By Caleb O. Brown
Staff Writer
Since his conviction and subsequent jail time for possession of a half-gram of psilocybin mushrooms, 21-year old Adam Jones decided he would get involved in the drug reform movement.
Jones had organized a rally/concert for a medical marijuana ballot initiative being promoted by two groups, Students for Sensible Drug Policy and the Montana chapter of NORML, the National Organization for the Reform of Marijuana Laws. He made arrangements with the Fraternal Order of Eagles Lodge in Billings, Mont., and arranged to have several bands play to help raise money.
Just a few hours before the event, according to John Masterson, Montana NORML’s director, a DEA agent approached the manager of the lodge with a copy of a new federal law in hand, stating that if the event were to take place as planned, agents would stay and see if any illegal drug use took place. If it did, the manager was told, not only would the event be shut down, the lodge itself could be held liable for a quarter-million-dollar civil fine.
After consulting the lodge’s lawyer, the event was canceled.
“It was alarming to me, due to the fact that there was no crime committed,” Masterson said. “There was no criminal behavior. But through a sort of intimidation tactic, the political speech inherent in a fund-raiser was quashed.”
The special agent in charge for the DEA told The Billings Gazette that the agent had acted of his own accord but also said he thought it was safe to say “the kind of audience attracted to NORML concerts are typically a marijuana-using crowd.”
That event sent up a warning flag in the drug reform community that this new law - popularly known as the RAVE Act - had claimed its first victim. For those opposed to the Drug War, the problem was that DEA’s threat was not hurled at an event planned “for the purpose of drug consumption,” as the law states would be required for prosecution, but one organized for the purpose of political speech: a fund-raiser for a state ballot initiative.
The RAVE Act’s provisions were never debated in Congress because the provision was tacked onto the Amber Alert bill in conference committee. That bill, designed to create a nationwide system to help recover missing children, was signed that bill into law with great fanfare in April by President Bush. The RAVE Act - or its more contemporary name, the Illicit Drug Anti-Proliferation Act of 2003 - was sort of a legislative stowaway.
Its defenders say it’s meant to go after “irresponsible rave promoters” and “return the rave scene to what it was supposed to be.”
Critics charge it will give federal authorities “the tools to discriminate” against activity - especially political activism and rallies - they don’t like.
Some members of Congress were unaware of precisely what the provision was supposed to do. When Snitch asked Sen. Mitch McConnell (R-Ky.) if he’d voted for the Amber Alert bill, he responded, “Of course,” but then said he didn’t know enough about the RAVE Act provisions to discuss them in depth.
Precursors
The RAVE Act is a bit of a misnomer. When it was introduced in 2002 under that acronym (that’s Reducing American’s Vulnerability to Ecstasy), it quickly gained a reputation in the rave community as something that could send raves back into the unventilated, unsafe warehouses that first brought the dance parties to prominence.
According to bill sponsor Sen. Joe Biden (D-Del.), the act was created in response to four cases brought by federal prosecutors using the “crackhouse statute” to charge promoters and owners of music venues with providing their facilities for the purpose of drug consumption.
That law allowed prosecutors to go after the owners of crackhouses if they knew about and benefited from the drug trade, even though they may not have handled the drugs themselves. Biden said that the law’s limitations made it difficult to get convictions, and he cited the cases in Boise, Idaho, Little Rock, Ark., New Orleans and Panama City, Fla., saying prosecutors had scored two victories, a loss and a draw.
As a result of the RAVE Act, the crackhouse statute no longer refers only to landlords who “open or maintain any place” for the purpose of drug consumption, but also those who “open, lease, rent, use, or maintain any place, whether permanently or temporarily,” for the purpose of drug consumption.
Critics say there’s a world of difference between those two phrases and that the new language will allow prosecutors to go after raves, which are, by definition, temporary events that may not exist a day later.
But the law moves further from the original statute, stating that owners, renters, managers and others no longer have to profit from drug activity in order to face charges. The specific language states that they must (take a deep breath) “manage or control any place, whether permanently or temporarily, either as an owner, lessee, agent, employee, occupant, or mortgagee, and knowingly and intentionally rent, lease, profit from, or make available for use, with or without compensation, the place for the purpose of unlawfully manufacturing, storing, distributing, or using a controlled substance.” Whew.
Critics say that language could - depending on interpretation - include people who were not engaged in the drug trade at all.
The RAVE Act also holds those promoters and owners liable in civil court for violations, something that essentially lowers to burden of proof in order to get a conviction. Those found liable in civil court would not go to jail, but could be put out of business and bankrupted.
The ACLU's Graham Boyd testified at what he said was the sole hearing on the bill in 2002. He said he was the only witness speaking in opposition. He said the three supporting witnesses “basically didn’t talk about the bill at all. They just talked about how ecstasy was a bad, dangerous drug.”
Boyd worked for the ACLU on the New Orleans case, the outcome of which Biden termed a “draw” for federal prosecutors.
Promoters held a rave at the State Palace Theater in New Orleans. According to Boyd, they were aware of the drug use and took efforts to stop it but weren’t successful. They were then indicted under the crackhouse statute.
