Ihe JbialWogeiii Law HeporterJJ Chicago Police … · the window was emblazoned a four-foot-high revised recipe for making LSD in the kitchen, taken from The Anarchist Cookbook. Four

Ihe JbialWogeiii Law HeporterJJIssue No. 9 ISSN 1074-8040 Winter 1995

Chicago Police Seize 10,000 DosesConceptual Artwork

GALLERY DIRECTOR ARRESTED AND ARREST WARRANT ISSUED FOR ARTIST

[The seizure oj10,000Doses was]frightening becausethe Chicago Policehad a knee-jerkreaction that thisartist violated the law.They should havecarefully analyzed the[presumed] controlledsubstance beforeissuing the arrestwarrants. We hopethat in the future thepolice will actprudently and givemore credence toFirst Amendmentrights, and to artisticfreedom.

— Scott Hodes,Attorney for Feigen, Inc.

As quoted in the October1995 issue of The New ArtExaminer. (See G. Morris,The Acid Test".)

On August 10,1995, members ofthe Organized Crime and Narcotics divisionof the Chicago Police Department entered Chicago'sFeigen, Inc., art galleryand seized an artwork titled W.OOODoses. ThepiecewascreatedbyGregory

Green a 36-year-old artist with a masters of fine arts degree from the School of ArtInstitute of Chicago. Created in 1994,10,000 Doses was a mixed-media sculptureconsisting of 12 quart-sized laboratory bottles filled with an amber-colored liquid.The bottles were arranged in rows on a small industrial metal table. At the time ofits confiscation, 10,000 Doses was in the front window ofthe Feigen gallery, and onthe window was emblazoned a four-foot-high revised recipe for making LSD in thekitchen, taken from The Anarchist Cookbook.

Four days after seizing the work, the Chicago Police Department informed thegallery that drug-testing of the liquid inside the bottles was "positive." Arrestwarrants were issued for artist Gregory Green as well as Lance Kiiiz, the gallery co-director. Mr. Green, who lives in New York, was not arrested, but Mr. Kinz, wholives in Chicago, was taken into custody and charged with felony possession ofLSD.Chicago Police issued statements estimating that the roughly three gallons of liquidcould have supplied 230,000 doses ofLSD with an alleged "street value" of $1.2million dollars. Mr. Kinz spent a day in jail before posting a $10,000 bond. Ifprosecuted under federal law, both Mr. Kinz and Mr. Green faced a mandatoryminimum sentence of ten years if convicted.

On August 18,199S, however, the Chicago Police Department issued a pressrelease stating that a second drug test ofthe liquid failed to test positive for LSD. Therelease stated that the results of the initial test had been "misinterpreted." As a result,the Chicago Police Department asked the state's prosecuting office .to drop thecharges against Mr. Green and Mr. Kinz.

Following a brief hearing on August 23,1995, the sculpture was released fromsthe police evidence section. Mr. Green then confirmed that in order to gain access .to the liguid for drug-testing the police cut open tvyo. of the bottles,-destroying thep i e c e . . _ " : • ' ■ ; - .

Prior to being seized in Chicago, 10,000 Dqseshad been shown without incidentin galleries in New York and Los Angeles, v

Since the mid-1980's, Mr. Green has Seated artworks and perfonnaneesaddressing the spectacle, psychology and aesthetics of violence. His previous worksrange from fierce battles Of men in crude armor to mounted rows of motorized circular

■ ,, In This Issue

Chicago Police Seize Artwork ....Entheogens Around the World..Q/A: —■■■...,■■■».,,■■. ..■.—■■■.—■■——■.■,■■„,■,.

Spore print*; Ordering from exoticplant companies; Controlled substanceanalogues; Manufacturing; Nitrons oxide

Supreme Court Hears LSD Case ...................Book Review: New book by Jonathan OttResources: Eleusis Bulletin .. .Serve Your Community & Support TELR.....

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Issue No. 9 Winter 1995

saw blades. His most recent exhibit at Feigen, Inc., (followingthe seizure of 10,000 Doses) explored the history and evolutionof empowerment—including violence, the threat of violence,and alternatives to violence as vehicles for change—as wellas the accessibility and availability of related information andtechnology.

Recently, Mr. Green's artistic investigations have shiftedfrom focusing onempowerment through theuse of violence andsabotage of the physicalinfrastructure to the use ofnon-violent means ofinterrupting establishedpolitical and economicorders — specifically thecontrol of inifonnation andcommunications systems.Believing in passiveresistance and organizednon-participation as theul t imate forms ofempowerment, Mr. Greenpredicts and hopes that wew i l l i n c r e a s i n g l yexperience alternativestrategies by individualsand groups attempting toestablish new socialsystems. This is manifestedin projects such as hisongoing endeavor offorming an officiallyrecognized independentnation, The Free State ofCaroline," on the presently uninhabited island of Caroline inthe Line Islands in the South Pacific.

