October 2014

Introduction

In 1980, designer drugs (e.g., amphetamines, fentanyl derivatives, phenethylamines related to MDMA) in the United States began to enter the marketplace. In response, Congress passed legislation seeking to ban these new designer drugs called the Federal Controlled Substance Analogue Enforcement Act (­FCSAEA) of 1986. After initial litigation of a limited degree, this law laid largely dormant until a couple of years ago. It is expected that FCSAEA-based prosecution will increase exponentially in the next several years. This anticipated resurgence in FCSAEA-based prosecutions is traceable to the modern phenomenon of synthetic drugs. PiHKAL: A Chemical Love Story is a 978-page paperback published in September 1991, written by Dr. Alexander Shulgin and his wife Ann Shulgin, which launched the careers of many new, modern-day unlicensed pharmaceutical entrepreneurs.¹ With the highly profitable endeavor of synthetic drug production flooding the marketplace, federal and state legislatures have had a difficult time keeping up with the illicit trade. They have tried to keep pace with the development of synthetic cannabinoids and synthetic cathinones such as the naphthoylindoles; naphthylmethylindoles; naphthoylpyrroles; naphthylideneindenes or naphthylmethylindenes; phenylacetylindoles; cyclohexylphenols; benzoylindoles; quinolone-based synthetic cannabinoids; HU-210; dexanabinol or HU-211; WIN 55,212-2; benzylpiperazines; phenethylamines; tryptamines; pyrrolidinophenones; and the like. But it is a daunting task. Regulation is difficult, because as soon as one compound becomes scheduled and therefore illegal to possess, the makers of these drugs quickly switch to another compound—one that has the same or similar pharmacological effect but is a different chemical structure and is therefore not a scheduled substance.

This article will examine the prosecution of controlled substance “analogs” by both the state and federal governments. At the end of this read, the reader will have appreciation for the controlling law, the scientific problem of defining an analogue, the current efforts in the forensic science community to define an analogue, and the new chemical defense as seen in the case of Ohio v. Silmi et al.²

The Current State of the Law

The traditional reaction of both federal and state legislatures has been to resort to “analogue acts.” The first of these analogue acts was passed in 1986 by the federal government. The current form can be found at 21 U.S.C. § 802(32).

The Federal Controlled Substance Analogue Enforcement Act (FCSAEA) of 1986 reads as follows:

(A)  Except as provided in subparagraph (C), the term “controlled substance analogue” means a substance –

(i)    the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii)   which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii)  with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central ner­vous system of a controlled substance in schedule I or II.

(B)  The designation of gamma butyrolactone or any other chemical as a listed chemical pursuant to para­graph (34) or (35) does not preclude a finding pursuant to subparagraph (A) of this paragraph that the chemical is a controlled substance analogue.
(C)  Such term does not include—

(i)    a controlled substance;
(ii)   any substance for which there is an approved new drug application;
(iii)   with respect to a particular person any substance, if an exemption is in effect for investigational use, for that person, under section 355 of this title to the extent conduct with respect to such substance is pursuant to such exemption; or
(iv)  any substance to the extent not intended for human consumption before such an exemption takes effect with respect to that substance.

The developed law interpreting the FCSAEA reveals a hodge-podge of decisions. It includes:

Constitutional Challenges Based on the Void for Vagueness Doctrine

• Definition of “controlled substance analogue” in Comprehensive Drug Abuse Prevention and Control Act is specific enough to give constitutionally adequate notice of misconduct prohibited. United States v. Reichenbach, 29 M.J. 128 (CMA 1989).
• Controlled Substance Analogue Enforcement Act of 1986 was not unconstitutionally vague as applied, in light of sufficiently precise statutory language to enable ordinary person in position of defendants to know that listed precursor chemicals should not have been possessed for purpose of manufacturing for human consumption, substances similar to amphetamine, methamphetamine, and 4-methylaminorex;  defendants had copy of government notice that methylaminorex was to be scheduled as controlled substance, and had used false names in ordering precursor chemicals. United States v. Hofstatter, 8 F.3d 316 (6th Cir. 1993), cert. denied, 510 U.S. 1131, 114 S.Ct. 1101, 127 L.Ed.2d 413 (1994).
• Although analogue statute, under which chemical can be considered a drug if it is an analogue to listed controlled substance, was “somewhat elastic,” it was not unconstitutionally vague as applied to defendant for trafficking in aminorex and phenethylamine as analogues to cis-4-methylaminorex and methamphetamine, respectively, since chemical charts would have put reasonable person on notice that substances were substantially similar within meaning of statute. United States v. McKinney, 79 F.3d 105 (8th Cir. 1996), vacated, 520 U.S. 1226, 117 S.Ct. 1816, 137 L.Ed.2d 1025 (1997), on remand, 120 F.3d 132 (8th Cir. 1997).
• Analogue Act, under which a substance that is substantially similar to controlled substance analogue is itself treated as controlled substance analogue, was not unconstitutionally vague under Fifth Amendment as applied to controlled substance analogues 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” and alpha-methyltryptamine (AMT); defendant had actual notice of Analogue Act and researched and discussed its applicability, thus foreclosing a vagueness challenge, defendant showed witnesses at least one website warning that “Foxy” could be prosecuted under the Analogue Act, defendant attempted to conceal his activity from law enforcement, defendant attempted to obtain precursor chemicals from a supplier alleging that he was a research company conducting a study of their pharmacological effects. United States v. Klecker, 228 F.Supp.2d 720 (E.D.Va. 2002), aff’d, 348 F.3d 69 (4th Cir. 2003), cert. denied, 541 U.S. 981, 124 S.Ct. 1896, 158 L.Ed.2d 482 (2004).
• Statutory definition of the term “controlled substance analogue” was unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance hydroxybutyric acid (GHB); there was no scientific consensus as to whether the two substances had substantially similar chemical structures, and it was not sufficient that 1,4-butanediol converted in the body into GHB, particularly in light of several naturally occurring substances that differed from GHB in the same manner as 1,4-butanediol, but which were not prosecuted. United States v. Roberts, 2002 U.S. Dist. Lexis 16778, (S.D.N.Y., September 9, 2002), vacated, 363 F.3d 118 (2d Cir. 2004), on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).
• Statutory definition of the term “controlled substance analogue” was not unconstitutionally vague as applied to 1,4-butanediol, claimed in a drug indictment to be an analogue of the controlled substance gamma hydroxybutyric acid (GHB), given that 1,4-butanediol differed from GHB by only two atoms and was converted into GHB upon ingestion. United States v. Roberts, supra, 363 F.3d 118, on remand, 2005 U.S. Dist. Lexis 9141 (S.D.N.Y., May 16, 2005).

Definitions and Explanation of the Elements of the Crime

• Drug may be controlled substance “analogue” only if it meets both chemical structure and pharmacological effects prongs of statutory definition. United States v. Forbes, 806 F.Supp. 232 (D.Colo. 1992).
• Based on legislative history, ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either second or third prong, respectively, requiring substantially similar effect on human nervous system or intent to have such an effect. United States v. Hodge, 321 F.3d 429 (3d Cir. 2003).
• Ambiguous definition of “controlled substance analogue” in Controlled Substance Analogue Enforcement Act is to be read conjunctively—i.e., substance in order to be “analogue” is required to satisfy both chemical structure prong of statutory definition and either have a substantially similar effect on the central nervous system or be purported or intended to have such an effect. United States v. Turcotte, 405 F.3d 515 (7th Cir. 2005), cert. denied, 546 U.S. 1089, 126 S.Ct. 1022, 163 L.Ed.2d 853 (2006).

