“In the interest of justice”

The Justice Department won’t prosecute a traditional Colombian healer caught bringing ayahuasca into the country. A reasonable decision. But isn’t it time to set up some formal rules?

The U.S. Attorney’s office for the Southern District of Texas has dismissed all charges against a practitioner of traditional Colombian healing who came flew into the U.S. with several vials of a ayahuasca, a potion containing DMT. The announcement described the decision as being “in the interest of justice,” which is prosecutor-speak for “we really don’t want to put this guy away.”

No doubt that was the correct decision. Juan Agreda-Chindoy is apparently a licensed traditional healer in Colombia. The courts have already decided that the Religious Freedom Restoration Act protects the ritual use of ayahuasca – the sacrament of two sizeable denominations recognize by the Brazilian government – when used by the American branches of those denominations, and it would be legally odd (to say no more) to decide that a given material is legal in some ritual uses but not others.

Still, the fact that Agreda-Chindoy could have spent months or years behind bars had the U.S. Attorney’s office decided differently (a jury might well have convicted him on the charge of which he was no doubt facially guilty: trying to import a controlled substance) suggests that the current legal situation is far from satisfactory. Congress has explicitly recognized peyote use in Native American rituals, without changing the classification of peyote and the mescaline it contains as Schedule I drugs, contraband in all other contexts. And RFRA provides that any federal law burdening the exercise of religion must meet a strict necessity test. But leaving the matter to be decided case-by-case means that problems such as this one will recur, and the free exercise of religion involving controlled drugs will be limited to those with the organization and funding to fight through litigation.

The Justice Department needs to think this through carefully and then publish a set of regulations under which religious bodies can apply for formal permission to use otherwise-controlled drugs, on a showing of sincere religious intent and reasonable measures to ensure the safety of participants and to prevent the diversion of ritual material to non-ritual use or sale. Judge Panner’s order in the Santo Daime case sets what seems to be a reasonable set of guidelines.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

7 thoughts on ““In the interest of justice””

  1. Although the bottles probably had DMT, this was likely derived from other plants than the one from which ayahuasca is extracted. Ayahuasca itself has no psychedelic properties, but is a naturally occurring monoamine oxidase inhibitor, and this property accounts for the psychedelic properties of the mixture with the extracts of the leaves of other plants. The discovery of this interaction by native tribes is an interesting phenomenon.

    Dennis McKenna, who with his late brother Terence went to the Amazon to research the ethnobotany of ayahuasca, also pointed out that bufotenine, derived from the skin of toads, is 5-hydroxy-DMT. The hydroxyl group makes this a polar molecule, which inhibits its passage across the blood-brain barrier, so that bufotenine is a weak psychedelic. However, if combined with eye of newt, the properties change. Assuming that this refers to the third eye of the newt, the pineal gland, this will contain the enzyme hydroxy-indole-O-methyl transferase, which is physiologically involved in the synthesis of melatonin. This enzyme will methylate bufotenine to 5-methoxy-DMT, which is more lipid soluble and able to cross the blood-brain barrier. The combination is again active when the individual components are not active. How Shakespeare discovered the interaction is another interesting phenomenon.

  2. An even better idea would just be to legalize hallucinogens and drugs that are traditionally used by religious groups. Why, after all, should Native Americans be given a special privilege to engage in pleasurable activity? In actuality, giving an exemption only to religious people to have fun offends traditional notions of equality. Everyone should be able to enjoy themselves if they wish to, not just religious people. And if these drugs are really so dangerous that they should NOT be legal, than religious people shouldn't be able to poison themselves either, right?

  3. Ed, the way I learned the terminology, ayahuasca names a mixture brewed from the vine Banisteriopsis caapi and the shrub Psychotria viridis. But in Amazonia the word also applies to the Banisteriopsis plant itself. As you say, it's the Psychotria that has the DMT; Banisteriopsis has harmala alkaloids, which exert their own psychoactive effects but also act as monoamine oxidase inhibitors, making the DMT – otherwise destroyed in first-pass metabolism before it can reach the brain – orally active.

    Dilan, legalizing everything in sight without controls is always the simplest approach. It's not obviously the best. Like most human inventions, hallucinogens can be useful or harmful, depending on the details of use and the condition of the user. There's a strong case for not "protecting" adults from practicing their religion, even in ways that others think, or even know, might harm them. There's a much weaker case for allowing every street-corner preacher to pass out "sacraments" at so much a dose, or every head shop and health-food store from flogging potential dangerous products without any of the protections that a well-organized congregation and tradition can afford. No, I don't think that having public officials meddle with religious activity is in any way ideal. But I can easily imagine worse regimes, including the dying system of complete prohibition and the fantasy of unregulated availability.

  4. Dilan, legalizing everything in sight without controls is always the simplest approach. It’s not obviously the best. Like most human inventions, hallucinogens can be useful or harmful, depending on the details of use and the condition of the user. There’s a strong case for not “protecting” adults from practicing their religion, even in ways that others think, or even know, might harm them.

    That's nonresponsive. You can still regulate it if it's dangerous. Indeed, you can ban it if it's really dangerous.

    The problem is with the government saying "we think this is so dangerous that a non-religious person must never be allowed to touch the stuff, but all you have to do is swear allegiance to a sky-fairie and then you can poison yourself to your heart's content".

    It's either too dangerous for anyone, in which case there should be no religious exemption– or it's not, in which case it should be legal for everyone, religious or not, and subject to whatever regulation is appropriate. But the idea that one group of people gets the freedom to enjoy themselves purely because they profess irrational beliefs is a serious violation of any defensible vision of equality.

  5. I couldn't disagree more. Allowing a controlled substance for religious purposes constitutes government recognition of religion, which the First Amendment prohibits. Either everyone can use it, or no one can. No more special exceptions for people who believe delusional crap.

  6. No one is arguing to legalize drugs without any regulations. I've searched high and low through libertarian websites for someone who defends this positions but have not found even one person who opposes both prohibition and regulation.

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