According to Mr. Green, 717,000 Doses was meant toconjure up images of 1960's radical social activists whoadvocated placing large amounts ofLSD in municipal watersupplies. The bottles did not contain LSD, but rather amixture of $100 worth of morning glory seeds purchased ina California plant store and ground up in Mr. Green's coffeegrinder. To this, Mr. Green added various amounts of starterfluid, nibbing alcohol and castor oil. The bottles were thenpermanently sealed

kNEWS RELEASE

18 August 1995

POUCE DROP CHARGES AGAINST ARTIST AND GAUAY OWNER

The Chicago Police Department has contacted the State'sAttorney's office asking to drop the charges against an art salaryowner and an artist stowing his work In a near-North side galtory.The charges stemmed from tests of the unknown liquid, believed tobeLSO,ct»te^rv«dlnan«ei ( rab l t

The Initial test was conducted by one of the department'scfjrtihedciwmisUonlOOmlof the unkrwwn Ikjuld. That microchemical tasting Indicated the possible) presence of LSD. The initialtest was followed by a mass spectrometry test. The apparentresults of that test were misinterpreted by a laboratory technicianas confirming the substantive presence of ISO.

Subsequent technical review of the case determined that thedata did not support the aartier conclusion. A second test, done onanother sample from the exhibit, revealed that the results of theInst/umentaJ analysis, although Indicating the presence of LSD,could not confirm a positive identification of the narcotic becauseof the small amount of the substance present In the sample.

The artwork will be returned to the gallery.

Clearly, the war on entheogens is not a war on substancesbut rather a war on a particular state of mind which is outsideofthe egoK»nteredradoriala>risciousness essentially mandatedby the government. It is ironic to note that this verycognicentrism produced irrational behavior by the Chicagopolice. (Did the Chicago police really believe that Mr. Greenfilled his art piece with real LSD—valued at over one million

dollars?) At the very least, theincident is a shocking measureofthe government's blind fearof entheogens as triggers —afear which must be assuaged ifentheogens are ever to obtain alegitimate space in the Law andsociety. At worst, the seizure of10,000 Doses during its highvisibility public display may beemblematicof the government'sanger at the free expression ofideas which dissent fromgovernment policy onentheogens—an anger rootedin a puritanical despise (itselfrooted in fear) ofthe full rangeof human consciousness. Theincident brings to mind scenesfrom Ray Bradbury's 1953novel Fahrenheit 451, wheregovernment forces rush aroundridding the country ofinformation not in lock-stepwith authoritarian dictates.

Since the return of 10,000Doses, which was destroyed bythe Ch icago Po l i ce

Department's act of cutting open two bottles, Mr. Green hasremade the piece. The new piece, titled 230,000 Hits/$l,200,000/CrimeLabDivision/ChicagoPolice(10,000Doses2nd state) incorporates the two sawed-open bottles as well asthe police packaging materials which enwrapped the returned"evidence." 230,000 Hits also includes a booklet containingnumerous print-media articles reporting the incident as well asa videotape of televised news stories. Anyone interested insupporting Mr. Green by purchasing the piece should contactthe Feigen art gallery.rfELRl

It is extremely alarming and disheartening that Art in our societyis being attacked, when it clearly poses no threat, but rather isintended to express and address ideas.

—Lance Kinz, co-director of Feigen, Inc.

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Issue No. 9 Winter 1995

EntheogensAround the World

// s very difficult for me to get reliable informationconcerning the legal status of entheogens in othercountries. In order to learn what's really happeningin other countries, I have relied almost exclusivelyon reports received in correspondence withknowledgeable foreign friends. The following are afew such reports.

rene rikkelman is a dutch journalist, whosewritings have been published in the europeanentheogen-oriented magazines, soft secretsandpsycho-acnvenetwork,hevtledtms1leportfor telr readers interested in what he callsthe "dutch mushroom pandemic."

Almost one-and-a-half years ago (July 1,1994) acourt legalized the use and import of qat (Cathaedulis), in spite of the fact that cathinone andcathine were made illegal in May, 1994. In theDutch drug-law, mostly pure chemical substancesare named (THC, indole-alkaloids such as tryptamineand LSD, phenethylamines such as mescaline, etc.).In addition, three plants are forbidden: Cannabis,coca, and Opium poppies. This means that everyentheogenic plant which is not Cannabis saliva,Erytroxylon coca or Papaver somniferum may beused, grown or sold legally (and, as we all know,Cannabis is illegal-but-allowed here and P.somniferum are very popular as garden flowers — ifa person grows P. somniferum no one will notice itas a "drug plant") After this legalization of mostentheogenic plants, several shops opened sellingfresh Psilocybe cubensis mushrooms (prices: aboutfifteen US dollars per ounce), and San Pedro cacti(thirty US dollars per foot).

I think it was a year ago that the store ConsciousDreams opened it's doors at Kerkstraat 144 inAmsterdam. Conscious Dreams was meant to be astore which sold "New Age" products like healthyherbs, smart drugs/nutrients, brain machines,

magazines and so on. But soon after opening, magicmushrooms proved to be their best selling product.They sold mostly imported Psilocybe semilanceataand P. cubensis.

