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On the Legal Status of DMT Source Plants in the US (with a discussion of the religious use defense) Options
 
Entropymancer
#1 Posted : 5/4/2011 7:55:58 AM

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Notes on the Legal Status of DMT Source Plants in the United States


My apologies to our many non-American members. I am concerned about the legal issues facing entheogens in your countries as well, but the legal situations vary so dramatically between different countries that a proper international treatment of the legal status of entheogens would be pretty cumbersome. Additionally, I'm only really well-informed about the legal situation in America and fear I would not be capable of making competent assessments of the situation in other countries. I encourage you to stay informed about the laws as they apply to you, and perhaps make a thread such as this if you find the subject rife with misconceptions or misinformation.

Mimosa tenuiflora root bark is illegal in the United States.

This isn't breaking news. No new laws have been passed, no major vendor raids are occurring, and no one is having any trouble with customs that I'm aware of. This is old news... more than forty years old in fact: M. tenuiflora root bark has been illegal since the federal Controlled Substances Act (CSA) passed in 1970.

I'm not writing this to try to frighten people. You are no more or less likely to be busted for purchasing M. tenuiflora root bark after reading this than you were before (barring substantial changes in the landscape of politics and law enforcement). I'm simply writing this out of concern that many people are acting under the mistaken impression that ordering/possessing the bark is perfectly legal, and I feel that it is important for everyone to be as well-informed as possible. I'm not encouraging people to stop ordering it. Obviously we all share the belief that we should not feel bound by unjust laws; this is a forum about DMT after all, with a particular emphasis on obtaining pure DMT through extractions. But setting my justifications aside, I'm sure some of you are skeptical, so allow me to lay out clearly and unambiguously why M. tenuiflora root bark is illegal.

First, take a quick read through the CSA, specifically the part dealing with schedule I hallucinogens:

The US Legislature wrote:

(c) Unless specifically excepted or unless listed in another
schedule, any material, compound, mixture, or preparation, which
contains any quantity of the following hallucinogenic substances,
or which contains any of their salts, isomers, and salts of isomers
whenever the existence of such salts, isomers, and salts of isomers
is possible within the specific chemical designation:
(1) 3,4-methylenedioxy amphetamine.
(2) 5-methoxy-3,4-methylenedioxy amphetamine.
(3) 3,4,5-trimethoxy amphetamine.
(4) Bufotenine.
(5) Diethyltryptamine.
(6) Dimethyltryptamine.
(7) 4-methyl-2,5-diamethoxyamphetamine.
(8) Ibogaine.
(9) Lysergic acid diethylamide.
(10) Marihuana.
(11) Mescaline.
(12) Peyote.
(13) N-ethyl-3-piperidyl benzilate.
(14) N-methyl-3-piperidyl benzilate.
(15) Psilocybin.
(16) Psilocyn.
(17) Tetrahydrocannabinols.


Let me draw particular attention to the first part: "any material... which contains any quantity" of a schedule I drug is itself a schedule I drug under the law.

I expect some of you may be scrutinizing that for loopholes. People who don't believe that M. tenuiflora root bark is illegal tend to grasp onto one of two related arguments: (1) Plants must only be illegal if they're listed by name, otherwise why would they include "Marihuana" and "Tetrahydrocannabinols" (or peyote and mescaline) as separate entries?; or (2) the "any material... which contains any quantity" bit refers only to man-made preparations, not to naturally-occurring plant materials. We can easily see the fallacies in both of these arguments (and glean ample legal precedent to contradict them) by considering the case of the psilocybian mushrooms. For simplicity, I'll refer exclusively to the most common one, Psilocybe cubensis.

Like M. tenuiflora root bark, P. cubensis is not explicitly named in the CSA, but it is known to contain chemicals listed in Schedule I (psilocybin and psilocin, to be specific). I don't think anyone here is under any illusion that P. cubensis is legal; many of you may even know people who have been convicted for possession of it. The legal precedent is clear: P. cubensis is schedule I by virtue of being a material that contains a schedule I drug, regardless of whether it's listed by name. Because it's known to contain a schedule I drug, police are entirely justified (not in the moral/ethical sense of the word, but in the legal sense) in arresting people who are found to be in possession of the drug. To obtain a conviction, they have to establish that the mushrooms in question do in fact contain psilocybin or psilocin, but that's a trivial forensic matter. Of course this begs the question: if a plant doesn't have to be explicitly named, why bother including "marihuana" and "peyote" in the CSA at all? My best guess is the purpose was to eliminate the need for chemical testing every time they busted some kid for a gram of weed; all they'd need to do is get an expert witness to testify that the material was "marihuana". But since chemical analysis is such a trivial task and is now the accepted way to determine whether a seized material contains a controlled substance, listing plants by name is no longer important and the practice seems to have been abandoned. Another consequence of explicitly naming cannabis as a schedule I drug is that if one were to grow hemp that contained no tetrahydrocannabinols whatsoever (for example using miRNA to knock down a crucial biosynthetic enzyme) the plant would still be a schedule I drug, ensuring that there are no loopholes through which to sidestep the prohibition on industrial hemp cultivation.

Addressing the second argument is even more straightforward. I challenge anyone to present an accepted definition of "material" which would encompass mushrooms but not root bark. It can't have anything to do with the degree to which the material is processed; you can be as easily arrested for freshly-picked P. cubensis mushrooms as for dried ones. The process of harvesting the root bark of a plant is undeniably a more involved process than plucking a mushrooms from the ground (or from a pile of dung). The only case in which someone in possession of psilocybian mushrooms may be found not guilty is if the mushrooms are freshly-picked and the individual who picked them can produce convincing evidence that they were not aware what species the mushrooms were (i.e. "I thought they might be edible, so I picked some in order to bring them home and identify them"); the significance of this exception will become clear a bit later.

It is worth noting that the DEA has explicitly acknowledged that DMT-containing plant materials are schedule I drugs, remarking that "[d]espite their controlled status, a number of DMT-containing natural products, including Mimosa hostilis, are openly marketed on the Internet" (emphasis mine; this quote is from an article in the Microgram Bulletin). Further, the Supreme Court itself has even affirmed that the Controlled Substances Act applies to Psychotria viridis (chacruna) on the grounds that it contains DMT (in the case of Gonzales v. O Centro Espírita Beneficente União do Vegetal). You can bet that if you're charged with possession of M. tenuiflora root bark, this case will be cited as precedent clearly establishing the material to be a schedule I substance.

So, having shown that M. tenuiflora root bark is undeniably a schedule I drug according to the CSA and the DEA, one inevitably wonders why there aren't widespread arrests occurring. Customs routinely allows root bark to be imported without any hassle or repercussions. And it's not as though it would be difficult for law enforcement agencies to set up an operation to raid all major domestic vendors overnight, eradicating the supply. Yet in the one high-profile case where a vendor (BBB) was charged for possession and distribution of M. tenuiflora root bark, the charges were dropped before the case went to trial (considering that the raid was conducted by state law enforcement, I have a strong suspicion that federal law enforcement stepped in and advised that the case should not go to trial, for reasons I'll discuss in a moment). Well, we can't know for certain; the DEA is unlikely to circulate a memo declaring that they have made it their official policy to ignore the law and allow certain controlled substances to be openly distributed. But we can clearly see that this is their policy right now. The DEA has chosen not to enforce the law in the case of M. tenuiflora root bark.

Though we can't know their reasons for certain, I do think that we can make some good educated guesses. The people who run the DEA are not stupid, no matter how much people may wish to believe otherwise, so we can expect their reasons to be well-considered and founded on intelligent analysis. I can see several practical reasons that they would not want to target and prosecute the distribution of M. tenuiflora root bark:

  • The DEA's priorities are dictated by public concerns. DMT is not something the general public is even aware of; there isn't any massive outcry of parents concerned that DMT is ruining their children, or that illicit "DMT labs" are posing a significant threat to public health (as is the case with illicit methamphetamine production). Those of us who use the drug are scarcely on the public's radar. The DEA already has their hands full dealing with the violent cartels that are involved in the distribution of methamphetamine, cocaine, heroin, and, to a lesser extent, cannabis. I can understand why they wouldn't want to divert resources away from their operations targeting cartels just to try to control a drug that very few people use (relatively speaking) and that is basically causing no problems.