Interpretation of “Substantially Similar”

• Methylenedioxymethamphetamine (MDMA), or Ecstasy, could be treated as “controlled substance analogue” under the Analogue Act, even though it had previously been scheduled as Schedule I controlled substance, once Schedule I scheduling was held invalid. United States v. Franz, 818 F.Supp. 1478 (M.D.Fla.1993).
• Statutory definition of controlled substance “analogue” encompassed wax-and-flour mixture sold as crack cocaine to undercover agent, even though mixture was not chemically similar to controlled substance; mixture fell within third of three disjunctive definitions, “[substance] which [defendant] represents . . . to have a stimulant, depressant, or hallucinogenic effect . . . that is substantially similar to or greater than [that of] controlled substance in schedule I or II.” United States v. Greig, 144 F.Supp.2d 386 (D.V.I. 2001), aff’d in part, reversed in part, 321 F.3d 429 (3d Cir. 2003).
• Pills containing ginseng and vitamin B, which defendants represented to purchaser to contain schedule I controlled substance, did not constitute “controlled substance analogue” as required for conspiracy to possess and distribute controlled substance analogue conviction; there was no indication in legislative history that Controlled Substances Analogue Enforcement Act was meant to forbid individuals from passing off over-the-counter nutritional supplements or vitamins as controlled substances. United States v. Clifford, 197 F.Supp.2d 516 (E.D.Va. 2002).
• Chemical structure of 5-methoxy-N, N-diisopropyltryptamine, also known as “Foxy,” was substantially similar to that of DET, a controlled substance analogue, so as to support treatment of “Foxy” as a controlled substance analogue under Analogue Act; “Foxy” and DET shared same core arrangement of atoms, known as tryptamine, which was the core element of a number of hallucinogenic drugs; experts agreed that “Foxy,” which was lengthened by one methyl group, had a slightly higher lipophilicity rating than DET, which meant it had greater ability to penetrate the blood stream. United States v. Klecker, supra.
• Substance could be a “controlled substance analogue” for purpose of statute stating that a controlled substance analogue shall, to the extent intended for human consumption, be treated as a controlled substance in schedule I, only if it satisfied both the chemical structure prong of statutory definition, and either the second or third prong of statutory definition, requiring either a substantially similar effect on the human nervous system or the intent to have such an effect. United States v. Vickery, 199 F.Supp.2d 1363 (N.D.Ga. 2002).
• In United States v. Hodge, supra, held that a wax-and-flour mixture sold to undercover federal agent as “crack cocaine” did not constitute “controlled substance analogue” within meaning of Controlled Substance Analogue Enforcement Act as mixture did not satisfy Act’s definition requiring “substantially similar” chemical structure.
• In United States v. Brown, 415 F.3d 1257 (11th Cir. 2005), cert. denied, 547 U.S. 1023, 126 S.Ct. 1570, 164 L.Ed.2d 305 (2006), the defense called an expert to testify as to what constitutes “substantially similar” in chemistry, and to refute the prosecution’s theory of the case, but the expert was precluded from testifying. That court held that even if this expert witness proffered by defendants in prosecution for conspiracy to distribute a controlled substance analogue to testify concerning the similarity between gamma-hydroxybutyric acid (GHB), a controlled substance, and 1,4 butanediol, an alleged controlled substance analogue, was qualified to testify as an expert, witness’ testimony was based on unreliable methodology unreasonably applied. In that court’s opinion, the proffered expert witness overemphasized the differences between the two chemicals by unnecessarily double-counting a substructure present in GHB but not in 1,4-butanediol, and witness did not know and could not explain how the computer programs he used defined similarity.

Cases that Comment on Knowledge of What the Substance Is as a Requirement

• A mens rea (scienter) element of the crime exists. This means that to be convicted of possessing with intent to distribute mixtures containing a controlled substance, the prosecution must show that the defendant knew that the substance at issue had a chemical structure substantially similar to that of a controlled substance, and he or she must either have known that it had similar physiological effects or intended or represented that it had such effects. United States v. Turcotte, supra.

The Source of the Disparate Results

The interpretation of a statute can either be amazingly simple or downright complicated. These guidelines are generally referred to as the cannons of construction.

What is happening here, from strictly the legal viewpoint, is the intersection of three powerful principles that interrelate but do not easily work together to produce a meaningful and just interpretation of the law. These separate and distinct principles are (1) in pari material; (2) the strict construction of penal statutes; and (3) the rule of lenity.

  1.   All statutes should be read as a harmonious whole, with its separate parts (such as subparts) being interpreted within their broader statutory context in a manner that furthers statutory purpose. This is called in pari materia. Justice Scalia of the United States Supreme Court once wrote: “Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme—because the same terminology is used elsewhere in a context that makes its meaning clear . . . or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law.” United Savings Ass’n of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) (citations omitted).

  2.   The strict construction of the penal statutes means that all statutes that are penal in nature must be strictly applied (they are to be applied as they are written and nothing “extra” interpreted into them).

  3.   If statutory language is ambiguous, then the rule of lenity applies. If statutory language is unambiguous, the rule of lenity does not apply. Beecham v. United States, 511 U.S. 368, 374, 114 S.Ct. 1669, 128 L.Ed.2d 383 (1994), citing Chapman v. United States, 500 U.S. 453, 463–464, 111 S.Ct. 1919, 114 L.Ed.2d 524 (1991); see also National Org. for Women v. Scheidler, 510 U.S. 249, 262, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994). The rule of lenity requires that “before a man can be punished as a criminal . . . his case must be ‘plainly and unmistakably’ within the provisions of some statute . . .” United States v. Gradwell, 243 U.S. 476, 485, 37 S.Ct. 407, 61 L.Ed. 857 (1917). Lenity principles “demand resolution of ambiguities in criminal statutes in favor of the defendant.” Hughey v. United States, 495 U.S. 411, 422, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990) (citations omitted); see also United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994) (“In these circumstances—where text, structure, and [legislative] history fail to establish that the Government’s position is unambiguously correct—we apply the rule of lenity and resolve the ambiguity in [the defendant’s] favor.”); Cleveland v. United States, 531 U.S. 12, 25 (2000) (before choosing a “harsher alternative” interpretation of the mail fraud statute, “it is appropriate . . . to require that Congress should have spoken in language that is clear and definite”) (citation omitted). Two reasons for the rule are that “fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed,” and that “legislatures and not courts should define criminal activity.” Ratzlaf v. United States, 510 U.S. 135, 148–49 (1994), citing McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 75 L.Ed. 816 (1931).

Condition Precedent for Prosecution: Is the Substance Intended for Human Consumption?

Under the FCSAEA, there is a prerequisite of proof that the government must show prior to getting into the pharmacology of the drug or determining the seller’s intent. The government has to affirmatively prove that this substance was intended for human consumption. The government can do this by direct evi­dence. For example, if the seller said the substance will get the buyer high, or the government can prove this by circumstantial evidence if it meets the burden of proof beyond a reasonable doubt. Circumstantial evidence does not give the fact-finder per­mission to lower the burden of proof; instead it merely allows the person to make reasonable inferences based upon other admitted evidence. This is why the producers of these substances cannot avoid criminal responsibility by simply printing “not for human consumption” on the packaging.

The government can use a context to try to meet their burden of proof by showing that the items were being sold in a head shop right next to the smoking devices that promote a sale if you bundle the two together. The government will also frequently attempt to employ a “negative corpus” or “burden shifting” tactic that is framed as “there are no non-human consumption uses for these chemicals so that is direct proof of intended use for human consumption.” (There is no logic in a negative corpus argument. In fact it is illogical.) Another familiar government argument in courthouses is that, “They didn’t come in here and offer any proof that it wasn’t used for human consumption.” This is impermissible burden shifting. At a very threshold issue, if the government cannot prove that it was used for human consumption, then the prosecution must fail.