InJanuary 1995, the police raided the store. Theyseized all the money, "suspected herbs," like HerbalEcstasy, and some 700 grams of P. semilanceataThey closed the shop. Two days later, ConsciousDreams opened again, selling the same products.The only difference was that first the mushroomsthey sold were dried, now they were fresh. Theystopped selling Liberty Caps (they dried to fast), nowthey only sold P. cubensis and sometimes P.cyanescens. Now, ten months later, ConsciousDreams is still open and the police don't complain.This strange history has something to do with theDutch "Opiumwet" (the official name of our druglaw). In that law, indole-products such as psilocybin,psilocin, DMT, LSD, and so on, are prohibited. Anindole product is the pure chemical substance or apreparation with such a substance. But after theCatha edulis case, it was clear that a plant was not apreparation.

At the moment the big topic is "Is a mushroom apreparation or a plant?" The Amsterdam policelikely thinks spores, mycelium, substrate and freshmushrooms are plants (immediately another shop,The Magic Shop, was opened in Amsterdam, sellingsubstrate). Dried mushrooms and mushroom teasare treated as illegal preparations. At the trial againstConscious Dreams the question wall be whether theLiberty Caps dried naturally, as the owner ofthe shopclaims, or whether the owner actively dried them andin that manner transformed them into an illegalpreparate.

Currently, in Amsterdam there are two shopsselling fresh mushrooms (Conscious Dreams andThe Magic Shop), one selling substrate (The MagicShop) and several shops selling prints. No one sellsdried mushrooms, everyone is waiting for the outcomeofthe Conscious Dreams trial.

Fortunately, this problem only seems to exist inAmsterdam. In Eindhoven (a city in the south ofthecountry) there is a "mushroom-delivery-service;"

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Issue No. 9 Winter 1995 ^

you ring them and they bring you mushrooms —without a pizza. In Arnhem there is a shop calledMagic Mushrooms, which advertises openly withtheir addressand product. They sell t*/t?timushrooms.Nationwide there is an organization called ZwarteKat (Black Cat) which is buying and selling fresh anddried mushrooms. Zwarte Kat also advertises. Andso on and so on. Almost every month there is a newshop. A month ago art/mushroom-gallery Sign ofthe Times opened in Rotterdam and AmazingProducts opened in Nijmegen. There is also a newmushroom shop in Delft.

At the moment, the most accurate manner todescribe the legal position is this: The Department ofHealth (Minister Borst) thinks both fresh and driedmushrooms are legal. The Minister of Justice(Sorgdrager) thinks the same. But the Departmentsof Economy and Foreign Affairs and some lowerpolice-officers, mainly in Amsterdam, think driedmushrooms are a forbidden preparation. At themoment, no one is in jail for selling or cultivatingmushrooms, most think it is legal. — R. Rikkelman

PSILOCYBIN-CONTAINING MUSHROOMSIN SOUTHERN ASIA.

In 1994, a friend of mine visited Sumatra, inIndonesia, and reported that "magic mushroom"omelets were openly advertised and sold by manyrestaurants. A sampling of such an omelet proved tobe psychoactive though he was unsure if the mind-moving ingredient was really a mushroom as opposedto LSD.

[Apaperpublishedin 1992, reported similar useof Psilocybe cubensis and various Copelandia(Panaeolus) species by restaurants on the islands ofKoh Samui andKo Pha-ngan in Thailand. (See J.

Allen & M. Merlin, "Psychoactive mushroom use inKoh Samui and Koh Pha-ngan, Thailand," 35 J. ofEthnopharmacol. 205-228.)]

THE FOLLOWING INFORMATION WAS RECEIVED FROMDR. JOCHEN GARTZ. DR. GARTZ IS A PROFESSOR ATTHE UNIVERSITY OF LEIPZIG, GERMANY, IN THEDEPARTMENT OF FUNGAL BIOTRANSFORMATION. HEIS THE AUTHOR OF THE RECENT BOOK MAGICMUSHROOMS AROUND THE WORLD: A SCIENTIFICJOURNEY ACROSS CULTURES AND TIME.

...In Germany, Switzerland, and Austria youcan only find psilocybin and psilocin in the law. Wehave no [analogue] laws in these countries andtherefore baeocystin, DPT, and... compounds suchas 2-CT-7 and 2-C-E are still completely legal.

You can find in these laws descriptions as "materialor plant preparation." But of course fungi aren'tplants and the question is if drying is a process ofpreparation. Even the Federal Bureau of Narcoticsin Germany said that the mushrooms aren't in thelaws. I don't know of any case of arrest or punishmentfrom the three countries.

.. .Earlier this year a guy was arrested in Englandwith Cannabis in his greenhouse. Also, the policefound eight ounces of 'dried Psilocybe semilanceatain jars (about 2400 mg psilocybin). At his trial thedefense proved that the mushrooms were for hispersonal use and the mushrooms were returned tothe defendant! The Cannabis they would not let himkeep and he was ordered to 100 hours communityservice.