  • DMT is everywhere, as Shulgin pointed out. If they suddenly chose to block the importation of M. tenuiflora root bark (along with Psychotria viridis, Diplopterys cabrerana, and Acacia spp., etc.) they know that we would just turn to the less traditional domestic sources. In fact, I contend that blocking the importation of these plants would simply accelerate the development of effective grass teks and encourage the selection/breeding of potent and effective strains of Phalaris species. While the domestic availability of DMT would no doubt be negatively impacted initially, it would rapidly recover... and the new grass-based production of DMT would be nearly impossible to control. The DEA knows this, and I'm sure it makes them very hesitant to take action in the absence of political pressure forcing their hand.

  • Attempting to prosecute people for possession of DMT-containing organisms could very easily lead to the complete collapse of the Controlled Substances Act. After all, many Americans own pets, and many of these pets contain DMT. If you can be arrested for owning M. tenuiflora root bark, what's to stop the police from arresting you for owning a cat or dog? Of course the courts would probably initially accept ignorance as a defense (analogous to the case of someone who has picked a psilocybian mushroom while unaware that it contained psilocybin), but all it would take is a few major news stories ("Special Report: Are YOU breaking the law when you adopt a pet? The answer may surprise you!") and that argument would go right out the window. Not only that, but the fact that humans contain DMT (among other controlled substances) could cause problems as well; you can't "possess" yourself in the legal sense of the word, but you can "manufacture" a human (i.e. through sexual reproduction), making it illegal to have sex without adequate contraception, and making pregnancy a serious felony. Nor do the problems stop with DMT; many natural products contain controlled substances. For example, wheat and potatoes are both technically illegal (schedule IV) by virtue of containing trace amounts of diazepam (valium), and cow's milk is a schedule III substance by virtue of containing small quantities of morphine; even most paper money is illegal (schedule II) considering that over 90% of US banknotes contain detectable quantities of cocaine. In order to resolve all of these issues, the CSA would have to be replaced by a piece of legislation that is much more explicit about precisely what constitutes a scheduled drug, and the high degree of specificity required in such legislation would necessarily make it susceptible to endless loopholes. I'm sure the DEA is much more comfortable with the current legislation which deters loopholes by making virtually everything illegal with the implied mutual understanding that you'll only be prosecuted if someone might be getting high as a result of your actions.






Note that the above discussion also applies to Anadenanthera spp. seeds, Trichocereus spp. cacti, Psychotria viridis leaves, Diplopterys cabrerana leaves, DMT-containing Phalaris spp. grasses, Taberanthe iboga roots, DMT-containing Acacia spp. bark or leaves, the seeds of Ipomoea violaceae, Turbina corymbosa, and Argyreia nervosa, and pretty much any other natural product that contains a drug listed in the Controlled Substances Act. I've approached the subject with regards to M. tenuiflora root bark because that is the material most widely discussed on this forum.
 

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gibran2
#2 Posted : 5/4/2011 3:11:42 PM

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Laws are funny things, aren’t they? Rolling eyes

The Microgram Bulletin article in your link also states that Mimosa hostilis and other plant materials are not “formally controlled”. So what does that mean? Does it mean they’re not controlled, but could be at any time? Does it mean they’re “informally” controlled? Legal? Not legal? Somewhere in between? Not legal but we don’t care?

Not long ago, I was listening to Dennis McKenna (can’t find the link), and he suspects that DMT can be found in virtually all plants, albeit in very low concentrations. He suspects quite reasonably that DMT is found in virtually all animals as well.

So if any material which contains any quantity of DMT is considered a Schedule I drug, then virtually all living things are Schedule I, from your own lungs to the ornamental grass growing in your back yard. The law as it currently exists is unenforceable – I can’t imagine someone being successfully prosecuted for possession of DMT-containing plant material (assuming he/she has a good lawyer). The government understands this and this is why we can freely buy/sell DMT-containing plant material.

Also, I think the ubiquity of DMT in nature is what separates its legal treatment from psilocybin-containing mushrooms. DMT is everywhere, psilocybin is not.
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Entropymancer
#3 Posted : 5/4/2011 4:26:34 PM

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elru wrote:
Would someone still be committing a crime if they knowingly possessed something that had DMT in it (such as a cat) but didn't have any plans to extract from their kitty? I'd think that intending to consume it or extract from it would be what divides legally having a cat and illegally having a controlled substance material. Is this wrong?


Well, it's a pretty ambiguous point that hasn't ever come up in court that I'm aware of. In that case, you are intentionally possessing a material that you know is legally defined as schedule I contraband (I have a schedule I american shorthair curled up in my lap at the moment Very happy). It's not something you're going to be convicted for, as I'm sure plenty of cases involving animals (outside the context of them being scheduled drugs) have come before the courts, establishing precedent for considering the animals to be tacitly legal.

But it's a slippery slope. Cultivating P. cubensis mushrooms for distribution is illegal, because they contain a schedule I drug and so are themselves a schedule I drug (thus you're demonstrating intent to manufacture and distribute a schedule I drug). The same can be said for san pedro cactus: Although an innocent gardener who grows and sells their cacti could plausibly argue that they did not intend to manufacture and distribute a schedule I drug because they were not aware that the cacti contained mescaline (and thus not aware that the cacti were a schedule I drug), a gardener who is doing the exact same thing (growing and selling san pedro) but has a collection of books about entheogens (and thus is aware that the cacti contain mescaline) could be pretty easily found guilty of intent to manufacture and distribute a schedule I drug. Extending this to cats, if you're not aware that your cat contains DMT, then you're pretty well in the clear legally. But if you are aware that your cats contain DMT (and thus are schedule I materials), but you still breed and sell cats, it would be hard to argue that you aren't knowingly and intentionally manufacturing and distributing a schedule I drug. As far as simple possession goes (as opposed to manufacture and distribution), it's been a while since I discussed the issue with someone educated in the law, but I think it's intent to possess that's important, rather than intent to consume. For example, if you're arrested in possession of mushrooms, I don't think they have to establish that you intended to eat them, merely that you were intentionally in possession of them.

Is it something you can expect to get arrested for? No. Is it illegal? It sure sounds like it.



gibran2 wrote:
The Microgram Bulletin article in your link also states that Mimosa hostilis and other plant materials are not “formally controlled”. So what does that mean? Does it mean they’re not controlled, but could be at any time? Does it mean they’re “informally” controlled? Legal? Not legal? Somewhere in between? Not legal but we don’t care?

Out of those options, I think "informally controlled" and "not legal but we don't care" cover the situation most accurately. If you look at the full quote, I think their meaning is quite plain: "...not formally controlled (by name)... however, they are controlled (Schedule I) if they are shown to contain DMT or other controlled hallucinogens. Despite their controlled status..." In other words, precisely the same situation as we find with mushrooms that contain psilocybin or psilocin; despite the fact that they are not explicitly named, they are still regarded as schedule I controlled substances by virtue of containing schedule I controlled substances.

gibran2 wrote:
So if any material which contains any quantity of DMT is considered a Schedule I drug, then virtually all living things are Schedule I, from your own lungs to the ornamental grass growing in your back yard. The law as it currently exists is unenforceable – I can’t imagine someone being successfully prosecuted for possession of DMT-containing plant material (assuming he/she has a good lawyer). The government understands this and this is why we can freely buy/sell DMT-containing plant material.

Also, I think the ubiquity of DMT in nature is what separates its legal treatment from psilocybin-containing mushrooms. DMT is everywhere, psilocybin is not.

Quite so. I believe this is an important factor in why the DEA chooses not to enforce the law with respect to DMT-containing plants. It would only be a matter of time before a sharp defense attorney used such a case to completely undermine the federal controlled substances act, which would obviously not be a desirable outcome for the DEA. I suspect that if they ever decide to take action against the plants, they would first use their emergency scheduling powers to explicitly name all of the DMT-containing plants they wish to prohibit as scheduled drugs rather than allow the possibility of a federal court ruling the controlled substances act to be unconstitutionally vague.