Essential Elements

Under the FCSAEA, there are two essential elements associated with the second essential element, and they can be proven in the alternative. As is the case with all essential elements, the government has the burden of production to put forth competent evidence as well as the burden of persuasion beyond a reasonable doubt. If the government fails to produce any evidence as to an essential element, then the prosecution must fail, as there is no legal sufficiency for a conviction. The burden of persuasion focuses on the “weight of the evidence.”

The first part of subsection A calls for a structural analysis and an opinion that the molecule is “substantially similar” to a Schedule I or II substance. It is not sufficient to be merely “substantially similar” to any controlled substance whatsoever. So the government must allege and prove the structural similarity to a particular Schedule I or Schedule II substance. If this particular Schedule I or II substance is not revealed in the indictment or information, it would be wise for a criminal defense attorney to apply for a bill of particulars or file a motion seeking that the indictment or information be quashed for lack of sufficient particularity. Without sufficient proof of this first element, there can be no successful prosecution.

If the government does not prove this first element, the verdict must be “not guilty.” To satisfy the first essential element, the government must produce an expert. It is quite clear that what is and is not an analogue is not “within the ken of a lay person.” Even more so, valid structural analysis and comparison of an unknown seized substance to a Schedule I and Schedule II substance is certainly also “beyond the ken of a lay person.” Therefore, expert testimony is required. Usually this is a chemist. This witness must explain the structure and offer an opinion that this particular substance is “substantially similar” to a specific and particular Schedule I or Schedule II drug and not just simply to a controlled substance. The government must prove this opinion beyond a reasonable doubt.

Defense counsel must be very careful to examine closely the qualifications of any proffered expert who testifies in these cases. Meaningful structural examination is not within the scope of the expertise of all chemists. It is infrequently taught in undergraduate chemistry or is typically only covered in cursory fashion. Valid explanation of chemical structures in the typical analogue context requires more than simply two-dimensional simplistic ball-and-stick drawings. In fact, an expert who engages in such a simplistic method as justification for his or her opinion should set off an alarm for defense counsel. If the government is able to produce competent evidence in sufficient weight to satisfy this first essential element, the prosecution is only part way to a conviction, as it must also prove the second essential element.

The second essential element can be proven in one of two ways. Much like the first essential element, if the government does not prove this element in either of the alternative forms, the verdict must be “not guilty.”

The first alternative requires certain sub-issues of proof that: (1) to a human being (2) there is a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. At present, there is a wholesale lack of meaningful controlled scientific studies as to the pharmacodynamic effect of these substances. What studies exist are not performed on humans and are instead pharmacokinetic studies on pigs or rats. There is a lack of information on basic pharmacological issues with these substances such as human binding affinities, bioavailability in humans after particular methods of introduction, and the like. Other dubious sources used as references include self or community anecdotal reporting through emergency rooms or poison control centers. Finally, as is known in organic chemistry and pharmacology, a seemingly small change in structure can grossly change the pharmacodynamic affect (e.g., tetrahydrocannabinol versus cannabidiol, buprenorphine versus diprenorphine). As one can see, satisfying the burden to prove this prong could be very difficult for the prosecution.

The second alternative way to prove the second essential element simply requires proof that the person represents or intends that the seized substance will have a pharmacodynamic effect similar to or greater than a particular Schedule I or Schedule II substance that produces a stimulant, depressant, or hallucinogenic effect on the central nervous system. Again, much like the “human consumption” aspect of this prosecution, direct or circumstantial evidence can be used to prove this element. This is usually much easier to prove than the first alternative of the second essential element.

Alternative Forms of Laws to Deal with Synthetic Drugs

As of November 2012, 41 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cannabinoids.³ When it comes to synthetic cannabinoids, some acts passed by state legislatures seek to simply specifically name certain substances that they want to ban.⁴ This approach provides certainty in terms of the scope of potential prosecution. However, it cannot adapt quickly to changes in the synthetic drug world. For every time one substance is placed on a list, the manufacturers change their synthesis to something different. Only two state legislative (MN and CO) actions mirror the sweeping federal analogue approach as discussed above.⁵ Some state legislatures have passed statutes that refer to the banning of homologues.⁶ It is important to note and distinguish between homologues and analogues. A homologue is a specific type of analogue wherein the homologue is a compound belonging to a series of compounds differing from each other by a repeating unit. For example, methanol, ethanol, isopropanol, and butanol are homologues by just adding a CH2 group through that progression of chemicals. This homologue approach is not nearly as sweeping as the federal analogue approach. Other state legislatures have passed class-based legislation to ban certain types of synthetic cannabinoids.⁷ The difficulty with a class-based system is that the testifying expert must wholly understand structure and be able to articulate well to a lay jury what these classes are and how the substance clearly falls into the proposed task. Another drawback comes from public notice of what is or is not legal. For example, a layperson will find written in such a statute the banning of all naphthoylindoles and will search in vain for JWH-018. Therefore, there can be understandable confusion for the layperson who wants to comply with the law but cannot because of hyper-technical definitions that he or she cannot fairly be expected to know. In a class-based strategy, the average layperson will not find a listing of specific substances. As such, the actual notice of prohibited substances is at best lacking and at worst misleading.

A minority of state legislatures (CO and OK) have taken a receptor-based approach.⁸ The receptor-based approach makes a substance illegal if there is “binding activity at one or more cannabinoid receptors” or “is a cannabinoid receptor agonist and mimics the pharmacological effect of naturally occurring substances.”⁹ This receptor-based approach can be difficult because it can be argued that it is very broad in its effect and leads to ostensibly irrational results. For example, there is some research that shows acetaminophen indirectly affects CB1 receptors. Acetaminophen’s metabolite N-arachidonoylphenolamine (AM404) increases endogenous cannabinoids like anandamide and 2-Arachidonoylglycerol by inhibiting FAAH (fatty acid amide hydrolase). FAAH metabolizes anandamide (an endogenous cannabinoid) and 2-Arachidonoylglycerol.¹⁰

As of November 2012, nine state legislatures (MD, MA, NV, NH, NJ, NY, OR, VT, and WA) have not passed any form of synthetic cannabinoid laws.¹¹ However, as of November 2012, of those states NY, OR, and WA have elected to use departmental rules to ban some forms of synthetic cannabinoids. This leaves MD, MA, NV, NH, NJ, and VT with either a legislative enactment or a department-based ban for synthetic cannabinoids.

As of November 2012, 43 states and Puerto Rico have passed legislation that seeks to ban some form of synthetic cathinones.¹² The banning of these types of substances has proven to be more difficult to define for state legislatures. Most states have opted to simply list specific compounds to ban.¹³ A minority of states simply have a class-ban system in place. The difficulty in this approach is that defining a class or classes proves to be more difficult than in the cases of synthetic cannabinoids.

As of November 2012, eight state legislatures (CA, MT, NE, NH, OR, VT, and WA) have not passed any form of synthetic cathinone laws.¹⁴

As of November 2012, three state legislatures (OR, VT and NH) have taken no action on either synthetic cannabinoids or synthetic cathinones.¹⁵ Vermont and New Hampshire have taken neither state legislative action nor departmental regulation action.

