John Gilmore
PO Box 170608
San Francisco, California, USA 94117
+1 415 221 6524 voice
+1 415 221 7251 fax
[email protected]
Comments for the Sentencing Commission
on Ecstacy emergency re-sentencing
2 February 2001
Executive Summary: There is no need for an "emergency" change to the
sentencing provisions for Ecstacy; democracy requires full public
participation. Congress did not mandate an increase in penalties; it
mandated a review of penalties to make them appropriate. The
penalties for use or sale of MDMA should be decreased, not increased.
The discovery, manufacturing and distribution of MDMA has provided
positive benefits to millions of citizens. Sentencing guidelines
penalizing MDMA use are an unconstitutional regulation of the freedom
of thought that underlies many cherished freedoms, and should be
eliminated. The re-sentencing of MDMA is part of a misguided attempt
to "lock up the truth" -- or at least to lock up the truth-tellers --
about MDMA.
1. There is no need for an "emergency" change to the sentencing
provisions for MDMA and related substances ("Ecstacy"); democracy
requires full public participation. Such an "emergency" rescheduling
provides minimal opportunity for input from the affected public (ten
days maximum, more than half of which had expired before most of the
community even noticed that the re-sentencing action was in progress).
I believe that the change is being done this way to avoid substantive
public comment -- to evade public comment. The public already
commented in great detail to Congress as it attempted to pass the
Ecstacy Anti-Proliferation Act of 2000, and the result is that
Congress significantly reduced the penalties originally provided in
the Act. Drug warriors could reasonably conclude that they have a
better chance of passing inappropriate and harsh regulatory changes if
the public has little chance to comment.
I believe that there are millions of people who have used MDMA, and
who neither desire that they themselves be subjected to increased
penalties, nor that the people who sold it to them be penalized. Many
millions of other citizens of good will (perhaps among them the
seventy million or more who have used marijuana) would also desire
that the penalties on MDMA users be decreased or removed.
Some small fraction of these people would complain to the Commission
if they thought it would do any good. (There is a broadly based
cynicism among people who use drugs, that the government will never
stop lying, does not care what the real truth about the effects and
dangers of these drugs are, and actively opposes the efforts of
experienced users of drugs to inform the Government about the actual
facts they are in possession of. Indeed, input from people who have
actually experienced these effects, and are in the best position to
comment on them, is frequently discounted by government officials
because it is from "drug users" or "pro-drug" citizens. I encourage
the Commission to make a particular appeal, indicating that it
actually desires to hear the real truth about MDMA. In the absence of
such an indication, most of the public will probably assume that the
public input will be ignored and the penalties will be inappropriately
jacked up once again.)
Any change made to the sentencing guidelines for Ecstacy should be
made only with full public participation, rather than by faking an
"emergency" and then in due course routinely re-certifying the poorly
chosen decision made during the fake emergency.
2. Congress did not mandate an increase in penalties; it mandated
a review of penalties to make them appropriate.
Due to opposition from drug-policy reform groups, Congress eliminated
the provisions of the Ecstacy Anti-Proliferation Act of 2000 that
would have required increased sentences, instead substituting
provisions that leave the Commission freedom to impose APPROPRIATE
penalties rather than HARSHER penalties.
For example, Section 3662(4) says: "Greater emphasis needs to be
placed on-- (A) penalties associated with the manufacture,
distribution, and use of Ecstasy". I agree 100% that greater emphasis
needs to be placed on these penalties. They are already way too
harsh, incarcerating citizens who have done no harm to anyone and have
provided benefits to their fellow citizens. This new emphasis should
result in penalties that are MORE APPROPRIATE, that is, less harsh.
Section 3663(a) says the Commission "shall amend" the guidelines.
Not increase, amend.
Section 3663(b) says the Commission shall:
(1) review and amend the Federal sentencing guidelines to
provide for increased penalties SUCH THAT THOSE PENALTIES
REFLECT THE SERIOUSNESS OF THESE OFFENSES and the need to
deter them; and
(2) take any other action the Commission considers to be
necessary to carry out this section.
Here the word "increased" is used -- but in the same sentence Congress
requires the Commission to make the penalties APPROPRIATE, and the
Commission is empowered to "take any other action...necessary".
Section 3663(d) provides a "Sense of the Congress" that penalties are
too low and should be increased. This "Sense" is NOT binding on the
Commission. This permissive language replaced earlier legislative
language that would have been binding; Congress deliberately chose NOT
to require the Commission to increase Ecstacy penalties.
Some members of the Commission may feel that it has been "ordered" by
Congress, however informally, to increase penalties, whether or not it
feels that such an increase is APPROPRIATE. I believe that a careful
reading of the history of modification of the bill would eliminate
that feeling. Still, if in some Commissioners it persists, the
Commission could show its opposition to the ruthless ratcheting up of
penalties on relatively harmless and beneficial substances, by
increasing penalties by only a trivial amount. While I would never
propose that the already harsh and arbitrary penalties for providing
MDMA be increased, the Commission could consider perhaps providing
that the penalty for the very largest category of trafficking in MDMA
be increased by a single day, and that all other penalties
decrease, or remain unchanged.