To my mind, it all boils down to this: Virtually everything is a controlled substance under the current law, so if the DEA were to vigilantly enforce the law as written, it would be struck from the books in no time. Instead, they only apply it in cases where someone is actually likely to ingest the scheduled material to alter their consciousness. Thus you'll be arrested for possession of P. cubensis mushrooms because they contain psilocybin, but not for possession of potatoes even though they contain valium. And that's why the legal situation with M. tenuiflora root bark is precarious: Not only is it explicitly a scheduled drug (just like wheat, potatoes, cats, dogs, milk, psilocybian mushrooms, etc.), but, as is the case with psilocybian mushrooms, virtually everyone who buys it is doing so because of the psychoactive properties (whether they want to extract the DMT, brew an ayahuasca analogue, munch the bark after teaspoon or two of Peganum harmala seeds, or sell it to someone who will probably do one of those things with it).

The fact that the root bark is traded almost exclusively for its psychoactive properties would normally make it something that law enforcement routinely arrests people for... and they still might do so in the future. For the moment, there are practical considerations (beyond the fact that people are altering their consciousness) which are staying their hand. With any luck, this will remain the state of things indefinitely (until society wakes up and realizes that criminalizing psychoactive compounds is both barbaric and counterproductive). But if the socio-political climate change abruptly... if (for example) FoxNews began running dozens of stories about teenagers taking powerful illegal hallucinogens, asking why the DEA has made it their policy to allow this to take place... then they could decide to immediately start arresting people without bothering to name the plants with their emergency scheduling powers. They probably wouldn't have much trouble getting convictions either. While technically intent to possess (or manufacture or distribute) is the crime, and that charge could be reasonably fought on the basis that DMT is everywhere, what really convinces juries to find a defendant guilty is the intent to get high. And it would be hard to persuade a jury that you possessed the bark for any reason other than the fact that it contains DMT.
 
Steely
#4 Posted : 5/4/2011 5:44:37 PM

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Which is more of a risk: Ordering from within the United States, or from a vendor outside of the country?

Which vendors do you believe are viewed as a greater "threat"? It's very likely that vendors such as, Adenium in Brazil are on a government watch list, but, B.B.B. was raided for all its resources and that resides within the U.S.
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SWIMfriend
#5 Posted : 5/4/2011 5:57:01 PM

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Steely wrote:
Which is more of a risk: Ordering from within the United States, or from a vendor outside of the country?

Which vendors do you believe are viewed as a greater "threat"? It's very likely that vendors such as, Adenium in Brazil are on a government watch list, but, B.B.B. was raided for all its resources and that resides within the U.S.


BBB was attacked by a LOCAL prosecutor. That's the problem (and also the good thing) about these sorts of things: you are mostly susceptible to LOCAL whims, and local interests. Stay low-key locally and there should be no problem.

IMO it's very unlikely that there's any federal "watching" of mimosa. Instead, mindless local thugs are going to jump on things for arbitrary and random reasons, when the mood strikes them. The more important things to consider are:

1) friends, neighbors, etc., who might come up with petty reasons to try to promote prosecution upon you.
2) Delivery people (including USPS) who see large, constant delivery of "herbs" to your home.
3) Vendors stopping sales in fear of ending up like BBB.

Certainly, overseas shipments are going to get "noticed" much more than in-country shipments. But unless there has been a fed POLICY to take note of these things, there's probably no worry. And even then, the likely response will be to just seize shipments and discard them without interest in the end-buyer (unless they're LARGE ones--hundred kilos, or something like that).
 
Entropymancer
#6 Posted : 5/5/2011 7:21:09 AM

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I agree with SWIMfriend, individual buyers are not likely to be targeted by federal law enforcement in the event that they decide to begin enforcing the law against MHRB, but local law enforcement could be a wildcard. Avoiding raising any red flags at the local level is probably the most important priority in terms of staying safe with these things.

Again, we can only make educated guesses since the DEA isn't likely to tip their hand, but I think we can get a good picture of what federal action against MHRB might look like by examining the 2004 DEA action known as Operation Web Tryp. They raided five of the largest online distributors of "research chemicals" (many of which were pretty clearly covered by the 1986 Federal Analog Act) that were based out of the US, arrested the individuals who owned and operated the sites, and seized their financial records (including credit card info on people who had purchased drugs from them). Only individuals involved in operating the sites were arrested, not any individual customers in the United States... but the DEA did use the records to provide UK authorities with information leading to the arrest and prosecution of twenty customers in that country.

I suspect that federal action against MHRB (if they decide to take drastic action) would look much the same: target a handful of major domestic vendors, rely on the publicity to scare off most of the smaller fish, but only go after individual customers if they're ordering very very extreme quantities. But a part of me wonders if they would even bother. Instead of going through a big, expensive, labor-intensive series of synchronized raids, they could simply amend the controlled substances act to specifically name M. tenuiflora and any other plants they wish to prohibit. If they did that, all the major distributors would stop carrying the targeted plants virtually overnight; same result, much less effort. I imagine they could have done the same with the research chemicals in Operation Web Tryp, but in that case they probably wanted to establish precedent for applying the Federal Analog Act in such cases, and they were confident in obtaining convictions for those particular vendors. With M. tenuiflora root bark, there are very good reasons that they would want to avoid establishing precedent, so they could easily decide that in this instance the pen is mightier than the SWAT team.
 
a1pha
#7 Posted : 5/5/2011 7:41:50 AM


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Entropymancer,

I want to thank you for your posts here. They are well thought out and reasoned. I spent some time working with your arguments, but can't seem to come up with anything of value. You hit the nail on the head with each point.

One question:

I accept your arguments and they appear to be sound (to a lay person like myself). That said, where do we go from here? It's inevitable that the DEA crack down on DMT containing plants. Do we have a leg to stand on? Is there any room for arguing precedent re UDV and Santo Daime? Is there an argument stronger than Religious Freedom?

I need to think about this some more and do a bit of research. I think it would be beneficial to the community to have a few arguments laid out before one of us gets the heavy hand of the law.

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Entropymancer
#8 Posted : 5/9/2011 6:13:35 PM

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Ah, where do we go from here? That is the crux of the matter. I think a discussion of the possible directions that it could go is very important for the community. It's an issue we tend not to address because it is uncomfortable, because the law is so completely at odds with what we all know in our hearts to be right and just.

It's also a very complicated issue, because the best legal approach can vary drastically depending on the incidental details of the particular case... Is the person being charged a user of the plant or a vendor? Was there any extracted DMT on the premises? Was there any cannabis or other scheduled drugs on the premises? Are they an atheist, and agnostic, a pantheist, a member of a mainstream organized religion? What is the nature of their spirituality, and is there any documentation (such as a journal) to establish this? Is there any incontrovertible evidence that their use was non-spiritual (i.e. "recreational" as the term is broadly understood)? Do they own any books about entheogens? All of these are important questions that can impact the feasibility of making a compelling case. For the discussion below, I'm going to consider the simplest case: an individual entheogen user arrested solely for possession of M. tenuiflora root bark (MHRB) and no other drugs (no extracted DMT, no other scheduled substances). As discussed in the previous posts, this is not a terribly likely scenario from a federal perspective, but it's not inconceivable that it might occur from the action of local law enforcement.

Still, in broad terms, I can see three general approaches that one could take in formulating a legal defense, each being pretty well mutually-exclusive. Bear in mind here that I am not a lawyer. I have merely read into the apparently most-relevant cases (particularly the UDV and Santo Daime decisions) and the law that underlies them, and have discussed the Controlled Substances Act with some students of the law in the past. If you have the resources, it would be a good idea to consult with a qualified attorney on these issues. If you are charged with any crimes, it is crucial to obtain counsel. If there are any possible grounds for dismissal based on the procedural details of your arrest, those would make for a sturdier defense and should be exhausted before any of the following arguments are tried. If you truly wish to make a stand on these issues, it is vital to obtain the best counsel possible, as a decision against you could set precedent making it substantially harder for a future case to be decided favorably, even if their arguments are well-founded and impeccably-constructed. That said, the three general approaches that present themselves are: (1) Argument from ignorance; (2) argument from ubiquity; and (3) the religious defense.