Yet another possible way of regulating these synthetic drugs has recently emerged. It is a pharmacology-driven definition. In this case, the law says that the government must prove pharmacological effect similar to or greater than a Schedule I or Schedule II drug AND chemical structural class (in that order). If they cannot prove the pharmacological effect similar to or greater than a Schedule I or Schedule II drug, structural class never even comes into consideration. In such a statutory scheme, a chemist (alone) could not testify to a drug being a substance under that type of law even if that specific drug was listed as an example under a listed structural class. Because of this interpretation, it is misleading to the court to produce a chemistry report that says anything that could be interpreted as “Drug X is a controlled substance or its analogue.” Instead, a pharmacologist would need to testify as to the substance’s effect on a human being and then a chemist as to its structure. This approach proves difficult for the government, as it might require two experts as opposed to one, but this method is very appealing for constitutional reasons.

When the DEA, Congress, or some other legislative or rule-making body makes something illegal, it is a taking of property, plain and simple. It is depriving an individual of a property right. As such, it is subject to Due Process review (good old fashioned Fifth Amendment or Fourteenth Amendment). As this Due Process claim does not involve a suspect or quasi-suspect class or a fundamental right, it defaults to the rational basis test. The rational basis test simply means that the government has to have a legitimate reason for a law or regulation that is rationally linked to it (in other words, the connection is not a non sequitur). In order to survive a true constitutionally based challenge, one must word any statute seeking to ban these synthetics in the pharmacology-driven model so that the pharmacodynamic effect must be proven first before it can be criminalized. Otherwise, we have no rational relation to the harm trying to be prevented. In other words, we are banning things (which is a form of taking of property rights) without linking them to a demonstrated harm. Banning things for the sake of banning them and depriving people of a property interest without reason is unconstitutional and cannot be tolerated.

The Conflagration of Science and the Law

We could start this section with the concept that lawyers and legislators make laws and infrequently consult with the scientists who are the experts on this subject matter. This is how we come up with the term of “analogue” and in particular the idea of “substantially similar” that we see in the statutes. This is the root cause of all of the difficulty in the courtroom.

According to the dictionary, an analogue is “a chemical compound that has a similar structure and similar chemical properties to those of another compound, but differs from it by a single element or group. The antibiotic amoxicillin, for example, is an analogue of penicillin, differing from the latter by the addition of an amino group. Compare homologue.”

This is not totally clear. What is “substantially similar”? A number of tests have been devised by courts in the area of intellectual property to determine “substantial similarity.” None of these tests are particularly useful. Sometimes they border on circular logic, such as one appellate court that defined a “substantially identical” claim as one that is “without substantive change.” Laitram Corp. v. NEC Corp., 163 F.3d 1342, 1346 (Fed. Cir. 1998). The tests used in the intellectual property world may rely on expert or lay observation and may subjectively judge the essence or critically analyze its elements. Again, this is not much help.

Ultimately, no matter what scientific consensus may or may not develop, the question of substantial similarity is a question of fact to be determined by a jury, just like in the area of patent or copyright law.

The real world issue is that having no written standard or guidance document in the scientific community that provides support or instructions to testifying experts is akin to living in the wild, wild west. There is no law. Everyone is allowed to opine as they wish with no real consequences for being either too broad (such as saying anything with a carbon in it is an analogue to a Schedule I or II) or too narrow (such as requiring nearly identical copying of the Schedule I or II drug).

Efforts to Define Analogues by Organizations

The Scientific Working Group for the Analysis of Seized Drugs (SWGDRUG) has posted the DRAFT document “SWGDRUG Recommendations on Analogues and Structural Class Determinations.”¹⁶ It is a very short document and really does little to solve the scientific issue in the courtroom. It reads as follows:

SWGDRUG Recommendations on Analogues and Structural Class Determinations

■ 1 Introduction

   1.1   This section provides general recommendations regarding analogues and structural class determinations.

   1.2   Jurisdictional requirements for such determinations may include structural or pharmacological (real or purported) similarity to known controlled substances or structural class definitions.

   1.3   SWGDRUG considers it fundamental for analysts to fully understand how analogues and structural classes are legally defined in a particular jurisdiction prior to de­vel­op­ing or reporting opinions.

   1.4   Such opinions should only be rendered by those with proper training and experience.

■ 2 Analogues

   2.1   The requirements for legal consideration as a controlled substance analogue are defined in jurisdictional legislation.

   2.2   Classification as a controlled substance analogue generally involves the evaluation of the similarity of structure or pharmacological properties of a chemical compound to a known controlled substance.

   2.3   The scientific evaluation of similarity may be made using a variety of techniques and approaches depending on the specific question being addressed. These specific comparisons can be broadly classified by structure, chemical properties, biochemical or pharmacological activity.

   2.4   Evaluation of similarity shall include comparisons of an appropriate nature sufficient to meet jurisdictional requirements.

   2.5   The evaluation of similarities between chemical compounds should be documented. This should include a dis­cus­sion of how the compounds are similar and how they are different.

   2.5.1 Evaluation of similarity is a subjective matter and opinions may differ.

   2.5.2 Structural comparisons in a forensic laboratory are likely to be limited to the structural class and functional group, ring or chain substitutions. As examples, isomers, homologues, salt forms, esters, and ethers may be considered. The scope of comparison conducted should be made clear in the report.

   2.6   Structural similarity between two chemical compounds is not an adequate basis to infer similar pharmacological activity.

   2.7   Likewise a lack of structural similarity is not an adequate basis to infer a lack of analogous pharmacological activity.

   2.8   If pharmacological activity is a requirement of particular legislation, the drug analyst should limit his inference and considerations to the citation of peer-reviewed literature, or relevant sworn statements in legal proceedings in absence of specific training and experience in pharmacology (or related fields).

■ 3 Structural Class Determinations

   3.1   In many jurisdictions, chemical compounds are controlled based upon structural class definitions (e.g., 3-(1-naphthoyl) indole with substitution at the nitrogen atom of the indole ring, whether or not further substituted on the indole ring to any extent, whether or not substituted on the naphthoyl ring to any extent).

   3.2   A structural class determination may be made by identifying a specific compound and assigning the compound as a member of a legal structural class.

   3.3   A structural class determination may also be made using an analytical scheme designed to identify sufficient features of a compound to assign it as a member of a legal structural class without making a conclusive identification of that compound (e.g., ortho, meta, or para position of a halogen on an aromatic ring).

   3.4   Any relevant limitations of the analytical scheme and resulting classification shall be clear in reporting.

■ 4 Reporting

   4.1   All conclusions and opinions expressed in written or oral form shall be based on sufficient supporting evidence, data, or information.

   4.2   The basis of any conclusion should be completely documented in the case notes and summarized in the written report and subject to the laboratory’s review policy.

   4.3   Conclusions and opinions reported shall be accurate, clear, objective, and meet the jurisdictional requirements. The report must also include any assumptions or limitations (e.g., potentially exculpatory information), to allow the court to make the final decision.

   4.4   The report should clearly indicate what elements of the legal requirements were evaluated and what elements were not evaluated.

   4.5   The scope of opinions and conclusions reported shall not go beyond the knowledge, training, and experience of the analyst.

A much more promising and robust effort that is, by the group’s mission statement apolitical, is being made by the members of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA). According to their website, “The mission of the Advisory Committee for the Evaluation of Controlled Substance Analogs (ACECSA) is to recommend min­i­mum standards for the evaluation of non-controlled substances be­ing considered as analogs of controlled substances.”¹⁷ They have different subcommittees that are based upon a logical exploration of what should be examined when we try to better understand what is or is not an analogue and what is or is not “substantially similar.” The subcommittees include:

• Structure (chemical backbone, functional groups, core struc­ture, 3-D structure, presence and location of double bonds and rotatable bonds)
• Physicochemical Properties (chemical reactivity, ex vivo, in vivo, computation/empirical data, physical properties)
• Computation Chemistry and Cheminformatics (Molecule similarity algorithms, QSAR, maximum common substructures, Tanimoto value)
• Literature Support (published, unpublished, dissertations, research, meeting abstracts)
• Synthetic Pathway (distinct routes separately patentability and publishability, impurity analysis)
• Pharmacology/Toxicology (pharmacodynamic impact)

Modern Problems to Old Statutes: A Case Study of Ohio v. Silmi et al., U.S. v. Fedida, and Hammel v. U.S.

