More Legal Stuff

I have written previously on the legal status of ayahuasca in the United States. In response, I have received claims to the effect that, while possession or sale of DMT may be a felony, it is legal to possess plants containing DMT, such as chacruna. I have struggled to find the source of this contention — which has achieved the status of folklore — and I think I have found it.

In 1980, the United States ratified the United Nations Convention on Psychotropic Substances, in support of an international effort “to prevent and combat abuse of [psychotropic] substances and the illicit traffic to which it gives rise.” The treaty classifies substances according to their degree of safety and medical usefulness, with Schedule I representing substances that are considered particularly unsafe and lacking any medical use. Among these substances is dimethyltryptamine (DMT). Parties to the convention — more than 160 nations in all — must, under Article 7(a), prohibit “all use except for scientific and very limited medical purposes,” with the following provision under Article 32(4):

A State on whose territory plants are growing wild which contain psychotropic substances from among those in Schedule I and which are traditionally used by certain small, clearly determined groups in magical or religious rites may, at the time of signature, ratification, or accession, make reservations concerning these plants, in respect of the provisions of article 7, except for provisions relating to international trade.

Under this provision, the United States made a reservation for religious use of peyote by the Native American Church, and Perú made a reservation for the use of DMT “by certain Amazon ethnic groups in magical and religious rites and in rites of initiation into adulthood.” Neither the United States nor Brazil ever made a reservation for DMT.

International treaties are recognized by the Constitution as being the law of the land. But, where the provisions of a treaty, such as the 1971 United Nations Convention on Psychotropic Substances, conflict with the provisions of a statute passed subsequent to the treaty, such as RFRA, the Supreme Court has held that the statute, to the extent of the conflict, supersedes the treaty.

Now the Convention provides that “a preparation is subject to the same measures of control as the psychotropic substance which it contains,” and defines preparation as “any solution or mixture, in whatever physical state, containing one or more psychotropic substances.” The District Court in New Mexico held that the ayahuasca drink at issue in that case was not, technically, a "preparation" of DMT, and therefore fell outside the treaty. But the Supreme Court, pointing to the plain language of the Convention, held, contrary to the District Court, that boiling constituted preparing, and held that the ayahuasca drink indeed fell within the scope of the Convention.

The Court did not have to further examine the implications of the Convention, however, because, the Court said, the prosecution had failed to show — indeed, even to submit evidence for — a compelling state interest in applying the Controlled Substances Act, which implements the Convention, to the sacramental use of the ayahuasca drink by the UDV. It is unclear what the outcome would be if the prosecution, in the next case, undertook to make such a showing.

But what if you are arrested for possession of the chacruna leaf? Here is where it gets interesting. The official commentary to the Convention notes that natural hallucinogenic materials, such as plants, are not listed in Schedule I, and that “plants as such are not, and it is submitted are also not likely to be, listed in Schedule I, but only some products obtained from plants.” Are you protected by the commentary to the Convention? The Supreme Court provided little guidance on that issue. The commentary, the Court held, was irrelevant to the case before it, since what was at issue was the ayahuasca drink, not the leaves from which it was made.

However, as the Tenth Circuit has pointed out, this commentary to the Convention does not constitute particularly strong evidence one way or the other. It was not written by the negotiators or signatories to the Convention. Rather, it was drafted by a single author, published five years after the Convention was negotiated, and is, at best, ambiguous on the question whether a preparation like the ayahuasca drink, as opposed to the chacruna from which it is made, is covered by the Convention. The commentary is thus just not the sort of "negotiating and drafting history" or "postratification understanding of the contracting parties" that courts have traditionally used as evidence of the signatories' intent.

Still, the interpretation of an international treaty by the United States agency charged with its negotiation and enforcement — that is, in this case, the Drug Enforcement Administration — is usually given great deference by the courts. It is, of course, likely that the DEA would argue against any natural plant exemption to the Controlled Substances Act.

So, the question is not settled. But I would not bet my liberty on the outcome.

NOTE: This blog entry does not constitute a legal opinion or legal advice. Laws change, and situations differ. If you have any questions, consult a lawyer experienced in this field.