3. Ecstacy penalties should be reduced, not increased. The
discovery, manufacturing and distribution of MDMA has provided
positive benefits to millions of citizens.
I propose that the Guidelines provide NO penalties for possession or
providing MDMA and related drugs.
If the Commission concludes that some de minimus penalties must exist,
then I propose that the penalties for MDMA and related drugs should be
set at 10% of the lowest previously existing penalties for any other
substance in the Schedules. Thus if every substance provided for a
1-year or greater sentence in particular circumstances, the sentence
for MDMA in those circumstances should be a 1/10th of a year (about a
month).
Thousands of people have had their personal relationships and personal
problems treated by therapists with MDMA, both before and after MDMA
was made illegal. Hundreds of thousands have enjoyed the effects of
MDMA in their personal lives and relationships, without the services
of a therapist. Millions have used MDMA for relaxation and enjoyment
at social gatherings, raves and other dance parties. The vast
majority of these occurances are responsible USES, not ABUSES, of the
drug. The vast majority have produced no short-term nor long-term
harmful effects in their users. These useful, curative, beneficial,
and pleasurable activities should be honored and celebrated rather
than penalized.
For therapy information, see the book _The Secret Chief_,
conversations with a pioneer of the underground psychedelic therapy
movement, by Myron J. Stolaroff:
http://maps.org/secretchief/index.html
If desired by the Commission, I will also produce more references to
demonstrate the broad extent of responsible uses of MDMA for personal
enrichment as well as for "mere" enjoyment.
Surely the Commission does not actually believe that the actual danger
to society posed by the distribution of MDMA is equivalent to the
danger posed by the equivalent weight of heroin. For one thing, the
number of doses involved is far fewer (100-200 doses of heroin
per gram, but only 6-10 doses of MDMA per gram). Also, MDMA is not
addictive, so its use does not create an ongoing problem that prevents
users from stopping whenever they desire to.
The Commission's proposed equating of a gram of MDMA (6-10 doses) with
a kilogram of marijuana (thousands of doses) would seem to imply
that the Commission feels that MDMA is hundreds of times as
"dangerous" to the public as marijuana. I challenge the factual
assumptions behind such an implication.
Many millions of people have taken MDMA over the last three decades,
worldwide. Only small numbers have shown any ill effects, and the
vast majority of the most serious ill effects have been from chemicals
that were marketed as MDMA but did not actually contain it.
These "impurity" deaths are hard to eliminate in a market which cannot
show its products for inspection, or identify their source, under
penalty of imprisonment. Nevertheless, charity groups are working
hard every day to provide anonymous testing of these black-market
doses, in an attempt to provide users with a way to avoid the harmful
effects caused by impure supplies. One such organization is DanceSafe
(www.dancesafe.org). Their latest full laboratory analyses of
contributed pills are visible at:
http://www.dancesafe.org/currentresults.html
More than ten percent of the pills sent in for testing in the last few
months contained no MDMA, and instead contained various other
substances known to cause symptoms similar to those of publicly
reported "Ecstacy deaths". Government efforts to drive the purveyers
of MDMA further underground, and incarcerate capable suppliers for
long periods of time by making the penalties harsher, will only
increase this adulteration. This increased adulteration can only
increase teen and young adult deaths and ill effects.
In an atmosphere less polarized by decades of lies propping up an
inappropriate and destructive "drug war", I shouldn't need to point
out these relatively easy-to-find facts for the Commission. In the
interest of brevity I will leave it to other commentators to elaborate
along these lines. If the Commission finds my input unique and wishes
further input from me or others along these lines, I for one will be
happy to provide it.
4. Sentencing guidelines penalizing MDMA use are an unconstitutional
regulation of the freedom of thought that underlies many cherished
freedoms, and should be eliminated.
The laws and regulations against MDMA and other related substances are
not merely aimed at the substances, which are not harmful unless
ingested. These substances are regulated because of their effects on
the minds of users. However, the Government cannot Constitutionally
regulate the mental states of its citizens. The most basic freedoms
of expression, inquiry, association, voting, conscience, and religion
would be utterly undermined if the Government was free to control the
mental states that precede or form the expression, question, desire to
associate, voter preferences, moral standards, or religious and
philosophical convictions.
The Supreme Court has long held that regulating the tools required for
basic freedoms is not permitted. See Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750 (1988) at 759 (upholding facial attack
against newsrack ordinance because of censorial effects, without
discussing governmental purpose for enacting the ordinance).
Cognitive liberty is required by the Constitution, and the Commission
risks acting unconstitutionally whenever it promugates restrictions on
cognitive tools, limiting the modes of thought available to Americans.
MDMA is a profound tool for personal mental exploration. It provides
access to modes of thought and perception that are otherwise quite
hard to reach. (This is what makes it so valuable in psychiatric
therapy.) These modes are of value to artists, philosophers, students
of religion, creative writers and thinkers, dancers, lovers, managers,
social workers, scientists, and ordinary people.
The Commission should uphold its duty to the Constitution by
eliminating the penalties for possession or distribution of these
tools for thought, to the best of its ability.
