Monday, September 16, 2013

Drugs are bad. Drug laws are worse.

A Duluth shop owner and two employees are on trial for 50+ felony charges alleging that they sold "synthetic drugs," in violation of federal laws. He is also facing a number of state charges for the same reason. 

He isn't alleged to have been pushing heroin on innocent schoolchildren at the park or anything so dastardly as that.  He's alleged to have sold products that are used to get high but that aren't what people normally think of when they hear "drugs." 

These so called "synthetic drugs" go by a variety of different names. Plant food, bath salts, K2, spice, etc. They are often packaged and sold as a product w/ a legitimate use, for example, plant food or bath salts. Some are sold as potpourri. Almost always, the packaging will have a label somewhere on it that clearly states: Not For Human Consumption.  

The argument, so far as I have heard in my capacity as a public defender, is that these products are not actually the products that they claim to be, but instead, they are merely masquerading as legit products to avoid prosecution and thwart the law because they are meant to be used to get high.  This seems a bit of a sketchy argument for determining what is or isn't a legitimate product and not just because of the fact that it can be used to get high. I mean, really...if the litmus test for things that we need to criminalize is that they don't actually do the things they claim to do, then almost every infomercial product should be illegal.  (Except for Snuggies. Those are actually awesome and they are exactly what they claim to be--a blanket with sleeves. But I digress.). 

But, beyond just the sketchy reasons for criminalizing certain products that claim to have legitimate purposes but the government has decided they don't, there seems to be little to gain by criminalizing these products and then prosecuting people for either buying, selling, or using them to get high. 

Before I go any further, let's make no mistake here--I am not pro-people-doing-drugs. I have seen firsthand in my work the carnage and chaos a drug addiction can have on a person and their life.  I have represented clients who I have watched as they literally wasted away before my eyes as time passed because the drugs were eating them away from the inside. I have no misunderstandings on the horrors that drugs can cause people. But, I do not think we are approaching this epidemic in the correct way. Hence, this post. I do think treatment and any and all available resources should be extended to people with drug addictions. I don't think making drug addicts serve time and/or have criminal histories (usually felony criminal histories) does any good for anybody. 

Now, back to my rant. 

The problem with criminalizing the synthetic drugs is that the government will always be one step behind the producers of these items. For example, let's pretend that the potpourri that the government has decided isn't really meant to be used as potpourri contains a chemical called RFG-4 (I just made that up and I doubt it's even a real thing but just go with me on this for a moment).  So, a law is passed making it illegal to buy, sell, use, or possess any item containing RFG-4.  The producers then tweak the formula and they sell the same product with a slightly altered version of the RFG-4 compound.  Maybe now it's RFGH-4 or RG-4 or RFG-5.  The point is, they are able to modify and adapt their products and the chemicals they are using to manufacture them at a faster rate than the government can find out the chemicals they want to criminalize.  This is a losing battle.  The producers will always be ahead of the game. 

Moreover, these products are readily available on the internet.  Going back to our Duluth shop owner--does shutting him down really do much good?  Yes, I know that the police have said that there's much less riff-raff or whatever blah blah they want to spout.  But, when you can go online and in a couple of clicks order whatever synthetic drug you want, is closing down one shop really going to make a significant impact on the overall number of people buying, using, selling, or possessing this stuff?  Hardly.  Let's not kid ourselves.  It's going to give three people a criminal record if they are convicted, it's going to shut down a local business that--by the way--does sell other things besides the alleged synthetic drugs, and it's going to make the prosecutors and feds pat themselves on the back about how they "protected public safety" and whatever other smoke they blow up their asses to feel good about pointless prosecutions. 

Let's break this down here: you have a store that sells something labelled "potpourri."  It states on the packaging, very clearly, "NOT FOR HUMAN CONSUMPTION."  At what point in time do we stop nanny-stating everyone all the time.  Who gives a crap if it's the worst potpourri in the world--maybe it smells like ass juice and vomit--the fact of the matter is it's sold as a legit product and it's got a warning on it that you, person who buys ass juice and vomit potpourri, should not ingest this item as it is not meant to be consumed.  And yet, people still do it.  So now we are going to charge the shop owner. And if you were someone who for whatever reason did actually want to use that as potpourri--well, too bad for you.  Even if you are legitimately using it for its stated purpose, guess what? You're committing a felony because the government has said you aren't allow to possess that potpourri.  You can have other kinds of potpourri, but not that one because the government says that one is bad. 