In 2012, Judge John J. Russo of the Cuyahoga County Common Pleas Court held a Daubert hearing on the issue of the definition of “what is an Analogue” and what is “substantially similar.” The case was The State of Ohio v. Mahir Silmi at al.¹⁸

In Silmi the defendants were charged with felony counts of Trafficking and Possession of Controlled Substance Analogs. The defendants filed a motion to exclude the laboratory reports and testimony from the state’s expert witness regarding the alleged controlled substance analogs based upon the premise that the testimony would be purely subjective opinions and therefore should not be admissible.

In December 2012, the court held a Daubert hearing to evaluate the admissibility of the state’s lab report as well as the proposed testimony regarding the testing. Two members of the Cuyahoga County Regional Forensic Science Laboratory (CCRFSL) drug chemistry section testified at the hearing: Paul Boggs, the supervisor of the lab’s chemistry drug section, and Gagandeep Sran, the chemist who analyzed the potential analogues in this case.

Boggs testified that when a substance arrives at the lab, the CCRFSL analyzes not only for controlled substances, but also to see if the substance has a chemical structure “substantially similar” to a controlled substance. If one chemist at the CCRFSL believes the substance to be “substantially similar,” then it would be staffed by lab personnel and looked at by the other six chemists of the CCRFSL. Only if all of them agree that the drug is “substantially similar” would the lab issue its scientific opinion that the standard of substantial similarity has been met and re­port the substance out as an illegal analog.

There were no specific guidelines set by the laboratory to perform this method when it first began. However, over time, two guidelines were developed. First, with regards to synthetic cannabinoids, the chemists determined that an alleged analog drug “had to be within the same chemical family” as the controlled substance. Second, the original backbone of the scheduled substance had to be unchanged for it to be an analogue. This second step was performed by a side-by-side comparison of the stick and letter chemical structures of the suspect drug and the scheduled drug. The testimony also disclosed there was “no statewide database, protocols, or any formal organization or mechanism of standardization regarding the testing of poten­tial analogs.”

The lab used this exact process to test the substances at issue in Simli. Ultimately, the lab concluded that the substances were analogs of JWH-018 (with an additional fluorine atom) and methcathinone (differences in the nitrogen rings).

The court relied upon Ohio Evidence Rule 702¹⁹ and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993),²⁰ in deciding whether or not to allow the testing and opinion testimony in at trial.

The court ultimately concluded that the testing and proposed testimony were not sufficiently reliable enough to be allowed into evidence.

In reaching its decision, the court focused heavily on “evaluating the theory [of the testing], not the conclusion [drawn by the lab].”²¹ The court’s finding was that the testing implemented by CCRFSL was not objective or reliable, and that the term “substantially similar” was vague and undefined, leading to an “unguided subjective testing procedure.” The state’s own witnesses even admitted that the test is a subjective one, explaining: “It is based on something. It is just not based on something the way we would like it to be based on.” Id. This is clearly a problem for the testing procedure when Daubert and the rules of evidence require the theory of the test to be “objectively verifiable or derived from widely accepted knowledge, facts, or principles.”²²

The bottom line for the court was that the term “substantially similar” was too vague for anyone to be able to properly implement it. Without better guidance the lab would be “left guessing if it is doing the right thing” and forced to “develop a test they hoped met this vague standard.” Id. This means there was no way to determine if the procedure actually produced an accurate result.

United States v. Fedida, 942 F.Supp.2d 1270 (M.D.Fla. 2013), and Hummel v. United States, Cause No. 8:12-mj-1457-T-37 (M.D.Fla., April 30, 2013),²³ were both heard in the United States District Court in the Middle District of Florida–Tampa Division in December 2012. There was a consolidated hearing involving the same drug. The court examined whether UR-144 and XLR-11 are analogs of the specifically banned drug JWH-018. The court held that 2-D structures are appropriate models for comparison of these drugs, and that three-dimensional models add nothing to the discussion to change the planar examination of the structure. The court also held that the substances at issue in the case shared the same core structure and therefore met the definition of analogue. The court was referring to the indole core structure (which would include clearly ridiculous outcomes like making tryptamine found in turkey and Cialis analogues of JWH-018) and contained two substitutions at the 1 and 3 positions. The court held that the only meaningful difference with these drugs was the replacement of the cyclopropyl ring for the naphthalene ring structure. The court rejected the six defense experts and accepted the DEA chemist assertion that the substitution was of minor significance.

Conclusion

We hope that the reader now has a better understanding of how the controlled drug analogue statutes are interpreted and en­forced. The reasons for passing laws targeted at so-called drug ana­logues is understandable, but the reality of enforcing the laws proves to be very difficult. Like other areas of forensic science, it is imperative for the defense attorney to have a solid understanding of the science and how it is applied. With appropriate knowledge, the defense can be effective at fighting these cases and exposing the very subjective nature by which the testing is performed. Justice should be a function of empiricism and should not differ based upon geography or simply on a whim. These analogue acts certainly raise a question as to whether or not this is so.

Most importantly, when jurors and judges are shown the true and complete way that analysis is performed and how laboratory analysts reach conclusions, confidence in the ultimate conclusion is undermined. The scientific truth must be told, and it is up to the defense lawyer to tell it. Rest assured, no one else will.

Endnotes

1. Alexander Shulgin (Author) and Ann Shulgin, PiHKAL: A Chemical Love Story (1991).

2. Ohio v. Silmi, Cause No. CR 561754, Judge John J. Russo of the Cuyahoga County Common Pleas Court.

3. Synthetic Drug Threats, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/synthetic-drug-threats.aspx.

4. Synthetic Cannabinoids (a.k.a. “K2,” “Spice”) Enactments, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/synthetic-cannabinoids-enactments.aspx.

5. Id.

6. Id.

7. Id.

8. Id.

9. CO SB 134 (2011) and Ok SB 919.

10. See generally, Bertolini A., Ferrari A., Ottani A., Guerzoni S., Tacchi R., Leone S., “Paracetamol: new vistas of an old drug,” CNS Drug Rev. 2006 Fall–Winter 12(3–4): 250–75; Anderson B. J. “Paracetamol (Acetaminophen): mechanisms of action,” Paediatr Anaesth. 2008 Oct 18(10): 915–21; Prescott L. F., “Paracetamol: past, present, and future,” Am J Ther. 2000 Mar 7(2): 143–7; Graham G. G., Scott K. F., “Mechanism of action of paracetamol” Am J Ther. 2005 Jan–Feb 12(1): 46–55; and Högestätt E. D., Jönsson B. A., Ermund A., Andersson D. A., Björk H., Alexander J. P., Cravatt B. F., Basbaum A. I., Zygmunt P. M., “Conversion of acetaminophen to the bioactive N-acylphenolamine AM404 via fatty acid amide hydrolase-dependent arachidonic acid conjugation in the nervous system,” J Biol Chem. 2005 Sep 9 280(36): 31405-12.

11. Synthetic Drug Threats, supra, n. 3.

12. Id.

13. Substituted Cathinones (a.k.a. “Bath Salts”) Enactments, National Conference of State Legislatures (2012), http://www.ncsl.org/issues-research/justice/substituted-cathinones-enactments.aspx.

