Written by Mr. John Parr, Counsel to the United States Attorney, Northern District of West Virginia. This article is the personal opinion and perception of the author, and is not written as a position of the Department of Justice or any of its United States Attorney Offices or Sections.
Within the past two to three years we have seen the emergence and dramatic increase in the use of “designer drugs” chemically produced to mimic the effects of illegal drugs, particularly cocaine, methamphetamine, ecstasy, and the THC of marijuana. These “designer drugs” are sold under a myriad of often innocent sounding commercial names, purporting to be everything from bath salts, glass cleaner, water softener, potpourri, and plant food. They are invariably labeled “not for human consumption,” in an effort to give the products an air of legitimacy, but really as an effort to circumvent federal drug laws. United States v. McDaniel, No. 3:12CR00009–2, 2012 WL 1598064, at *4 (W.D. Va. May 4, 2012). This is all too eerily similar to the pitches of the snake oil hucksters of the Wild West, selling products purported to cure everything, while being safe to use. It wasn’t true then, and still isn’t today.
One cannot pick up a newspaper without encountering an unimaginable horror story. From a Pennsylvania couple who slashed their 5 year old daughter with knives as they attacked “voices in the wall,” to the West Virginia man who raped and killed his neighbor’s pygmy goat. While designer drugs aren’t new, the perception that these specific products are legal have led to a dramatic increase in their use with all too often tragic results. According to the American Association of Poison Control Center, the number of emergency calls about bath salts rose twenty fold from 2010 to 2011 from 303 to 6072, while more than doubling for synthetic marijuana during the same time frame from 2906 to 6955. See Bath Salts, AAPCC, http://www.aapcc.org/alerts/bath-salts/ (last visited Oct. 29, 2012); Synthetic Marijuana, AAPCC, http://www.aapcc.org/alerts/synthetic-marijuana/ (last visited Oct. 29, 2012).
With the notoriety of stories of flesh eating zombies catching everyone’s attention and calling for action, the criminal justice system was forced to play catch up. Law enforcement seemed stymied in their efforts to address the problems. Because they were not listed as a scheduled controlled substance by the federal government or any state, law enforcement believed these “new drugs” weren’t illegal and that distributors were insulated from prosecution until “new laws” were enacted specifically scheduling the product. This premise, though incorrect, was unfortunately held by many.
The phenomenon and problem of synthetic and designer drugs is not new. As such, it has been addressed in the past. In 1986, Congress passed the Controlled Substances Analogue Enforcement Act (The Analogue Act) to address similar problematic drugs by outlawing controlled substance analogues. 21 U.S.C. § 813. Congress recognized that “law enforcement authorities have long found themselves at least one step behind drug dealers who possess certain rudimentary scientific abilities.” S. Rep. No. 99-126, at 1–2 (1985). Drug dealers could take advantage of “loopholes” in the Controlled Substance Act by making “minor alterations in the molecular structure of a controlled substance.” Id.
The Act outlaws analogues under certain situations. Title 21 U.S.C. § 813 states, “[a] controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.” The Act defines a controlled substances analogue by setting out three factors. Title 21 U.S.C. 802(32) reads:
(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II; (ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or (iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar or greater than the stimulant effect on the central nervous system of a controlled substance in schedule I or II.
Whether the chemical structure and pharmacological effect on the central nervous system of the substance is substantially similar to a Schedule I or II substance and whether the substance was represented by the distributor to have the same or similar effect of a scheduled drug. 21 U.S.C. § 802(32).
The Analogue Act, at first blush, appears to criminalize and authorize prosecutions like any other typical drug case of cocaine or the like. However, while the Act does create an avenue to address the problem and undertake a prosecution, it does so with definitional, evidentiary hurdles. With a Scheduled Controlled substance like cocaine, the prosecutor handling the case, at least as far as proving what the drug is, can do so rather quickly and relatively easily through the testimony of a forensic table chemist that the substance is cocaine. It is direct and to the point. The additional layers dictated by the definition of the Analogue Act, not only are a little more sophisticated, but each is slightly more difficult to explain and distinguish to a jury, particularly for those of us who avoided science and chemistry classes. What proof is necessary to show “human consumption?” How similar is “substantially similar” in both structure and effect?
Complaints that the Act fails to provide due process by not specifically identifying which compositions are analogues have been addressed by the Circuit Courts of Appeal: “[t]he very purpose of the statute, which is to prevent development of new drugs by underground chemists attempting to create new drugs that are not scheduled, necessitates some elasticity and prevents a specific listing of chemical analogues.” United States v. Kleckler, 228 F. Supp 2d 720, 726 (E.D.Va. 2002), aff’d 348 F.3d 69 (4th Cir. 2003); see also United States v. Hofstatter, 8 F.3d 316, 322 (6th Cir. 1993) (stating that “[g]iven the creativity of amateur chemists, such a list might well be impossible to compile.”)
The quickly changing formulas by the underground chemist will quite likely be determined to be a controlled substance analogue (because unless they resemble the drug they hope to mimic, there wouldn’t be the financial gains for designing the new substance). However, this process is not quick. Law enforcement chemists will need to identify the new substance and compare it to scheduled controlled substances for both structure and effect. This takes time.
Particularly challenging is the “substantially similar effect” criteria. Since almost none of these substances have any legitimate medical or beneficial use, human studies cannot be undertaken without jeopardizing the health of the participants. Thus, we’re sometimes left in developing that information from anecdotal reports, affidavits, and testimonials of real life users their friends and family, and the all too often tragic impacts on their lives. Again, a time intensive, but unfortunately necessary process.