A fourth point, which I haven't included on that list, is the cognitive liberty argument. Most of us are familiar with the notion of "cognitive liberty," and feel it is only ethical that such liberty should be a fundamental human right. Unfortunately, there is no legal basis on which to stake such a claim. It is neither recognized by the US consistution or the UN declaration of human rights. The closest thing we can find is the "freedom of thought" in article 18 of the UN universal declaration of human rights, but this freedom is subject to "such limitations as are determined by law... meeting the just requirements of morality, public order and the general welfare in a democratic society," and unfortunately it is the international consensus that laws prohibiting drug possession meet those "just requirements." So unless the constitution were amended to include protection for cognitive liberty, there are absolutely no grounds for using it as a legal defense.




Argument from Ignorance


This is by far the simplest argument, but also the most unlikely for most of us. This would be the argument that you had no idea the bark contained DMT. It can be very easily invalidated... if you own a copy of Pharmacotheon or The Encyclopedia of Psychoactive Plants or any other book that mentions the traditional use of jurema, this argument will carry no water at all. Likewise if they seize your computer and find the DMT Nexus or any other online resource discussing DMT in your bookmarks or browsing history, this simply won't fly. Even if such circumstances don't automatically invalidate the argument, you would still have to produce a plausible reason why the bark was in your possession in the first place... considering the implication presented by many online vendors, the most reasonable justification would be to claim that you were using the bark as a dye. To make this believable, you would have to be able to demonstrate practical knowledge of how to prepare and use the dye. Not only that, but if they can establish that some of your order is not accounted for, or if you have ordered root bark in the past, you would have to be able to indicate what happened to the dye from that previous order. If you don't sell tie-dye T-shirts at the local craft market and have some jurema-dyed T-shirts on hand, I think it would be very difficult to make this argument convincingly. Unless you really are using the bark for dye and unaware that it contains DMT, the whole defense is based on perjuring yourself extensively, and if you're caught in a lie, you're pretty well fucked. This argument is only really tenable if you are ordering the root bark for the first time and are arrested before you've put it to any use (or if you honestly were unaware that it contained DMT, thought that it was actually commonly used as a plant-based dye, and have only found this post when researching your options for defending yourself in court). On the other hand, employing this argument unsuccessfully has no negative consequences on other subsequent cases that wish to take the same approach. This argument applies not only to DMT-containing plants, but to any plant that contains a controlled substance (Anadenanthera spp. seeds, Trichocereus spp. cacti, etc.) though in all cases one must be able to establish a plausible reason why one was in possession of the material.




Argument from Ubiquity


This defense is only relevant in the case of biologically ubiquitous controlled substances, particularly DMT. It will not be an easy argument to make since the Supreme Court has not only affirmed the constitutionality of the federal Controlled Substances Act, but also explicitly affirmed that it covers Psychotria viridis (chacruna) on the basis that it contains DMT (in the case of Gonzales v. O Centro Espírita Beneficente União do Vegetal). So even with something as ubiquitous as DMT, it will be an uphill battle. It would be more difficult to apply in the case of bufotenine; though it occurs naturally in the human body, it is not so ubiquitous in nature as DMT. Even more difficult would be applying the argument to mescaline; though it would control a number of common ornamental cacti, the court is not likely to care because the CSA defines crimes of intent, and most people growing the ornamental cacti are unaware they contain mescaline and so are not guilty of intending to possess it. While the argument can be conceivably applied by someone charged with possession of pure DMT, I imagine the court would be less prejudiced against a case where the individual was simply in possession of M. tenuiflora root bark or some other DMT-containing biological material.

Since I am not a lawyer, I do not know how this defense would be best constructed. That's where the resources to retain a big fancy lawyer become important. But basically the issue (as I see it) is this: virtually everyone is in possession of DMT, whether in the form of pets, or houseplants, or the grass that grows in their back yard. However, since the CSA only defines crimes of intent, the vast majority of people are not guilty of possessing illegal substances because they are ignorant (not in the pejorative sense of the term, simply in the sense that they are not aware that so many things contain DMT). A well-informed person who is aware that so many animals and plants contain DMT cannot legally possess any of those plants or animals which are so taken for granted by the average ignorant person. In this way, the law is clearly discriminating against the portion of the population that has taken the effort to be informed about the legality of their actions. By the act of becoming informed, your freedom to engage in the same activities commonly practiced across the country is effectively taken away.

Since this argument has not been employed before as far as I can tell, any case using the argument would have dramatic consequences for future cases taking this approach. If the case loses, it establishes precedent and makes it that much harder for subsequent cases to effectively use the argument. On the other hand, if the courts find in favor of the defendant in such a case, they establish that at least a portion of the Controlled Substances Act is legally untenable... this would be a tremendous victory!

A part of me wonders whether this defense would be more effective in a situation where the judge has every desire to find in favor of the defendant. Imagine the following scenario: You have an ambitious District Attorney who'd like to make a name for themself, a police officer, and a "typical" citizen (an upstanding individual, to whom public perception with be sympathetic) who makes floral arrangements, all of whom are opposed to prohibition. First, the citizen is informed that phalaris grasses contain DMT. This should be done in a way that can be verified, preferably in a way that also establishes that they believe the information (I suppose they could testify to this effect in court: "Yes, I believed the information, it came from a peer-reviewed paper..."). Then when they purchase some dried phalaris grasses to use in floral arrangements, the police officer arrests them for possession of a schedule I drug (DMT), and intent to distribute a schedule I drug (DMT), seizing some already-made floral arrangements that incorporate phalaris grass as evidence for the latter charge. The DA can then attempt to prosecute them to the fullest extent of the law. This individual cannot employ ignorance as a defense; they were aware that the grass is a schedule I drug, yet they were still in possession of it and intended to distribute it. The judge will not want to convict them, but as long as care is taken so that there are no grounds for dismissal, the only options for finding them innocent are either to rule the CSA invalid with respect to DMT on the grounds that DMT is ubiquitous, or on the grounds that the law discriminates against well-informed individuals. Such a ruling would establish a solid precedent for future cases to rest on.




The Religious Defense


In the wake of court decisions issuing temporary injunctions protecting the Santo Daime and UDV (churches which use ayahuasca in their services) from prosecution, much has been made of the possibility of using a religious defense to exempt one's use of entheogens from prosecution under the federal Controlled Substances Act. As an abstract concept, it is very useful: the government wants very much to avoid losing a case where an individual invokes a religious defense because that would establish precedent for other individuals to invoke the same rights, which would substantially weaken the CSA. Combine that with the fact that federal law enforcement isn't terribly concerned with individual DMT users and the other considerations discussed in the posts above, and you see that it is extremely unlikely that federal law enforcement would target anyone who uses DMT as part of their spiritual practices. But as I've examined the religious exemptions that have been granted, it becomes clear that there are some serious weaknesses in the religious defense, and obtaining a religious exemption could drastically impair the individual's ability to obtain their sacrament. Here I will examine the nature of the religious defense and highlight the weaknesses and potential pitfalls.

Prior to 1993, the courts had pretty well established that religious practices were not exempt from laws of general applicability, even if those laws imposed a substantial burden on the practitioner's free exercise of their religious beliefs. Congress recognized that it was not fair to impose such burdens on the free exercise of religion, so in 1993 they passed the Religious Freedom Restoration Act (RFRA) which prohibits the federal government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," except when the government can "demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that . . . interest." It is under this legislation that one may either use religious freedom as a defense in a criminal case, or preemptively petition to obtain a religious exemption. Note that the argument is not founded directly on 1st amendment rights, and in fact the claim of religious exemption would be denied if sought on those grounds; if the RFRA is repealed for any reason, then any religious defense for entheogen use is almost certain to fail.