14. Id.

15. Id.

16. SWGDRUG Recommendations on Analogues and Structural Class Determinations, http://www.swgdrug.org/Documents/Analogue%20Public%20Comment.pdf.

17. “Mission,” http://www.druganalogs.org/mission.html (last accessed April 20, 2013).

18. The State of Ohio v. Mahir Silmi et al., CR-12-561754-A, http://www.thetruthaboutforensicscience.com/wp-content/uploads/2013/03/AnalogDaubertHearingOrderFeb7%252c2013.pdf.

19. Ohio Evid. R. 702(C) requires that when testimony is based upon scientific information and is reporting the result of a procedure, test, or experiment, that testimony must meet certain reliability requirements. First, the theory upon which it is based is “objectively verifiable or is validly derived from widely accepted knowledge, facts, or principles.” Second, the design of the procedure, test, or experiment must reliably implement the theory. Last, the procedure, test, or experiment must have been conducted in a way that it will “yield an ac­curate result.”

20. “To determine reliability, the Daubert court stated that a court must assess whether the reasoning or methodology underlying the testimony is scientifically valid []. In evaluating the reliability of scientific evidence, several factors are to be considered: (l) whether the theory or technique has been tested, (2) whether it has been subjected to peer review, (3) whether there is a known or potential rate of error, and (4) whether the methodology has gained general acceptance[]. Although these factors may aid in determining reliability, the inquiry is flexible[]. The focus is ‘solely on principles and methodology, not on the conclusions that they generate[].’” Ohio v. Mahir Silmi, CR-12-561754-A, supra at n.18 (citations omitted).

21. Id.

22. The court also had concerns with the fact that the testing procedure had never been formally peer-reviewed and no error rate had been determined. The court noted that the test was developed merely through practice in one laboratory with no formal studies or established methodology upon which to rely.

23. In re Seizure of funds on deposit at Ameriprise Group in accounts 072372469001, 16791187001, and 167911890001, at Pershing Investment in account 3FB300824, at Morgan Keegan/Raymond James in account 32772063, and at Capital One Bank in account 8077989170 (Timothy Hummel v. US) http://www.TheTruthAboutForensicScience.com/wp-content/uploads/2013/05/Hummel-v-US.pdf (last accessed May 19, 2013).

Scholars have discussed and debated for centuries what factors tend to incite criminal behavior. Over time, many scholars developed theories implicating supernatural influence, genetics, and/or environment as the dominant factors that produced criminality.¹ For example, an early theory known as the demonological approach or demonological theory of crime “derives its basis from religious authority and viewed crime as a sin and the criminal as a sinner . . . [seeing] crime and criminality as the product of supernatural or ‘otherworldly’ forces . . . [such as] temptation and demonic possession.”² Far from accepting external forces as the sole motivating factors, scholars also looked internally for the answer, touting physiology, both mental and physical, as creating an innate predisposition to crime.³

What Are Criminogenic Risk Factors?

Now, we recognize both internal and external factors as contributors to criminal behavior and recidivism. These factors, known as risk factors, are split into two categories: dynamic and static. Aptly named, static factors, like criminal history, family criminality, age at first admission to a correctional facility, number of prior incarcerations, and the commitment offense are “related to recidivism but cannot be altered through the delivery of services.”⁴ Dynamic risk factors, on the other hand, are changeable factors that may be in flux throughout one’s lifetime—such as the company he or she keeps, his or her attitudes and core values, substance use, and employment status.⁵

These dynamic risk factors, also commonly known as criminogenic risk factors or criminogenic needs, are “directly related to crime production.”⁶ The term criminogenic takes into account that “[o]ffenders have many needs deserving of treatment but not all of these needs are associated with their criminal behaviour.”⁷ To use an analogy created by scholars Edward Latessa and Christopher Lowenkamp, it is widely known that there are a variety of risk factors associated with having a heart attack.⁸ One’s age, sex, family history of heart problems, weight, amount of exercise, blood pressure, stress, cholesterol level, and whether one smokes can all contribute to one’s risk of having a heart attack.⁹ In order to understand the level of risk of having a heart attack, one would look at the totality of all of these static and dynamic factors to determine the likelihood of having a heart attack.¹⁰ However, to affect and lower the risk of having a heart attack, one would target the dynamic factors such as the health and fitness related issues, stress levels, and whether one smokes.¹¹

Similarly, in the criminal context, criminogenic risk factors are those that can and should be targeted through the delivery of services. Various scholars and other sources have compiled extensive lists of criminogenic risk factors, many of which overlap. For example, the Texas Administrative Code lists “antisocial peers; antisocial beliefs, values, and attitudes; substance abuse, dependency, or addiction; anger or hostility; poor self-management skills; inadequate social skills; poor attitude toward work or school; and poor family dynamics.”¹² Of the overlapping factors, those repeatedly asserted to be the most closely related to recidivism are an antisocial personality pattern (marked by im­pul­siveness, aggression, stimulation seeking); procriminal attitudes/antisocial cognition (such as negative attitudes towards the law, values, thinking styles, and general attitudes supportive of crime); and social supports for crime (criminal friends, isolation from prosocial others).¹³ Other criminogenic risk factors also related to recidivism include substance abuse, employment instability and/or dissatisfaction, family problems, and a lack of involvement in prosocial leisure activities.¹⁴

Why Are Criminogenic Needs Important?

Criminogenic needs play a huge role in a concept known as the Risk-Needs-Responsivity (RNR) model, which provides a means to assess and treat offenders in order to reduce recidivism.¹⁵ The RNR model is made of three core principles: the risk principle, the needs principle, and the responsivity principle.

The risk principle maintains that “supervision and treatment levels should match the offender’s level of risk,” meaning that “low-risk offenders should receive less supervision and services, and higher-risk offenders should receive more intensive supervision and services.”¹⁶ Although this may seem logical, often the tendency is to do the opposite—those involved in sentencing tend to require low-risk offenders to submit to an array of intervention services in an attempt to prevent further involvement with the system.¹⁷ However, some studies show that focusing excessive resources on low-risk offenders can actually lead to higher recidivism rates.¹⁸

The needs principle contends that the effective use of intervention services centers on targeting an offender’s criminogenic needs.¹⁹ This principle acknowledges that although some static risk factors, such as criminal history, play a role in the likelihood of recidivism, they cannot be altered; therefore, those involved in sentencing decisions should target an offender’s criminogenic needs because they can potentially be altered through the delivery of services.²⁰

The responsivity principle holds that the key to reducing recidivism is “targeting the offender’s criminogenic needs . . . with the social learning and cognitive-behavioral programs most likely to effect change in the offender’s behavior given specific offender characteristics.”²¹ In other words, offenders must receive services that target their criminogenic needs using strategies that have not only been shown to be the most effective regardless of the type of offender, such as prosocial modeling (learning by example), but also take into account the “strengths, learning style, personality, motivation, and bio-social (e.g., gender, race) characteristics of the individual.”²²

When implemented properly, the risk-needs-assessment model can significantly reduce recidivism, and in order to implement this model, the first step is to assess an offender’s criminogenic needs.²³

How Are Criminogenic Needs Assessed?