Once the identification occurs, the Act contemplates and necessitates a battle of experts as to the “substantial similarity” of the chemical structures between the controlled substance and the synthetic composition, as well as whether the synthetic has “substantially similar or greater effect” on the central nervous system. Courts have differed in how much similarity is needed. The only obvious point is “substantially similar” means that they don’t have to be exact. Some courts require “some core arrangement of atoms.” Kleckler, 348 F.3d at 73. Other courts have allowed for more of a variance by looking beyond the individual atoms to the similarity of the chain structure. United States v. Niemoeller, 2003 Lexis 4584 (S.D. Ind.). Still others look at a combination of the structure and effect, indicating where the pharmacological effects on the central nervous system are similar, then the molecular structures should be classified as substantially similar. United States v. Fisher, 289 F.3d 1329, 1338-39 (11th Cir. 2002). Others require a combination of the tests. United States v. Roberts, 363 F.3d 118, 125 (2d Cir. 2004).
Because of the hurdles in prosecuting analogue cases, the recent actions in response to the problem by the DEA and Congress are critically important. Initially, the DEA responded by issuing Emergency Orders on March 1, 2011 for several synthetic cannabinoids and October 21, 2011 for several of the “bath salt” synthetic cathinones, temporarily treating these substances as Schedule I controlled substances. Then in July 2012 Congress enacted the Synthetic Drug Abuse Prevention Act, permanently placing 26 of the synthetic substances as Schedule I controlled substances. Its effective date was October 1, 2012. For prosecution purposes, the Synthetic Act provides great benefits. By moving these substances from the analogue realm by making them scheduled controlled substances, prosecutors will not need to address the hurdles of “intended for human consumption” or of Chemistry 101 and dealing with chemical structures and pharmacological effect on the central nervous system. Rather, like every other drug case, simply proving the drug is what it is.
Passage of the Synthetic Act, specifically scheduling some of the most common designer drugs, isn’t, however, an absolute panacea. It only addresses those 26 synthetic substances. As the “chemists” keep tweaking their products developing a new generation of analogues, the Synthetic Act will not address these, and we will need to see more usage of the Analogue Act to prosecute these new compounds. In this pursuit, as prosecutors we must divest the prior thinking and reliance of waiting on drugs being scheduled. There are protocols and time constraints for conducting the functional studies the substances have on brain receptors. We do not have the luxury of waiting for the scheduling process and allowing these 21st century snake oil hucksters to prey on the unsuspecting.
The Analogue Act was initially established to combat this type of “entrepreneurialism” and to recognize the methodical and time consuming process necessary for scheduling a drug. However, and even more importantly, this recognition is why it retains its viability and necessity. Courts agree, acknowledging the ultimate purpose of the Act to be “[t]o prevent underground chemists from producing slightly modified drugs that are legal but have the same effect and dangers as scheduled controlled substances.” United States v. Hodge, 321 F.3d 429, 432 (3d Cir. 2003); see also United States v. Washam, 312 F.3d 926, 933 (8th Cir. 2002); United States v.Turcotte, 405 F.3d 515, 526 (7th Cir. 2005) (stating “new designer drugs are often created as alternatives to known illegal drugs precisely because they may be sold with an appearance of legality. Unable to keep its controlled substances schedules current in the face of accelerating innovations in drug technology, Congress enacted the Analogue Provision to target distribution of just such . . . substance[s].”)
The Analogue Act while infused with its hurdles is our best option for “keeping up with the Jones” in the world of underground chemistry, particularly considering that throughout its history it has been quite effective. It has invariably withstood void for vagueness challenges, lack of fair notice challenges, and knowledge requirement challenges. See United States v. Kleckler, 348 F.3d 69, 72 (4th Cir. 2003); United States v. DeSurra, 865 F.3d 651, 653 (5th Cir. 1989); United States v. Carlson, 87 F.3d 440, 444 (11th Cir. 1996); United States v. Hofstatter, 8 F.3d 316, 321-22 (6th Cir. 1993); United States v. Turcotte, 405 F.3d 515, 531-33 (7th Cir. 2005); United States v. Washam, 312 F.3d 926, 933 (8th Cir. 2002); United States v. McKinney, 79 F.3d 105, 108 (8th Cir. 1996) (vacated on other grounds), 520 U.S. 1226 (1997); contra United States v. Forbes, 806 F. Supp. 232, 236-38 (D. Colo. 1992). As “designer drugs” come and go the statute lies dormant. It just needs to be dusted off and placed back in “our tool box,” and has. Several United States Attorney offices across the country have successfully utilized the Act over the past year, addressing the problem even before the Synthetic Act. Unquestionably we’ll see more, hopefully resulting in an opportunity to address these substances well before they get scheduled.
Written by Professor Mr. John Parr
Mr. Parr has been an Assistant United States Attorney since 1990, beginning in the Southern District of West Virginia and transferring to the Northern District of West Virginia in 2002. During his tenure, Mr. Parr has served in various capacities including Criminal Chief, Lead Task Force Attorney for the Organized Crime Drug Enforcement Task Force (OCDETF), and Senior Litigation Counsel. He has handled a variety of cases including OCDETF, political corruption, union violence, and violent crimes.
Mr. Parr graduated magna cum laude from Marshall University in 1976 and earned his law degree from West Virginia University in 1979, where he served on the Editorial Board of the Law Review. He is the father of two sons and has three grandsons.