The Analogue Act Catch-22

Drugs Justice Legislation Politics Wade's World

Pearl River      I got a call from a PR man for the University of California Press flaking a book about drugs.  I’m a bystander on this issue, so my first kneejerk reaction was, “not interested.”  He kept going through and said this guy’s work wasn’t really so much about drugs as it was about the aberrations around the law and justice system applied to not marijuana exactly, but synthetic drugs, if you may.  He claimed this was really about overreach and injustice, more than it was on happy days and crazy money schemes.  He was actually right about that once I read, Bizarro:  The Surreal Saga of America’s Secret War on Synthetic Drugs and the Florida Kingpins it Captured, by Jordan Rubin, a former prosecutor on drug crimes among other offenses, and now a journalist, who I also talked to at some length on Wade’s World.

Here’s the deal.  These fellows in Pensacola were running head shops a decade or so ago and selling whatever the market demanded.  Besides pipes and papers, it seems like customers would line up for factory-and-lab made synthetic substitutes for marijuana, which were legal, or at least not illegal, most of which were called “spice.”  They were about making a buck for sure, but they wanted to go right up to the legal lines without crossing them, so they had everything they sold in this vein tested by outside labs to make sure these weren’t scheduled drugs according to the DEA.  They would carefully make sure they were labelled “not for human consumption,” which was key to the game.  When they heard that there was some question, they actually reached out to police contacts and found an agent, invited him into the store, let him take samples, and told him that if he thought the product was illegal, they would walk away the next day.  He said they weren’t illegal, but they still exited the business in an excess of caution.   Later they were arrested, indicted in three different states including Nevada and Virginia, but not in Florida, and are in jail to this day with appeals in various courts still outstanding.

The real culprit in this story is something known as the 1986 Analogue Act in short, which has been a key part of the ongoing legislation in the government’s anti-drug war.  The Act essentially says that if a synthetic substance is “substantially similar” to an illegal substance chemically, then it’s illegal as well.  Ok, in the whack-a-mole around marijuana and other drugs, it’s easy to see what the government and Congress were trying to do politically, but scientifically and legally no one really knows how to define “substantially similar.”  In fact, even within the DEA there were differences of opinion, which the Justice Department and some judges tried to prevent being heard in court on this amorphous definition.  To compound the problem, even when some part of the DEA said a synthetic was out of bounds, they kept it secret, which was how they ensnared the Florida guys.

Politically, few of the pols want to clear up this problem, because they would look soft on drugs and crime.  Judicially, some, including Supreme Justice Gorsuch, when he was on the Appeals Court, noted how vague and disturbing the language in the Analogue Act was, but with differences in opinions in the federal judiciary, it still hasn’t been sorted and might not be until the Supreme Court considers the problem.

This isn’t a situation where you get out the crying towel in sympathy for the guys in prison, but it is a case where your hair catches fire that in a so-called system of laws, we allow something like this Act to be a gotcha eroding any sense that there is justice in the system.