In 1997, the Supreme Court struck down the RFRA as unconstitutional when applied at the state or local level, on the grounds that it exceeds the powers allowed to congress under the 14th amendment. This means that the religious defense can only be used when charged with a federal crime (i.e. when charged with possession of DMT in the form of M. tenuiflora under the federal Controlled Substances Act). The argument will hold absolutely no water if you're being charged under your state's statutes on possession of a controlled substance. Again, we come to this troubling point: users of DMT do not appear to be in any substantial danger from federal law enforcement, but local enforcement has the potential to be a lot more problematic. Aside from hiding (i.e. keeping a low profile), the only way I can see to address local concerns would be grassroots organizing to reshape local laws to be amenable to entheogen use... and such activism could easily influence federal priorities, precipitating a local crack-down, making an example of those who would undermine federal authority/policy. The situation appears very thorny indeed.

Additionally, to take the religious defense, you must be able to demonstrate that your personal spiritual practices constitute a legitimate religion in the legal sense of the term. This was not an issue in the Santo Daime or UDV cases. The churches both have at least decades-long histories, both originated in countries where the use of ayahuasca is legal, and the government did not attempt to contest their claims to be sincere in their faith and practice. If an individual were to try to claim a religious exemption, the government would almost certainly try to nullify this by arguing that the individual does not represent a legitimate religious practice. Sachahambi, a member at the ayahuasca forums, has thoroughly examined unsuccessful claims for religious exemption and found that the courts consider several factors in establishing the credibility of a religion. These are:
Quote:
  • A history, that shows how your religion originated and developed (and that demonstrates that the religion was not just made up to circumvent the laws).

  • A well-developed, well-articulated set of doctrines (teachings, principles, creeds, etc) which have to be distinctly "religious" in nature, in the subjective opinion of a judge. If the doctrines sound to the judge's ears like "philosophy," "psychology," or a "way of life" rather than a "religion," the religious claim can be rejected. (Imagine, "religion" and "way of life" are supposed to be separate?)

    According to a US 10th Circuit Court decision, the distinction between "religion" and "philosophy" can be made by examining five factors: “ultimate ideas,” “metaphysical beliefs,” “moral or ethical system,” “comprehensiveness of beliefs,” and “accoutrements of religion.” (This last means outer trappings that look like religious practice.) All the above need to be recognizably religious in tone to a judge who probably has slightly more conventional ideas about what constitutes "religion" than a lot of us do.

  • A systematic set of practices. Not just doing whatever you feel like doing whenever you feel like it. Some kind of structure and regularity to your rituals.

  • A basic structure, which may be simple but which includes defining the role of leaders in your group and defining your membership policies.


This clearly excludes many or most of us, if we're being honest. Few of us would be comfortable casting our individual worldviews as "religions," or have developed them explicitly as such. Speaking for myself, doubt is my only real doctrine when it comes to questions of religion and metaphysics. I have little issue in regarding deities as metaphor or allegory (e.g. pantheism, or the god of Spinoza), but I can scarcely take them seriously as legitimate entities in the common sense of the word. And most of us do not engage in our rituals only on particular days (e.g. equinoxes, solstices, or particular days of the week) but rather follow a sort of intuitive "calling." So there are substantial barriers to most of us claiming a religious exemption, no matter how much our use may be a sincere spiritual enterprise. We have to remember that the law protects only the free exercise of religion, not of spirituality.

If your practices do qualify as a credible religion, the case becomes substantially easier to win. The relevant "compelling interests" cited by the government in the UDV and Daime cases were protecting the health of the church members and preventing diversion onto the black market. As any informed person would expect, the "protecting the health" claim was not found to be compelling, as the evidence for the harmfulness of the mindful and responsible use of DMT is scant to nonexistent. The same could be expected to apply for most of the common entheogens. One might have difficulty making this claim with Anadenanthera spp. seeds or bufotenine on account of the inhumane human studies performed with it in the 1950s, or with Convolvulaceous lysergic acid amides (morning glory seeds, etc.) on account of their vasoconstrictive properties, but in general the safety of entheogens should not be difficult to establish. The other "compelling interest," possible diversion to the black market, should not present much more difficulty for most substances. With DMT or mescaline, one could cite the exemptions allowed to the UDV, Daime, and Native American Church, as the court opinions for those cases claim that the black market demand for the substances is low. One might run into more difficulty on this count if one were seeking an exemption for religious use of cannabis, psilocybian mushrooms, or LSD, all of which are fairly common commodities on the black market.

The other issue with the UDV and Santo Daime cases are that the churches are still subject to DEA scrutiny and other sanctions. No permanent conditions have been set for the UDV, but under the temporary injunction (which protects them from federal prosecution) the church is required to import the tea pursuant to federal permits, to restrict control over the tea to persons of church authority, and to warn particularly susceptible UDV members of the dangers of hoasca. The injunction also provides that "if [the government] believe[s] that evidence exists that hoasca has negatively affected the health of UDV members," or "that a shipment of hoasca contain[s] particularly dangerous levels of DMT, [the government] may apply to the Court for an expedited determination of whether the evidence warrants suspenion or revocation of [the UDV’s authority to use hoasca]." In the case of the Santo Daime, they must apply with the DEA for status as a legal importer of a controlled substance (the DEA is required to expedite this application), they must furnish the DEA with the names and social security numbers of those who handle the brew; the DEA may conduct inventories of the church's stock of the brew, and records must be kept of how many people participated in each ceremony and how much of the brew was dispensed; with each batch imported, a sample must be submitted to the DEA and another sample must be retained in the country from which it is imported; the brew must be kept in a secure storage area; and the church must inform participants with a history of psychosis that they may experience adverse reactions and advise them to seek medical help.


So an individual who succeeds in obtaining an injunction still has to keep things on the up-and-up. If they recieve an injunction for the use M. tenuiflora root bark, and the DEA performs a random inspection and finds them using a cactus brew, they will go to jail and will make it much more difficult (if not impossible) for future individuals to apply for the same injunction. Also, it's exceedingly unlikely that they will be allowed to import the material from a typical commercial vendor, unless that overseas vendor is willing to play along with the DEA's rules by retaining samples of every shipment and only importing to licensed individuals or groups. Obtaining it from a domestic vendor would only serve to put that vendor in jeopardy as they are not an authorized importer, nor could they obtain a license to import for the purposes of distribution.

In all, the religious defense really only seems suited to an actual organized religion. For an individual, it would not only be more difficult to establish grounds for a religious exemption, but in doing so they would have to shape their practices to fit the common perception of organized religion and abandon the more intuitive approach to rituals generally favored by people who employ entheogens in their spiritual practices (regardless of the fact that this intuitive approach bears closer resemblance to the curanderismo or indigenous shamanic healing practices in which the plants have been traditionally used for centuries or millenia). Further, the terms of that exemption could be prohibitively restrictive in terms of limiting their means of obtaining the materials. I would be very much more interested in seeing how the argument from ubiquity might be employed as a defense at least for possession of DMT-containing plants, or possibly even for purified DMT. If anyone knows a lawyer interested in such subjects, I would be keenly interested to hear their thoughts.
 
SWIMfriend
#9 Posted : 5/9/2011 6:38:31 PM

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Tepescohuite Soap. It's made with MHRB. I'm gonna make some--which, btw, soapmaking ALSO requires buying a decent quantity of NaOH Smile --and try to sell it on E-Bay. A record of such transactions strongly supports what your intentions are/were in purchasing MHRB.
 
Entropymancer
#10 Posted : 5/9/2011 6:42:58 PM

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Hmm, that could be plausible. Tepescohuite soaps and other topical preparations (ointments, etc.) are made from the stem bark, not the root bark... but I suppose that could be a believable "mistake".
 
a1pha
#11 Posted : 5/11/2011 6:45:37 AM


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Possible sticky? Maybe even a new link at the top entitled "Law"?

Might prove beneficial to the Nexus some day -- to clearly state our understanding of current laws by country. In addition, it might shield the Nexus from legal attack by being more explicit to members what is and is not legal.