...In Holland it is forbidden to pick mushroomsbut not because they are psychotropic. It is becauseofthe Natural Species Protection Act. So Dutchpeople go to the UK for hunting of P. Semilanceata.TELR

ConferenceTechnologies ofthe Sacred. The Fifteenth International Conference ofthe International Transpersonal Association(ITA). The conference will explore a broad spectrum of ancient, aboriginal and modem techniques that canmediate access to the sacred dimensions of existence. The topic of entheogens will not be overlooked. Among themany presenters will be Dr. Charles Grob, Dr. Stanislav Grof, Michael Harner, Dr. Ralph Metzner, Ram Dass,and Dr. Alexander Shulgin. The conference will be held from May 17-22, 1996, in the heart ofthe Amazon, in theTropical Hotel in Manaus, Brazil. For more information contact the ITA at 20 Sunnyside Ave., Suite A257, MillValley, CA 94941, 1-800-533-3641.THE ENTHEOGEN LAW REPORTER post office box 73481 davis California 956i7-34«i Page 84

Issue No. 9 Winter 1995

^ ^ \

QeV^TrVfAlTSvvtlions

rsIS FT LEGAL TO SELL SPORESFROM MUSHROOMS WHICHCONTAIN PSILOCYBIN?

It's not explicitly outlawed in anystate except California. With respect toCalifornia, the short answer to yourquestion is "it's not legal." In otherwords, if a prosecutor was so inclined,he or she could charge a person with afelony for importing Psilocybemushroom spores in to California.Under section 11391 ofthe CaliforniaHealth and Safety Code, it is a crime totransport, import, sell, furnish, giveaway, (or offer to do any these) "anyspores or mycelium capable of producingmushrooms or other material whichcontain" psilocybin or psilocin.

However, under the plain terms ofthe statute, the above actions are only acrime if done "'for the purpose offacilitating a violation of Section 11390"(Section 11390 makes it a crime tocultivate psilocybin-producingmushrooms with the intent to produce acontrolledsubstance). Inotherwords.itappears that it is perfectly legal to importPsilocybe mushrooms spores intoCalifornia or sell them, so long as thespores are not intended to be used forcultivation. So, importing Psilocybespore prints for the purpose of assistingmushroom identification, or for theirnatural beauty, or for any reason otherthan to facilitate cultivation appearslegal under the statute.

As mentioned above, however, aperson could be arrested just forimporting the spores //the prosecutorbelieves he or she can show that theperson intended to use them forcultivation. In fact, the averageprosecutor, upon learning that someonein California was importing Psilocybespore prints, would probably jump tothe conclusion that the person intends

to cultivate the mushroom. By showingthat a search ofthe person's home turnedup petri dishes, agar, and/or books oncultivating Psilocybe mushrooms, aprosecutor might be able to construct anuntrue but compelling circumstantialevidence case against a truly innocentmycophile who imported such spores

{ for noncriminal purposes.Lastly, under the California statutes,

it is theoretically possible for a personwhose "research, instruction, oranalysis" has been approved by theResearch Advisory Panel, to legallyimport and cultivate psilocybin-producing spores or mycelium. (Cal.Health & Saf. Code sec. 11392.)

WHERE IS THE SAFEST PLACEFOR ME TO PURCHASEENTHEOGENIC PLANTS ANDPLANT PRODUCTS? ARE THEVARIOUS MAIL ORDERCOMPANIES SAFE TO ORDERFROM?

With a few exceptions, everythingI've seen available from the variousdomestic exotic and poisonous plantcompanies is perfectly legal to possess.So I really don't see a "safety issue," ifI am understanding your question. Justmake sure you aren't ordering anythingscheduled or ostensibly outlawed in yourstate. (See previous question). If anylegal action is taken against one of thesecompanies you will surely read about itin TELR. For example, 3 TELR 16reported the 1994 raid on PowerProducts.

I suppose it is possible that if thegovernment initiated a covertinvestigation of these companies, itcould employ a mail cover to track thepeople who correspond with them. Amail cover permits the recordation ofany and all information contained onthe outside of an envelope. By using amail cover, the government, can't openthe mail (a federal search warrant isneeded for that), but it can record thenames, addresses, postmark date andplace, and any other information placedon the outside of the envelope. Thisinformation is recorded from both the

mail that is delivered to the target andfrom any mail sent out by the target Nosearch warrant is needed to employ amail coverunder thetheory thata personhas no reasonable expectation of privacyin things/information he displayspublicly. (A poorly conceived rule sincethe mailing of letters requires that onewrite address information on the outsideof the envelope. Therefore, it seemsunfair to essentially force citizens torelinquish, as a matter of law, theirprivacy rights in such information.)

