HIGH ANXIETY: IRRATIONAL FEAR OF ECSTASY, NOT REAL DANGER, INSPIRES MEASURE

During the 1980s, in every election year, the U.S. government enacted new
anti-drug laws. But in the 1990s, as the costs from the election-year
drug-war pandering began to come due, we thankfully did not build on those
mistakes.

This year, the big drug fear is ecstasy (MDMA). The U.S. Senate seems to be
rushing toward enacting an election-year anti-ecstasy bill. The bill is
called the Reducing Americans Vulnerability to Ecstasy Act of 2002 (S2633)
(the RAVE Act).

The RAVE Act already has passed the Senate Judiciary Committee - without
any hearings and without a recorded vote. Its sponsor, Sen. Joe Biden
(D-DE), the author of many of the extreme drug-war measures of the 1980s -
wants the full Senate to vote by unanimous consent, avoiding a recorded
vote. A brief look at this bill indicates that it has not received careful
attention; it is based on exaggerated fears of ecstasy and is sloppily written.

Deaths due to ecstasy are rare. The federal government reports a total of
27 deaths over five years from ecstasy. (In contrast, 85 people died in
1999 from taking acetaminophen, the active ingredient in Tylenol.) Many
ecstacy deaths could have been prevented by controlling two major factors
that contribute to injuries or fatalities in conjunction with the use of
MDMA: heat and dehydration. If concert venues had increased ventilation to
reduce heat and provided easy access to water, it is quite likely that some
of these deaths would not have occurred. Unfortunately, the RAVE Act would
make these problems worse, as such actions would be used to prove a
violation of the law.

MDMA "episodes" at hospital emergency rooms are still near almost trivial
levels. According to the government, there were 636 MDMA-related emergency
room episodes - and 2,214 in which MDMA was used in combination with other
drugs. This is out of a total of 554,932 emergency room drug episodes in 1999.

Some anti-drug officials are exaggerating - either by accident or
deliberately - ecstasy's lethal consequences. The Orlando Sentinel analyzed
a report on deaths due to ecstasy issued by the "drug czar" of Florida,
James McDonough, and a former top aid to Gen. Barry McCaffrey at Office of
National Drug Control Policy. The article found almost unbelievable
exaggerations; persons who actually died of cancer, elderly persons dying
in nursing homes and toddlers dying in hospitals were reported as ecstasy
deaths. Even people who died after being hit by a car were among those
counted, even though these people were known to have died of other causes.

The British House of Commons appointed a special committee to study the
problem of drug abuse in Britain. Great Britain is a useful source of
information, since ecstasy has been common there since the early 1980s. The
term "rave" originated in Britain, and Britain now has two decades of
experience with widespread use of ecstasy.

The report noted that the Police Foundation Independent Inquiry (a recent
study by the independent Police Foundation, a charity chaired by Prince
Charles) consulted members of the Royal College of Psychiatrists' Faculty
of Substance Misuse about the relative harmfulness of controlled drugs and
found that ecstasy "may be several thousand times less dangerous than
heroin ... there is little evidence of craving or withdrawal compared with
the opiates and cocaine."

The RAVE Act re-enforces America's mistaken approach to controlling ecstasy
by relying on law enforcement rather than on effective education. An
important article in the Journal of the American Medical Association
highlighted this criticism of the law enforcement-dominated approach and
recommends honest education, not scare tactics.

JAMA notes: "[B]ehavioral researchers are recommending control strategies
that may seem antithetical to ever-expanding law enforcement efforts.
Instead of focusing on eradication and punishment, these social scientists
take another tack: they encourage harm reduction that acknowledges the
realities of Ecstasy." JAMA recommends truth, not fear - education not
incarceration.

The RAVE bill itself is profoundly overbroad in its sweep. It provides for
severe criminal penalties for conduct carried out exclusively by another
person. Business owners should be concerned about this bill, especially
landlords or property owners. The bill makes landlords, theater owners and
operators - indeed, any property owner - criminally and civilly liable for
the conduct of other people on their property if that other person uses
illegal drugs. The bill would assign liability to anyone who has a relative
who uses illegal drugs in their home or on their property.

The bill creates a new crime requiring only a state of mind of "knowingly"
for the conduct of those who "open, lease, rent, use or maintain any place,
whether permanently or temporarily, for the purpose of manufacturing,
distributing, or using any controlled substance." According to this
provision, if a landlord knowingly (the phrase "intentionally" is not
included in this new crime) made a lease with someone or knowingly gave
someone the right to enter their property, then the property owner could be
liable.

This new crime creates an impossible burden for any property owner.
Property owners allow people on their land to visit, establish homes, spend
the night, camp, shop, swim, bicycle and listen to music; sometimes people
who enter the premises use drugs. Owners can maintain some level of
security, but they can never stop most persons who enter from smoking pot
or taking illegal pills if those persons desire to do so and sneak the
drugs in. Certainly the government cannot expect theaters, campgrounds or
homeowners to institute the kind of security that we see at the airports or
the border - and people still smuggle in drugs at those locations.
Landlords and property managers are not police. And that is the way it
should be in a free country.

Considering the ease with which someone could innocently run afoul of this
new law, the penalty, of up to 20 years in prison - more than for being a
drug trafficker in many instances - seems excessively harsh. The bill also
authorizes the government to charge the property owner civilly, using a
much lower standard of proof, denying accused property owners the right to
trial by jury and obtaining a civil fine of $250,000.

There are very serious collateral penalties that exist with drug offenses
like those created by the RAVE Act. These include: criminal forfeiture of
property, a presumption against bail and the use of such a conviction as an
aggravating factor to authorize the death penalty if, on some future
occasion, the accused is charged with homicide. Not only would a person
convicted not be able to acquire a firearm, but also, because it is a
serious drug offense, the person would face a mandatory 15 years for a gun
violation.

We have seen how unexamined drug scares and election-year drug legislation
can do more harm than good. Do we really want to repeat that mistake again?
Hopefully, the Senate will ignore Biden and not enact a law that we will
regret later.