Just a thought.
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SnozzleBerry
#12 Posted : 5/11/2011 3:00:56 PM

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a1pha wrote:
Possible sticky?

Done and done

Entro, please let me know if you object my moving this thread to CEL
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Entropymancer
#13 Posted : 5/11/2011 8:47:23 PM

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SnozzleBerry wrote:
a1pha wrote:
Possible sticky?
Entro, please let me know if you object my moving this thread to CEL


As long as it doesn't get absorbed into a wacky "sci-fi' book about talking with aliens Laughing

The CEL forum seems like an appropriate place for the topic. I just figured the strange legal situation surrounding DMT source plants could use a thread to give it both a factual basis and room for discussion. Glad it's been well-received, I remember getting some flack for raising this point back when BBB was raided.

Edit: Actually, it looks like this forum isn't visible to guests (users who aren't registered) and I'm not sure if new members can see it either... I'd rather this information be available to everyone... Can we relocate it to a publicly-visible forum?
 
cker
#14 Posted : 5/12/2011 4:23:23 AM

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Apoc asked me a while back why I thought entheogens could benefit religous practices. It's not a trivial question but it is at the center of a religous freedom justification for use of these substances. I'm still pondering how to answer the question and I only have a partial answer at this time in the form of a small story.

My friend and I once spent a sunny, Lucy-filled, beautiful day on the shoulder of Mt. Tamilpais in California, overlooking the ocean. It's a pretty magnificent place and there was lots to stimulate the senses. We were mostly silent just taking it all in. At one point my friend pointed to a bird that was using the ocean breeze to hover motionlessly in the sky. I looked up and immediately commented, "It's a rip", and we both smiled.

My friend instantly knew what I meant. My perception of the scene wasn't that of a bird, but rather the dark shape as a tear in the sky, or a slit in the universe that opened up a small look into whatever lies beyond. The only point here is that the common sight of a bird was transformed into something quite different because of our entheogenic state of mind. That state provides a large view of existance and exposes many, many different perspectives. Even 'experts' agree this happens when these substances are used.

So does a spontaneous realization and appreciation of things larger than ourselves constitute a religious experience? Perhaps not, but it would sure seem to be an important component. Would an experience that removed you from your day to day life in an attempt to gain a different perspective constitute a religous practice? Perhaps not in itself, but a large perspective is surely a part of what conventional religions try to create.

A religion doesn't need to include the notion of God. It need not have non-sensical dogma (for instance, most of the dogma of the Judeo-Christian religions could be completely thrown out if the Ten Commandments were kept and most of us would not be in conflict with those as a formal doctrine.) I don't see that an entheogenic religion needs to include much in the way of suffocating doctrine.

I'll finish by commenting on Entropymancer's text below:

History- Well yes, I don't know of any religion that was accepted upon it's founding. I'm not an expert but I do know Christianity took about 400 years to become accepted. The Mormans are still harassed. Starting a religion might not benefit the founding members. America likes to say it has strong religous freedom but cult status is a real risk if the religion has unpopular beliefs.

Well developed and articulated doctrines- Well articulated doesn't have to mean non-sensical. It also doesn't have to include fancy stories about the creation of the universe (look at Unitarianism or The Quakers). Also, the 10th Circuit Court may have made decisions based on a prescription, but I think Bonafide belief could win the day. I personally and sincerely believe the Ten Commandments are a good doctrine and I sincerely believe entheogens help me understand the meaning of that doctrine. That is the truth and it doesn't matter what the 10th Circuit thinks. They can throw me in jail, but my belief will not change. Does that qualify as Bonafide? Justice Scalia thinks the Native American practice of ingesting peyote is similar to the Christian practice of throwing rice at a wedding (which isn't good for birds because the rice expands in their stomachs). Nothing will change Scalia's opinion on this topic but he won't be around forever and practising religion involving entheogens will be done with or without his permission. No one said this was easy. This same fight has been going on for millenia (Greek Oracles and others). Do we really want to concede that ethenogens do not invoke religous experiances?

A systematic set of practices- It is not difficult to think of a meaningful set of practices before an ethenogenic experience. For instance, I could imagine fasting or refraining from meat or unhealthy food. I could imagine abstinance from alcohol. I could imagine being in nature. I could imagine thinking 'big' thoughts with reverence and introspection. I could also imagine enjoying my time on this earth.

A Basic Structure- This is an easy requirement and actually reasonable given the common structure of conventional religions. It's probably wise to refrain from whimsical titles, but that's an easy task. It's clear there are some tax, registration and other legal tasks to fit into a conventional religous mold.

As I said, I don't have many answers. I may have a useful perspective such that religion doesn't have to consist of some old guy on an altar saying things that have no meaning in the context of my life or yours. Like it or not, religions were made up by man to suit a need. I can see a modern need for a new religion. I think some aspects of religion already exist and are plentyful in the enthenogenic community. I recoil a bit at the dismissal of expressing this need based upon how others have chosen to practise their religous beliefs in the past. If we don't try to do better, we won't.

Today, for most entheogens, if you invoke religous belief to defend yourself in court, you will loose. There are several notable victories (Native Americans, UDV, Santo Daieme and the 6 US states that allow peyote use for Bonafide Religous purposes), but no one of ordinary means can afford to fight the American legal system long enough to find a judge that is reasonable. Religous freedom will not serve to protect you in most cases, but that doesn't mean we shouldn't be looking out for those who follow in our footsteps. I think this cause is worthy of discussion and I also think the act of discussing might help someone, someday in the future. It's not great, but why not push on this front?

I hope all of this is interpreted as respectful of people's beliefs. This is not an easy topic or concept. Welcome back Nexus! Long live the plants that have been put here to enlighten and remind us of what is important!

Quote:

•A history, that shows how your religion originated and developed (and that demonstrates that the religion was not just made up to circumvent the laws).

•A well-developed, well-articulated set of doctrines (teachings, principles, creeds, etc) which have to be distinctly "religious" in nature, in the subjective opinion of a judge. If the doctrines sound to the judge's ears like "philosophy," "psychology," or a "way of life" rather than a "religion," the religious claim can be rejected. (Imagine, "religion" and "way of life" are supposed to be separate?)

According to a US 10th Circuit Court decision, the distinction between "religion" and "philosophy" can be made by examining five factors: “ultimate ideas,” “metaphysical beliefs,” “moral or ethical system,” “comprehensiveness of beliefs,” and “accoutrements of religion.” (This last means outer trappings that look like religious practice.) All the above need to be recognizably religious in tone to a judge who probably has slightly more conventional ideas about what constitutes "religion" than a lot of us do.

•A systematic set of practices. Not just doing whatever you feel like doing whenever you feel like it. Some kind of structure and regularity to your rituals.


•A basic structure, which may be simple but which includes defining the role of leaders in your group and defining your membership policies.

 
SnozzleBerry
#15 Posted : 5/12/2011 2:52:53 PM

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cker, my thoughts on "why not push this front?" are fairly simple. We currently do not have protection in any meaningful way under RFRA or similar laws (at least as far as the courts have ruled thus far). Given the fact that fighting on a religious front or cognitive liberty front will essentially take a similar amount of effort...why hamstring ourselves to religion? Especially when many of us don't consider our use to be religious. Spiritual/sacred practices ≠ religion. Additionally, while I agre with many of the points you make as to what makes/doesn't make a religion, it's kind of irrelevant as, imo, the courts have an entirely different view (as does the general American populace).

I think the most promising way to attack these laws at present is probably the argument from ubiquity; in all honesty, there's a good chance that that is precisely why we haven't seen legal action against botanical suppliers in a number of arenas. Personally, I feel that, as a massive amount of energy will need to be expended to change these laws anyways, why limit ourselves to religious exemption? Why not go for broke? It kinda reminds me of the Montgomery Alabama bus boycott. Initially the demands of Black americans were only for a more moderate system of segregated busing...however, when it became apparent that even that request would not be met, the demand was changed to an all out end to segregated busing, which was ceded over a year-and-a-half later.
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Entropymancer
#16 Posted : 5/12/2011 3:53:07 PM

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Cker, thank your for your post. Those are some very good points... My experience with religions have probably prejudiced me against taking a broader view of the ways in which the legal qualifications may be met. While I still believe that they appear to be a significant barrier to the religious defense, they do indeed warrant further consideration. The following is a sort of stream-of-consciousness musing on the subject, though I'll try to tackle the points in roughly the order they're presented in the portion you quoted.

