Over the last four years, Anchorage has faced a dire and growing problem of synthetic drug use in the municipality. As the popularity and diversity of the drugs has grown, so has the complexity surrounding how lawmakers go about criminalizing the substances, which keep popping up with new names, packages, and chemical compounds. Stemming back to the first law, passed back in 2010, the efforts to keep these potent potables off the streets (and, more poignantly, off the shelves) has become a game of whack-a-mole.
With a new law on the books in Anchorage, statewide legislation pending in the state legislature, and round two of an identical effort slated for a vote of the Wasilla City Council tonight, the momentum is clearly in the favor of prohibition efforts. Wasilla City Councilman Brandon Wall has been a rare voice of caution, asking for some scrutiny before passing a law he believes could result in a barrage of unintended consequences. He voted against the council’s first attempt to pass the legislation and says he still has questions that he’d like answered before effectively cutting and pasting the Anchorage law.
Alaska’s first stab at criminalizing synthetics came before the Anchorage Assembly in 2010, championed successfully by East Side Assemblymen Paul Honeman and Mike Gutierrez. The bill recognized that “local law enforcement personnel… indicate an increased use of synthetic cannabinoids,” under names like “Spice,” “K2,” and “Black Mamba,” and criminalized the drugs by identifying 12 specific chemical compounds found in the multitude of products popping up in local head shops and box stores. A year later, a nearly identical, bipartisan bill was signed into law by Governor Sean Parnell.
But the measure didn’t translate to any prosecutions, nor did usage noticeably decrease.
“What’s happened, both on the municipal and state level, is that the manufacturers are staying ahead of the laws,” Anchorage Municipal Prosecutor, Cynthia Franklin, told the Assembly back in January.
Franklin stated that the first mistake was adopting the narrative that the synthetic drugs currently available in Anchorage were comparable to marijuana.
They’re nothing like marijuana, they’re like felony level drugs. That was a truly genius marketing by the manufacturers of these products, to compare them to marijuana at the outset so that when they did get into the Controlled Substances Act, they tended to be at the lower levels while they have higher level effects; death, seizures, and all of the things we’re seeing.
Franklin appeared before the body in support of a second round of legislation aimed at prosecuting consumers and distributors of synthetics. AO-2013-156 came from the Department of Law, at the request of Mayor Dan Sullivan. Franklin said that there was a false sense of safety among consumers who assume that, if a national store like Walmart can legally sell a product, it must have been vetted; it must be reasonably safe. The new fix, Franklin said, was a consumer protection of sorts, targeting misleading packaging rather than chemical makeup. It expanded the brand names to include over 80 products and flagged any products without brand identity (name and location of manufacturer, ingredients, etc.).
The penalty was a flat $500 citation, per penalty, meaning that if a store had 100 products fitting the description, they would face $50,000 in penalties. But it didn’t reserve prosecution for guilty providers; the same fees would apply to anyone caught possessing the products, as well any store clerk caught selling the products.
The Assembly passed the ordinance 10-0 (Adam Trombley was absent). In the legislature, Senator Kevin Meyer (R-Anchorage) has proposed similar legislation, currently awaiting a second committee assignment. And, in Wasilla, a nearly identical proposal was voted on last month. Council members Brandon Wall and Clark Buswell prevented the measure from passing — it did not get the required four votes necessary to pass (one member was not present for the vote). The issue returns to the body for consideration tonight. But Wall would like to apply a bit more scrutiny and caution before committing to the law, as written. “The goal for that meeting would be hopefully to delay it,” he told me last week.
Wall’s concerns center around three components of the current language of the bill. He thinks it needs more work. Most importantly, he feels that if reducing use of synthetics is the goal, treatment should be on the table. “What I’d like to change on that is that if it’s not somebody selling — if it’s somebody that’s just in possession of it — that they have an opportunity to enter into a drug treatment program. And if they do, then that $500 fine is waved.”
Secondly, why should a store clerk be held to the same degree of liability for selling a product that their employer instructed them to sell? “Are we really going to be citing a nineteen year old girl working at a smoke shop or a head shop with a selling drugs citation when she didn’t really know what she was selling, it’s just whatever the owner had there?”
“A lot of the potential avenues for due process are eliminated in this ordinance because it is a citation,” Wall pointed out, highlighting his concern over the hypothetical case of a sales clerk caught unaware that the store her employer was hocking was illegal. “So, no public defender, no jury trial. There’s your citation, there you go. You could go hire a lawyer, but that’s out of your pocket. It’s on you.”
During January’s Assembly meeting in Anchorage, Cynthia Franklin answered this question directly, when Assemblyman Dick Traini asked if the citation would be doled out to both the store owner and the sales clerk. Franklin answered: “I think that we could, under the ordinance.”
The law — supported by Franklin, the Anchorage Assembly, Senator Meyer, and members of the Wasilla Council — have a common origin: Bangor, Maine. The Bangor City Council pioneered the package-based approach to prohibition of synthetics in April of last year. However, just two months later, Maine passed statewide legislation that abandoned targeting the packaging, instead returning to the chemical makeup. Under current law, synthetic drugs are Schedule Z drugs, classified as a class E misdemeanor with fines ranging between $400-$1000 and up to six months of jail time.
In an email correspondence, State Senator Geoff Gratwick (D-Bangor, ME) told me he couldn’t recall why the state reverted back to the more traditional method, but said that “‘Spice’ was around for a brief time and as far as I know is not now a problem. It was supplanted by ‘bath salts’ (cathionines) for about 18 months – horrible effects. Unfortunately oxycontin and heroin now seem to be making inroads.”
Back in Wasilla, Wall hopes his colleagues will take a closer look at the law before rushing it through under the auspices of “Drugs are bad, mkay?” He says he’d like to talk with the business community to see if a good-faith agreement can be brokered; perhaps include a provision eliminating the sale of synthetics in business licenses. And he says he hopes the state will make it a priority, so that any local laws passed can’t be circumvented by driving outside city limits to purchase the drugs where they remain legal. But he admits that politics might get in the way, especially during an election year. “Tough on drugs” is a flashy bullet point on campaign literature.
Wall hopes that drawing attention to the possible negative impacts in the legislation will inspire the Wasilla Council to take a step back and answer his questions before they pass the law. But, he admits he faces an uphill battle.