Where does this end?  I know--it's me again, crowing over here and making noises and wringing my hands about stuff that will never, ever, ever happen.  Until it does.  But seriously.  Where do we draw the line at what is classified as synthetic drugs?  Who makes that determination?  What's the basis for deciding something is not a "real" product but one that is only used to get high? 

How many things do people use now to get high or drunk?  Alcoholics who are particularly desperate have been known to drink mouthwash because there's alcohol in mouthwash.  There was the girl on Intervention, Allison, who bought cans and cans of computer duster and sucked it straight from the can to get high.  Glue, rubber cement, cough syrup, markers, nail polish, paint, whipped cream canisters...pretty much anything and everything that can be used to get high is used to get high.  So do we start charging every Target store manager for selling these products because people use them to get high?  Do we only charge the Target store manager if the product doesn't work for what it claims it's for?  Where do we draw the line? 

And does it make a difference to criminalize these things?  I'd argue that no, it doesn't.  It doesn't do a damn thing.  I don't know a ton of people who are sitting around, thinking to themselves, "Well, if heroin weren't illegal, I would totes shoot heroin."  People are either going to do drugs or they aren't.  Illegality isn't really much of a factor in that decision, so far as I have ever seen.  Whether it's illegal or not, people are going to use drugs. 

So, are we accomplishing anything by locking people up? By creating more and more things that are now illegal to own, use, posses, or sell? 

Here's a crazy factoid that most people who aren't in the criminal justice system don't know.  In Minnesota, you don't have to even have a usable amount of a drug to be charged with a felony for drug possession.  You can have a trace amount--that's the actual, legal term, "trace amount"--and you can be charged with felony drug possession.  Buy a trinket box from a garage sale and didn't realize that the former owner used to keep their meth inside that box and now there are tiny, almost-impossible-to-see grains of meth in the crevices of the box?  You're committing a felony!  Hey, how's that for fun!  Residue on a baggie will get you slapped with a felony.  This is pointless. 

And if you are a drug addict and get caught w/ a trace amount not once, but twice, then you get to go to jail for a mandatory 6 months.  Because jail = cured of your addiction, clearly.  And if you keep getting caught with drugs know, you have an addiction and it's extremely difficult to overcome a drug addiction...then you get to serve ever increasing amounts of time in jail and/or prison. 

And if you relapse while you're on probation for your drug offense, well, guess what? You are looking at having your probation revoked and going to jail or prison.  Even though it's well-documented and well-accepted that relapse is part of recovery.  But, we expect you, the drug addict on probation, to somehow magically be able to avoid any relapses whatsoever.  And if you can't, you get to go to jail. 

If you're in jail, you'll probably have no access to any sort of treatment while you're serving your 6 month sentence.  If you are lucky, the jail might offer AA.  That's all you'll get while your in jail.  So, after you're done (and you've probably lost your housing, your job, etc. because you were just in jail for 6 months), they fling open the jail doors and out you go, having accomplished exactly nothing in the way of treatment or recovery. 

If you're in prison, you might get drug treatment, but don't count on it.  There's a long waiting list for treatment in prison because, much like everything else in the corrections or justice system, there isn't enough funding for the amount of need there is in the system.  So, you'll be put on a waiting list and even then, you probably still won't get treatment.  In fact, only about 30% of eligible prisoners who are ordered by the courts and the Department of Corrections to get treatment while in prison actually get that treatment.  Only 30%.  So, if you aren't in that lucky 30%, you again will have accomplished absolutely zero in the way of treatment or recovery. 

Oh, and good luck getting a job with that felony on your record. 

Criminalizing more and more and more things is not going to solve the drug problem.  People are going to use whatever they can get their hands on to get high.  The problem isn't that the government hasn't criminalized enough things.  The solution isn't put more people in jail or prison and give more people criminal records. That isn't helping anything or anyone. 

I don't know what the solution is exactly.  Obviously, education about the dangers of using things that are labelled "Not For Human Consumption" needs to happen, since most people--especially kids--don't know how bad it can be to use this stuff to get high.  But, making everything illegal in an attempt to catch every possible "synthetic drug" isn't going to fix anything.  Making every drug addict a felon with a criminal background isn't going to fix anything.  Sending drug addicts to jail and/or prison where they are extremely unlikely to get treatment isn't going to fix anything.  And prosecuting a shop owner, who sold items that had a stated, legal purpose and a cautionary label that they were not intended for human consumption, isn't going to fix anything. 

We're throwing time, money, and resources at a problem without any solid results and we certainly aren't making any headway in fixing the problem of drug addiction. 

So maybe it's time to stop doing the stuff we have been doing and start doing something else. 

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