I still see the history point as a potential problem... as you note, new religions tend to be subject to marginalization or persecution. This fact alone could easily impair an effective defense on religious grounds, as this knee-jerk objection to new religions is apt to influence a judge against accepting them as legitimate. You bring up a good point that even if a new entheogenic religion doesn't immediately benefit its practitioners, with time it could gain legitimacy. I am concerned about how an organized religion based on entheogen use could succeed in peristing in an organized fashion long enough to gain legitimacy... it seems to me that this would have to occur in a major metropolitan area, where there are enough like-minded people that it would be feasible to hold semi-regular meetings where entheogenic practitioners could gather, discuss, and support one another. While consumption of a sacramental entheogen might be optional at these meetings, I imagine many or most practitioners would like to work with the entheogens in more private settings, either individually or in smaller groups... from a religious defense standpoint, this could cause problems with the government's "compelling interest" to prevent diversion of the substances to the black market. This could be partially addressed by bestowing "regular members" with the authority to initiate ceremonies that could include initiates or prospective members, but forbidding them from distributing (as opposed to administering) entheogens outside the membership of the religion. The government would still be apt to consider that problematic, but with enough history of the policy working successfully it might hold up in court.

With respect to an individual wanting to claim their own novel religion as a defense (rather than being part of an organized group), it would be very important that rather than modifying their practices to try to fit the qualifications so they could use it as a defense (i.e. inventing a religion to circumvent the law), they should instead look to understand how their beliefs and practices might be parsed in such a way that they fit the qualifications. That is a crucial issue I think, if one wants the defense to hold up in court: rather than create or change practices to circumvent the law, instead try to see how their practices fit the law when expressed in a careful and deliberate manner. In this scheme, having a narrative for the history is important. For most of us, there is a particular experience that awakened the desire to incorporate these things into our lives in order to better understand ourselves and others, to improve conditions for ourselves and others, etc. This key experience, whatever it may have been, is in fact the inception of the religion; the fact that it may not have been codified explicitly as a religion in the legal sense until we looked at what qualifies the legitimacy of a religion (in the mind of a judge) is irrelevant.

The doctrine issue also presents difficulties. You say that you sincerely believe the ten commandments are a good doctrine... have you read them recently? Let's take them one at a time:
  • #1 "I am the Lord thy God..." Well, I'm skeptical of the notion of any god beyond the sort described by Spinoza or Pantheists... and even if I wasn't, this particular God is a horrid troll who I couldn't worship with a clean conscience
  • #2 "...I am a jealous God..." I think the notion of a petty god checking how many Followers he has on Twitter is laughable. This commandment also has xenophobic overtones that I find morally objectionable ("...punishing children for the iniquity of parents, to the third and the fourth generation of those who reject me..." I mean, seriously? That's pretty dickish for a "benevolent" God
  • #3 "You shall not make wrongful use of the name of the Lord your God..." Don't get me wrong, I support precision in language... but is taking certain sorts of poetic license really something that ought to be prohibited by threat of hellfire? I don't think so. And again, this reeks of pettiness and insecurity on Yahweh's part.
  • #4 "Remember the Sabbath day and keep it holy..." Okay, I sort of get this one. No one likes a seven day work-week. But you do what you have to do in order to support your family. I wouldn't send someone to hell for putting in some extra hours of labor, and I don't approve of any god that would.
  • #5 "Honor your father and your mother..." Yes, family is important. Placing value on family strikes me as a solid piece of doctrine. (Finally, a commandment I can support... I was starting to get nervous :lolSmile
  • #6 "You shall not kill." I really don't know how I feel on this one. I am not a violent person, and could not see myself killing anyone. But are there no circumstances where violence with the risk of fatal injury is warranted? I honestly do not know. (Sidenote: I'm not sure how to reconcile this commandment with God rubber-stamping the genocide committed against the Canaanites)
  • #7 "You shall not commit adultery." This I agree with, absolutely. Personally, I think it could have been incorporated into #5 by changing the phrasing to "Honor thy family"... maybe God just needed a better editor? Kind of ironic considering he'd send people to hell for using certain terms improperly (#3)
  • #8 "You shall not steal." This I have no issue with. It relies on consensual definitions of property which are not always intuitive in this age of copyright law and intellectual property, but I accept the basic premise.
  • #9 "You shall not bear false witness against your neighbor." 100% agree.
  • #10 "...Neither shall you desire your neighbor’s house, or field, or male or female slave..." I have a couple of issues with this one. First, desire is an inevitable aspect of human consciousness. We can try to develop self-control and limit our desires to fruitful ends, but on the other hand perhaps coveting your neighbors farm could instill a strong work ethic to produce innovations which achieve better conditions for yourself and your whole community. I certainly wouldn't accept it as obvious that one should not covet thy neighbor's farm. Further, the commandment indicates that it is acceptable to own slaves; needless to say, I disagree.


So from the commandments, I discard half, take one under advisement, combine two that seem redundant, and am left with a whopping Three Commandments (we might also add some obvious ones that apparently didn't occur to God, such as "Thou shalt not rape" and "Thou shalt not take people as property"). But in doing so, we've eliminated several elements that the courts use to distinguish religion from philosophy, specifically the ultimate ideas (if you don't follow these commandments, you go to hell) and metaphysical beliefs (there is one true god). We could restore the "ultimate ideas" by claiming that it is the purpose of humanity to do well by one another and strive for a greater existence... but the problem is, I don't believe it. I believe that humanity should do these things, but that belief falls into the philosophical, rather than the religious, category. Perhaps other people less inclined to skepticism don't have issues in asserting an ultimate idea that qualifies as religious, but I personally can't come up with one off the top of my head (I'd be very interested to hear suggestions). The "metaphysical beliefs" issue presents even greater problems for me personally (again, others may not have this issue); I am willing to entertain metaphysical concepts either as aesthetic constructs or as ideas of undefined validity, but I have difficulty entertaining them as sincere beliefs (again, I'm interested to hear ideas on this point). I believe that entheogens provide a potential means of furthering individual and societal development, but I don't think that qualifies as metaphysical, and I doubt that a judge would either.

The systematic set of practices is less problematic. As I alluded to before, a religion could define its members as qualified to initiate ceremonies under circumstances they deem appropriate. This could allow the intuitive approach, using entheogens when one feels that they may provide guidance or impetus towards development, to qualify as a legitimate religious practice in spite of the fact that it does not occur on a defined schedule. It does introduce issues with regards to the government's "compelling interest" to prevent diversion to the black market, but I think that at least some judges would be able to see this as a legitimate free exercise of religion, particularly in light of the fact that it's a ubiquitous model among indigenous "religious" practices.

The "basic structure" is also an entirely surmountable obstacle, especially for the individual practitioner. For an individual practitioner, a religion of one, the structure can be easily defined. They are the administrator, following the doctrines and conducting ceremonies in accordance with the religion. For an organized religion of more than one member, it strikes me as problematic. There must necessarily be a hierarchy, and that may be difficult to maintain outside of a cult-like organizational model. Religious authority has traditionally tended towards unpleasant outcomes. Still, with leaders possessing sufficient self-control and tolerance, in a religion with a reasonably libertarian manner of organization, it could work.

So as I see it, the biggest stumbling blocks to mounting a sincere religious defense for people like myself are finding ways to honestly construe our "ultimate ideas" and "metaphysical beliefs" as perceptibly religious (as opposed to philosophical) in nature. People who are comfortable claiming certainty without evidence will obviously not have this issue and should be able to mount a broadly feasible religious defense. In any case, the odds of it being accepted as legitimate depend very heavily on the whims and predispositions of the judge, who probably does have more conventional/conservative notions of what constitutes a religion... but it could have more potential than I first indicated, at least for those who have a sincere belief in metaphysical concepts.

