The politics of paraphernalia

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.