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Synthetic drug trials hang on 'battle of experts'

Published 11:15 am, Monday, December 23, 2013
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In the game of Whac-A-Mole that is U.S. drug law enforcement, prosecutors generally don't have a problem proving the illegality of cocaine, heroin or anything the law defines as a "controlled substance."

But in the shadowy world of synthetic designer drugs -- one that was hardly on the Drug Enforcement Administration's radar four or five years ago -- proving an illegal drug is, in fact, illegal can be a creative challenge.

It requires prosecutors to find ways of dumbing down mind-numbing molecular formulas in order to convince average jurors that brand-new substances sold in convenience stores and gas stations under names like "Ivory Wave" and "Vanilla Sky" are carbon copies of ones already on the government's illegal-drug list.

By tradition, cocaine, heroin and other drugs usually were sold furtively on street corners and in dark clubs. Designer drugs, by contrast, are sold openly and marketed with a wink as "plant food," "potpourri," or "badger repellant" and marked "not for human consumption."

After DEA tests these products and places them on the controlled-substance list, underworld chemists go to work transforming them by a few molecules. The resulting copycat products are legal until DEA catches up with them, and the cycle starts anew.

"The chilling reality is that these drugs are proliferating faster than DEA can administratively control them," said DEA's head of diversion control, Joseph Rannazzisi, in testimony in September before the Senate Drug Caucus, chaired by Sen. Dianne Feinstein, D-Calif. "DEA is constantly behind the clandestine pursuit of traffickers who continue to quickly and easily replace new controlled substances with new non-controlled drugs."

Between 2008 and 2012, U.S. Customs and Border Protection tracked 145 shipments of methylone, an ecstasy-like powder packaged as "bath salt," "explosion" or "bubbles" among other names. The packages, mostly from China, were destined for California, Texas, Washington and 17 other states.

Feinstein introduced legislation co-sponsored by Sen. Charles Schumer, D-N.Y., that she said would make it easier for federal scientists to "respond quickly and robustly to the threat."

A 1986 federal law aimed at controlling ecstasy (MDMA) outlaws any new drug that has a chemical composition substantially similar to one that's already banned.

But in order to prove that, prosecutors must subject juries to hours of sleep-inducing terminology like "chemical moiety" and names like "3,4-Methylenedioxymethcathinone," as well as lectures and diagrams on structural similarity and pharmacologic effect.

Stultifying testimony

Such testimony sets up what Feinstein referred to as a "battle of experts." Defense lawyers call in their own experts, often at government expense, who try to convince jurors in yet more stultifying testimony that the substances are not similar and therefore the defendant did nothing illegal. Then it's up to the jury to decide which expert is right.

From 1986 to 2011, federal prosecutors used the analogue law to charge 67 defendants. Since February 2011, a total of 360 defendants have been charged under it, according to DEA spokesman Rusty Payne.

Around the law

DEA officials say bogus labeling that warns against ingesting these substances is aimed at circumventing the law's language on "human consumption" and convincing consumers the products are harmless.

Whether smoked, snorted or ingested, designer stimulants affect the central nervous system and often do more than yield a manageable "high."

Psychotic episodes, panic attacks, rapid heart rate and a burning-skin sensation are among the reactions users and health professionals report.

Synthetic-drug-related calls to poison centers quadrupled between 2010 and 2011 alone, with 60 percent involving persons 25 or younger, according to the American Association of Poison Control Centers.

Just this summer, four people died in New York, Massachusetts and the state of Washington after ingesting an ecstasy knockoff known by the street name "Molly."

"The user is unwittingly a guinea pig in an uncontrolled laboratory test and the consequences can be deadly," the DEA's Rannazzisi said.

202-263-6400; dan@hearstdc.com.