As to which of these variouscompanies offer the best service, pricesand products, I suggest you ask aroundto others who share your interest, orconsider subscribing to one of thepublications that keep current with thevarious companies and evaluate them.Two good publications along these linesare:Psychedelic Resource List, SomaGraphics, P.O. Box 19820, Sacramento,CA 95819-0820. (S15 subscriptionincludes four updates per year.)The Psychedelic Sourcebook, WillBeifuss. 1430 Willamette, #28, Eugene,OR 97401-4073. The proprietor oftheSourcebook asks that people do notmention "psychedelic sourcebook" onthe envelope, and send only cash ormoney orders with a blank "pay to"space. ($7 per issue, plus $2 s/h inUSA; $4 foreign airmail.)

THE FEDERAL ANALOGUEPROVISION USES A THREE PRONGDEFINITION OF "ANALOGUE."ARE THESE PRONGSDISJUNCTIVE? I MEAN, IN ORDERTO BE AN ILLEGAL ANALOGUENEED THE SUBSTANCE MEETONLY ONE OF THE PRONGS ORMUST IT SATISFY ALL THREE?

The answer, at least as given by onefederal court, is halfway between thetwo possibilities you propose. Thefederal drug law provides that "Acontrolled substance analogue shall, tothe extent intended for humanconsumption, be treated. ..as a controlledsubstance in schedule I." (21 U.S.C.sec. 813.) So, we know right off the bat

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Issue No. 9 Winter1995that specific intent is ah element of thiso±ie (ie., the prem rtvua:intend toconsume the substance). Technically,as pointed outby Dr. Alexander Shulginin correspondence, it is not a crime tokeep such a substance in a bottle usedonly as a paper weight The questionwould be whether a prosecutor couldprove that the liquid or powder in thepaper weight was, in fact, intended forconsumption. As a practical matter, thetypical jury would have a hard timeaccepting that a person possessed sucha substance and did not intend toconsume it So, in my opinion, it'sprobably risky to place much relianceon the intent element as a defense.

As you mention, a separate sectionof the federal law defines "controlledsubstance analogue" as follows:

...the term "controlled substanceanalogue" means a substance —

i. the chemical structure of which issubstantially similar to the chemicalstructure of a controlled substancein schedule I or II;

ii. which has a stimulant, depressant,or hallucinogenic effect on thecentral nervous system that issubstantially similar to or greaterthan the stimulant depressant, orhallucinogenic effect on the centralnervous system of a controlledsubstance in schedule I or II; or

iii. with respect to a particularperson, which such person representsor intends to have a stimulant,depressant, or hallucinogenic effecton the central nervous system that issubstantially similar to or greaterthan the stimulant, depressant, orhallucinogenic effect on the centralnervous system of a controlledsubstance in schedule I or II. (21U.S.C. sec. 802 (32).)

There is only one published opinionwherein a court has examined thisdefinition with an eye to determining

whether it is one-pronged, two-pronged,or three-pronged. (United States v.Forbes (D. Colo. 1992) 806 F.Supp.232, affirmed (10th Cir. 1992) 977 F.2d596.)

Relying on grammatical principles,the court pointed out that the "operativesegments of clauses (ii) and (iii) bothbegin with the word "which," signalingthe start ofa dependent relative clausemodifying a precedent noun. In eachcase, the precedent noun is "chemicalsttucture" found in clause (i)." Fromthis, the court tentatively concluded thatthe definition was two-pronged. Thefirst prong requires a substantiallysimilar chemical structure. The secondprong requires either a substantiallysimilar effect on the human nervoussystem or the personal intent to havesuch an effect

The grammatical analysis wasbolstered by the court's application ofadeeply-rooted rule of statutoryconstruction requiring courts to construestatutes to avoid unintended or absurdresults. The court explained that if itread clause (ii) independently, "alcoholorcaffeinewouldbe controlled substanceanalogues because, inconcentratedform,they can have depressant or stimulanteffects substantially similar to acontrolled substance." Likewise, thecourt noted that if it read clause (iii)independently, "powdered sugar wouldbeananalogueif a defendant representedthat it was cocaine..." Both results areabsurd. Therefore, it was the court'sfinding that "clause (i) must apply toany substance that the governmentcontends is a controlled substanceanalogue." This conclusion, noted thecourt, also fit with the legislative historyofthe statutes, explaining:

The analogue statute is directed atunderground chemists who tinkerwith the molecular structure ofcontrolled substances to create newdrugs that are not scheduled. If asubstance could be an analoguewithout a substantially similarchemical structure, Congress's

stated purpose would be significantlyexpanded.

As a result of this exhaustiveanalysis, the court announced that the -federal analogue statute establishes atwo-pronged test, "a substance may bea controlled substance analogue only ifit satisfies clause (i) and [either] clauses(ii) or (iii)."