The Electronic Music Defense and Education Fund said on its website that the New Orleans case was the first application of the crackhouse statute to a concert venue and “the first case to name pacifiers and glow sticks as drug paraphernalia.”
But prosecutors, according to Boyd, made few claims about how the venue owners were involved in the drug trade.
“Prosecutors admitted that the owners were not involved in drug dealing and were not benefiting from the drug dealing,” he said. “It wasn’t a conspiracy that they were somehow engaged in.”
The case was a draw for prosecutors, according to Boyd, because they were unable to get one of the promoters to cop a plea.
“They had to settle for getting the corporation to pay a fine and getting the venue to ban glow sticks and pacifiers and so forth,” he said. “In the end, a federal court even enjoined that, saying it was a violation of the rights of audience members.”
The DEA, Biden and others point to the Little Rock and Boise cases as reasons for expanding the crackhouse statute. But Boyd said those cases featured defendants who were not only accused of knowing about drug use, but also with drug conspiracies.
“These were people who allegedly were hiring drug dealers to sell drugs at their events and taking part of the profits,” he said.
There is a huge difference between attempting to stop drug use and not fully succeeding and actively engaging in the drug trade as you run a music event, Boyd said.
“If you’re a drug dealer, the fact that you’re running a concert is no defense. That’s not what the First Amendment is about. If you’re a drug dealer, you’re a drug dealer.”
Civil fights
Biden said this year, “The purpose of my legislation is not to prosecute legitimate law-abiding managers of stadiums, arenas, performing arts centers, licensed beverage facilities and other venues because of incidental drug use.”
Instead, he insisted, the act was aimed at “rogue promoters who not only know that there is drug use at their event but also hold the event for the purpose of illegal drug use or distribution. That is quite a high bar.”
Not high enough for the critics, who claim the civil penalties imposed by the law lower the standard of evidence enough to threaten many legitimate businesses.
Sen. Patrick Leahy (D-Vt.) dropped his sponsorship of the bill, saying, “The provision allowing civil suits dramatically increases the potential liability of business owners. … We have been told that even conscientious promoters may think twice before holding large concerts or other events where some drug use may be inevitable despite their best efforts.”
Bill Piper with the Drug Policy Alliance says many of the provisions that business owners have taken to prevent drug-related fatalities at their events may fall by the wayside.
“Business owners are simply going to say, ‘No more bottled water and no more paramedics on scene,’” he said. “Having those things on hand will be used against a club owner in a court of law.”
Piper added that even what would otherwise qualify as a responsible business practice might, under the RAVE Act, qualify as evidence of knowledge of drug activity.
“The threat isn’t just people on drugs like ecstasy, the threat is to all customers, even those simply dancing for hours at a time who might need a medic or bottled water.”
And Piper claimed that businesses, fearful of federal prosecution, might simply get out of the business of promoting music that may tend to attract drug users. He said that could be dangerous for those who will go to raves anyway.
“We’re just getting to the point where raves are mainstream, where it can be safe and regulated,” he said. “If a nightclub is too afraid to hold an all-night dance party for fear of prosecution, the demand for these types of events isn’t going to go away. Promoters will just hold them elsewhere. No security guards, no running water and no ambulance on call. That’s a recipe for disaster even if there are no drugs involved.”
Balderdash, says Howard Simon with the Partnership for a Drug-Free America.
He said the anti-drug law will “get the bad apples out of the way - promoters who welcome drug use at their venues.”
He said concerns that legitimate businesses will be shut down are overblown.
“The crackhouse statute hasn’t put landlords out of business,” he said. “People who have welcomed drug use to the scene have.”
Simon said the critics of the drug laws continually claim that they want “common sense applied” to the drug problem. He said they have little faith that laws, when passed, will be applied with discretion.
“If we make the assumption that the law will be applied with common sense and discretion, I don’t think responsible club owners have anything to worry about.”
Testing the waters
Opponents of the RAVE Act seem to universally admit that they don’t know how the law may be applied, but they say they’ll be watching federal prosecutors closely.
Masterson of Montana’s NORML says his group and the Fraternal Order of Eagles Lodge have been in contact with attorneys from various civil rights groups and said they’ll soon seek a federal injunction to stop enforcement of the law until its constitutionality is addressed.
“Not every rave will be targeted by this,” said Boyd, “but prosecutors in some parts of the country may go after business people who are putting on an event that they don’t like, who are doing something that is not itself illegal, but where drug use is going to go on.”
Boyd said the ACLU fought at length with the sponsors of the bill to clarify language that may lead prosecutors - and judges - to assume that if an owner knows of drug use at his venue, that would be enough for a conviction. He said the bill sponsors refused to make that change.
The key argument surrounding this expansion of the crackhouse law, according to Boyd, is that the law is open-ended enough to criminalize a great deal of activity if knowledge is the standard that is used.
“I can’t imagine that college deans will get prosecuted for knowing about drug use in a dormitory, but it gives the police and prosecutors the power to basically decide who they don’t like, who they think is in need of being shut down. And they can selectively do that. It gives them the tools to discriminate.”
