Testimony of Richard Glen Boire, Esq.
Before the United States Sentencing Commission on March 20, 2001
on the topic of
The Proposed Amendment
to Increase Guidelines Sentences Concerning MDMA (Ecstasy)
I am Richard Glen Boire, an attorney and director of the
Alchemind Society: The International Association for
Alchemind Society is a nonprofit,
nonpartisan 501(c)(3) public education organization which seeks to foster cognitive
liberty the basic human right to unrestrained independent thinking, including the
right to control ones own mental processes and to experience the full spectrum of
possible thought. We operate the Center for
Cognitive Liberty & Ethics (CCLE), an educational law and policy center working
in the public interest to protect and promote cognitive freedom and autonomy.
I want to begin by
stating that the members of the Alchemind Society
view aspects of the so-called War on Drugs as an attack on the mental autonomy and
cognitive liberty of Americans who have responsibly used psychoactive plants and
substances to provide genuine insight and understanding about themselves and the world at
large. In this respect, we are against any drug law that makes otherwise law-abiding
Americans criminals, and punishes them for decisions they make about how to operate their
I am here today to
speak about MDMA, or Ecstasy, and in particular, on the impact that increased
sentences could have on the cognitive freedom of many Americans. In this regard, I have
four brief points.
substances yesterday & today
Id like to
begin with an analogy. The control of psychoactive substances is not a new phenomenon. In
1450, Johannes Gutenberg invented the
moveable type printing press. In 1557, Pope Paul IV issued the first Index Librorum
Prohibitorum, creating the controlled psychoactive substances known as unapproved books.
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
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
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 punishment 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
censorshipa censorship of consciousness itselfby punishing Americans for no
other crime than choosing to experience or enable particular states of mind.
II. Harm reduction versus harm exacerbation?
the commissions 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.
punishment for those who sell genuine MDMA, as the Commission proposes to do, would
create an inverted and anti-social incentive structureone 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 Commissions
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 that believe they are buying genuine MDMA, will in
fact be sold, and go on to ingest, a completely different drugone that may
have an entirely different pharmacological profile than MDMA. The danger, in such a
situation, is akin to a long-haul truck driver believing he was taking a No-Doze
caffeine-pill, when in fact he was unwittingly ingesting 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."
III. Punish those who misrepresent other substances as
If this Commission is
determined to raise the punishment with regard to Ecstasy offenses, it should
consider leaving the current equivalencies unchanged, but instead increasingperhaps
dramaticallythe 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.
IV. Replace drug offense
guidelines with an upward departure or specific offense
Lastly, on behalf of
the Center for Cognitive Liberty & Ethics
and the members of the Alchemind Society, 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 Guidelinesespecially those
provisions related to establishing drug equivalenciesforces 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 controlled substance.
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
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).
Richard Glen Boire,
Center for Cognitive Liberty & Ethics
Alchemind Society: The International
Association for Cognitive Liberty
Books are psychoactive substances. They are ingested by reading,
and have direct effects on the mind. Books, like other psychoactive substances, can
alter your thinking, change your view of the world and of yourself, or permit
temporary relief (or escape) from the problems inherent in being human.
Attempts to control the
written word date from at least AD 325 when the Council of Nicaea ruled that Christ was
100 percent divine and forbade the dissemination of contrary beliefs. Since the invention
of the printing press in 1450, governments have struggled to control the printed word.
Presses were initially licensed and registered. Only certain people were permitted to own
or control a printing press and only certain things could be printed or copied. (This was
the origin of todays copyright rules.) Works printed without prior authorization
were gathered up and destroyed, the authors and printers imprisoned.
For a fascinating
survey of suppressed literature as controlled substances, see the multi-volume set Banned
Books, published by Facts on File, which
covers literature suppressed on religious, social, sexual, and political grounds.
The Commission has significant discretion to
determine which crimes have been punished too severely. (28 U.S.C. 994(m) (1982 ed., Supp.
Baggott N, Heifets B, Jones RT, Mendelson J, Sferios E, Zehnder
J., Chemical Analysis of Ecstasy Pills, JAMA, (2000) Vo. 284, No. 17,
p. 2190 (See Attachment A);
Grob C., Deconstructing Ecstasy:
The Politics of MDMA Research, Addiction Research, (2000) Vol. 8, No. 6, pp.
Federal code section 21
U.S.C. Sec. 802 (7) makes it an offense to sell a counterfeit
drug. Additionally, counterfeit controlled substance laws exist on the state level.
For example, Californias Imitation Controlled Substances Act, (Cal.
Health & Saf. Code, secs. 109525-109555),
makes it a crime to manufacture or distribute an imitation controlled substance,
which is statutorily defined as (a) a product specifically designed
or manufactured to resemble the physical appearance of a controlled substance, that a
reasonable person of ordinary knowledge would not be able to distinguish the imitation
from the controlled substance by outward appearances, or (b) a product, not a controlled
substance, that, by representations made and by dosage unit appearance, including color,
shape, size, or markings, would lead a reasonable person to believe that, if ingested, the
product would have a stimulant or depressant effect similar to or the same as that of one
or more of the controlled substances included in Schedules I through V, inclusive, of the
Uniform Controlled Substances Act, pursuant to Chapter 2 (commencing with Section 11053)
of Division 10. (Cal. Health & Saf. Code, sec. 109550.)
Such a sentence enhancement would function like currently
existing enhancements for using or possessing a firearm in the commission of a crime. The
Sentencing Guidelines are replete with firearm enhancements imposed as Specific
Offense Characteristics. Section 2B2.3, for example, states the Guideline sentence
for the crime of Trespassing. While Trespassing is ordinarily punished at a Base Level of
4, the punishment is increased 2 levels [i]f a dangerous weapon (including a
firearm) was possessed [in commission of the trespass.] (United States Sentencing
Commission, Guidelines Manual Section 2B2.3. (Nov. 2000).)
For an example of an
upward departure see, Federal Sentencing Guideline, Sec. 3B1.4, which
increases the punishment of any Guideline Sentence by 2 levels [i]f the defendant
used or attempted to use a person less than eighteen years of age to commit the offense or
assist in avoiding detection of, or apprehension for, the offense