In other words, in order for asubstance to fall within the definition ofa controlled substance analogue it musteither: (1) have a chemical structurewhich is substantially similar to aschedule I or n substance, and have astimulant, depressant or hallucinogeniceffect that is substantially similar orgreater than the effect produced by itsanalogous schedule I or n substance; or(2) have a chemical structure which issubstantially similar to a schedule I or IIsubstance, and the defendant must haverepresented or intended the substance tohave a stimulant, depressant or ^halludnogeniceffeathatissubstantiallysimilar to or greater than the effectproduced by the substance's schedule Ior II counterpart.

IS IT REALLY CONSIDERED"MANUFACTURING" ACONTROLLED SUBSTANCE IF ALLI DO IS EXTRACT IT FROM APLANT THAT ENDOGENOUSLYPRODUCED IT? I'M NOT REALLY"MANUFACTURING" ANYTHING.

Yes. Under the federal ControlledSubstances Act, "manufacture" isdefined to include "extraction fromsubstances of natural origin." Here'swhat it says:

The term "manufacture" means theproduc t ion , p repara t i on ,propagation, compounding, orprocessing of any drug or othersubstance, either directly ofindirectly or by extraction fromsubstances of natural origin, orindependently by means of chemicalsynthesis, and includes any "*^packaging or repackaging of suchsubstance or labeling or relabeling

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Issue No. 9 Winter 1995

of its container, except that suchterm does not include thepreparation, compounding,packaging, or labeling of a drug ofother substance in conformity withapplicable State or local law by apractitioner as an incident to hisadministration or dispensing of suchdrug or substance in the course ofhis professional practice. The term"manufacturer" means a person whomanufactures a drug or othersubstance." (21 U.S.C. sec. 802(15).)

I DIDN'T SEE NITROUS OXIDE ONTHE LIST OF EXPLICITLYOUTLAWED HALLUCINOGENS(SEE TELR NO. 1). IS IT LEGAL TOPOSSESS AND INHALE?

Were it not for the efforts of earlynonmedical self-experimenters wemight never have discovered the medicaluses of nitrous oxide. The gas wasdiscovered in the mid 1770's and thenquickly synthesized by a man namedHumphry Davis (who was laterknighted). Davis conducted extensiveself-experiments, publishing a 600 pagetome on his results titled ResearchesChemical and Philosophical, ChieflyConcerning Nitrous Oxide and itsRespiration. He also held nitrous oxideparties where he introduced the gas topoets, artists and writers. After onesuch party, the poet Robert Southycommented that "the atmosphere ofthehighest of all possible heavens was nodoubt composed of nitrous oxide." (E.Brecher, Licit & Illicit Drugs p. 312.)By 1799, Davis had recognized thatpains vanished while under the influenceof nitrous oxide and proposed its use insurgical operations. The proposal wasscoffed at and over 45 years went bybefore such use was given any seriousconsideration.

Of course in the early 1900*sphilosopher William James conductedself-experiments with nitrous oxide anddescribed its potential entheogenicproperties in the following oft-quotedpassage:

Some years ago I myself made someobservations on this aspect of nitrousoxide intoxification, and reportedthem in print. One conclusion wasforced upon my mind at that time,and my impression of its truth hasever since remained unshaken. It isthat our normal wakingconsciousness, rational consciousnessas we call it, is but one special type ofconsciousness, whilst all about it,parted from it by the filmiest ofscreens, there lie potential forms ofconsciousness entirely different. Wemay go through life withoutsuspecting their existence; but applythe requisite stimulus, and at a touchthey are there in all theircompleteness, definite types ofmentality which probably somewherehave their field of application andadaptation. Noaccount ofthe universein its totality can be final which leavesthese other forms of consciousnessquite disregarded...Lookingback onmy ownexperiences, they all convergetowards a kind of insight to which Icannot help ascribing somemetaphysical significance." (W.James, Varieties of ReligiousExperience p. 298 (Mentoredition).)

Anyway, toanswerthelegal question,nitrous oxide is not a scheduled substanceunder federal law. In fact, I don't believeit has been scheduled in any states either.However, a number of states have enactedspecific provisions that outlaw theinhalation of nitrous oxide outside of amedical, or dental procedure. The firstsuch law was evidently passed inMaryland in 1971, after then StateSecretary of Health and Mental Hygiene,Dr. Neil Solomon, read reports that peoplewhere inhaling the gas "to produce anexhilarating effect." (See Dec. 15,1971,Psychiatric News p. 10.) My review ofcurrent Maryland statutes failed to locatethe law, but that state's statutory law isvery poorly indexed so its possible thatthe law remains in effect today and Isimply did not find it.

In 1982, the state of New Jerseypassed a law (which is still in effect

today) outlawing the possession ofnitrous oxide by nonmedical personnel,unless the personobtains a written permitissued by the state's Department ofHealth, and in no case can a personunder 19 years of age possess nitrousoxide. A first violation of the law ispunishable by a $50.00 fine and up tosix months in jail. (N.J.S.A. 24:6G-1.)

