The Massachusetts legislature has recently adopted a definition of controlled substances that includes “controlled substance analogues,” or what is commonly known as “designer drugs.” The Massachusetts law is modeled on a similar Federal law that has already been put into place. This added definition would make criminalize analogues in the same way that the named controlled substances are criminalized, such as possession of the substance or distribution of the substance.
A controlled substance analogue is a substance that is similar in chemical structure and psychological effect to an existing controlled substance but has not yet been listed as a controlled substance. So in the statute, the analogues are not specifically listed by any name but are generally defined as a substance “substantially similar” to other controlled substances already listed.
The way the statute is written, a two-prong test is created for proving an analogue. First, the analogue (or “designer drug”) must be structurally similar to a controlled substance. “Structurally similar” essentially means that its chemistry must be very closely related. The second prong can be proven in one of two ways. One, the analogue causes a substantially similar or greater effect on the user as the named controlled substance. Or two, the analogue was represented to have or intended to have a similar effect on the user as the named controlled substance.
This addition to the controlled substance statute will cause a whole host of problems for police, prosecutors, defense attorneys, and most importantly, defendants.
One problem is how do you prove that an analogue has a “structurally similar” makeup to a named controlled substance? (And a whole separate problem is what named controlled substance will the analogue be tested against since there are numerous possibilities?) This is obviously going to require an expert in chemistry to test how similar the alleged analogue and the named controlled substance are. This will be a time-consuming and costly process for both the government and defendants. The need for an expert puts defendants who cannot afford to pay in a highly disadvantaged position when up against a big government budget. Since there is no scientific definition for what “substantially similar” means, the case could come down to one expert’s opinion versus another expert’s opinion. What method of testing the expert(s) utilize is also a problematic area with no right or wrong answer right now.
Another problem is how do you prove that the analogue has a substantially similar or greater effect on the user (the first part of the second prong)? A few ways that have been suggested are having a witness testify who has experienced the analogue’s effects first-hand or have a scientist testify that a substance with similar properties would likely have a similar effect. A similar problem is how do you prove that the defendant represented or intended the alleged analogue to have a similar effect on the user (the second part of the second prong)? This is what is known as the “knowledge” element of the alleged offense. What knowledge of the analogue does the defendant have to have to be guilty? Does he need to know its chemical structure or is knowledge that this drug is “bad” good enough? Federal courts have split on this when deciding cases under the model federal law.
The last problem I want to talk about and what I personally think is the most important issue is whether this law is constitutional. There is a strong argument that this statute is too vague, and therefore unconstitutional. “Due process requires that a criminal statute provide adequate notice to a person of ordinary intelligence that his contemplated conduct is illegal, ‘for no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.'” Buckley v. Valeo, 424 U.S. 1, 77 (1976). Would the average Joe know what substances are and are not prohibited? If the average person would not know, the law must be void for vagueness. If scientific experts might disagree about whether an analogue is “substantially similar” to a controlled substance, how is an ordinary person supposed to know? I don’t believe that under the Constitution a gut feeling that something may be “bad” and therefore illegal is enough.
I’m sure that once cases begin to be prosecuted under Massachusetts’s new legislative definition, courts will begin to answer some of the questions I have asked above. If you find yourself charged with a drug crime or any crime in Massachusetts, call our office immediately for a free consultation: 617-830-2188.