moveable type printing press. In 1557, Pope Paul IV issued the first Index
Librorum Prohibitorum, creating the controlled psychoactive substances
known as unapproved books.
Following the mandates of the Index, unapproved
books were seized and destroyed. Those persons who manufactured (i.e.,
printed), distributed, or read prohibited books were punished when caught.
Today, people who manufacture, distribute or use
certain psychoactive drugs, such as MDMA, are hunted by government agents
and punished when caught.
The control of books as dangerous psychoactive
substances did not come to an end until 1966 when the Index Librorum
Prohibitorum was finally abandoned. At that time, the Index contained
over 4000 forbidden books, including works by Galileo, Kant, Pascal,
Milton, Spinoza, and John Locke.
Today, we look at the control of books, and the
punishment of those who printed, sold, and read them, as an archaic
notion, something contrary to basic concepts of intellectual freedom and a
So, my first point is to respectfully submit that this
Commission, with regard to setting the punishment for federal drug
offenses, is in a similar position to those who previously set the
punishment for manufacturing or distributing the controlled substances
known as prohibited books. Yet, this Commission, to the extent that it
sets punishments for drug offenses in which a person has done nothing more
than grow, manufacture, distribute, or use, the psychoactive agents which
have been denoted as “controlled substances,” participates in an even
more pernicious form of censorship—a censorship of consciousness itself—by
punishing Americans for no other crime than choosing to experience or
enable particular states of mind.
harm reduction versus harm exacerbation?
the commission’s role with regard to mdma
With regard to MDMA, this Commission should consider
that a percentage of the harm to young adults and other people who ingest
MDMA, comes not from MDMA itself, but rather from the ingestion of
adulterated, and sometimes entirely misrepresented, MDMA.
MDMA does not produce violent behavior and, because it
is virtually nonaddictive, users of MDMA do not commit crimes against
others in order to support a “habit.” MDMA almost universally
occasions a state of mind that is accepting, empathetic, and
insight-oriented. Because of these qualities, MDMA is presently a very
popular drug, despite its criminal status.
Raising the punishment for those who sell genuine
MDMA, as the Commission proposes to do, would create an inverted and
anti-social incentive structure—one that has the potential to
dramatically increase the individual and social harm associated with what
may be sold as “Ecstasy.” By increasing the punishment for
manufacturing or selling genuine MDMA, the proposed amendment will
encourage unscrupulous manufacturers and dealers to sell other drugs as
“Ecstasy” in an effort to avoid the significantly increased
punishment for selling genuine MDMA.
In this respect, the “MDMA Brief Report, February
2001,” which was prepared for this Commission, does not tell the whole
story. The story is not just about the impact the Commission’s proposed
sentencing increase will have on MDMA manufacturers and distributors. The
Commission should also take into account the effect such a punishment
structure will have on the many young adults and others who are currently
using, and will continue to use, MDMA. By creating a punishment scheme
that encourages the misrepresentation of other drugs as “Ecstasy,”
more people who believe that they are buying genuine MDMA, will in fact be
sold, and go on to ingest, a completely different drug—one that
may have an entirely different pharmacological profile than MDMA. The
danger, in such a situation, is akin to a long-haul truck driver who
believes he took a No-Doze caffeine-pill, when in fact he unwittingly
ingested a sleeping pill.
In short, by raising the punishment for those who
manufacture or sell genuine MDMA, the Commission will be increasing the
individual and social harm that occurs when young adults and others ingest
“who-knows-what” drug, having been falsely told it is “Ecstasy.”
punish those who
other substances as mdma
If this Commission is determined to raise the
punishment with regard to “Ecstasy” offenses, it should consider
leaving the current equivalencies unchanged, but instead increasing—perhaps
dramatically—the punishment for misrepresenting another drug as
“Ecstasy.” Misrepresenting the identity of controlled
substances is a crime under federal law, as well as in many states.
Under such a plan, any person convicted of selling a
drug by intentionally misrepresenting it to be MDMA or “Ecstasy,”
would receive greater punishment than the current Guidelines punishment
for distributing genuine MDMA. By punishing those unscrupulous dealers who
misrepresent another drug as MDMA, a vast amount of the individual and
social harm associated with “Ecstasy” use would be minimized, and the
Commission would avoid the inverted incentive structure that will result
if this Commission raises the punishment with regard to manufacturing or
distributing genuine MDMA.
replace drug offense guidelines with an “upward
departure” or “specific offense characteristic”
Lastly, on behalf of the Center for Cognitive Liberty
& Ethics and its members, I submit that the
Commission should consider a wholesale revision of Part D of the Federal
Sentencing Guidelines – those sections related to drug offenses.
Currently, Section 2D1.1 of the Guidelines—especially
those provisions related to establishing “drug equivalencies”—forces
this Commission to make impossible comparisons between various drugs, and
to set ultimately arbitrary equations under a guise of rationality.
One possible method for bringing rationality to the
Sentencing Guidelines with regard to offenses involving controlled
substances, and to actually reduce the social harm associated with certain
drugs, would be for the Commission to abandon the drug equivalency schema,
indeed, abandon the entire drug offense section of the guidelines (Part
D), and replace it with a simple drug enhancement, an “upward departure”
or “Specific Offense Characteristic” to be applied when a federal
crime is committed under the influence of, or in possession of, a
Pursuant to this proposal, a person who commits a
federal crime under the influence of a drug, or in possession of a drug,
would have his or her sentence for the substantive offense increased by an
additional drug enhancement or upward departure.
Such a system would leave law-abiding Americans alone.
It would return to them the fundamental right to autonomy over their own
consciousness, while at the same time significantly enhancing the
punishment of any person whose behavior after taking a drug causes actual
social harm (as such harm is codified in the federal criminal code).