The assessment of criminogenic risks occurs via the use of risk and needs assessment (RNA) instruments.²⁴ An RNA instrument “is essentially a uniform report card that measures offenders’ criminal risk factors and specific needs that, if addressed, will reduce the likelihood of future criminal activity.”²⁵ These instruments generally take the form of questionnaires that “guide face-to-face interviews with offenders, probing behaviors and attitudes that research shows are related to criminal reoffending.”²⁶ Furthermore, these instruments tend to include questions regarding both static and dynamic risk factors. For example, the TDCJ-CJAD Risk/Needs Assessment tool, used to assess offender’s general risk of recidivism, asks the evaluator to assess the offender’s attitude on a scale of 0, 3, or 5—0 being motivated to change/receptive to assistance and 5 being rationalizes behavior, negative, not motivated to change.²⁷

RNA instruments calculate “an overall score that classifies an individual’s risk of reoffending [and subsequently] inform decisions about the best course of action.”²⁸ They can be and are being used at various points by various actors throughout the sentencing and corrections process.²⁹ For example, courts can use these instruments to make pretrial bail and release decisions as well as sentencing and revocation decisions such as setting conditions of supervision.³⁰ Similarly, probation and parole agen­cies use RNA instruments to “decide levels of supervision, determine the need for specialized treatment programs, develop an offender’s supervision plan[,] and inform decisions about sanctions and revocations.”³¹ Additionally, these instruments can serve various functions within prison and jail systems as well as parole boards.³²

There are over 60 different recidivism-related risk assessment instruments that are currently in use in the U.S., some of which have specific focuses such as the risk of sex offender recidivism, violating parole, or of juvenile recidivism.³³ Of these RNA instruments, 12 of them are widely used and fairly well known. For example, Travis County Adult Probation and Travis County Pretrial Services both use versions of the Ohio Risk Assessment System (ORAS), which is one of the 12 most widely used RNA instruments. Additionally, some states choose to create their own RNA instruments, some of which are loosely based on existing instruments. For example, the previously mentioned TDCJ-CJAD Risk/Needs Assessment tool, used by certain Texas agencies to assess recidivism risk, includes questions centering on factors widely accepted to be linked with recidivism.

During the last two decades, research has indicated that the use of RNA instruments “can have a profound effect on reducing offender recidivism.”³⁴ In fact, studies show conditions “of probation not properly targeted at the offender’s most critical dynamic risk factors are counter-productive . . . [and] require both the offender and probation officer to engage in activities that are unlikely to reduce risk and distract both from focusing on the critical risk factors that do affect the likelihood of recidivism.”³⁵

So What Does This Have to Do With You and Your Client?

RNA instruments are currently being used in various states at various levels of the criminal justice process. The kind of RNA instrument used, the context in which it is being used, and your client’s score on the assessment can have a variety of implications.

First, each RNA instrument has its flaws. For example, many of the assessment tools “were originally developed for men and then applied to women with little regard for their validity or appropriateness,” ultimately leading to over-classification of women offenders and sometimes a higher monitoring level for women than their behavior warrants.³⁶ Moreover, because many of the instruments were developed using small, homogenous sample sets, when applied to populations different form the original sample, the RNA instrument can lack validity.³⁷ For example, “assessing risk on a population that is largely Native American and rural with a tool that was developed on a population of urban African Americans will not produce optimal results.”³⁸ So, doing a little research about the particular RNA instrument being used to assess your client can go a long way. By enabling yourself to point out the flaws in the instrument as they apply to your client could discourage decision makers from leaning too heavily on the instrument should its use be detrimental to your client.

Additionally, as previously mentioned, devoting too many intervention resources to low-risk offenders can potentially increase the likelihood of recidivism.³⁹ Should your client’s assessment results categorize him or her as a low-risk offender, knowing this piece of information could help to garner a more lenient sentence with fewer strings attached. Conversely, should an assessment indicate your client may be a high-risk offender, encouraging individually tailored intervention practices at sentencing could have a profound effect on your client’s future.

Finally, simply being aware of the existence of RNA instruments puts you and your client at an advantage. Inquiring about the use of RNA instruments throughout the judicial process allows you to create a more holistic pictures of the factors considered in the assessment of your client’s culpability (or lack thereof) and potential sentencing decisions.

The use of RNA instruments varies between jurisdictions, and it is likely that their use will continue to increase in the upcoming years as judicial decision makers continue to embrace the need for individualized sentencing. Educating yourself about these assessments can help you more zealously advocate for your client—whether it be in defense of their charge or in encouraging appropriate sentencing.

Notes

1. Heidi Rimke, The Pathological Approach to Crime: Individually Based Theories, Criminology: Critical Canadian Perspectives 78, 79 (2011).

2. Id. at 80.

3. Aidan Sammons, Physiological theories of offending. http://www.psychlotron.org.uk/newresources/criminological/a2_aqb_crim_physiologicaltheories.pdf.

4. Pamela M. Casey, Roger K. Warren & Jennifer K. Elek, Using Offender Risk and Needs Assessment Information at Sentencing: Guidance for Courts from a National Working Group, 4 (2011), http://www.ncsc.org/sitecore/content/microsites/csi/home/topics/~/media/microsites/files/csi/rna%20guide%20final
.ashx. See also Edward J. Latessa & Christopher Lowenkamp, What Are Criminogenic Needs and Why Are They Important?, For the Record 4th Quarter 2005, 15 (2005) http://ojj.la.gov/ojj/files/What_Are_Criminogenic_Needs.pdf. See also Revised Parole Guidelines, Texas Board of Pardons and Paroles (October 14, 2013, 1:30 PM), http://www.tdcj.state.tx.us/bpp/parole_guidelines/parole_guidelines.html.

5. Latessa & Lowenkamp, supra note 4.

6. 37 Tex. Admin. Code § 163.40 (a)(11) (2013).

7. D. A. Andrews & James Bonta, Risk-Need-Responsivity Model for Offender Assessment and Rehabilitation (2007) at 5, http://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/rsk-nd-rspnsvty/rsk-nd-rspnsvty-eng.pdf.

8. Latessa & Lowenkamp, supra note 4.

9. Id.

10. Id.

11. Id.

12. 37 Tex. Admin. Code § 163.40 (a)(11) (2013).

13. Casey et al., supra note 4 at 5; Jillian K. Peterson & Jennifer L. Skeem, Major Risk Factors for Recidivism Among Offenders with Mental Illness, 6 (2011.

14. Id.

15. Casey et al., supra note 4 at 4; see also Andrews and Bonta, supra note 7.

16. Casey et al., supra note 4 at 5.

17. Id.

18. Casey et al., supra note 4 at 5; see also Andrews and Bonta, supra note 7 at 10 (asserting that while some treatment to low-risk offenders can cause a very mild reduction in recidivism, providing intensive services to low-risk offenders may actually increase recidivism unlike their high-risk counterparts).

19. Casey et al., supra note 4 at 4.

20. Id. at 4–5.

21. Id .at 6.

22. Andrews & Bonta, supra note 7 at 1.

23. Id.

24. Casey et al., supra note 4 at 1.

25. The Pew Center on the States, Risk-Needs Assessment 101: Science Reveals New Tools to Manage Offenders, 2 (2011), http://www.pewtrusts.org/en/research-and-analysis/issue-briefs/2011/09/20/riskneeds-assessment-101-science-reveals-new-tools-to-manage-offenders.

26. Id.

27. http://www.texaspolicy.com/sites/default/files/documents/2010-07-PP15-RiskAssessment-ml.pdf.

28. The Pew Center on the States, supra note 25 at 2.

29. Id.

30. Id.

31. Id.

32. Id.

33. Sarah Desmerais, Understanding Risk Assessment and Its Applications (February 28, 2013), http://csgjusticecenter.org/mental-health/posts/21531/.

34. Casey et al., supra note 4 at 1.

35. Id .at 17.

36. Patricia Van Voorhis, et al., U.S. Department of Justice, Achieving Accurate Pictures of Risk and Identifying Gender Responsive Needs: Two New Assessments for Women Offenders, 2 (2008), http://static.nicic.gov/Library/022844.pdf.