5. The re-sentencing of MDMA is part of a misguided attempt to "lock
up the truth" -- or at least to lock up the truth-tellers -- about MDMA.
Early versions of the Ecstacy Anti-Proliferation Act of 2000 included
penalties against publishing true statements about MDMA, if those
statements contradict the "politically correct" statements of Congress
or of drug-war officials. These provisions were determined by legal
experts to be very likely unconstitutional, and were ultimately
removed before passage of the bill. But the spirit behind these
provisions remains, and I encourage the Commission to discard that
unconstitutional and profoundly undemocratic spirit.
For reasons unclear to me, probably relating to increasing their own
power and budgets, law enforcement officials have manufactured a
campaign to convince the public and policy-makers of the vast but
largely nonexistent "dangers" of MDMA. These officials would
certainly have an easier time if people who disagree with them could
be prosecuted and incarcerated merely for speaking up. The same
officials have for decades regularly blocked scientists' attempts to
actually investigate the dangers and/or benefits of MDMA in legitimate
medical studies. In the entire time since MDMA was outlawed in 1985,
only three studies have been approved that permitted physicians or
research scientists to provide MDMA to patients and study the effects.
For an overview and details on these blocked medical studies, see
http://www.maps.org/research/mdma/index.html#history
Law enforcement officials can therefore claim that "more studies are
needed" before the safety or efficacy of MDMA can be shown, and
meanwhile make baseless or relatively baseless claims about its
dangers, knowing that anyone who definitively refutes their claims can
be prosecuted for engaging in unapproved MDMA research.
People who consume MDMA out in the real world learn a lot about its
effects, its dangers, and its benefits. This real world experience is
obtained in an underground context -- in a world where revealing the
mere existence of the knowledge is grounds for increased attention
from police and prosecutors, hungry for victims to chew up in the
mills of "justice" and spit out into the prison industry. These
citizens know far more about the real effects of MDMA than the
Sentencing Commission ever will -- because the penalty for telling the
Commission the truth is so draconian. Here is one single example of
the truth that is available out in the world about MDMA, from a brave
woman who risks official harassment to get out the news about how MDMA
helped her and her partner deal with his ultimately fatal cancer:
http://www.maps.org/news-letters/v07n4/07405sue.html
Here is a list of other personal accounts of positive effects by MDMA:
http://www.maps.org/research/mdma/index.html#healing
If we can believe any of the tales of the drug warriors, the use of
MDMA is vastly increasing. More and more of our citizens use and
distribute MDMA. These citizens must ultimately be making a personal
decision that MDMA provides them with more benefits than harms.
Note that each MDMA user examines this personal balance of
benefit-versus-harm with a big "thumb" weighing down the harm side of
the scale -- the risks of detection, arrest, prosecution, forefiture
of property, child "protection" battles, and incarceration. A large
number of citizens still persist in using MDMA. There must be some
powerful benefits to outweigh all these harms caused by the laws
against MDMA, let alone the potential harms caused by the drug itself.
The Commission will hear from only a tiny fraction of the people who
know from personal experience about the benefits of MDMA. Prying this
hard-won knowledge out of these citizens is much tougher than it needs
to be, because the penalties are already high. Few citizens are
courageous enough or crazy enough to poke up their heads and tell the
government that MDMA is beneficial to them. Any increase in the
penalties for the illicit distribution of MDMA will only serve to
"lock up the truth" for even longer periods of time.
Only in a forum where the penalty for revealing one's knowledge is
very low, will that knowledge become available to the Sentencing
Commission for determining the appropriate penalties for the "crime"
of providing MDMA to one's self or to one's fellow citizens. Drug
policy would benefit from having a South African-style "Truth and
Reconciliation" commission -- where people could come to reveal that
they had used drugs, teach the rest of society what they learned from
doing so, and be absolved of prosecution for what they did.
Unfortunately the Commission's emergency public comment process is not
structured to provide such an opportunity.
The Commission should resist the attempts of some law enforcement
officers and some Congressmen to use increased penalties to discourage
informed citizens from participating in the shaping of public policy.
Penalties for Ecstacy should not be increased, they should be
significantly lowered. Vital information critical to shaping public
policy about Ecstacy cannot reach the Government in the presence of
harsh penalties for revealing that information.
John Gilmore
[John Gilmore is an entrepreneur and civil libertarian. He was an
early employee of Sun Microsystems, an early open source software
author, and co-created Cygnus Solutions, the Electronic Frontier
Foundation (EFF), the Cypherpunks, the DES Cracker, and the Internet's
"alt" newsgroups. He's spent thirty years doing programming, hardware
and software design, management, philosophy, philanthropy, and
investment. He is a board member of the Electronic Frontier
Foundation, the Usenix Association, CodeWeavers, and ReQuest.
He's trying to get people to think more about the society they are
building. His advocacy on drug policy aims to reduce the immense
harm caused by current attempts to control the mental states of free
citizens. His advocacy on encryption policy aims to improve public
understanding of this fundamental technology for privacy and
accountability in open societies.]