order to sell from a “long list” of smoking devices. Alternatively, if less than 25 percent of the store’s income comes from pipes and bongs, then the store can also legally vend them.

In other words, you can try to sell pipes and bongs, but just not too many. (Head shops beware the curse of being too successful.) Or you are first forced to vend tons of tobacco. And if you go out of business, well, too bad; some established tobacco outlet will benefit. Evidently, the logic goes: if the war on drugs hasn’t stopped people from smoking cannabis, then surely a bong or head shop scarcity will do the trick.

Is all this nonsense really preferable to legalizing real cannabis? Or at the very least, should we continue to pollute the court systems with people who possessed or sold questionable glassware? The only people these asinine laws seem to benefit are attorneys who, like mercenaries, make a profession of warring over minutiae.

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  10 Responses to “The politics of paraphernalia”

  1. I did a ton of research on the topic of synthetic marijuana. Statistically, it’s not dangerous at all. Yet. http://www.kyfreepress.com/2013/06/synthetic-marijuana-deaths-statistically-zero/

  2. The idiocy of the drug war is alive and well in this case. It is literally impossible to abide by the law with such vague definitions which then become an opportunity for zealous, self-righteous nannies-with-guns to inflict their harm on otherwise good companies and good people. It is a lonely, difficult task defending oneself in an area fraught with so much negative emotion and misinformation, and I applaud Botany Bay for having the courage to fight the injustice.

  3. Sally,

    I agree that, statistically, there are few dangers associated with it. Still there are some indeed odd cases that I linked to in a previous article that demonstrate some concerns I have with synthetic cannabis. I guess my point is this: real cannabis has never been known to cause heart attacks or seizures or deaths–yet it is illegal. This creates demand for grey market chemicals manufactured by backyard chemists who I fear may engineer something more dangerous and with unpredictable side effects. I think this is what you and that article were getting at. Thanks for reading.


  4. For me, the question of whether marijuana is harmful or synthetic marijuana is harmful should be of interest to the adults who are contemplating consuming these substances, and these issues should also be of interest to the parents of minors who might be contemplating the consumption of these substances. These are not the issues that should be any business of a government of any free people.

    Prohibition does not work. We saw that with alcohol prohibition, where arguably good intentions (mixed with a large dose of assumed moral superiority) led to very bad results. People soon realized that the government enforced “cure” for alcohol was MUCH worse than the harmful effects of alcohol itself. Prohibition did not stop alcohol consumption. It instead resulted in making criminals of those who consumed alcohol. The much higher profit margins gave birth to organized crime that we still have to this day, and even worse, it resulted in the growth of Big Government with the concurrent loss of our liberty. The people had the sense to end alcohol prohibition, even though we kept the organized crime and Big Government (a more pernicious form of organized crime). Today, the War On Drugs has given us more crime and more big government, yet we don’t have the sense to stop it this time… or perhaps the Big Government monster has grown too large for us to slay. Now, we are the servants of Big Government and we dance to its tune – warrantless searches, the presumption of guilt, the police state, asset forfeiture theft, crooked courts, the prison industrial complex that grows fat by gorging itself on our tax dollars… the benefits of the War On Drugs apparently knows no limits. It’s certainly much more harmful than people smoking a plant, laughing, and eating junk food. Why should that bother me at all?

  5. Lawlessness is never more pernicious than when it is perpetrated by those trusted with writing and protecting laws. If Kentuckians held all official actions up to the standard set by Section 2 of our state Constitution, this kind of evil would be eliminated rather quickly.

  6. LetsTryLiberty,

    Thanks for reading. For the most part, I agree with you about making personal decisions about whether or not to consume drugs. I really don’t see a logical reason for outlawing, say, the psychedelic drugs (and I consider cannabis a mild psychedelic). I do have more of an issue with harder drugs like cocaine and heroin. Charles Dickens left us with a number of sordid references to the opiate dens in his novels, and Stanley Karnow, in his History of the Vietnam War, notes that at one point, almost entire American units (including officers) in Vietnam were addicted to heroin. And even before all this, Homer cautioned us about the Lotus Eaters in the Odyssey. Clearly, opiates aren’t anything to mess around with.

    I tend to be a small government type myself, yet one of the stated goals of the government, according to the Constitution, is to “promote the general welfare” of the people. Do you support legalizing (or at least decriminalizing) the use of, say, heroin, despite its destructive capacity (which would clearly be opposed to the general welfare)? Just something to think about.


    • Marcus,

      Thanks for writing!

      I do agree that opiates are nothing to mess around with, which is why I don’t mess around with them. Gosh, it’s a good thing the government told me that heroin is illegal, otherwise, I’d be a heroin addict. Thank you Big Government!

      I believe that in most cases, the people who don’t use heroin wouldn’t use heroin if it was legal, and the people who do shoot heroin will do so whether it’s legal or not. I don’t believe that outlawing heroin is doing much if anything to prevent the use of heroin. In fact, I’ve read that heroin use is way up lately, despite the efforts of all of the drug warriors. I honestly believe that for every person dissuaded from using heroin because it’s illegal, there is at least one person who is more likely to start using heroin because it’s illegal. There is something very tempting about forbidden fruit to some people.

      Did Prohibition end alcohol use? Of course not. In many circles, it made it trendy and fashionable and hip.

      The heroin argument is specious because people refrain from using heroin because they know the dangers and make the choice not to be a heroin user of their own free will, but the drug warriors claim every person not taking heroin as their positive Big Nanny influence… as if we couldn’t figure out not to shoot heroine without the blessings of Big Government telling us what to do.

      I don’t think I’m tempted to use heroin because it’s illegal, but I must admit, as illogical as it is, that my resentment of the big nanny government’s seat belt law has resulted in me using my seat belt slightly less often than I did before seat belts were mandated by law.

      BTW – Do you remember how the seat belt policy was implemented? First, it’s illegal, but don’t worry. We won’t ticket you for it. It’s just a friendly reminder from your friends in the government. The next year, we were told that they’d start citing people for not wearing a seat belt if they were being cited for another crime. A year or two after that and we’re told “Click It Or Ticket Kentucky! It’s the law!” And police departments around Kentucky have quotas for seat belt citations and we’re being written up for not being buckled up in a parking lot. The frog is boiled by degrees.

      I assume you don’t use heroin. Honestly, how much of your decision is the result of it being illegal? Would you be more likely to shoot heroin if it was legal? Not likely.

      As a thought experiment… if the government made heroine use mandatory, you and I and a few hundred million other Americans would be outlaws.

      I hope big government nanny Bloomberg doesn’t manage to make caffeine illegal. That’s my drug of choice.

  7. As well intentioned as the War on Drugs is, there are the inevitable unintended consequences of using the government hammer to address an issue (or non issue), as is apparent in this case. At least when the ill fated prohibition of alcohol was enacted it was understood that an amendment to the Constitution was required to limit our rights. Under the new prohibition, the War on Drugs, the violations to our basic rights are largely ignored.

  8. nice article!

    Arbitrary law enforcement should scare the sh*% out of EVERYONE!

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