Unraveling the Drug War: A Rare Chance to Lower MDMA and NPS Sentences

It isn’t all that often that we get a chance to pull apart the drug war.  We have one of those rare opportunities approaching – on April 18 the U.S. Sentencing Commission (USSC) is holding a public hearing that will mark the beginning of a two year process to reconsider the sentencing guidelines for MDMA as well as a handful of novel psychoactive substances (NPS).  You can even watch live.

So, how did we get to this point?

Like so many other terrible drug policies, the story starts in the 1980s.

The DEA placed MDMA into Schedule I in 1985, going against the recommendation of its own administrative law judge and blatantly ignoring that it had been used successfully in psychotherapy for years. 

In 2001, the situation became even worse when the USSC dramatically increased MDMA sentences, making penalties 500 times more severe than those for marijuana.  This decision was based on faulty science that has since been discredited.  It was also politically motivated, since that time marked the height of its use.

Meanwhile, during and since that time, the Multidisciplinary Association of Psychedelic Studies (MAPS) has been conducting more and more research showing that MDMA can be used safely and effectively to treat PTSD and a number of other conditions.

Yet, in most states, mere possession of MDMA is a felony, while those convicted of selling even small amounts of it are subject to mandatory minimum sentences that can easily put them behind bars for decades. And we know all too well those caught in the cross-hairs of the criminal justice system for drugs are disproportionately young, non-white, and socioeconomically marginalized.

There has been a growing sense that this is wrong – even from within the criminal justice system.  There have been two major federal cases where judges ruled that they did not have to follow the current MDMA sentencing guidelines since they were so out of touch with the actual potential harm of the substance.  It’s a key factor driving the USSC to conduct this review.

The other factor is the appearance of MDMA analogues like methylone, MDPV and mephedrone, as well as cannabis analogues JWH-018 and AM-2201.  These five NPS specified as part of the review are the ones that have come up most frequently in criminal cases.  The USSC is meant to establish sentencing guidelines where none currently exist. 

But how can they establish reasonable guidelines for NPS when their guidelines for “originals” like MDMA are so out of whack?

What a mess!!

But in some ways, it’s a beautiful opportunity.  The outdated and counterproductive structure of the drug war is revealing itself, and we should all band together to make sure this piece of it comes crashing down.

We had the same kind of opportunity when the sentences for crack and cocaine, two chemically identical drugs, were brought more into alignment, from a 100:1 disparity down to a 18:1 disparity.  After much effort, the reform community was able to push for a change that – while still unfair – significantly reduced the harms of the drug war.

In that spirit, DPA has submitted public comment warning the USSC against the idea of increasing sentences for people who use or sell NPS, while MAPS’ Rick Doblin will give testimony about why current MDMA sentencing policies are inappropriate and counterproductive.  We need all those who care about criminal justice reform, and ending mass criminalization, to raise their voices about this review process and do everything they can to fight against unfair sentencing.

And of course the fight isn’t over even if MDMA and these selected NPS end up with guidelines that minimize prison time.  These drugs and all others shouldn’t be within the criminal justice system at all, at the very least not for possession and low-level sales offenses.

But first we must take this opportunity to participate in the USSC review process.  We must advocate for correcting the injustice of disproportionate MDMA sentences and for not repeating the same errors for NPS sentences.  Drug policy and criminal justice reform imperatives, as well as the principle of honest, accurate science demands it.

This piece first appeared on the Drug Policy Alliance Blog.