We have to remember though that even if the religion is deemed credible, the judge still must be convinced that the material won't be diverted to the black market. And if he is convinced, there's still the issue of how to legally obtain the materials; In addition to the barriers to importation I addressed above, there are also issues with growing the plants (one would need to establish a high-security greenhouse in order to satisfy the government's "compelling interest").

My final issue with taking the religious defense: It doesn't protect my cat. If I'm accepting the law against DMT as legitimate, and I obtain an exemption for the use of M. tenuiflora root bark, I still cannot legally own my cat unless I also invent a integral role for her in the structure of my religion (perhaps Deacon Kitty performs the Painful Benediction of the Claws?). Unless you're actually a member of an organized religion that uses entheogens, the religious defense is taking an unjust situation, accepting its premise, and seeing if you might qualify to sneak through the cracks.

Sorry for the rambling post, I work out my thoughts best by writing. And in this case, think there are many reasons why the religious defense is less palatable than the argument from ubiquity. When a law is so blatantly screwed up that it cannot be enforced, I think presenting legal grounds for rejecting the law is preferable to accepting the law and looking for loopholes. But I recognize that this is just my own belief, and that sincerely religious (as opposed to simply spiritual) users of entheogens still may find reasons to favor the religious defense.
 
Heretic
#17 Posted : 5/13/2011 2:07:31 AM

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Would this have no sway in court if used as a defense you think?

http://www.santodaime.or...y/news/1604_UNletter.htm
When Injustice Becomes Law, Rebellion Becomes Duty
 
ShamanDoc
#18 Posted : 5/13/2011 3:45:29 AM

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Like many of you, I see the "religious freedom" argument to be a pretty impotent one when put in the context of north american laws. I see my use of the plant teachers and their constituents to be very religious and spiritual, but without an established religious structure, such and argument doesn't hold ground these days.

Its my opinion that in order to both legalize our responsible use of the spirit molecule, as well as put an end to modern prohibition and all its ugly side effects, there has to be a fundamental challenge to the medical, scientific, and even religious paradigm that drugs=addiction/deviance.

The idea that a "drug" takes away your free will and "enslaves" you to addiction and deviant behavior is a largely modern judeo-christian concept that has influenced the opinions and interpretation of evidence by several influential scientists. This ideal has been further ingrained into the public by several well intentioned, but idealistically biased groups, such as various religious organizations (both fundamentalist and "moderate), Alcoholics Anonymous, MADD, and conservative political interests who realize that the war on drugs is a vote grabber for the judeo-christian demographic.

There is plenty of scientific evidence and community support for the opposite idea that addiction and abuse is not a disease but a choice, a matter of free will and liberty. These scientists are of the opinion that the reason that AA has a success and retention rate of less than 10% is that they refuse to recognize that the problem never lies within the substance, but within the person, and rehabilitation is far more effective when focused on the person, and not the substance that they abused.

This is the reason that modern prohibition laws have not been made unconstitutional, because there are politicians who refuse to recognize substance use (and abuse) is a matter of liberty, not disease.
 
cker
#19 Posted : 5/13/2011 5:34:09 AM

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There are many aspects to this topic. I'll start by bringing up the fact that there are over 1 million non-violent drug offenders locked up in US jails tonight. That this could even happen in a 'free' country illustrates the insanity of the situation. I'm afraid rational, moral, religous, medical or even good legal arguments won't even be heard by those that are so convinced this 'drug menace' must be eradicated. The 'drug war' has been a failure on many levels and reasonable thinking may have been the first casualty. I support attacking drug war laws at any levels that could lead to more sensible drug policy.

I do think entheogenic substances evoke spiritual experiences. There have been numerous studies comparing entheogenic experiences to other 'primary' religous states of being. These studies confirm the similarity. Entheogens can surely be used in a non-religous manner (although I think people who are careless or irresponsible are eventually taught very harsh lessons). I don't believe these substances are just a whimsical accident. I don't know why they were put on earth but people have gravitated towards entheogens for a long, long time and spiritual practices have been evolving with their use simultaneously.

I'm not a fan of conventional religous doctrine. I mentioned the Ten Commandments without reading them recently (and was wisely called out for it Laughing ). I actually think they should be called the 5.5 Commandments. The first four are too self-serving and not to be trusted as something that an all powerfull God would care about. Number five is good because eveyone needs a day off, even slaves (but lose a half point for condoning slave ownership). I'm OK with a humanitarian interpretation of the remaining Commandments. Anyway, my main point was that there is a set of doctrine most of us could easily agree with.

It is very worthwhile to take some time to understand the current US peyote laws. You do not have to be Native American to use peyote in a Bonafide religous ceremony in several US states. This happened largely because the law granting peyote rights to Native Americans is fundamentally rascist since it excluded based on race. Several courts have written opinions supporting all race peyote use and several states have passed laws supporting this concept.

As far as DMT, I would say it is currently legal in the US in the context of the UDV. To me the physical form of the sacrement or method of ingesting is not all that significant, but I'm sure many judges would disagree. One important point though: These negative impressions can change over time. If enough people express their opinion that (say) DMT is a religous tool, it can slowly change cultural impressions. Saying what we believe is a powerful tool. I'm not suggesting we run to the nearest police station and prostelitize, but many of us do believe in religous entheogenic benefits and so challenging common stereotypes is important whenever it is safe to do so. If we don't challenge, who will?

I'll mention one last point. I think America is getting tired of the Drug War (in addition to the other wars). Polls say most Americans don't believe the drug war has produced benefits. The cost of locking people up for non-violent drug offenses should/could be on the 'chopping block' given the current budget battles. The human cost is even greater. Medical marijuana seems to have become publicly accepted as beneficial and not harmful to society. The drug war marijuana propaganda is known to be a pack of lies. Perhaps Americans have more important things to worry about now? I sense the tide is changing a bit. Some of the stereotypes are dissolving. This does nothing for those in jail tonight but any light at the end of this tunnel is good.
 
Entropymancer
#20 Posted : 5/13/2011 8:21:54 AM

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Heretic wrote:
Would this have no sway in court if used as a defense you think?

http://www.santodaime.or.../news/1604_UNletter.htm


Unfortunately not. The fact that the UN chooses to allow something does not mean that member nations must also allow it, it simply gives them the option to (although if a UN treaty forbid ayahuasca brews containing DMT, that would compel the signatory nations to forbid it as well)... as we know, the US has chosen not to exercise that option and regards DMT and all things that contain it, including ayahuasca brews.



To cker and ShamanDoc, I agree with what you're both saying about the maladaptive prejudices that fuel the drug war. If you haven't read them, I highly recommend the Proemium from Jonathan Ott's Pharmacotheon and an essay entitled Legalize Methamphetamine by Marc Victor; both outline clear reasonable arguments why the only sensible or conscionable course of action is to abandon the drug war and legalize all drugs. Ethan Nadelmann, founder of the Drug Policy Alliance has also spoken eloquently on the subject.

I have to admit that part of what intrigues me so much about the argument from ubiquity is its potential to render the Controlled Substances Act invalid. Sure, if that happened Congress would be chomping at the bit to replace it, but I think it could open a healthy debate on the subject.

What drugs really need is a good PR campaign, one that cuts straight through all the propaganda and fear-mongering. People are gradually realizing that prohibition of cannabis is not only ineffective, it's entirely counterproductive and an affront to the notion of liberty that our forbears shed their blood to secure... this is promising, but it's only the start. Prohibition of any mind-altering drug, regardless of health risks, is an affront to the fundamental notion of liberty. Adults should be allowed to make their own decisions about what they put in their own bodies. Clear information with an eye towards harm reduction is crucial in the process of responsible decision-making, but attempting to control people's personal decisions about what to consume through criminal sanctions is simply unacceptable as far as I'm concerned.

I didn't devote much space to these concerns when treating the question of "where do we go from here?" because self-evident truths about liberty and individual sovereignty do not hold any weight in a court of law. I fully support activism in these areas, but I was focused on considering the options under our current legal paradigm.
 
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