37. Scott Van Benschoten, Risk/Needs Assessment: Is This the Best We Can Do? 72 Federal Probation 38, 41 (2008).

38. Id. at 4–5.

39. Andrews and Bonta, supra note 7 at 10 (asserting that while some treatment to low-risk offenders can cause a very mild reduction in recidivism, providing intensive services to low-risk offenders may actually increase recidivism unlike their high-risk counterparts).

There are lots of politicians who claim to be super patriotic. They are generally neither super nor patriotic. These self-proclaimed super patriotic politicians often claim a strong allegiance to our founding fathers. In truth, a good number of these politicians take positions that are contrary to those of our founding fathers. Loudly boasting that one is a patriot while advocating positions that are contrary to those of our founders is disingenuous and sometimes downright delusional.

There is only one group that consistently maintains its fidelity to the principles enunciated by our founding fathers; that group is the defense bar. Only the defense bar daily stands and fights to preserve the Bill of Rights. We do not brag on our fidelity to the Constitution—we live it.

For at least three decades, for as long as I have practiced, our society has cast us as the bad guys. We are often viewed at best as maybe one moral notch above the guiltiest of our clients.

As defense lawyers, we are often treated with disdain. Local news and popular television have largely contributed to our vilification. In defending those charged with a crime, we are often treated as if we support the crime. Such is not the case. It is a libel and it is not true. In supporting the Constitution and defending the accused, we do not thereby become supporters of the alleged criminal conduct.

The next time someone mocks you for being a defense lawyer, take them on cross. Utilize the “Doctor Analogy,” which goes as follows:

• Doctors take an oath, right?
• If a doctor is in the emergency room and they bring in a man who is riddled with bullets, pursuant to the doctor’s oath, would you expect the doctor to try his best to save the man?
• If the man riddled with bullets was also accused of shooting a cop or molesting a child, would you still expect the doctor to use his ability, professional skills, and experience to save the man?
• If the doctor saved the man accused of shooting the cop or molesting the child, would you think less of the doctor for having done his job, or would you appreciate that the doctor had honorably kept his oath?

As defense lawyers, we take an oath, and our oath is no less serious to us than any doctor’s oath is to him. In many ways, we have the same job as doctors. Like doctors, it is our duty to use our professional skills to try to save those who come to us. Arguably, the only difference is that doctors work in the emergency room, and we work in the courtroom.

It is time that we defense lawyers stop accepting this mistreatment. Our colleagues in the defense bar should be lionized, not demonized.

The words in the Declaration were a start in the long continuing fight for liberty in this country. The words are a rejection of tyranny and a bonding of those willing to give all to fight tyranny.

The defense bar daily continues the fight for liberty against those who would take it. The tyrants of today are not kings, per se. The tyrants of today are abusive judges & prosecutors who think themselves kings & queens.

So when we read the Declaration aloud in front of courthouses, it is a powerful symbolic statement. It is our public embracing of our role in the long continuum in the fight for liberty in this country. It is our announcement that we are united in our fight against abusive judges and prosecutors.

This year, TCDLA members were lead by a tremendous group of 74 volunteer local defense lawyers. In each community, these defense lawyers stepped forward to organize local readings.

In an unprecedented event, TCDLA lawyers lead readings in 74 Texas cities and towns, 4 states, and 2 foreign countries. In an historic event, TCDLA defense lawyers stood shoulder to shoulder in front of courthouses in one out of every four counties in Texas. Together, we held readings from El Paso to Orange and from Pampa to Harlingen.

Together, we made a powerful statement to our adversaries that we, the defense bar, are united like never before.

The long days of the defense bar remaining quiet are over! We are proud of our work! We are the heirs of our founding fathers! As such, we lay claim to the Declaration of Independence. We are the proud guardians of the principles enunciated therein.

From this point forward, TCDLA will annually celebrate July 4th with readings of the Declaration. We will raise our voices across Texas and annually reaffirm our commitment in our fight for liberty and against tyranny.

As the statewide organizer, I thank and praise all local organizers for your leadership, time, and dedication. All local leaders and participants deserve our praise and thanks—for every reading makes us all stronger. The local organizers and the communities where they lead readings are all listed below.

If you have not sent me your group photo please do so. If you are interested in joining us next year by organizing a reading in your hometown, please let me know. Next year we will have 100 readings across Texas!

God Bless Texas!
Robb Fickman
TCDLA State coordinator

The 2014 TCDLA Declaration Readings

Abilene—Joe Pelton
Alice—Michael Guerra
Alpine—Mimi Smith
Amarillo—Jeff Blackburn & Ryan Brown
Angleton—Mark Jones
Anahuac—Donlee Smith
Athens—Dana Mayhall
Austin—Bradley Hargis & Joseph Martinez
Bandera—John & Cindy Payne
Bay City—Scott Markowitz
Beaumont—Dustin Galmor
Big Bend—Jim Darnell
Boerne—Charles Weatherbee
Bryan—Shane Phelps
Burnet—Tony Odiorne & Michelle Moore
Coleman—Gary Smart
Comanche—John Stickels
Conroe—Josh Zeintek
Corpus Christi—Michelle Ochoa & Constance Luedicke
Corsicana—Kerri Donica & Steve Keathley
Dallas—John Gioffredi
Del Rio—Gail Schroeter
Denton—Sarah Roland
Eastland—Landon Thompson
Edinburg—Joseph Connors
El Paso—Jim Darnell
Fredericksburg —Tammy Keener & Cheryl Sione
Fort Davis—Mimi Smith
Fort Worth—Shawn Paschall
Galveston—Julie Hatcher
Georgetown—John Armstrong & Shawn Dick
Graham—Franz Von Hoffman
Greenville—Katherine Ferguson
Harlingen—Omar Rosales
Hempstead—James Rivera
Hillsboro—Terence “Tiger” Russell
Houston—Robb Fickman & Carmen Roe
Huntsville—David O’Neil
Kaufman—Michael Ray Harris
Kerrville—Clay Steadman
Kingsville—Jaime Carrillo
La Grange—Phil Baker
Laredo—Roberto Balli, Oscar Peña & Ray Rodriguez
Livingston—Todd Dillon
Lockhart—David Shulman & Kevin Fine
Longview—David Moore
Lubbock—Rusty Gunter
Marfa—Mimi Smith
Marshall—Kimberley Miller
McKinney—Jon O’Toole & Karen Chesley
Midland—Woody Leverett
Mount Vernon—Bart Craytor
Nacogdoches—Tim James
New Boston—Bart Craytor
New Braunfels—Megan Roper & Jamie Balagia
Odessa—Lane Haygood
Orange—Cindy Henley
Pampa—Edgar Castillo
Plainview—Troy Bollinger
Richmond—Dawn Zell Wright
Rockwall—Justin Hall
San Angelo—Tip Hargrove & Fred Brigman
San Antonio—Adam Kobs & John Convery
San Marcos—Scot Courtney
Seguin—George Taylor
Sinton—Joel Thomas
Sweetwater—John Young
Tyler—Bobby Mims
Uvalde—Emmett Harris
Vanderpool—David Black
Waco—Josh Teton & Tom Ragland
Waxahachie—Cindy Ermatinger
Wharton—Mark Racer
Wichita Falls—Rick Bunch

Other Readings By TCDLA Members

Blank Point Beach, Sea Ranch—Richard Anderson
New Orleans, Louisiana—Sharon Curtis
Mississippi—Nicole Deborde
Yellowstone, Wyoming—Tyler Flood

Readings Outside the States

Paris, France—Mark Bennett
Cancun, Mexico—Danny Easterling