In 1983, California passeda similarlaw (also still in effect). The Californialaw states:

Any person who possesses nitrousoxide or any substance containingnitrous oxide, with the intent tobreathe, inhale, or ingestfor purposesof causing a condition ofintoxication, elation, euphoria,dizziness, stupefaction, or dullingofthe senses or for the purpose of, inany manner, changing, distorting,or disturbing the audio, visual, ormental processes, or who knowinglyand with intent to do is under theinfluence of nitrous oxide or anymaterial containing nitrous oxide isguilty of a misdemeanor. Thissection shall not apply to any personwho is under the influence of nitrousoxide or any material containingnitrous oxide pursuant to anadministration for the purpose ofmedical, surgical, or dental care bya person duly licensed to administersuch an agent. (Cal. H. & Saf. Code,sec. 381b.)

Finally, in 1989, the state of NewYork amended its general law outlawing"Inhalation of certain toxic vapors orfumes, and certain hazardous inhalants,"to also criminalize the "use of nitrousoxide for purposes of causingintoxication, inebriation, excitement,stupefaction or dulling of the brain ornervous system..." (N.Y. Public HealthLaw sec. 3380 (5).)

There are, no doubt, other stateswith similar laws. It's interesting tonote that unlike thecontrolled substancelaws, which are premised on the ideathat some drugs are addictive, unsafe,etc., the laws against nitrous oxide are

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Issue No. 9 Winter 1995directed solely at prohibiting the elicitingof an alternative state of consciousness(wimout the use ofalcohol or a controlledsubstance). Moreover, there seems to besome evidence, by no less an authoritythan William James, that the mentalstateelicited by nitrous oxidecan provide"genuine mystical revelation." Is thiswhat the government is afraid of?jTELR |

Supreme Court HearsArgument in LSD Case

On December 4, 1995, the UnitedStates Supreme Court heard oralargumenteinacasethatcoulddeterminewhether numerous defendants convictedof selling LSD must spend at least 10years in prison or have their sentencessignificantly reduced.

As discussed in 6 TELR 48-50,there is a split of opinion among federalcourts as to whether 1993 amendmentsin the Sentencing Guidelines — whichestablished a presumptive weight of 0.4milligrams per LSD dose— also applywhendetermining whether a mandatoryminimum sentence has been triggered.The Ninth Circuit currently stands alonein holding that the standard carrierweight also applies when determining ifa mandatory minimum has beentriggered. The First, Second, Third,Sixth, Seventh, Eighth, Tenth andEleventh Circuits have all publisheddecisions in which they use the actualweight of the carrier medium whendetermining whether a mandatoryminimum sentence has been triggered.In these circuits, useof the actual weight,rather than the standard 0.4 milligramweight leads to the imposition ofsignificantly more mandatory minimumsentences.

The argument before the SupremeCourt was delivered by attorney DonaldThomas Bergerson, a sole practitionerin San Francisco. Mr. Bergerson'sclient, Meirl Neal, was arrested in 1988after he unwittingly sold 11,456 hits ofLSD-impregnated blotter paper toundercover Illinois state police officers

and an informant. The details of thecase as well as the substance of theCourt's forthcoming decision (whichwill hopefully be handed down in thenext month or so) will be discussed inthe next issue of TELR. The case isNealv. United States Ho. 94-9088.TELR |

Book ReviewThe Age of Entheogens &The Angels' Dictionary

by Jonathan OttAs the title suggests, the new book

by Jonathan Ott is really two books inone. In the first book The Age ofEntheogens, Mr. Ott presents a polemicsurvey ofthe World War on Drugs ofshamanic use, calling it "nothing morethan the modem manifestation of themillennial struggle between state powerand individual freedom; between theproselytizers of purely symbolicsimulacra of religion — propagandistsof what Blake called "pale religiouslechery"—and the practitioners ofthereal thing..." In this fast-moving essay,Mr. Ott argues that for 50,000 years orso the use of shamanic inebriants wasthe very basis of, a highest vehicle for,all religion. He marks the symbolicshift into what he terms the"Pharmacratic Inquisition" with thedestruction ofthe Temple at Eleusis in395 A.D. While the Inquisitioncontinues to this day, Mr. Ott describessigns of the dawning "EntheogenicReformation," noting the spread andgrowth of ayahuasca-using churches likethe Uniao do Vegetal and the SantoDaimeandthe enormous current interestin shamanism. He chastises thePharmacratic Inquisitionfor promptingWesterners to enter and disrupttraditional shamanic societies aroundthe world in search of entheogens. Ashis previoasbodkAyahuascaAnalogueshelped to show, North Americans havemany readily accessible plants forconcocting their own"Anahuasca," and

need not add themselves to the forcesalready desecrating traditional societies.Mr. Ott covers all this ground and morein around 3 5 pages plus another 15 or sopages devoted to his usual learned andfact-intensive end notes.

Following an inspired interludepoem by an unknown pre-Columbianpoet the book shifts into The Angels'Dictionary, subtitled Toward aVocabulary For Sacred Inebriants.Ecstatic States and Kindred Topics.There follows over 300 such words withdetailed definitions supported byfascinating quotations.

The Age of Entheogens & TheAngels' Dictionary is available in bothhardcover ($36.00) and paperback(S18.00) from Jonathan Ott Books, POB1251, Occidental, CA 95465. A specialsigned, limited and numbered [126copies; 1-100, A-Z] edition withclothbound slipcase may also still beavailable for $72.00. For domesticorders, include $3.00 per book forpostage; foreign surface shipping andhandling is $5.00 per book. Californiaresidents add 7.5% sales tax.ffHSI

ResourceEleUSiS The InformationBulletin ofthe Italian Society for theStudy of States of Consciousness

Eleusis, now in its second issue, is anexcellent Italian/Englishjournal devotedto the scientific study of psychoactiveplants and compounds.

So far, each issue has been 44 pageslong and has. included photographs,linedrawings and charts. Eleusis iscurrently published three times per year.A subscription in Europe is $30; $32 toall othercountries with payment throughinternational money order sent to:SISSC, c/o Museo Civico di Roverto,Largo Santa Caterina 43, 38068Rovereto (TN), Italy.TELR

THE ENTHEOGEN LAV REPORTER post office box 73481 davis California 95617-3481 Page 88

■j00\ Issue No. 9 Winter 1995

S e r v e Y o u r C o m m u n i t yDonate a TELR Subscription to a Court or Law School

F e d e r a l C o u r t P r o g r a mAlmost every court in the country (federal and state) contains at least twolaw libraries. One which is accessible to the general public, and a secondwhich is exclusively for the use of judges and their clerks. TELR isbeginning a campaign to permeate the leather-studded doors which guardthe private law libraries, thereby making itself handy when the nextentheogen case presents itself.

All law library publications are entered into a searchable computerdatabase. When facing a difficult legal issue, judges or their clerks justenter some keywords in the database to search for helpful materials.Because of your donation, TELR will almost surely be the only publicationin the judges' databases pertaining to entheogens, ergo, surely consultedand considered when such a case is before the court.

L a w S c h o o l P r o g r a mQuestion: What do law students become after three years of lawschool? Answer Many things, including lawyers, judges, lawclerks, prosecutors, and professors. Currently, while many lawschool libraries contain books and law reviews related to criminaljustice and freedom of religion, there is a gaping void with respectto entheogens. To try and do a little something about it, pleaseconsider adoptinga lawschool and contributing a TELR subscriptionto its law library. Your copy might find its way into the mind of a futureprosecutor, drug defense attorney, judge or politician.

To become a participant in either of the above programs, send a check or money order for twenty dollars to TELR. (Over 50% off the normal lawlibrary rate of $45 per year.) Mark your envelope "Law School Program" or "Federal Court Program."

You will receive a copy ofthe letter sent to the beneficiary library informing them of your kind donation.Note: Named contributions are encouraged, but anonymous contributions are equally accepted. Please advise whether TELR may

mention your name when informing the library ofthe donated subscription.

m ^ i .

STAY INFORMED !Subscribe to The Enlheogen Law Reporter

Statement of PurposeSince time immemorial, humankind has made use of entheogenic substances as powerful tools for achieving spiritual insight andunderstanding. In the twentieth century, however, many of these most powerful of religious and epistemological tools were declared illegalin the United States and their users decreed criminals. The Shaman has been outlawed. It is the purpose of this newsletter to provide thelatest information and commentary, on the intersection of entheogenic substances and the law.How To Contact The Entheogen Law ReporterPlease address all correspondence to Richard Glen Boire, Esq.. The Entheogen Law Reporter, Post Office Box 73481, Davis, California,95617-3481. Immediate contact can be made via facsimile transmission to 916-753-9662, or via internet e-mail to TELR^aol.com.

Subscription InformationThe Entheogen Law Reporter is published seasonally. A one year subscription for individuals is twenty-live dollars in the USA, thirty dollarsto all other destinations. Sample issues and most back issues are available for five dollars each. To see the contents of previous issues connectto <http:www.oimage.com/TELRytelr.html> on the world wide web.Copyright & LicenseCopyright 1995 The Entheogen Law Reporter. All articles appearing in TELR are copyrighted. However, TELR, freely licenses and encouragessubscribers to photocopy, reprint, and digitize the articles contained in TELR and freely share them, provided that TELR is given credit andthe newsletter's contact points are included. Distributing the information in TELR for profit, without prior consent, will be considered acopyright infringement and or a breach of this licensing agreement.DisclaimerThe Entheogen Law Reporter is not engaged in rendering legal or other professional advice, and assumes no responsibility for the statementsand opinions advanced by any of its writers or contributors. The information herein is subject to change without notice, and is not intendedto be, nor should it be considered, a substitute for individualized legal advice rendered by a competent attorney. If legal service or other expertassistance is required, the advice of a competent attorney or other professional should be obtained.

IF YOU READ AN ARTICLE PERTAININGTO ENTHEOGENS AND THE LAW

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Issue No. 9 Winter 1995

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